Johnson & Graham's Lessee v. McIntosh

Chief Justice Marshall began from the premise that land titles are governed by the law of the nation in which the land lies. The Court therefore treated the question not as one of abstract natural justice, but as one governed by the property rules that the United States had adopted and consistently applied.

The Court described the European doctrine of discovery as a rule developed among European powers to prevent competing colonial claims. Discovery gave the discovering nation title as against other European nations. Because that title was exclusive, the discovering nation alone had the right to acquire land from the Indigenous occupants and establish settlements on it.

The doctrine did not deny that Indian nations were the rightful occupants of their lands. They retained a legal and just right to possess and use the land until that right was extinguished. But discovery, as the Court understood it, diminished their external sovereignty by denying them the power to sell the land to any private purchaser or foreign sovereign they chose.

The Court concluded that this principle had been uniformly asserted by Spain, Portugal, France, the Netherlands, and England. English colonial charters repeatedly granted lands to colonists even while those lands remained occupied by Indigenous peoples. In the Court's view, this long historical practice showed that the Crown claimed ultimate title, subject to Indian occupancy, and the exclusive authority to extinguish that occupancy.

The United States inherited the British claim after the Revolution. The Treaty of Paris transferred Britain's governmental and territorial rights to the United States, subject only to Indian occupancy. State laws, state cessions of western lands to the United States, federal treaties, and federal land grants all reflected the same understanding: government, not private individuals, had the exclusive right of preemption—the right to purchase or otherwise extinguish Indian occupancy.

The Court acknowledged that the discovery rule could conflict with natural right and with ordinary principles governing property. But it held that a court could not reject a rule on which the nation's territorial acquisition, public land system, and innumerable existing land titles depended. A court of the conqueror, Marshall explained, could not deny the validity of the title under which the country was acquired and held.

The Court offered an additional ground for rejecting the plaintiffs' claim. Even if an Indian nation could allow a person to hold a particular tract separately, that person would hold under the tribe's laws and within the tribe's territory. The purchaser's interest would remain dependent on the tribe rather than become a complete title recognized by United States law.

If the tribe later resumed the land, altered its laws, or ceded the territory to the United States, the Court saw no federal tribunal with authority to preserve the private purchaser's claim against the tribe or the United States. A conveyance to an outsider could not produce greater legal consequences than a conveyance by the tribe to one of its own members.

The Illinois and Piankeshaw nations later ceded the land at issue to the United States without reserving the plaintiffs' claimed tract. The Court regarded that cession as further evidence that the tribes did not treat their earlier deeds as binding limits on their authority over the land.

The 1763 Proclamation reserved specified western lands for Indian use and expressly forbade British subjects from making purchases, settlements, or entries there without governmental authorization. The Court treated the proclamation as an exercise of the Crown's established authority over colonial lands and relations with Indian nations.

The plaintiffs argued that the Crown lacked authority to issue the proclamation, relying on Campbell v. Hall. The Court distinguished that decision: Campbell invalidated taxation imposed by proclamation after a representative government had been granted to a conquered province, while this case concerned the Crown's power to manage public lands and restrain private encroachments on Indian territory.

Because the Crown held the underlying title subject to Indian occupancy and possessed the exclusive power to acquire that occupancy, it could reserve the land and prohibit unauthorized private purchases. The Court concluded that the proclamation's authority over land transactions in North America had never been successfully denied.