Johnson V. Mcintosh Case Summary

Johnson v. McIntosh was a title dispute over acres of land in present-day Illinois. The case, decided by the U.S. Supreme Court under Chief Justice John Marshall in 1823, turned on the question of whether or not Native Americans had the right to transfer land title by sale to private citizens. Like many cases that determined the rights of Native Americans, the litigants were non-native whites. The inquiry “therefore, is in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country” (pg. 13). In finding for the defendant McIntosh, the court ruled that the nature of Indian title is such that Indians can only transfer title to the federal government.

This has been the mantra of the Native American disproval of its dealings with the American government. With the new rule come the principles of exclusion and oppression, and a model for a privileged application of law. The discovery doctrine was also used by Justice Marshall to justify his decision. His endorsement of the discovery doctrine on principle in McIntosh facilitated the material dispossession of Native American lands. Furthermore, it also hampered the culture of the native peoples, on the basis of a doctrine which is inherently and biased and oppressive. However, he seems reluctant to a practice that may or may not be legal or morally justifiable. He is bound to it because it constitutes the custom or practice under which the country has thus far been settled. He reiterates this point by saying “the history of America, from its discovery to the present day, proves, we think the universal recognition of these principles” (pg. 14). The practice is so pervasive, he suggests, as to have now hardened into law (pg.12). In my opinion, this position is indefensible for two