"Perhaps the principal irony in Johnson is that in a case that has determined the status of Indian land and sovereignty from 1823 to the present, there were no Indian parties to the suit . . ."

Doctrines of Discovery
Eric Cheyfitz

Part I | II | III | IV

III. Legal Fictions

The laws that govern the colonial space of Indian country today are for the most part codified in the twenty-fifth title of the U.S. code. This makes Indians the only group of people in the United States who are governed by a distinct body of law. This body of law, which defines the colonial status of Indians, derives its ultimate authority from the Commerce Clause of the Constitution (Article I, Section VIII, Paragraph III), giving Congress the power: "To regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Using the Commerce Clause as a basis, Congress enacted a series of trade and intercourse laws between 1790 and 1834 that extended the definition of "regulating commerce" to include control over the buying and selling of Indian land, as had the British Royal Proclamation of 1763, which was the model for U.S. Indian policy in this regard. These laws became the constitutional rationale for the three major legal cases that to this day form the foundation of federal Indian law. These cases, known as the "Marshall Trilogy," after John Marshall, the chief justice of the Supreme Court who wrote the defining opinion in each case, are, in the order of their enactment, Johnson v. McIntosh, 21 U.S. 543 (1823), Cherokee Nation v. the State of Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832).

Chief Justice John Marshall. Courtesy AAS.

Like all bodies of knowledge that claim objectivity, the subjectivity of the law--its social, cultural, political, and economic biases--can be located in the narratives that underlie it but that are rarely brought into play in contemporary legal practice. The U S. law upholding the constitutionality of the death penalty is exemplary in this respect. It seems at this point clearly driven by the social and economic biases of race and class (a radically disproportionate number of prisoners on death row are poor and black); it provides, that is, an historical narrative of race and class discrimination not only in the workings of the criminal justice system but in the nation as a whole, which in this case Congress and the Supreme Court have agreed to ignore so that the death sentence can continue to be administered (in the majority of states) as if it were being administered fairly. Federal Indian law works in precisely the same way; that is, it is grounded in a narrative of cultural and political bias, which the government ignores so that it can continue to administer this body of law as if the narrative of the imperial domination of culturally inferior peoples that drives it were a thing of the past. When Kevin Gover apologized to Indian people for the genocidal past of the BIA, he implicitly acknowledged this narrative. But when he uncoupled the present BIA from the past BIA, he repressed the persistence of this narrative in the present.

In Johnson v. M'Intosh, however, this narrative remains quite explicit and so it is only by the continuing noninspection of this foundation of federal Indian law by the majority (in Congress and hence of the voters in the U.S.) that the edifice of federal Indian law remains uncondemned. Public and official ignorance and indifference, as well as bureaucratic inertia, are the principal props for the colonial structure of Indian country.

Perhaps the principal irony in Johnson is that in a case that has determined the status of Indian land and sovereignty from 1823 to the present, there were no Indian parties to the suit, which was brought by the Anglo-American heirs of one of the parties to a land sale consummated in 1775 between the Piankeshaw Indians and a group of British investors in what would become after the Revolutionary War the state of Illinois (21 U.S. 543, 555). As the facts of the case reveal, this land was taken militarily from the British by the state of Virginia in 1778 and incorporated as "the county of Illinois," which in 1783 at the conclusion of the Revolution Virginia ceded to the United States (558-59). Then in 1818, the U.S sold 11,560 acres of this land in what was by then the state of Illinois to William M'Intosh, a citizen of the state (560). This sale provoked the suit by the lessee of Joshua Johnson and Thomas J. Graham, heirs of Thomas Johnson, one of the original purchasers of the Piankeshaw lands, and citizens of Maryland (561). The suit came to the Supreme Court on a writ of error from the District Court of Illinois brought by the plaintiff. The Supreme Court confirmed the verdict of the lower court in favor of the defendant, M'Intosh.

At stake in the suit was the status of Indian title to Indian lands, whether, that is, Indian title to the lands Indians inhabited superceded U.S. title to those same lands; and therefore, whether a sale of those lands by an Indian tribe to private individuals was legal. The Court found that such a sale was not legal, precisely because, in the opinion of the Court, the U.S. held absolute title to Indian lands. The principal problem in interpreting this case from Marshall's opinion to the present has been that all of its commentators have assumed the naturalness or universality of the terms of Western property law, the terms of title, under which the case was argued and decided in favor of the federal government's right to the title of Indian lands. This assumption is explicit in the stated facts of the case, including:

That from time immemorial, and always up to the present time, all the Indian tribes, or nations of North America . . . held their respective lands and territories each in common . . . there being among them ["the individuals of each tribe"] no separate property in the soil; and that their sole method of selling, granting, and conveying their lands, whether to governments or individuals, always has been, from time immemorial, and now is, for certain chiefs of the tribe selling, to represent the whole tribe in every part of the transaction; to make the contract, and execute the deed, on behalf of the whole tribe; to receive for it the consideration, whether in money or commodities, or both; and finally, to divide such consideration among the individuals of the tribe . . . (549-50)

The fact here stated is a fiction. This legal fiction at once recognizes Indian communities "from time immemorial" as communal landholders but then constructs these communal holdings on the model of a Western corporation or joint-stock company whose "individuals" own equal shares in a common "property," which upon the vote of the stockholders, as communicated to a "chief" (a CEO of sorts), is fungible in terms of "money or commodities, or both."

