Steven T. Newcomb

Steven Newcomb (Shawnee, Lenape) is the co-founder and director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He co-produced the documentary movie “The Doctrine of Discovery: Unmasking the Domination Code” (2015), which is based on Pagans and his four decades of research.

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The Marshall Trilogy

Johnson & Graham’s Lessee v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823)

The Johnson v. McIntosh case involved grants of land made by two Indian nations (the Illinois and Piankeshaw) in 1773 and 1775, northwest of the Ohio River. The grants were made to non-Native land speculation companies before the founding of the United States. One question the Supreme Court had to address was whether the courts of the United States would recognize the deeds created as a means of making those two grants of an “Indian” form of title (however defined) to the land companies.

Upon reflection, it is noteworthy that the discussion of the “nature” of “Indian title” took place without the participation of representatives of the Illinois and Piankeshaw nations. Those nations were not attempting to win acceptance of their view of the “nature” of their “title” to the land; and who knows if they had taken any position in this regard whatsoever. The discussion of how to define “Indian title” was a discussion that the colonizers decided to have amongst themselves. It was a discussion about how the non-Native colonizing society would defined the nature of “Indian title” within the legal and political arenas of their U.S. society.

The existence of physical paper Illinois and Piankeshaw “deeds” were the result of the artistry and wordsmithing of the attorneys working for the non-Native land companies. That artistry created a format and wording and intention expressed in those deeds that was then attributed to those two Native nations. In actuality, it is likely that no Native nation initiated the idea of an intention to “sell” their lands in a commercial transaction to non-Native land companies which, on their part, desired to “purchase” massive amounts of Native lands and then resell parcels of that land for a sizable profit in real estate transactions.

Note: The usual manner of reading the Johnson ruling is to start at the beginning. In this essay, by contrast, we will begin our analysis toward the end of the decision and work back toward the opening of Chief Justice John Marshall’s opinion on behalf of a unanimous Court.

The Free Existence of Native Nations

Given the free and independent existence of the Native nations before and after the arrival of Christian European colonizers to this continent, it might seem logical to assume that the Illinois and Piakeshaw nations could rightfully grant a sizable portion of their lands to whomsoever they pleased. At 21 U.S. page 593 of the Johnson ruling, Marshall’s discusses this very point on behalf of the unanimous Court:

“If an [a non-Native] individual might extinguish the Indian title for his own benefit, or in other words might purchase it, still he could acquire only that [Indian] title. Admitting their [the Indian nations’] power to change their laws or usages so far as to allow an individual to separate a portion of their lands from the common stock and hold it in severalty, still it is a part of their territory and is held under them [the Indian nations] by a title dependent on their laws. The grant [of their land] derives its efficacy from their will, and if they choose to resume it [their Native possession] and make a different disposition of the land [to the United States], the courts of the United States cannot interpose for the protection of the title [resulting from a grant or grants by a Native nation to private individuals or companies]. The person who purchases lands from the Indians within their territory incorporates himself with them so far as respects the property purchased; holds their title under their protection and subject to their laws. If they annul the grant [to such a person or such persons], we know of no tribunal which can revise and set aside the proceeding.” emphasis added

The above explanation is a discussion of the free and independent existence of the Native nations. The Court seems to be suggesting that when an independent Native nation or people granted to someone or to some group of people of their choosing an Illinois or Piankeshaw form of title to the land, the specific nature of that Illinois or Piankeshaw “title” is outside the purview of the United States government.

It is when the United States is faced with the task of deciding whether to accept into their (the united states’) system the deeds said to have been made by the Indian nations, that the mental world of the United States is assumed to be in control of deciding how to think about the “title” or interest of an Indian nation or people in their own lands from the official viewpoint of the United States.

But this also raises the possibility that the “nature” of the “title” of a Native nation or people will end up being mentally and linguistically reduced to whatever language (ideas) the U.S. Supreme Court uses to think and write about history and property, and the status and title of “Indians” that are still existing free and independent of the United States.

The Johnson ruling does not discuss the thought process of the “Indians.” This is because whatever the Indians thought, or whether they thought anything at all about the “nature” of their “title” to their lands, was something the U.S. Supreme Court considered completely irrelevant to its discussion of the “nature” of “Indian title.” And the entire thought process of the Court presumed that the mental world of the United States would be the basis of a decision in the case.

In a sense, the Johnson v. McIntosh case put before the intellectual class of American society, two key questions: “How shall the United States as a country, and as an official decision of the highest court of the land, define the status of the Native nations and peoples of this continent,” and, “How shall the United States as a country, define the kind of type of ‘title’ that that the United States shall deem them to possess in relation to their lands?”

