The dominant race has kept only one promise, "We will take all of your land," and they did. The American Revolution was about many things, but the most significant was the land. To Native Americans, Mother Earth (Hutash) is alive. She is the source of all health and wellbeing, as Father Sky is the source of light energies for conscious life. Together they form the breath of life, the wellspring of indigenous culture, religion, and economic life. The spirit of the land and sky manifest the identity of Native Americans as indigenous peoples.
The discovery of our Great Land by the Europeans was the single most significant historical event in the history of mankind. An equally remarkable legal doctrine was needed by the Europeans to reduce the land to their ownership and possession. The problem, of course, was the Indians tribes.
In 1773 when the redcoats still were in control of the colonists, the Royal Proclamation of 1763 was still in effect, which forbid the purchase of Indian lands west of the Allegheny Mountains by anyone but the Crown. A document was created by someone in the black market which changed a few words here and there to appear to authorize land purchases directly from Indians in North American. This forgery leads to the formation of the Illinois Land Company and Wabash Land Company.
William Murray presented the fake document to British military commanders near the western boundaries of the British Empire, and was allowed to negotiate several large land purchases. He acquired 23,000 square miles of land in Illinois, and additional lands in Indiana for a total of 43,000 square miles. All the lands lay within the boundaries of Virginia. The Virginia authority refused to recognize the sale and the British authorities immediately declared the purchases illegal, so for the next five decades the land speculators investment was slipping away and they were desperate. As a last resort they turned to the federal court system, believing the courts would approve the sales because speculation was commonplace. With a favorable Supreme Court decision in hand, Congress was sure to approve.
The Illinois Land Company turned to a W. C. Fields type pompous dandy attorney, Robert Goodloe Harper, son-in-law to one of the investors. He had served in the Senate and House of Representatives. He was selected for his past success with bringing a feigned case before the Supreme Court and winning with unscrupulous bending of the rules and cutting ethical corner to gain advantage.
Harper selected all of the players in the lawsuit. He would represent the plaintiff, but he also handpicked the defendant and hired the defendant's attorney. He then picked Thomas Johnson, a prominent shareholder with ties to Chief Justice Marshall and George Washington, as the plaintiff. The pretend defendant was William M'Intosh, who owned the land with title from the US rather than the Indians. Harper picked Judge Nathaniel Pope in the federal court of Illinois as the venue for his case. He then crafted an agreed statement of facts favorable to the plaintiff and detrimental to the defendant; whether the pre-Revolutionary War purchases were barred by the proclamation — an unpopular law of England. Finally Harper decided M'Intosh should win in the district court, whereby giving him an advantage in the Marshall Supreme court.
So the case went to the Marshall Supreme Court, with Harper selecting the great Daniel Webster — the most powerful orator of the day — for Johnson, and a less qualified attorney for M'Intosh, paid them and told them what to say — a collusive case. Johnson claimed that the Indian tribes owned the land and had the power to sell it, and the British prohibition was invalid. M'Intosh attorney argued the sales were barred by British law.
What about the Indians? As the oral arguments began, only white people were in the courtroom. They would fashion the rules affecting Indians, and no thought was given to ascertain the views of the Indian tribes. To Harper they were simply savage tribes. To M'Intosh's attorneys, Indians were an inferior race of people without privileges of citizens, and no proprietary interest in the vast tracts of territory which they wandered over.
To Marshall, Indians were nothing more than "fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest." The avowed racist views expressed by the Court and the parties virtually assured that Indians' rights would not be respected. Harper bent the rules beyond recognition. The spurious claim came to the Supreme Court as collusive litigation between pretend parties. The American Indian tribes who sold the land in controversy were not before the court. This case was a scam.
