The Limits of Counterfactuals: What If?

Steve Russell

My colleague Steve Newcomb accuses the first great Chief Justice of the United States, John Marshall, of telling stories. Just so, and let me be clear that by “great” I mean a public figure who dared greatly and achieved greatly. I do not mean I’m enamored of his achievements.

Marshall crafted the three SCOTUS opinions that underlie the entire house of cards we call federal Indian law. Since he was supposed to be interpreting the Constitution at the time, and since that document contains only two mentions of Indians, Marshall’s primary raw material was his fertile imagination.

Power to regulate commerce with the Indian tribes was an enumerated power of Congress, and “Indians not taxed” were excluded from being counted when apportioning the House of Representatives by population according to the Census every ten years.

From those two scant notices, Marshall spun a yarn about “the nations of Europe” bringing Christianity and civilization to the poor benighted savages in a fair trade for eminent domain title to the dirt under the Indians’ feet. The most-quoted line from Johnson v. M’Intosh—the case where Marshall made up this trade of real estate for supposed salvation—was the immortal statement, “Conquest gives a title which the courts of the conqueror cannot deny….”

The issue before the SCOTUS was simply whether a land title based on a grant from the U.S. was superior to a title based on a grant from an Indian tribe. In modern times, Marshall could not decide Johnson v. M’Intosh because he owned land based on a grant from the U.S. government. Once the Chief Justice assumed the task he had to craft a story for the law books to explain why the federal title had to prevail over Indian title.

I am no less outraged than Steve Newcomb over Marshall pulling the doctrine of Christian discovery out of his backside and calling it law, but I’m less concerned about the storytelling as process. It is the customary process in an adversarial system, a competition between narratives that account for the facts.

Marshall offends me not when he makes up a story, but when he makes up facts. The “facts” he makes up have little relationship to the truth. The U.S. was never “the conqueror” of all Indian tribes because it was never at war with all tribes. As important, Marshall rests his story on the fiction that all Indians were hunter-gatherers.

Had Marshall not made up the story he did, he would still have to make up some story, because the case needed decision. What story would or could be told by a storyteller tethered to the truth?

Instead of Indians as bloodthirsty savages who took war as their idea of a good time, he could have adopted the modern stereotype that Indians were innocent of the whole idea of land titles. That one is as nonsensical as all Indians as defeated warriors.

The biggest obstacle to crafting one story to govern Indian land titles is that no such story existed that could account for all the facts on the ground.

History is chock full of incidents where colonists told to buy the land from the Indians went out and paid the first Indians they found in the vicinity. Sometimes those Indians were in fact hunter-gatherers who were just passing though and more than happy to accept the gifts offered in exchange for not molesting some farmers they had no plans to molest in the first place.

There were more sinister transactions where settlers would bribe Indians who had no standing in tribal government to sign away land.

Settlers in Texas had problems understanding that no Comanche band could speak for another. Folklore claimed the Comanches were not trustworthy and so could not be treated with but rather had to be exterminated to make way for proper farmers.

In fact, the German settlers were able to make a treaty with the Comanches where the Anglo settlers were not. The difference was so well known that white people captured by Comanches would do their best to pretend to be German.

The most numerous and most powerful Indian nations having relations with the young United States were the farthest from Marshall’s stereotypical Stone Age hunter-gatherers.

The Five Nations in the north (later Six Nations) and the Five Tribes in the South, while they all hunted and gathered, were also sedentary peoples who produced an agricultural surplus before the settlers arrived and took to new technology like ducks to water after the settlers arrived.

I don’t know much about land title rules outside my own people, but you cannot farm the land for very long without having some rules to sort out who has the right to do so. Cherokees did not represent land titles on pieces of paper but rather had a set of rules based on usufruct and clan identities and a system for adjudicating disputes in applying those rules.

There is an area of jurisprudence called “conflict of laws.” Land titles are normally sorted out by applying the law of where the land is located. Treaties with the U.S. normally did reduce Indian lands to lines on a map, and within those lines whether individual Indians could alienate land would be a question of tribal law.

