Going back to the rights of discovery and conquest, the Supreme Court upheld the U.S. government’s ultimate authority to extinguish title of occupancy and to convey title in the soil.

In 1775 William Johnson purchased land in Illinois from the Piankeshaw tribe, but Virginia in 1783 conveyed the land to the federal government for the public domain. In 1818 William McIntosh purchased part of this Illinois land from the federal government, but the Johnson family claimed to be the legitimate owner. By a 7-2 vote, the Supreme Court ruled in favor of McIntosh, and held that the tribe had not possessed an absolute right to sell its land.Native American land claims;Johnson and Graham’s Lessee v. McIntosh[Johnson and Graham’s Lessee v. McIntosh]Natural law;Johnson and Graham’s Lessee v. McIntosh[Johnson and Graham’s Lessee v. McIntosh]

Writing for the Court, Chief Justice John MarshallMarshall, John;Johnson and Graham’s Lessee v. McIntosh[Johnson and Graham’s Lessee v. McIntosh] paid homage to the idea of natural justice, while deciding on the basis of positive law and actual practice. He found that the property rights of natives, although not entirely disregarded, were “to a considerable extent, impaired.” The discovering European nations had exercised “ultimate dominion” to decide questions of land ownership. Native Americans had been mere “occupants” of the land. Conquest had given “a title which the courts of the conqueror cannot deny,” and it superseded any consideration for “original justice.” British authority over land title, moreover, had been transferred to the government of the United States. Although the rhetoric changed, subsequent Court decisions upheld Marshall’s position on congressional authority over tribal land claims.[case]Johnson and Graham’s Lessee v. McIntosh[Johnson and Graham’s Lessee v. McIntosh]

The Antelope

Benton v. Maryland

Native American law

Native American sovereignty