d’Errico: Four strikes: Johnson v. M’Intosh is out

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If the three strikes rule were applied to legal cases, a basic problem of federal Indian law would be solved: The doctrine of Christian supremacy – otherwise known as the Doctrine of Christian Discovery – would be out, and the game of American domination of indigenous nations would be over. I say this because the case of Johnson v. M’Intosh is guilty of four strikes. Here they are as I see them:

If the three strikes rule applied to legal cases, a basic problem of federal Indian law would be solved. The case of Johnson v. M’cIntosh would have to be thrown out, because it is guilty of four strikes.

Strike one: Johnson v. M’Intosh was not a real controversy, but a collusive setup by the parties to win recognition of the real estate titles of the Illinois-Wabash Company. This was demonstrated by Lindsay G. Robertson in his 2005 book, “Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands.” Robertson studied the complete corporate records of the plaintiffs in the case and discovered they had arranged for the defendant to participate and were paying for the defendant’s lawyers. As Robertson points out, this violated the integrity of the judicial process at its core.

This deeply flawed case has spawned an octopus-like network of federal, state, and Indian agencies and policies over the nearly 200 years since it was decided.

As it turned out, the Supreme Court didn’t agree with the plaintiff’s arguments and ruled for the defendant, despite the defendant’s collusion to lose. Then the court went even further, and spelled out the concept of Christian Discovery, which affected all Indians, not just the Piankeshaw. This leads to strike two.

Strike two: Johnson v. M’Intosh incorporated religious racism into American law. The history of Christian religious racism is the subject of Steve Newcomb’s 2008 book, “Pagans in the Promised Land.” Newcomb excavates the entire chronology of “Christian Discovery,” showing its origins in Papal bulls and the Old Testament, its adoption by various Christian powers, and finally its entry into U.S. law. As Newcomb points out, the court’s adoption of Christian religious categories to decide Johnson v. M’Intosh violates the separation of church and state and subjugates indigenous peoples to the “Christian powers” and their political successors.

Strike three is the fact that the judge who wrote the decision in Johnson v. M’Intosh had a conflict of interest in the case. Chief Justice Marshall had personal and family interests in land speculation that were directly implicated by the court’s ruling. Clearly, Marshall was not impartial in his judgment in the Johnson decision. As Jean Edward Smith explains in his 1996 book, “John Marshall: Definer of a Nation.”

“Before the end of the 1780’s, Marshall would claim over 200,000 acres in Kentucky. His father and his brothers would own about twice that amount.” As the decision in Johnson v. M’Intosh states, “every acre of [Kentucky] was then claimed and possessed by Indians.” Marshall family land in Kentucky and Marshall’s own land in Virginia under the Fairfax grant all involved chains of title originating in the English crown and denying the Indians’ titles. Johnson v. M’Intosh was decided precisely as it had to be to protect the chains of title of Marshall, his family, and allies.

The Piankeshaw Indians were not parties to the case, yet the decision determined their capacity to own land and transfer title to others.

Strike four is the fact that the ruling in Johnson v. M’Intosh determined the property rights of people who were not even parties to the case. The Piankeshaw Indians never had the slightest opportunity to participate in the presentation and argument. They had no chance to argue against the colonialists’ arguments, yet the case determined they had only a title of “occupancy” to their lands. Startling as it seems, the foundation case that deprived all Indians of any form of original land title other than “mere occupancy” was a fight between two groups of non-Indians, with no Indians involved at any step in the proceedings.

What are we to make of these four strikes? It should be enough to say that history is clear and the case is invalid. Unfortunately, we must contend with vested interests that have arisen on the basis of the decision, in an octopus-like network of federal, state, and Indian agencies and policies. The entire apparatus of federal Indian law rests on this flawed case.

The first step – like the first step in other life-changing processes – is to admit there is a problem. This is already happening with passage of the Episcopal Church resolution, “Repudiating the Doctrine of Discovery.” [http ://www.indiancountrytoday.com/home/content/51572857.html] With lots of discussion and creative thinking by lawyers, law teachers, students and everyone else who wants to be involved in historical change, we can build on these challenges and mark a turning point in history, when Indian lands are recognized in full and the legacy of Johnson v. M’Intosh is overturned.


Peter d’Errico is a consulting attorney on indigenous issues. D’Errico was a staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services from 1968 to 1970. He taught Legal Studies at University of Massachusetts, Amherst until 2002.