Of course, it was one of the most pernicious fictions the settlers claimed as fact that the Indian nations either had no laws or only had laws after being shown laws by civilized Christian white men.

This is complicated enough already, but it is fair to ask what about those peoples who really were nomadic hunter-gatherers? I refer mainly to the peoples who got called “horse Indians” after Spanish colonists proved unable to keep track of their livestock.

The Indians that had transformed the Great Plains in fact had no interest in being confined to farms and they did often resort to violence among themselves to sort out hunting rights.

I was once advised by a Shoshone elder in response to my skepticism about an alleged Shoshone artifact in Mexico, “Wherever the buffalo went, the Shoshone went.” I can’t know for sure, but I would bet the old man was correct.

Of course, running off the Indians did not solve all the problems of land rights and water rights. There was armed struggle among white farmers and white ranchers and bringing an end to the “open range” was a bloody business.

Over time, the law followed the barbed wire and the open range was no more.

Counterfactuals can get out of hand quickly, but whatever you think of my claim that Indians were way more complicated than Justice Marshall accepted, my lengthy digressions left him back in the courtroom with a lawsuit that demanded a result. If I don’t like his story, then what?

This may replace Marshall’s oversimplification with one of my own, but at least mine will be somewhat tethered to reality. I suggest reading the documents. Since 1677, a writing was required to transfer an interest in land

When somebody conveys land in the Anglo-American tradition, the grantor promises to defend the title just signed against any third party. Without that promise, the title is called a quitclaim.

If all the Indians signed was a quitclaim, then they never claimed to own the land and the U.S. derived title would probably prevail.

If both chains of title were based on warranty deeds—claims that the grantor owned the land with a promise to defend against anyone who claimed otherwise—then something strange and exotic even among lawyers had to take place.

It’s called a “trial.” It had to happen because land titles are fact-dependent and the recitations of fact in the deeds only represent facts on the ground while they are unchallenged. Johnson v. M’Intosh asked the courts to determine who owned a good title that could be transferred.

Decision of the case did not require grand pronouncements about the nature of the relationship between all Indians and all colonists. Because the peroration about the right of Christian discovery was not necessary to decide the case, it contained a lot of what lawyers call obiter dicta.

The Supreme Court of the U.S. wields all the judicial power—the power to speak the law---that exists in lands governed by the Constitution. Indian country is not governed by the Constitution—not then and not now.

Should tribal law conflict with U.S. law then the sovereign governments would face the choices of war or negotiation. That conflict might have played out the way Marshall claimed. Instead, he chose to gin up an imaginary conflict of laws and resolve it in a flight of imagination that extricated U.S. courts from having to do the work of sorting out the relationship of every indigenous nation to the U.S.

Had the SCOTUS accepted the task in all its complexity, it would not matter how many thumbs rested on the colonial side of the scale. In some cases, fraud would be fraud in a manner no legitimate court could ignore.

The John Marshall opinion traded many little frauds for one big fraud and Marshall’s perpetration of that one big fraud was wrong not because he made up a story---appellate opinions are always exercises in storytelling---but because he claimed to shift responsibility from his government to his god.

Having accomplished that rhetorical feat, the Chief Justice let the quo warranto? question go begging unless he wished to stand up the (in)famous words about “the courts of the conqueror.” I can’t think of a way to read those words that would not render the role of the courts superfluous.

It is not legal reasoning to make up a military conflict and let the imagined outcome of the imagined conflict decide the case. Is this how we honor the rule of law?

Keep in mind that Christian discovery bound only the colonial powers—not the Indian nations---and so it was insufficient by itself to separate the indigenous peoples from their property. What Johnson v. M’Intosh did was to at least legalize and attempt to constitutionalize the customary monopsony. Since Indians could not sell to anyone but the federal government, they could not play off buyers against each other to drive up the price.

All this talk about philosophy and religion and historical narratives falsified loses a lot of its grandeur and its mystique when you see Johnson v. M’Intosh placing the very legitimacy of the SCOTUS in danger for no more noble end than a cheezy little price manipulation and a fraud on the mythical free market.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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