1823 - Johnson v McIntosh

        In this landmark case - the first of three Indian cases decided by the Marshall court - the chief justice argued that the two cultures would not be allowed to co-mingle.  Indians and Whites had shown that their cultures were too much at odds to ever expect them to enjoy peaceful relations. This decision reaffirmed the legal validity of the Discovery Doctrine and tended to support the argument of removalists in the south.

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 Eastern Band Cherokee country in the Great Smoky Mountains of North Carolina.        

          Indian law scholar Robert Williams argues that Marshall's discourse of conquest inJohnsonaccepted as the settled law the Discovery Doctrine's diminishment of indigenous people's rights in all the European derived settler colonialist states of the West.  Marshall's commentary merely provided apost hoclegal rationalization for revolutionary era political compromise on the unsettled question of who owned lands on the frontier? That compromise, embodied in what Williams describes as " the feudally derived Doctrine of Discovery and conquest, vested superior title to the frontier Indian lands in the United States government, just as it had two centuries earlier in the Virginia Colony, and three centuries before that in the crusades....The effect of the Doctrine of Discovery was nothing more than a reflection of a set of Eurocentric racist believes that were now elevated to the status of universal principle, a principle used to drive home the Europeans right to colonize the North American continent as though it were void of inhabitants when the first adventures waded ashore through the Bahamian surf."

          Marshall also declared that the legal relationship between the Indians and the discovering nations of Europe was the product of 'necessity."  Recognition of a right to use and occupy their lands was reserved to the Indians so that this territory could later be purchased, or, the Indian's rights of occupancy otherwise extinguished exclusively by the sovereign (the federal government).  Marshall reasoned that Indian title was created by the white man's legal institutions in order to avoid the impracticalities and ugliness of forcible expropriation and annihilation.  The processes of colonization modified the Indian tribes' relationship to the soil and to the settlers, and European concepts of property were introduced.  Land dealings became the sole prerogative of the national government that were consistent with the new nation's legislation (the Commerce Clause and the Indian Non-intercourse Act), with the underlying Proclamation of 1763, and in harmony with legal traditions reaching back to the Middle Ages.

         Williams: "Marshall's opinion in Johnson, the basterdized principle sired by Geneteli's law of nations, now codified the Doctrine of Discovery into United States law and elevated the legacy of 1,000 years of European genocide of non-Western people with feudally inspired logic that would now dictate the rules of engagement between Indians and non-Indians in our modern courts of law. The Doctrine of Discovery's medievally derived ideology - that savage peoples could be denied rights and property at the will of the 'conqueror', was integrated byJohnsoninto the very fiber of United States federal Indian law. "

         This decision was used in the century that followed to effectively deny the American Indians all fundamental human rights, and to ensure the conquest of their lands through acts of genocide that had been given the imprimatur by the high court. The forces of conquest now had a green light to proceed on a rationalized legal basis.

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         The Discovery Doctrine, this primordial icon of Europe's feudal past had been preserved and brought forward into a modern form that continues to speak with reassuring continuity to a nation that was about to embark on its own colonizing crusade against the last remaining Indians on the North American continent.  Until now, the court seldom ventured into the legal territory of federal v. tribal relationships, and the Johnson decision succeeded in leaving many questions unanswered: What was the significance of the treaties between tribes and the federal government?  Where did the Indians, or the states, fit into the scheme of federalism, and what rights to self-governance had they retained? 

         These questions would be answered in the 1830s in Cherokee Nation v. Georgia, and Worcester v. Georgia.