US Supreme Court
Johnson
v. M’Intosh, 21 U.S. 543, 5 L.Ed. 681, 8 Wheat. 543 (1823)
March
10, 1823
“ERROR
to the District Court of Illinois. This was an action of ejectment for lands
in the State and District of Illinois, claimed by the plaintiffs under a
purchase and conveyance from the Piankeshaw Indians, and by the defendant,
under a grant from the United States. It came up on a case stated, upon which
there was a judgment below for the defendant.
Mr. Chief Justice
MARSHALL delivered the opinion of the Court.
The
plaintiffs in this cause claim the land, in their declaration mentioned, under
two grants, purporting to be made, the first in 1773, and the last in 1775, by
the chiefs of certain *572 Indian tribes, constituting the Illinois and the
Piankeshaw nations; and the question is, whether this title can be recognised
in the Courts of the United States?
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. …
*587 ….
The United States, then, have unequivocally acceded to that great and broad
rule by which its civilized inhabitants now hold this country. They hold, and
assert in themselves, the title by which it was acquired. They maintain, as
all others have maintained, that discovery gave an exclusive right to
extinguish the Indian title of occupancy, either by purchase or by conquest;
and gave also a right to such a degree of sovereignty, as the circumstances of
the people would allow them to exercise.
The
power now possessed by the government of the United States to grant lands,
resided, while we were colonies, in the crown, or its grantees. The validity
of the titles given by either has never *588 been questioned in our Courts. It
has been exercised uniformly over territory in possession of the Indians. The
existence of this power must negative the existence of any right which may
conflict with, and control it. An absolute title to lands cannot exist, at the
same time, in different persons, or in different governments. An absolute,
must be an exclusive title, or at least a title which excludes all others not
compatible with it. All our institutions recognize the absolute title of the
crown, subject only to the Indian right of occupancy, and recognize the
absolute title of the crown to extinguish that right. This is incompatible
with an absolute and complete title in the Indians.
We will
not enter into the controversy, whether agriculturists, merchants, and
manufacturers, have a right, on abstract principles, to expel hunters from the
territory they possess, or to contract their limits. Conquest gives a title
which the Courts of the conqueror cannot deny, whatever the private and
speculative opinions of individuals may be, respecting the original justice of
the claim which has been successfully asserted. The British government, which
was then our government, and whose rights have passed to the United States,
asserted title to all the lands occupied by Indians, within the chartered
limits of the British colonies. It asserted also a limited sovereignty over
them, and the exclusive right of extinguishing the title which occupancy gave
to them. These claims have been maintained and established as far west as the
river Mississippi, by the sword. The title *589 to a vast portion of the lands
we now hold, originates in them. It is not for the Courts of this country to
question the validity of this title or to sustain one which is incompatible
with it.
Although we do not mean to engage in the defence of those principles which
Europeans have applied to Indian title, they may, we think, find some excuse,
if not justification, in the character and habits of the people whose rights
have been wrested from them.
The
title by conquest is acquired and maintained by force. The conqueror
prescribes its limits. Humanity, however, acting on public opinion, has
established, as a general rule, that the conquered shall not be wantonly
oppressed, and that their condition shall remain as eligible as is compatible
with the objects of the conquest. Most usually, they are incorporated with the
victorious nation, and become subjects or citizens of the government with
which they are connected. The new and old members of the society mingle with
each other; the distinction between them is grandually lost, and they make one
people. Where this incorporation is practicable, humanity demands, and a wise
policy requires, that the rights of the conquered to property should remain
unimpaired; that the new subjects should be governed as equitably as the old,
and that confidence in their security should gradually banish the painful
sense of being separated from their ancient connexions, and united by force to
strangers.
When
the conquest is complete, and the conquered inhabitants can be blended with
the conquerors, *590 or safely governed as a distinct people, public opinion,
which not even the conqueror can disregard, imposes these restraints upon him;
and he cannot neglect them without injury to his fame, and hazard to his
power.
