Aboriginal title in the Marshall Court

The Marshall Court (1801–1835) issued some of the earliest and most influential opinions by the Supreme Court of the United States on the status of aboriginal title in the United States, several of them written by Chief Justice John Marshall himself. However, without exception, the remarks of the Court on aboriginal title during this period are dicta.^[1] Only one indigenous litigant ever appeared before the Marshall Court, and there, Marshall dismissed the case for lack of original jurisdiction.^[2]

Fletcher v. Peck (1810) and Johnson v. McIntosh (1823), the first and the most detailed explorations of the subject by Marshall, respectively, both arose out of collusive lawsuits, where land speculators presented an artificial case and controversy in order to elicit the desired precedent.^[3]^[4] In Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), the dicta of Marshall and the dissenting justices embraced a far broader view of aboriginal title.

Johnson involved a pre-Revolutionary private conveyances from 1773 and 1775; Mitchell v. United States (1835) involved 1804 and 1806 conveyances in Florida under Spanish rule. However, in both cases, the Marshall Court continued to apply the rule that aboriginal title was inalienable, except to The Crown. This inalienability principle—whether embodied by the Royal Proclamation of 1763, the Confederation Congress Proclamation of 1783, the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, or 1833, or the federal common law—remains the crux of the modern Indian land claim litigation.

Several other cases involved disputes between non-Indians holding land grants from different states or state nonintercourse acts; federal courts had subject-matter jurisdiction over such disputes as "Controversies . . . between Citizens of the same State claiming Lands under Grants of different States."^[5] For example, Preston v. Browder (1816), Danforth's Lessee v. Thomas (1816), and Danforth v. Wear (1824) involved conflicting land grants from the states of North Carolina and Tennessee.

^ Banner, 2005, at 180 ("Johnson could have been a very easy case, decided in a very short opinion. The company's purchases were obviously void under any relevant law—whether that of Britain, Virginia, or the United States—regardless of the nature of Indian property rights. Even if the Indians were deemed the fee simple owners of their unsold land, the purchases would still have been unlawful. Rather than decide the case quickly and easily, however, John Marshall embarked on an extended discussion of the history of the colonization of North America, and a detailed elaboration of Indian property rights. None of this was necessary to dispose of the claims of the United Illinois and Wabash Company.").
^ See Berman, 1978, at 637 ("Many of the early cases that established important precedents in the development of Indian law were not litigated by the Indian nations.").
^ Banner, 2005, at 171–72 ("[N]either side had any incentive to argue that the Indians were the land's owners. The litigation was collusive; both Fletcher and Peck were veteran speculators who stood to gain if the corrupt 1795 grant were upheld. . . . The object of the suit for both sides was for Fletcher to lose—that is, for the 1795 sale to be upheld. . . . The Indians, of course had no voice in Fletcher v. Peck, so no one argued that the land was owned by the Indians. Both sides could accordingly adopt the newer view of Indian property rights without the older view being heard. . . . The litigation was well funded, and both sides wanted Peck to win, so Peck's lawyers were an all-star team John Quincy Adams, Joseph Story, and Robert Goodloe Harper . . . . Fletcher's lawyer, the elderly and alcoholic Luther Martin, . . . was being paid to lose."); id. at 179 ("The litigation was collusive, just like Fletcher v. Peck. The speculators' nominal opponent was an Illinois resident who was alleged to own a parcel with out of the Wabash tracts, which he purchased from the federal government, which in turn had bought much of the same land from the same tribes in the first decade of the nineteenth century.").
^ Kades, 2000, at 1092 ("Mapping the United Companies' claims alongside McIntosh's purchases, as enumerated in the district court records, shows that the litigants' land claims did not overlap. Hence there was no real 'case or controversy,' and M'ntosh, like another leading early Supreme Court land case, Fletcher v. Peck, appears to have been a sham." (footnotes omitted)); id. at 1093 ("McIntosh did not contest a single fact alleged in the complaint, jurisdictional or otherwise. Perhaps he participated in framing the complaint, which became the stipulated facts of the case. Neither the district court nor the Supreme Court questioned any of these facts. Everyone involved, it seems, wanted a decision on the legal question of the validity of private purchases from the Indians." (footnote omitted)).
^ U.S. Const. Art. III, § 2.

[1] Banner, 2005, at 180 ("Johnson could have been a very easy case, decided in a very short opinion. The company's purchases were obviously void under any relevant law—whether that of Britain, Virginia, or the United States—regardless of the nature of Indian property rights. Even if the Indians were deemed the fee simple owners of their unsold land, the purchases would still have been unlawful. Rather than decide the case quickly and easily, however, John Marshall embarked on an extended discussion of the history of the colonization of North America, and a detailed elaboration of Indian property rights. None of this was necessary to dispose of the claims of the United Illinois and Wabash Company.").

[2] See Berman, 1978, at 637 ("Many of the early cases that established important precedents in the development of Indian law were not litigated by the Indian nations.").

[3] Banner, 2005, at 171–72 ("[N]either side had any incentive to argue that the Indians were the land's owners. The litigation was collusive; both Fletcher and Peck were veteran speculators who stood to gain if the corrupt 1795 grant were upheld. . . . The object of the suit for both sides was for Fletcher to lose—that is, for the 1795 sale to be upheld. . . . The Indians, of course had no voice in Fletcher v. Peck, so no one argued that the land was owned by the Indians. Both sides could accordingly adopt the newer view of Indian property rights without the older view being heard. . . . The litigation was well funded, and both sides wanted Peck to win, so Peck's lawyers were an all-star team John Quincy Adams, Joseph Story, and Robert Goodloe Harper . . . . Fletcher's lawyer, the elderly and alcoholic Luther Martin, . . . was being paid to lose."); id. at 179 ("The litigation was collusive, just like Fletcher v. Peck. The speculators' nominal opponent was an Illinois resident who was alleged to own a parcel with out of the Wabash tracts, which he purchased from the federal government, which in turn had bought much of the same land from the same tribes in the first decade of the nineteenth century.").

[4] Kades, 2000, at 1092 ("Mapping the United Companies' claims alongside McIntosh's purchases, as enumerated in the district court records, shows that the litigants' land claims did not overlap. Hence there was no real 'case or controversy,' and M'ntosh, like another leading early Supreme Court land case, Fletcher v. Peck, appears to have been a sham." (footnotes omitted)); id. at 1093 ("McIntosh did not contest a single fact alleged in the complaint, jurisdictional or otherwise. Perhaps he participated in framing the complaint, which became the stipulated facts of the case. Neither the district court nor the Supreme Court questioned any of these facts. Everyone involved, it seems, wanted a decision on the legal question of the validity of private purchases from the Indians." (footnote omitted)).

[5] U.S. Const. Art. III, § 2.

[1]

[2]

[3]

[4]

[5]