Whose America?

• Author: Younger, Judith T.
• Position: Indian land transfer

CONQUEST BY LAW: HOW THE DISCOVERY OF AMERICA DISPOSSESSED INDIGENOUS PEOPLES OF THEIR LANDS. By Lindsay G. Robertson. (1) Oxford University Press. Pp. 272. $29.95.

HOW THE INDIANS LOST THEIR LAND: LAW AND POWER ON THE FRONTIER. By Stuart Banner. (2) Belknap Press of Harvard University Press. Pp. 352. $29.95.

"We can only grope to understand." (4)

The 3.6 million square miles of land that we now call America once belonged to Indian tribes. Now Indian lands comprise only a tiny fraction of the whole, about 4%. (5) This great land transfer has been and continues to be a source of tension between tribes on the one hand and federal, state, local governments and non-Indians on the other. It has also been and continues to be a fertile field for articles and books attempting to explain it. (6) Two more books on the subject have now been published: Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands by Lindsay G. Roberston, and How The Indians Lost Their Land: Law and Power on the Frontier by Stuart Banner. Both authors are law professors; both books are well-written, but their views of the phenomenon they seek to explain are startlingly different. Professor Robertson blames the law for dispossessing the Indians of their lands, while Professor Banner blames government officials for failing to enforce the law.

The story begins in 1496 when Henry VII, then King of England, commissioned John and Sebastian Cabot, father and son, to discover countries which had "been unknown to all Christians" and to take possession of them in the King's name. The Cabots made two voyages of discovery in 1497 and 1498. John Cabot, along with four of his five ships, was lost on the second voyage. In the course of the first, however, he touched down on the coast of North America--we don't know precisely where. He thus became the man who "gave England her American title." (8) The exact nature of that title and, incidentally, the title of the Indians who were already in possession when the Cabots made landfall was not clearly articulated until more than 300 years later. The vehicle was the United States Supreme Court's 1823 decision in the "great case" (9) of Johnson v. M'Intosh. (10) By then, of course, England had been succeeded as sovereign, first by the original colonies, and then by the United States. All three sovereigns adopted the same policy with respect to Indian lands: private individuals were prohibited from buying them without government consent. In a world where land speculation was the norm and everyone was a land speculator, (11) the prohibitions did not succeed in preventing unauthorized purchases from Indian tribes.

Among such purchases were those at issue in Johnson v. M'Intosh. The plaintiffs claimed through an organized group of land speculators ("the Companies") who, in 1773 and 1775, bought two large tracts from the Piankeshaws and the Illinois tribes without governmental consent. The Indians later sold the same land to the United States. The United States, in turn, sold it to the defendant, another speculator. From 1775 to 1810, the Companies unavailingly sought to get the approval of the appropriate sovereigns for their purchases. They turned to the federal courts as a last resort. The case came to the District Court of Illinois on the basis of diversity jurisdiction and on an agreed statement of facts. The District Court decided for defendant and the Supreme Court affirmed. In doing so, it took the opportunity to lay out the governing principle that discovery and conquest gave England and its successors in sovereignty an exclusive right to extinguish Indian titles to land. Until this right was exercised, the Indians could continue to occupy the land they possessed.

Lindsay Robertson's book, Conquest by Law, is all about Johnson v. M'Intosh. The author made the serendipitous discovery of a trunk containing "the Companies' complete corporate records, compiled over more than fifty years--hundreds of documents ... never cited by scholars" (p. ix). The author uses this treasure trove to give us what he calls "the first complete account of the history of Johnson v. M'Intosh" (p. ix). Standing alone and allowed to speak for itself, this would have been a fine contribution to existing scholarship. Unfortunately, Robertson does not allow the facts to make the story. It is the import he ascribes to them that mars the book.

Professor Robertson attempts to convince the reader that the discovery doctrine enunciated by Chief Justice John Marshall in M'Intosh was responsible for the Indians' loss of their land. Marshall, he says, deliberately inserted the doctrine to settle the claims of Virginia revolutionary war veterans who had been awarded warrants for land which had not yet been purchased from the Indians. Marshall, according to Robertson, "had a lot on his plate" at the time--including "circuit riding obligations" and "a social life to enjoy" (p. xi)--and didn't fully grasp the implications of the doctrine. Later, says Robertson, when Marshall realized the danger, he tried to retract the doctrine in Worcester v. Georgia. (12) It was then too late. Asserting that the discovery doctrine "led to political catastrophe for Native Americans" (p. x), and casting it as the culprit in Indian land loss, Robertson ignores the enormous non-legal pressures that were being exerted to make the Indians...