On this date, Supreme Court Chief Justice John Marshall redefined land ownership in America in the case of Johnson v. M’Intosh.

It was a stretch, but he went back to the fifteenth century, when the Pope allotted newly discovered lands to Spain and Portugal.  He ruled that, under this practice, England had “the exclusive right of the discoverer to appropriate the lands occupied by Indians.”  (Never mind that England did not assert this right, but sought to acquire Indian lands through purchase.)  As successors to the English, the United States now has the right to appropriate Indian lands.

After all, the Indians “were fierce savages, whose occupation was war, whose subsistence was drawn chiefly from the forest.  To leave them in possession of their country, was to leave the country a wilderness.”  Because they are “an inferior race of people,” they do not have a right of ownership, but only a right of “occupancy”; the United States government has “the exclusive power to extinguish that right.”

Thus, in the courts, the indigenous people of the United States were stripped of their land.  With the stroke of John Marshall’s pen, in the eyes of the law, they became tenants.  The federal government became a benevolent steward and a jealous landlord.

The Cherokee protested and rejected the “doctrine of discovery”.  They replied that “our title has emanated from a supreme source, which cannot be impaired by the mere circumstance of discovery by foreigners; neither has this title been impaired by conquest or by treaty.”  But the Court turned a deaf ear.

This case remains the basis for land ownership in America today.  It is among the first cases taught to students in law school, and it continues to be cited in legal decisions each year.  The ruling was made in the District of Columbia—Columbus’s land.  They didn’t name it that for no reason.

See Echo-Hawk, W.R. 2010  In the Courts of the Conqueror.