But the
tribes of Indians inhabiting this country were fierce savages, whose
occupation was war, and whose subsistence was drawn chiefly from the forest.
To leave them in possession of their country, was to leave the country a
wilderness; to govern them as a distinct people, was impossible, because they
were as brave and as high spirited as they were fierce, and were ready to
repel by arms every attempt on their independence.
What
was the inevitable consequence of this state of things? The Europeans were
under the necessity either of abandoning the country, and relinquishing their
pompous claims to it, or of enforcing those claims by the sword, and by the
adoption of principles adapted to the condition of a people with whom it was
impossible to mix, and who could not be governed as a distinct society, or of
remaining in their neighbourhood, and exposing themselves and their families
to the perpetual hazard of being massacred.
Frequent and bloody wars, in which the whites were not always the aggressors,
unavoidably ensued. European policy, numbers, and skill, prevailed. As the
white population advanced, that of the Indians necessarily receded. The
country in the immediate neighbourhood of agriculturists became unfit for
them. The game fled *591 into thicker and more unbroken forests, and the
Indians followed. The soil, to which the crown originally claimed title, being
no longer occupied by its ancient inhabitants, was parcelled out according to
the will of the sovereign power, and taken possession of by persons who
claimed immediately from the crown, or mediately, through its grantees or
deputies.
That
law which regulates, and ought to regulate in general, the relations between
the conqueror and conquered, was incapable of application to a people under
such circumstances. The resort to some new and different rule, better adapted
to the actual state of things, was unavoidable. Every rule which can be
suggested will be found to be attended with great difficulty.
However
extravagant the pretension of converting the discovery of an inhabited country
into conquest may appear; if the 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 becomes the law of the land, and cannot be questioned. So, too, with
respect to the concomitant principle, that the Indian inhabitants are to be
considered merely as occupants, to be protected, indeed, while in peace, in
the possession of their lands, but to be deemed incapable of transferring the
absolute title to others. However this restriction may be opposed to natural
right, and to the usages of civilized nations, yet, if it be indispensable to
that system under which the country has been settled, and be *592 adapted to
the actual condition of the two people, it may, perhaps, be supported by
reason, and certainly cannot be rejected by Courts of justice. …
*603 …
It has never been contended, that the Indian title amounted to nothing. Their
right of possession has never been questioned. The claim of government extends
to the complete ultimate title, charged with this right of possession, and to
the exclusive power of acquiring that right. The object of the crown was to
settle 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.
*604
The letter was written a few months before the charter was issued, apparently
at the request of the agents of the intended colony, for the sole purpose of
preventing the trespasses of neighbours, who were disposed to claim some
authority over them. The king, being willing himself to ratify and confirm
their title, was, of course, inclined to quiet them in their possession.
This
charter, and this letter, certainly sanction a previous unauthorized purchase
from Indians, under the circumstances attending that particular purchase, but
are far from supporting the general proposition, that a title acquired from
the Indians would be valid against a title acquired from the crown, or without
the confirmation of the crown.
The
acts of the several colonial assemblies, prohibiting purchases from the
Indians, have also been relied on, as proving, that, independent of such
prohibitions, Indian deeds would be valid. But, we think this fact, at most,
equivocal. While the existence of such purchases would justify their
prohibition, even by colonies which considered Indian deeds as previously
invalid, the fact that such acts have been generally passed, is strong
evidence of the general opinion, that such purchases are opposed by the
soundest principles of wisdom and national policy.
After
bestowing on this subject a degree of attention which was more required by the
magnitude of the interest in litigation, and the able and elaborate arguments
of the bar, than by its intrinsic difficulty, the Court is decidedly of
opinion, that the plaintiffs do not exhibit a title which can *605 be
sustained in the Courts of the United States; and that there is no error in
the judgment which was rendered against them in the District Court of Illinois
