Published by EH.Net (December 2012)

Blake A. Watson, Buying America from the Indians:? Johnson v. McIntosh and the History of Native Land Rights.? Norman, OK: University of Oklahoma Press, 2012. xvi + 494 pp.? $45 (cloth), ISBN: 978-0-8061-4244-9.

Reviewed for EH.Net by David M. Wishart, Department of Economics, Wittenberg University.

Blake Watson, formerly an attorney with the U.S. Department of Justice, and currently a Professor of Law at the University of Dayton, has written an erudite and provocative history of land sales by the Illinois and Piankeshaw Indians in 1773 and 1775 that encompassed large of portions of present-day central and southern Indiana and Illinois to land speculators who were never able to gain clear title.? The ultimate failure of their efforts to secure a deed to the land came in the context of the case argued before the Marshall court in 1823, Johnson v. McIntosh.? The case is an example of a ?legal fiction? in which the plaintiff, Johnson, represented those who still had an interest in validating the original land sales as shareholders of the United Illinois and Wabash Land Companies, most of the original buyers having passed away years earlier. The defendant, William McIntosh, was intended to represent those who had purchased land ceded variously by bands of the Illinois Indians and the Piankeshaws (also known as the Wabash) to the United States government by treaties concluded in 1803, 1805, and 1818 that, according to the plaintiff, had already been sold in 1775.
The fictional complaint involved land that was leased by Thomas Johnson to ?Simeon Peaceable? on January 1, 1820 for a period of 20 years.? The land had been purchased by Johnson and other grantees in 1775 from the Piankeshaws.? However, the same land was deeded by the United States to William McIntosh in 1818.? Allegedly (and fictionally), on January 10, 1820, ?Thomas Troublesome? evicted the trespasser ?Simeon? brandishing knives, swords, and guns, which constituted the ?ancient action of ejectment? (Watson, pp. 256-257).? McIntosh was substituted for ?Troublesome? at the trial argued before federal district judge for Illinois, Nathaniel Pope, who rendered a pro forma judgment in favor of McIntosh (an outcome agreed to by both parties to the suit) so that the case could be appealed quickly to the Supreme Court, which in 1823 upheld the decision by Pope, thus denying title to representatives of the private purchasers of land from the Illinois and Piankeshaw Indians in 1773 and 1775.??

Johnson v. McIntosh is the first case of the Marshall trilogy that together set the legal terms for Indian land rights and relations among Indians, the states, and the federal government.? The second and third cases, Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), respectively, established that as ?domestic dependent nations? the Indians could not bring suit against states and that state laws ?can have no force? in Indian nations.? Johnson is fundamental to property law in the United States since it describes how title to land was initially established between Indians and Europeans.? In Johnson, the Marshall court rejected that Indians have a natural right to own and dispose of their land freely arguing rather that the doctrine of discovery confers title to the government under whose auspices discovery was made.? Marshall?s opinion held that while the Indians ?? were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, ? but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it? (Watson, p. 6).? However, given that the Indians had a legal claim to retain possession of their land, title by discovery was not complete, but rather conferred a preemptive right to purchase land to the federal government above all other parties.? Put simply, the upshot of Johnson has been that Indians can only sell their land to the federal government.?????

Watson?s lengthy exposition presents a brief overview of the case followed by a thorough examination of the various legal theories regarding the rights of indigenous people to the land they inhabit, giving special emphasis to the natural rights view held by Roger Williams and other prominent American colonists.? Watson adheres fervently to the natural rights view that Marshall got it wrong in Johnson and that Indians should have been afforded land rights in fee simple.? Spanish, French, Dutch, Swedish, English, and American colonial views of Indian land rights are also examined.? Watson?s focus then turns to a description of the Illinois and Piankeshaw Indians? circumstances prior to 1763 and their relations with the French and British colonists.? Over 200 pages of narrative history provide a detailed account of Indian-white relations on the northwestern frontier from the time of the French and Indian War, through the Revolutionary War and the War of 1812 after which the discussion returns to the litigation, argument, and decision in Johnson v. McIntosh.? Watson excels at composing biographical sketches found aplenty in these pages.? He effectively compares and contrasts the issues contested in the other storied land speculation case from the early nineteenth century, Fletcher v. Peck (1809).? Anyone with an interest in the westward expansion of the United States during this period will find this volume indispensable.?

Watson concludes with chapters devoted to the legal legacy of Johnson v. McIntosh and modern criticisms of the doctrine of discovery that are grounded in international law.? Watson?s view is that the doctrine of discovery as presented in modified form in Johnson v. McIntosh should be repudiated.? His arguments throughout the volume suggest a preference for an approach toward the land rights of indigenous people that would afford them title in fee simple.? In a perfect world, what economist could possibly disagree?? However, the argument for Indian land title in fee simple is not fully developed.? Would the welfare of Indians and whites have increased if Indian property had been held in fee simple during the colonial period or the era of the early republic?? Transaction costs would have been extraordinarily high.? How would whites have determined which Indians were legitimate sellers?? How would the Indians? right not to sell have been protected, and by whom?? Land ownership in fee simple presumes the adoption of civil society, which few if any tribes had fully accomplished by the early nineteenth century.? David Landes has suggested that equality between nations or groups of unequal power or with unequal access to instruments of power is impossible.? While some tribes could and did defend their property rights from white incursions prior to the War of 1812, the balance of power shifted dramatically after that war.? Interestingly, the root of the ancient synonym for fee simple, seisin, is ?to seize.?

Questions such as these notwithstanding, the persistence of the Marshall court?s finding in Johnson v. McIntosh in modern cases is indeed suspect and disturbing.? Watson has contributed substantially to the literature on Indian legal history with this book.? I look forward to future installments.

David M. Wishart and co-author Matthew Gregg have recently published ?The Price of Cherokee Removal? in Explorations in Economic History.??????????????
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