Reviewed by Susan E. Grogan, Department of Political Science, St. Mary’s College of Maryland. Email: segrogan[at] smcm.edu
In Buying American from the Indians, Blake Watson (Law, University of Dayton) succeeds in giving a new spin to the 1823 Supreme Court case of Johnson v. McIntosh. There are many ways to approach this case. It can set the stage for students learning about property law; in fact, Watson relates that this has been his regular interaction with Johnson (p. xiii). Johnson may be presented, for example, as an illustration of the legal positivist view where property rights exist only to the extent they are recognized by law (Sprankling 2007). Scholars of indigenous peoples, even those well beyond the North American continent, are alert to Johnson v. McIntosh as clearly one of the “10 Worst Indian Law Cases Ever Decided,” to use Walter EchoHawk’s (2010) damning characterization. From this perspective, Chief Justice John Marshall’s opinion in Johnson is infamous for at least three reasons. First, it denies to native people legal title to their land, leaving them only a right of occupancy. Second, it vests the legal title to the lands in North America in the European crowns and their successor American governments, elevating the Doctrine of Discovery (that the lands of non-Christian peoples, “discovered” by a European adventurer, belong to his monarch and the successor governments) from a generally, but not universally, accepted understanding in international law to positive domestic law sanctioned by the High Court. Third, in justifying the Doctrine of Discovery, Marshall’s opinion permanently inscribes into the U.S. Reports a disparaging view of the native peoples of North America. They were, Marshall wrote, “fierce savages, whose occupation is war” (21 U.S, 543, 590).
By the end of the book, Watson makes it clear that he subscribes to the “Worst Indian Law Case” assessment and directly calls for Johnson’s repudiation (pp.351-58). How he gets there is what makes this book interesting. His primary focus, and the way he constructs the history of Johnson v. McIntosh, is to present that story as an important part of early American political and economic development. The major actors in this story are land speculators, including a number of well-known and often revered figures from the colonial, Revolutionary, and early Republic eras. “Buying American from the Indians,” in general, brought out land–hungry men such as Robert Morris, James Wilson, Benjamin Franklin, Thomas Jefferson, George Washington ‒ indeed, John Marshall himself, whom biographer Kent Newmyer calls “one of the most astute and aggressive land speculators of his day” who “shared land madness with others of this time and place” (2001: 37). Patriots and loyalists alike were speculators in early America; Lord Dunmore (the last Royal Governor of Virginia) and his son, John Murray, were involved in one of the two purchases that [*360] directly led to the Johnson case. The case’s eponymous Joshua Johnson was the inheritor of early speculator and investor Thomas Johnson, the Supreme Court justice probably best known for his short tenure on the bench, but also an important figure in Maryland politics ‒ he was the state’s first governor ‒ both before and after his service on the High Court. It was the land speculators who created the pressures that ultimately sent native peoples far from their ancestral homes and, eventually, onto specially reserved places in the American west. These companies of men saw the purchase and resale of land as their means to economic security, political power, and social standing.
As Watson’s overlapping stories of speculators – sometimes ruthlessly competitive, sometimes strategically cooperative – make clear, going after land was rapacious, repeated, and not always successful. A lengthy trip to obtain prime Indian land might end in failure for the adventurous trader hired by the speculators if the purchase price was deemed too low, the native sellers simply changed their minds, or the negotiations were interrupted by the arrival of disapproving authorities, either British military officers or colonial agents. A speculative venture might dissolve if the king refused to grant a patent. Confusing land boundaries and errors in filing titles might send speculators to court to defend their purchases. Land – or so the investing speculators thought – was the key to economic success but the relentless quest often also destroyed families and fortunes and consumed the lives of the speculators for decade after decade.
The specific tale of enterprise, expectations, and disappointment that culminates in Johnson v. McIntosh is one that begins with the 1773 purchase of two large tracts of land in what is now the state of Illinois. The purchasers were a group of 22 land speculators, primarily from the “landless” state of Pennsylvania. The seller was the Illinois tribe of Indians, who agreed to a purchase price of $24,000 (provided primarily in goods and services). The syndicate ran into legal difficulties almost immediately. George II’s Proclamation of 1763 had forbidden private purchase of Indian land west of the Allegheny Mountains without specific permission from the King. British military authorities in America declared the Illinois purchase “’void and fraudulent’” (p.76). The speculators then turned to an attempt to court favor (ultimately with London) by offering shares in their venture to Lord Dunmore, the Royal Governor of Virginia. He declined but would later take part in the second Indian land purchase addressed in Johnson (ibid.).
This second land sale was by the Piankeshaw Indians to another large group of land speculators, 20 in this case. Five of those who invested in the Illinois purchase were also involved here. Most of these speculators were from the “landless” state of Maryland – including, of course, Thomas Johnson. For goods amounting to $31,000, the Piankeshaw conveyed two swaths of land straddling the border between present-day Indiana and Illinois. A deed for the purchase was recorded in late 1775, when revolutionary skirmishing had already begun in the American colonies.
In late 1778 the speculators from the two purchases joined together as the Illinois and Wabash Land Co. to pursue official [*361] verification of their grants. Their first foray ended in disappointment as the Virginia General Assembly determined, in 1779, that land purchases from Indians were void. (The lands in question, it should be remembered, were considered Virginia’s under the expansive grant in its colonial charter.) Political maneuvering to reach agreement on the Articles of Confederation created additional problems for the Illinois and Wabash speculators because Virginia’s cession of its lands in the northwest to the United States involved assurance that no private purchases of Indian lands would be upheld. The speculators later turned to the U.S. Congress for help, submitting numerous memorials between 1791 and 1816. Again, they were unsuccessful in solidifying their title.
