"We've never had justice": How the Supreme Court rigged land deals against native people
It was 1823. The land of Michigan wasn’t yet a state. The indigenous people far outnumbered the white settlers. The Erie Canal hadn’t opened. The flood of European immigrants was yet to arrive.
But the groundwork for their arrival was set in 1823 by the U.S. Supreme Court in a case about property rights.
The case: Johnson v. M'Intosh.
This is part two in our series "An Idea on the Land." To hear part one, click here.
On the fourth floor of the Michigan State University law school building, on a windowsill that overlooks the campus, Wenona Singel keeps her family photos.
Singel is a law professor here, and associate director of MSU’s Indigenous Law & Policy Center.
Family is the reason she went to law school, she says.
When she was young, she was separated from her sister in what she says was a coerced adoption.
It’s a familiar story in many native families.
“And, in my mind, understanding the operation of our legal system and the development of federal Indian law and policy was absolutely critical,” she says.
So when she got older, she went to law school — at Harvard.
All first-year Harvard law students had to take a class on property law. That is where Singel first heard of the landmark case known as Johnson v M’Intosh.
“The original Johnson of the case was actually a former Supreme Court justice, and a wealthy shareholder in the Illinois and Wabash Land Company,” Singel says. “And this land company had speculated in the purchase of Indian lands.”
It purchased those lands directly from the tribes.
At that same time, the U.S. federal government was out trying to get land from tribes. It negotiated treaties with the tribes. Once the government got the land, it would parcel it out to sell to settlers.
So along comes this settler named M’Intosh. He buys from the government. But the land he buys, well it’s already been bought, by the Illinois and Wabash Land Company.
Remember, that’s the group of wealthy investors that buys directly from the tribes. And Johnson is a part of that group.
So Johnson bought from the tribe.
M’Intosh bought from the U.S. government.
The question before the Supreme Court: Who really owned the land now — Johnson or M’Intosh?
It’s an easy question if you think the tribe owned its land in the first place. Because if the tribe owned it, it could sell it to the Illinois and Wabash Land Company, Johnson’s group. Johnson wins.
But the real question was whether the tribe owned the land in the first place.
Did they even have the power to sell it?
“And, to the surprise of the lawyers and shareholders in the Illinois and Wabash Land Company, Justice Marshall in the Johnson v. M’Intosh case declared that the tribes did not have this power.” Singel says. “And that they only had the power to transfer their property to the federal government.”
That was the official legal ruling for the United States government: that native people did not actually own the land they'd lived on for thousands of years.
M’Intosh won because he had bought from the federal government. Justice Marshall argued the federal government was the true owner of the land all along.
The indigenous people of the U.S. had some rights on their land. They had the right to use and occupy it. But they couldn’t sell it on the open market because they didn’t really own it.
That was the official legal ruling for the United States government: that native people did not actually own the land they’d lived on for thousands of years.
And yes, this decision had a huge impact. If and when native people ever did want to sell their land rights, there was only one buyer they could turn to. That meant the buyer had the upper hand in the negotiations over price.
It was a rigged deal.
Singel learned all of this as a busy, stressed, first-year law student.
"In many ways, it's almost like gaslighting," Wenona Singel says of the Johnson v. M'Intosh case. "You're learning about ... certain rights that are associated with property rights ... knowing all along that these rights have not been respected, and were not enforced for your own ancestors."
“And then you move on to the next case,” she says. “And there’s no further discussion of the wrong that this perpetuates. And also the flawed reasoning. And also fundamentally misinformed and racist presumptions that our property legal system is based upon.”
And this isn’t some obscure case. It’s foundational in the U.S. legal system. Most law schools teach it to all their students in the first year.
“In many ways, it’s almost like gaslighting,” Singel says now. “You’re learning about … certain rights that are associated with property rights — the right of possession, the right to exclude, the right to transfer —knowing all along that these rights have not been respected, and were not enforced for your own ancestors.”
One of the passages in the actual text of the Supreme Court decision reads:
“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.”
This language, and the precedent it established, has never been overturned in America’s legal system. It is valid law today.
“Imagine if Plessy v Ferguson was never overturned,” Singel says. “Imagine if Dred Scott was never overturned ... We’ve never had any kind of accounting and justice that has restored those original property rights.”
After Johnson v. M’Intosh, the early white leaders of Michigan drafted a series of treaties with the native people of the area. These documents would have the tribes sign their land over to the federal government.
Lewis Cass was Michigan’s second governor. He negotiated a number of the treaties. In the late 1820s, he advocated the forced removal of the land’s native people. In his argument, he echoed the words of Justice Marshall. He claimed if white people didn’t rule the land, Michigan would be doomed:
“A tribe of wandering hunters, depending upon the chase for support, and deriving it from the forests, and rivers, and lakes, of an immense continent, have a very imperfect possession of the country over which they roam ,” Cass argued. “That they are entitled to such supplies as may be necessary for their subsistence, and as they can procure, no one can justly question. But this right cannot be exclusive, unless the forests which shelter them are doomed to perpetual unproductiveness.”
Cass didn’t get his wish for removal. But he did eventually get treaties.
And the white people did make the land productive, in their way.
The same as they had done in all of the Americas, says Willie Jennings of Yale Divinity School. They did what they believed their God wanted them to do.
“The way they looked at the land, from the very beginning, from Michigan to Maine, from Virginia to Florida, they looked at the land as the world-in-potential that needed development,” Jennings says. “And that development was always tied to what can be taken from the land.”
In Michigan, a land of dense, ancient forests, they could take a lot.
Tomorrow, we’ll look at what happened next. The story of the trees, tomorrow in our series, "An Idea on the Land."