No one from Marshall to the present has commented on the fiction of this "fact," though nine years later in Worcester, arguing for both the sovereignty of Indian tribes and the federal government over and against the states in Indian matters, Marshall would in passing allude to the imposition of Western legal terminology on Indian communities when he noted: "The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense" (31 U.S. at 559-60). In retrospect, this comment, which seems disingenuous in light of the usurpation of Native sovereignty accomplished by the Court in Johnson and Cherokee Nation, serves to highlight the fact that in order for Johnson to be argued in the first place, Indian communal conceptions of land were implicitly translated into the terms of property so that the issue of title could be raised.

Before Johnson ever came to court and in the absence of any indigenous input, Indian lands were translated into property and the Indians given title to those lands, not to recognize Indian sovereignty but, quite the contrary, so that the Court could alienate that title legally to the federal government thereby placing Indian sovereignty under U.S. control. Part of the summary of the argument for the defendants in Johnson captures succinctly the extent of that control: "Such, then, being the nature of the Indian title to lands, the extent of their right of alienation must depend upon the laws of the dominion under which they live. They are subject to the sovereignty of the United States . . . The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government" (21 U.S. at 568-69).

The language of "protection and pupilage" used by the defense in Johnson to argue against Indian title points to the language that Marshall would employ eight years later in Cherokee Nation to compromise Indian sovereignty by defining Indian "nations," or "tribes," as "domestic dependent nations." Following the logic of his opinion in Johnson, Marshall, in Cherokee Nation, reasoned of Indian tribes: "They occupy a territory to which we assert a title independent of their will . . . Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian" (30 U.S. at 17). Marshall's oxymoronic phrase "domestic dependent nations" (for by definition a nation is at once both foreign and independent) allowed the Court both to recognize that the Cherokees were "a distinct political society, separated from others, capable of managing its own affairs and governing itself" (16) and deny that fact at the same time. Further, we recognize in Marshall's metaphor of the Indian/government relation as one of "a ward to his guardian" the basis for the "trust" relationship discussed earlier. While all Indians were granted citizenship by an act of Congress in 1924, Indians living on reservations as well as all tribally enrolled Indians continued to be dominated by the colonial relationship of "trust."

Among other issues, Johnson points to the culturally relative status of the term legal. Nowhere is this clearer than in the narrative Marshall constructs to validate his opinion in favor of U.S. title to Indian lands. This narrative is the European narrative of the conquest of the Americas from which Marshall derives the legal "doctrine of discovery":

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency [sic]. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession (21 U.S. at 572-73).

Perhaps Marshall inflects this expansive and expansionist narrative with a bit of irony in noting what he appears to recognize as the ethnocentric perspective of the imperial powers of the Old World who "found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence." The implicit stereotype here is the one that Columbus records early in his journals, before he begins to be met with indigenous resistance: innocent savages willingly exchanging all their wealth for the blessings of Christian Europe. But if Marshall is to a certain extent being ironic in order to suggest his historical sophistication vis-à-vis 1492, he nevertheless ultimately justifies the taking of Indian land with the same stereotypical opposition between the savage and the civilized, hunters and cultivators, that mapped the ideological terrain for Columbus: "[T]ribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence" (590).

The characterization ends with praise that damns, and it is also in bad faith because Marshall had available to him an abundance of published ethnographic material that contradicted the stereotype of savage Indian hunters (not to mention its implied counterpart: the stereotype of Europeans as peaceful farmers who did not hunt). Indeed, in the "history of America, from its discovery to the present day" (574), a history focused from the Anglo-American perspective that Marshall constructs as the context and rationale for his opinion in Johnson, he references the first two permanent British colonies in North America, those at Jamestown (1607) and Plymouth (1620), though in keeping with his savaging of the Indians he doesn't mention what was paramount in the historical narratives written by the first colonists: these colonies couldn't have survived without Indian agriculture, principally corn. Marshall's narrative of Anglo-American conquest of North America necessarily mentions the French and Indian, or Seven Years', War (1756-63), which effectively established British control of the continent and thus set the stage for the American Revolution. This narrative mentions as well the alliance of the British with the Iroquois Confederacy but it does not mention the crucial part this alliance played in assuring British victory. More importantly, in terms of propping up his figure of the Indian as an ungovernable savage, Marshall does not reflect in his narrative on the way the very act of alliance contradicts the stereotype, just as indigenous economies from the agricultural Pueblos in the Southwest to the mixed agricultural/hunting/fishing societies of the Northeast contradicted his stereotype of an Indian "wilderness."