Between sections 21 U.S. pages 594 and 596 of the Johnson ruling Marshall provides a rather lengthy discussion of King George III’s Royal Proclamation of 1763:

“The proclamation issued by the King of Great Britain in 1763 has been considered, and we think with reason, as constituting an additional objection to the title of the plaintiffs [the land speculation companies]. By that proclamation, the Crown reserved under its own dominion [claim of a right of domination] and protection, for the use of the Indians, “all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and northwest,” and strictly forbade all British subjects from making any purchases or settlements whatever or taking possession of the reserved lands. It has been contended that in this proclamation, the King transcended his constitutional powers, and the case of Campbell v. Hall, reported by Cowper, is relied on to support this position.

“It is supposed to be a principle of universal law that if an uninhabited [vacant] country be discovered by a number of individuals who acknowledge no connection with and owe no allegiance to any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parceled out according to the will of the society, expressed by the whole body or by that organ which is authorized by the whole to express it. emphasis added

“If the discovery be made and possession of the country be taken under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law. emphasis added

“According to the theory of the British Constitution, all vacant lands are vested in the Crown, as representing the nation, and the exclusive power to grant them [vacant lands] is admitted to reside in the Crown as a branch of the royal prerogative emphasis added. It has been already shown that this principle was as fully recognized in America as in the Island of Great Britain. All the lands we [the United States] hold were originally granted by the Crown, and the establishment of a regal government has never been considered as impairing its right to grant lands within the chartered limits of such colony. In addition to the proof of this principle, furnished by the immense grants already mentioned of lands lying within the chartered limits of Virginia, the continuing right of the Crown to grant lands lying within that colony was always admitted. A title might be obtained either by making an entry with the surveyor of a county in pursuance of law or by an order of the governor in council, who was the deputy of the King, or by an immediate grant from the Crown. In Virginia, therefore, as well as elsewhere in the British dominions, the complete title of the Crown to vacant lands was acknowledged.

“So far as respected the authority of the Crown, no distinction was taken [made] between vacant lands and lands occupied by the Indians. The title [of ‘ultimate dominion’] subject only to the right of occupancy by the Indians, was [mentally] admitted to be in the King, as was his right to grant that title [of ‘ultimate dominion’]. The lands, then, to which this [royal] proclamation referred were lands which the King had a right to grant, or to reserve for the Indians.”

This last point about the British system making no distinction between “vacant lands” and “lands occupied by Indians” is key to the Johnson v. McIntosh decision. Marshall was saying that lands where the Indians were already living were categorized by the British system as “vacant” lands. As Benjamin Munn Ziegler put the matter in The International Law of John Marshall: “The term ‘vacant lands’ [in the Johnson *ruling] refers of course to lands in America, which when discovered, were occupied by Indians, but unoccupied by Christians.” 1

The implicit argument can be put forth as follows: 1) Grant that lands inhabited by non-Christian (“heathen”) nations and peoples shall be labeled and thought of as “vacant” (empty); 2) Grant that the nations and peoples being labeled “Indian(s)” shall also be identified as non-Christian; 3) Conclude, therefore, that lands inhabited by non-Christian “Indians” shall, from the official viewpoint of the United States, be deemed “vacant,” meaning, the “Indians” had no already existing claim of a right of domination (“property”) which could bar a Christian European power from claiming a right of domination in relation to the land, which the Marshall Court called an assertion of “ultimate dominion” [domination].

By implicitly noting that the non-Christian (“heathen”) Native peoples were not claiming a right of domination in relation to their lands, the U.S. Supreme Court was able to claim that the immense “space” where those lands were existing was “vacant” of any previously existing claim of a right of domination (or “property” in the British or Christian European sense of that word).

This is one reason why those lands could be deemed “uninhabited” and “vacant,” even though the “Indians” were already living there. The lands were deemed “vacant” because the lands were without any Christian owner [dominator], and without any assertion of a right of Christian domination. The term “vacant” in this context also relates to the Latin phrase “vacantia bona” in English Common Law, which is defined as “Goods which no one claimed and which by the law of nature belonged to the first [Christian] occupant or finder.”

When the Christian European claim to a “chain of title” is traced back to the organic law documents called “Vatican papal bulls” and English “royal commissions or charters,” a bold assumption is being made by means of those documents. It is the assumption that the Christian European powers, whether the Vatican or some other monarchy (such as Portugal, Spain, or England), were claiming the right to assert a right of domination in relation to newly identified lands previously unknown “to any Christian prince or people,” meaning, previously unknown to all of Christendom.

