Aboriginal title in the Marshall Court

[2] Fletcher v. Peck (1810) and Johnson v. McIntosh (1823), the first and the most detailed explorations of the subject by Marshall, respectively, both arose out of collusive lawsuits, where land speculators presented an artificial case and controversy in order to elicit the desired precedent.

However, in both cases, the Marshall Court continued to apply the rule that aboriginal title was inalienable, except to The Crown.

[The grantee] must risque the event of the Indian claim, and yield to it, if finally established, or have the benefit of a former or future extinction thereof.

[Indian deeds] were presented to government as an inducement to extend its boundary by grant, but the firm and unbending principle has uniformly been, that all titles must be derived, either mediately or immediately, actually or presumptively, from the Crown.

[21][22] Fletcher v. Peck (1810) is famous as the "first of the great nineteenth-century Contract Clause cases"; Marshall's majority, at the very end, "included only two sentence about the Indians, but they would prove to be influential.

[25][27] Vattel, Montesquieu, and Smith all had two things in common: they falsely believed that Native Americans did not practice agriculture; and, they had never travelled to North America.

[28] Marshall addressed the arguments raised by Peck's lawyers and Johnson's dissent at the very end of his majority opinion: It was doubted whether a state can be seised in fee of lands, subject to the Indian title, and whether a decision that they were seised in fee, might not be construed to amount to a decision that their grantee might maintain an ejectment for them, notwithstanding that title.

[30] Marshall's opinion did not spell out which methods could legitimately extinguish Indian title, or even whether the power resided with the state or federal government.

[31] First, although Johnson agreed that the Georgia legislature could not revoke its land grant, he located such a prohibition in natural law, rather than the Contract Clause.

"[19] Two years later, riding the Massachusetts Circuit, Story cited Fletcher for the proposition that states owned Indian land in fee simple before extinguishment.

[19][36][37] Fairfax's Devisee v. Hunter's Lessee (1813) considered the rights of British aliens, holding title from a Royal grant, defending against an ejectment action pursuant to a Virginia statute.

[38] Preston v. Browder (1816) upheld North Carolina's nonintercourse act; both the statute and the conduct in question dated to the post-Revolution, pre-Articles of Confederation period.

[36] Justice Thomas Todd, writing for a unanimous court, said the follow about aboriginal title: North Carolina, at the time of passing this act, .

[39]Danforth's Lessee v. Thomas (1816) was a companion case to Preston v. Browder, involving a similar dispute; this time, the relevant North Carolina statute was passed in 1783, during the Articles of Confederation period.

[40] The court was able to decide the case without reaching the question of aboriginal title: Whether the legislature had the power, or intended to give the Indians a right of property in the soil, or merely the use and enjoyment of it, need not be inquired into, nor decided, by this court; for it is perfectly clear, that the [1983 act] prohibits all persons from making entries or surveys for any lands within the bounds set apart for the Cherokee Indians, and declares all such entries and grants thereupon, if any should be made, utterly void.

[The defendant argues] that the mere extinguishment of the Indian title did not subject the land to appropriation, until an act of the legislature authorized or permitted it.

[41]Johnson v. McIntosh (1823),[42] thirteen years after Fletcher, was the Supreme Court's "first detailed discussion of the subject" of indigenous title, today "remembered as the origin of the right of occupancy.

"[53] However, the Court reversed the judgment below and held that the grant should have been admissible in relation to the land over which aboriginal title had been extinguished at the time of the survey.

[50] In Harcourt v. Gaillard (1827), a case involving British land grants, the Court distinguished between conquest and change of sovereignty.

[54] As to conquest, the Court noted: "War is a suit prosecuted by the sword; and where the question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails, can only derive validity from treaty stipulations.

[56] Fletcher and Johnson had established one principle that Native Americans soon hoped to be able to enforce: that a state government could not extinguish aboriginal title.

Marshall decided that the Cherokee were a "domestic dependent nation," not a foreign state, and thus dismissed the case for lack of jurisdiction.

[60] Justices Smith Thompson and Joseph Story dissented on the jurisdictional question, and thus reached the merits, siding with the Cherokee.

[61] Moreover, Marshall "encourage[d] Peters to publish a separate report" that included the dissents, oral arguments, treaties, and the opinion of James Kent for the Cherokees.

[62] Thompson, with whom Story concurred, noted that although the U.S. had promised in a compact with Georgia to extinguish the aboriginal title, it had not done so yet, and thus: "[T]he state has not even a reversionary interest in the soil.

[64] Thompson would have enjoined the Georgia laws because: "The complaint is not of a mere private trespass, admitting of compensation in damages; but of injuries which go to the total destruction of the whole right of the complainants.

The cession of a territory, by its name, from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property.

[74]Marshall interpreted the provision of the Florida land act requiring Spanish grants to be filed within one year narrowly.

[76] Mitchel v. United States (1835), authored by Justice Henry Baldwin, was the last Marshall Court opinion on aboriginal title.

"[79] According to Hurley: According to Hurley, "[t]he Marshall Court's judgments on aboriginal rights are of particular importance for Canada" because, as emphasized by decisions of the Supreme Court of Canada, "they were founded upon a policy towards indigenous peoples and their lands applied consistently by the imperial British government throughout its North American dominions.