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.
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."
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.
"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. "
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.
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?
would be answered in the 1830s in Cherokee Nation v.
Georgia, and Worcester v. Georgia.