A Muddled Analysis of Johnson V. M’Intosh

Steven Newcomb

The difficulty of accurately analyzing the 1823 U.S. Supreme Court ruling Johnson v. M’Intosh is well demonstrated in an article published by Robert T. Coulter (co-authored with Steven M. Tullberg) in 1984 in the book The Aggressions of Civilization. In their article, “Indian Land Rights,” the two scholars say that the Supreme Court’s analysis of Johnson v. M’Intosh found that “the right of discovery…did not limit the legal powers or rights of Indian nations in their homelands.”


Although it would have been great if this characterization had been correct, this is a curious conclusion, especially given what the Supreme Court actually said. Unfortunately, in the Johnson ruling the Supreme Court said that the Indians’ “…rights to complete sovereignty, as independent nation, were necessarily diminished…by the original fundamental principle that discovery gave title to those who made it.” If the word “diminished” means anything, it means “to limit” by decreasing or reducing something in size, content, or extent.

Yet for some reason the authors did not acknowledge the Supreme Court’s claim that Indian rights to “complete sovereignty” had been “diminished” by the Christian European claim “that discovery gave title” to the “discoverers.” If Mr. Coulter and his colleague had acknowledged the Supreme Court’s claim of Indian “diminishment”, it would have directly contradicted the claim that the Court found that the “right of discovery…did not limit the legal powers or rights of Indian nations in their homelands.”

To further demonstrate the point, Chief Justice Marshall wrote for the Court in the Johnson ruling: “Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.” (emphasis added)

If the Court’s analysis found that “the right of discovery did not limit the legal powers or rights of Indian nations,” then why did the Court call our nations and peoples “the people whose rights have been wrested from them”? (emphasis added) To say this is to say that their rights had been “pulled away forcefully.”

How then are we to account for this muddled analysis? One thing seems clear. This conclusion was based on what they brought to their reading and interpretation of the Johnson ruling. Their analysis must have been based on what they had read into the Johnson ruling rather than a close reading of the ruling.

Later, the two authors correctly point to the Court’s statement that the law of conquest “was incapable of application” to the Indian nations. And in yet another section of their article—“The Denigration of Indian Title to a Mere Right of Occupancy”—we find this statement about the Johnson ruling:

Marshall determined that the property of non-Indians must be made secure, even if it meant subverting settled legal doctrine and adopting what he termed an “extravagant pretension.” This pretension required converting the right of discovery into actual land title, thereby fabricating a secure title for non-Indians to un-ceded lands still occupied by the original Indian owners. (emphasis added)

By giving the reader only a partial account, the article makes it appear as if the Court had talked about “converting the right of discovery into actual land title.” (emphasis added) In actuality, though, the Court’s verbatim language is, “..the pretension of converting the discovery of an  inhabited country into conquest...” (emphasis added)

On the basis of that pretension Coulter and Tullberg said that the Court had created a theory in which “the discovering European nation could hold or grant to others ‘absolute title’ to lands still in the possession of the original land owners and prior to any conveyance or other acquisition of Indian rights to the land.”Under this theory, Indians were regarded not as owners, as contemporary international law commanded, but “merely as occupants.”

                  When the authors discussed the Court’s construction in Johnson of “an Indian title” of a lesser right or title of “occupancy,” they said of the Court’s reasoning: “their [the Indians’] right of occupancy was. . .clearly of inferior status in the legal hierarchy of land titles” in the United States. The question that arises is this: How could the United States have conceptually created an Indian title of “occupancy” that was “of inferior status,” and do so without purporting to limit Indian rights?

                  The purpose of scholarship in any field is to increase knowledge and deepen understanding. That purpose is not well served in the study of federal Indian law and policy when scholars fail to be accurate in their characterization of Supreme Court language and of the so-called “right of discovery,” which the Supreme Court said was “confined to countries then unknown to Christian people.”

Steven Newcomb (Shawnee, Lenape) is the co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008), and the Indigenous and Kumeyaay Research Coordinator for the Sycuan Band of the Kumeyaay Nation in the Kumeyaay territory (now commonly called “San Diego”).



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Anonymous's picture
Seems the Supreme court will go down whatever path they find necessary to keep the staus quo regarding overall Indian issues. If they back themselves into a corner with their own law then they will simply find a way out regardless of what it takes. Rewrite, reinterpret, renew, ignore, etc. Look at all the laws re: Indian people. But, to me, just being around Indian people is a way for non-Indians to make money. Just look at just about any reservation and you'll see that non-Indian people make up the majority of those who have jobs in whatever capacity. Some of us (Indians,) who have survived the contemporary way to higher education will, always try to help OUR people to realize they are ok that much has happened to them not of their or their ancestors chosing. They had no choice where or into which culture they were born into. Only Maheo (the Great Mystery) knows. WE do our best and Trust those who claim to want help do it in a Good way.....
curtj's picture
In legalizing the "Cherokee Indian Trail of Tears", US Supreme Court Chief Justice John Marshall, utilized the lands the Indigenous were forcibly removed from and profitted handsomely off the theft of those lands. And so it goes, the descendants of the illegal European immigrants, are still profitting off stolen resources and lands. Leaving the lands polluted with contamination as well as the drinking water. Internationally, the policies of colonialism has the US spending trillions in order to profit the white collar thieves and murderers a few million and billion dollars of blood money, by destabilizing other governments so the multi national owned oil, energy and mining conglomerates can profit after the military industrial complex has profitted off the sale of their wares of destruction and death. The neo conservative thieves and murderers and their bought off Washington political prostitutes and embedded and burrowed neo con operatives in all 3 branches of government have no ethics, morality or legal standing for legalizing policies of theft and murder, which gives them obscene profits off the pain suffering and death of countless hundreds of thousands of innocents a year. And our leaders say nothing of the policies of colonnialism and its marriage to "terrorism".
Anonymous's picture
freedom of relegion only for christian value or tax based shake down pimping for with any and all things thoughts wishs of the word
Anonymous's picture
Could they have..AGAIN.. purposely misrepresented the facts to sustain a Eurocentric point of view? It's the 21st century and the U.S. seem to consider the statement " inferior character of native cultures", as true,in justifications for post/pre Christians possessions of indigenous lands. Thank you for examining the facts and clarifying this case for a layperson like me :) ... in defending Indian rights. This case arguments have misrepresented the facts to the court in order to obtain a ruling from the beginning. It's a shame that people, they believe are inferior are spelling it out to them. I feel that their mind set is "profit", and for native people is to accomplish. The journey of natives in this country continues, be brave, endure.. soon the bright light of the great mystery will soon enlighten us and show us a new path of brighter accomplishments!!!