Sometimes the best laid plans go astray. The Supreme Court ruled against Harper just eight days after the oral argument. On the last day of closing argument, three cabinet officials exposed Harper's contrived statement of agreed facts as "collusive" and containing facts "that could not be proven." Harper failed to recognize that Marshall's well known interests in land speculation were not going to be helpful to his cause, as anticipated. Marshall ruled against the claims in an opinion that went beyond the single issue framed by Harper and would strip Native American of their land forever.
Once Marshall disposed of the Harper issue that the purchase of Indian Land was illegal, the bulk of his opinion went on to strip the legal title to land from American Indian tribes and to justify what amounted to judicial theft of Native American Lands. This was done in what is call "obiter dicta" meaning "something said in passing," because it was merely incidental to the central issue of the case.
It appears that Marshall had other fish to fry. He owned enormous amounts of land located near the Illinois and Wabash purchase. John Marshall and his father, Thomas, acquired over 240 square miles of land under Virginia's land grant system. It is not know the extent of Marshall's personal land holdings by 1823 when he wrote the Johnson case but it is believed that they were enormous. The Code of Judicial Ethics requires judges to disqualify themselves in cases where their impartiality might be reasonable questioned. He should have disqualified himself.
Instead Marshall saw an opportunity to confirm Virginia's land grant system once and for all. Marshall would affirm his own land grants, those of his family, and other non-Indians. He would protect the family fortune amassed from a life spent buying and selling land. The Johnson decision held that the United States, NOT the Indians tribes owned legal title to Indian land and the tribes were merely tenants who's "right of occupancy" can be extinguished at the governments will. He went on the state that under Europe's "Doctrine of Discovery" England obtained "the exclusive right of the discoverer to appropriate the lands occupied by Indians. In justifying his decision he goes on to assert that the "character and religion of the Indians afforded and apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy."
Marshall, to explain why the outcome of the case was seemingly at odds with international law, said that treatment of Native Americans might make the United State an Illegitimate outlaw nation in the eyes of the world. He went on to explain that usually conquerors become incorporated into the new nation, where they must be treated fairly and their property rights normally remain unimpaired.
In his ruling though it does impair Indian property rights, he explained that the character and habits of the conquered Indians provided some excuse, if not justification for acquiring their title, despite the international law norms to the contrary. The behavior the American Indian made it impossible for the United States to protect their property rights and treat them fairly.
"The tribes of Indians inhabiting this country are fierce savages, whose occupation is war, whose subsistence is drawn chiefly from the forest. To leave them in possession of their county was to leave the county a wilderness, to govern them as a distinct people are impossible because they are a brave and high spirited as they are fierce, and are ready to repel by arms every attempt on their independence."
Marshall claimed that they had no choice in how the United States could deal with the tribes and that normal rules of international law did not apply. Incapable of application in the United States, it was the Indians own fault.
Unfortunately, the dark cloud of Johnson continues to hang over Native American Indian County, with its outmoded doctrines of colonialism and racial superiority ready for use by any court. Indian "heathens" are an "Inferior race of people" in Johnson compels a fundamental reexamination of its unsavory, unethical, holding and tainted principles. We cannot turn back the clock, but we can restrict future application of this case.
The United Nations Declaration of the Rights of Indigenous Peoples, is an historic international convention that sets minimum standards for the survival dignity and wellbeing of the indigenous peoples of the world. Article 28 recognized the legal right of indigenous peoples "to the lands which they have traditionally owned, occupied or otherwise used or acquired" and requires states to "give legal recognition and protection to these lands…with the due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned". Article 28 seemingly repudiates the discovery doctrine of Johnson and requires US law to recognize and protect Native American land rights and tenure. Article 39 requires the United States to "take the appropriate measures, including legislative measures, to achieve the ends of this Declaration."
So ends one of the worst Supreme Court cases against Native American. There have been many more, but one thing remains pure fact — the Native American Indians were never conquered. As a matter of historical fact, few tribes were ever actually conquered by the United States or anyone else. We still maintain our spirit ownership to the land and we care for all things, as all things are connected.