In 1804, a new opportunity opened up for the Illinois and Wabash Co. As part of an act providing for the opening up of previously Indian lands, Congress established land commissions to examine the validity of claims to land in Indiana and recommend resolutions. At the same time, however, in a series of treaties negotiated between 1803 and 1805, the Illinois and Pienkeshaw Indians ceded to the United States their lands – including that which had previously been sold to the speculators in 1773 and 1775 – and agreed to leave the area and move south. The claim of the Illinois and Wabash Co. before the Land Commission was rejected in 1810.
In 1819, under the guidance of Robert Goodloe Harper, the speculators seized upon the newly established U.S. District Court for Illinois as a new forum for their claim. Harper deserves some comment here. As Watson establishes, Harper’s leadership of the Illinois and Wabash efforts to validate their claims on the Indian purchases was significant from about 1804 on; he is noteworthy in his own right in early American politics and law (esp. pp.266 ff.). Harper’s strategy called for the company to find a suitable defendant who could be brought to the District Court from which point, it was hoped, there would be judicial validation of the claim. That defendant was William McIntosh, the owner of several small parcels of land sold to him in 1818 by the United States, those parcels claimed as falling within the bounds of the Illinois and Wabash claim. In 1820 the District Court judge decided for McIntosh – apparently the result planned by Harper who promptly began the appeal to the Supreme Court (pp.259-260).
The case was heard by the Supreme Court in February 1823. Representing the plaintiff speculators were Harper and Daniel Webster; McIntosh’s position was argued by Henry Murray and William Winder, the latter of whom would frequently join (as co-counsel) or oppose Harper in future Supreme Court argument (p.265). The hand (and arrogance?) of Harper in the entire conduct of this case is clearly indicated by Watson: “As for the opposing counsel, Harper emphasized that ‘the case must be, for effect, thoroughly argued and well argued for the Defendant,’ and he [said] that William Winder and Henry Murray should be retained by the shareholders to represent McIntosh” (p.264, emphasis in original). A little more than a week following oral argument, Chief Justice John Marshall delivered the opinion of the Court.
Marshall presented the issue of the case as whether Indians have the power to give, and thus private purchasers the [*362] ability to receive, “a title which can be sustained in the courts of this country” (21 U.S. 572). The court answered the question in the negative, with Chief Justice Marshall establishing that the U.S. government holds full property rights to the “Indian” land in the United States. Marshall justified the holding, as noted above, on the Doctrine of Discovery. He proclaimed, “All the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians” (21 U.S. 584). “The Indian inhabitants are to be considered merely as occupants,” Marshall explains, without the ability to transfer ownership (21 U.S. 591).
Watson joins a host of scholars who have criticized Marshall’s opinion in Johnson v. McIntosh. He summarizes such commentary in the book’s final chapter. As part of his own critique, Watson briefly discusses the major Indian law cases that have followed upon Johnson, leaving – even today – complicated questions about the boundaries of Indian Country and what kinds of powers Indian tribes can exercise within them.
Buying American from the Indians represents a massive amount of research and Watson provides us with the minutest of details about the history leading to Johnson v. McIntosh and those who were involved in some way with the case. Unfortunately, what seems to be an overwhelming attention to detail is one of the difficulties with this book. By having so much information on the speculators, the governmental agents (both British and American), the political and intellectual notables of the time, the attorney who might have represented Johnson at the Supreme Court but died before he could do so, and so on, the reader tends to lose sight of what is important. The introduction to the book makes sense. The opening chapter with the confident, but soon to be the “losing” – can’t say disappointed because this was merely a paying client for him – Daniel Webster, is charming. The foreshadowing of the Marshall opinion in Johnson v. McIntosh is interesting. And, of course, the idea that Johnson is the cornerstone of both U.S. property law and the continuing erosion of American Indian land is intriguing. After the opening chapters, however, both the players and the story become overly complicated.
It is always difficult to leave out any of the juicy facts we uncover in our research. Putting some of this – could we call it “dicta”? – into the book’s notes would establish the author as the finder of the facts and leave the narrative less disturbed. The sometimes disjointed narrative represents a second difficulty in Watson’s book. In trying to follow the story, at times I found myself in danger of temporal whiplash, jolted from one year back to another, then forward several years, then back again. (Should this book go into new or paperbound printings, a properly culled dramatis personae and a chronology of major events would be great additions.)
Those concerns aside, Watson’s focus on land speculation provides significant insight into why the pressure for Indian removal became insurmountable. Andrew Jackson, the immigrant groups who insisted on moving into Indian territories, and hostile and racist military officers are among those usually pegged as forces behind the relentless push of [*363] Indians ultimately onto their reservations. As Watson demonstrates, however, the economic, political, and societal milieu of land speculation helped construct the issue in Johnson v. McIntosh. The case, in turn, made it inevitable that the law of the nation would dispossess Indians of their lands.
EchoHawk, Walter R. 2010. In the Courts of the Conquerer: The 10 Worst Indian Law Cases Ever Decided. Golden, CO: Fulcrum.
Newmyer, R. Kent. 2001. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State University Press.
Sprankling, John G. 2007. Understanding Property Law, 2nd ed. Newark, NJ: Matthew Bender & Co.
Copyright 2013 by the author, Susan E. Grogan.