The term “vacant” in this context not only relates to the aforementioned Latin phrase “vacantia bona” in English Common Law, but, more importantly, those lands were, as Justice Joseph Story put it, considered “vacuum dominium” (void of a claim of a right of domination).”

At 21 U.S. 592 in Johnson, the Supreme Court looked back at its 1810 ruling in the case Fletcher v. Peck, which we have discussed above.

This question is not entirely new in this Court. The case of Fletcher v. Peck grew out of a sale made by the State of Georgia of a large tract of country within the limits of that state, the grant of which was afterwards resumed. The action was brought by a sub purchaser on the contract of sale, and one of the covenants in the deed was that the State of Georgia was, at the time of sale, seized in fee [a full right of domination] of the premises. The real question presented by the issue was whether the seizin in fee [right of domination] was in the State of Georgia or in the United States. After stating that this controversy between the several states and the United States had been compromised, the court thought in necessary to notice the Indian title, which, although entitled to the respect of all courts until it should be legitimately extinguished, was declared not to be such [title] as to be absolutely repugnant to [i.e. could not interfere with or bar] a seizin in fee [a right of domination] on the part of the state.

“This opinion conforms precisely to the principle which has been supposed to be recognized by all European governments from the first settlement of America. The absolute ultimate title [a right domination] has been considered as acquired by [Christian] discovery, subject only to the [non-Christian] Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right [of Indian ‘occupancy’] is no more incompatible with a seizin in fee [property right of domination] than a lease for years, and might as effectually bar an ejectment.”

At this point Marshall provides an additional example:

“The controversy between the Colony of Connecticut and the Mohegan Indians depended on the nature and extent of a grant made by those Indians to the colony; on the nature and extent of the reservations made by the Indians, in their several deeds and treaties, which were alleged to be recognized by the legitimate authority; and on the violation by the colony of rights thus reserved and secured. We do not perceive in that case any assertion of the principle that individuals might obtain a complete and valid [fee] title from the Indians.

It has been stated that in the memorial transmitted from the Cabinet of London to that of Versailles, during the controversy between the two nations respecting boundary which took place in 1755, the Indian right to the soil is recognized.

“But this recognition was made with reference to their character as Indians and for the purpose of showing that they were fixed to a particular territory. It was made for the purpose of sustaining the claim of His Britannic Majesty to dominion [a claimed right of domination] over them.”

­­­­At page 21 U.S. at page 603 in the Johnson ruling, Marshall makes the following point:

“It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government [to a right of domination] extends to the complete ultimate title, charged with this right of possession and to the exclusive power of acquiring that right [the Indian title of occupancy]. The object of the Crown was to settle [establish domination on] the seacoast of America, and when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious to expel them from their habitations, because they had obtained the Indian title otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the Crown, and its words convey the same idea. The country granted is said to be “our island called Rhode Island,” and the charter contains an actual grant of the soil as well as of the powers of government.”

Here, the Court is making a couple of key points: 1) the charters issued by British monarchs were an assertion of the Crown’s form of title; 2) Notice the Court does not say that the charter purported to contain “an actual [factual?] grant of the soil as well as the powers of government.

The assertion of the idea that that “the charter contains an actual grant of the soil” creates the shared perception of a tangible physical “reality” which matches that assertion. This is true of every assertion or claim made by the Supreme Court in the Johnson ruling (and in every other Supreme Court ruling for that matter). It’s equivalent to representatives of the U.S. seated on the Supreme Court saying: “The following is how we have decided to frame reality for our country, and as a country we are willing to back this version of reality with lethal or deadly force, and it is on that basis that we declare it to be ‘the law of the land.’”

With the above information in mind, let us turn now to some other key assertions found in the opening of the Johnson ruling. For example, we find at 21 U.S. page 572:

The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance so far as it could be given by their own people, and likewise show that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is in a great measure confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the courts of this country [i.e. which the courts will accept]. emphasis added

Marshall continues:

As the right of society to prescribe those rules by which property may be acquired and preserved is not and cannot be drawn into question, as the title to lands especially is and must be admitted to depend entirely on the law of the nation in which they lie, it will be necessary in pursuing this inquiry to examine not singly those principles of abstract justice which the Creator of all things has impressed on the mind of his creature man and which are admitted to regulate in a great degree the rights of civilized nations, whose perfect independence is acknowledged, but those principles also which our own government has adopted in the particular case and given us as the rule for our decision.

Every society, said Marshall, has the right to determine its own rules regarding how “property [a right of domination in relation to land or other things] may be acquired and held.” He said the Court declined to call that principle into question. The law of a nation, such as the United States, within which the particular lands at issue are located shall determine “title to lands.” And for this reason the Court would apply to the stipulated (agreed upon) facts of the Johnson case, i.e. the “principles of abstract justice . . . which are admitted to” be the basis for deciding “the rights of civilized nations.”

Additionally, however, the Court said it would decide the Johnson case based on a different set of “principles,” which were not principles of “abstract justice.” Marshall said “our own government has adopted [those principles] in the particular [Johnson] case and given [them to] us [the U.S. Supreme Court] as the rule for our decision.”

Chief Justice Marshall seems to be suggesting that some other sector of the U.S. government had directed the U.S. Supreme Court to use very specific ideas as the basis for its decision in the Johnson case. And it would use those ideas “other than abstract justice” for its decision. Those “other” principles were not the “principles” that would be applied to “civilized nations, whose perfect independence” was being “acknowledged [by the Court].” Stated differently, the Court made it clear that it would not be categorizing Native nations and peoples as possessing a right to “perfect independence” and “ultimate dominion” in relation to its lands.

At 21 U.S. page 591 we see language that seems to match what Marshall was saying about “principles” other than those of “abstract justice” that he suggested some sector of the U.S. government had “given” to the Court to use for its decision in the Johnson case.

However extravagant the pretension of converting the discovery of an inhabited country into conquest [a claimed right of domination] may appear; if the [pretended] principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it [the pretension] becomes the law of the land and cannot be questioned. emphasis added

At 21 U.S. 591-592, Marshall refers to “the concomitant [additional] principle [other than abstract justice] that the Indian inhabitants are to be considered merely [only] as occupants,” who are “deemed incapable of transferring the absolute title to others.” Marshall noted that “[T]his restriction may be opposed to natural right, and to the usages of [principles of abstract justice applied to] civilized nations.” But, Marshall added, if that [unjust] restriction of the Indian peoples “be indispensable to that system [of domination] under which the country has been settled, and be adapted to the actual condition of the two people, it [the unjust restriction of the Indians] may perhaps be supported by reason, and certainly cannot be rejected by courts of justice.”

At 21 U.S. pages 572-573, the framework that the Court used as its way of thinking about Native nations and peoples was summed up as follows:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology [provided an excuse] for considering them as a people over whom the superior genius of Europe might claim an ascendency [a right of domination].

The potentates [monarchs] of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization [domination] and Christianity in exchange for [granting themselves] unlimited independence [a claimed right of domination on the continent].

But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title [of domination] to the government by whose subjects or by whose authority it [the title of domination] was made against all other European governments, which title might be consummated by possession.

Chief Justice Marshall continues as follows:

In the establishment of these relations [between European governments and the Native nations and peoples], the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily to a considerable extent impaired [diminished]. They [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 [on that basis], and to use it according to their own discretion; but their rights to complete sovereignty as independent nations [i.e. to a free and independent existence] were necessarily diminished [ended], 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 [an]exclusive title [of domination] to those who made it [the ‘discovery’].

While the different nations of Europe respected the right of the natives as occupants [with no recognized right of dominion or right of domination], they asserted the ultimate dominion [a right of domination] to be in themselves, and claimed and exercised, as a consequence of this ultimate dominion [claimed right of domination], a power to grant the soil [to Christian Europeans] while yet in possession of the natives. These grants have been understood by all to convey a title [of dominion] to the grantees, subject only to the Indian right of occupancy.

The history of America from its discovery to the present day proves, we think, the universal [Christian European] recognition of these principles [that are not principles of abstract justice applied to civilized nations, whose right to a perfect independence is acknowledged, and which is not considered to exist in the Indians].

Cases

Series Navigation

Previous: Fletcher v. Peck (Part 2) Next: Cherokee Nation v. Georgia (Part 4)

© Copyright Steven T. Newcomb, January 1, 2026

Footnotes

  1. Benjamin Munn Ziegler, The International Law of John Marshall, 1939, 44 ↩

SUGGESTED CITATION

Steven T. Newcomb, "The Marshall Trilogy: Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823) - Domination Translator Series - Part 3," Doctrine of Discovery Project (3 January 2026), https://doctrineofdiscovery.org/blog/domination/marshall-trilogy/johnson-mcintosh/.

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