Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands

by Lindsay G. Robertson

John Marshall's landmark 1823 decision in Johnson v. M'Intosh gave the European sovereigns who "discovered" North America rights to the land, converting Native Americans in one stroke into mere tenants. In 1991, while investigating the historical origins of this highly controversial decision, Lindsay Robertson made a startling find in the basement of a Pennsylvania furniture-maker--the complete corporate records of the Illinois and Wabash Land Companies, the plaintiffs in the case. Drawing on these records, Conquest by Law provides, for the first time, a complete and troubling account of collusion, detailing how a spurious claim gave rise to a doctrine--intended to be of limited application--which led to the massive displacement of Native Americans and the creation of a law that governs indigenous people to this day.

Genres: History, Law, Nonfiction, Native Americans, Native American History, Native American

239 pages, Paperback

First published July 27, 2005

About the author

Lindsay G. Robertson

Judge Haskell A. Holloman Professor of Law and Faculty Director of the American Indian Law and Policy Center at the University of Oklahoma

Reviews

[Owen · Rating 5 out of 5]

It is not granted to every historian to discover a trunkful of old documents up in an attic somewhere. The fact that the Illinois-Wabash papers, which fortuitously fell into the capable hands of this particular historian, were located in a basement instead, hardly alters the aura surrounding this discovery, nor does it affect the drama of the issues involved. In sifting through the evidence brought to light by this remarkable find, Lindsay G. Robertson has provided more than a mere tale of "olden days" which might be of interest to a cloistered few: he has produced a revolutionary document which may have far-reaching consequences on the "history" of the future, as well as on our reading of the past.

Mr. Robertson's capable exposition of a complex history, and the drawing out of the major themes and undercurrents informing the events of the period makes this work of interest to a broader public than just those who may find themselves involved professionally, or by association, or in the case of Native Americans and aboriginal peoples elsewhere, because it is very much part of their own story. Indeed, the wider ramifications of the judgment in the case of Johnson v. M'Intosh for both Canada and Australia and the indigenous peoples of those far-flung lands, heighten the importance of the decision itself and extend the range of interest of this original work of historical detection and analysis.

It is not an easy story to come to grips with, and our thanks must go to the author for his careful unravelling and clear explanation of the facts surrounding what has partly been obscured by the mists of time, and partly intentionally covered up by many of the original participants. We live in age which has much to consider in the way of recognizing past faults. Much is owed to exploited populations in many lands: from the time of Cortez, no treaties have been signed in South America, and those lands have been subject to plunder for centuries. That the native peoples on our own continent have been herded and exploited perhaps to a lesser extent is no reason for not now attempting to reconcile the historical faults of which all Americans and Canadians now living are the heirs. Mr. Robertson's sensitive review of how the legal foundations for the transfer of Indian land into the hands of speculators, prospectors and other worthies of the period came into being, deserves our full attention.

All in all, Mr. Robertson has produced an eloquent, eminently readable text that ought to foster much debate within the United States and abroad. It is a commendable work of scholarship which should not, must not, go unnoticed. It can, should we decide to take heed, contribute greatly to the furthering of better relations between communities in North America and around the globe - and, in a world which stands in dire need of developing governmental systems that take a diversity of communities into account (Liberia, Rwanda, and the Balkans come to mind at once, but the problem is widespread), that is no small accomplishment.

[Bill Sleeman · Rating 3 out of 5]

This is a very good, very informative but admittedly also a somewhat specialized read. As an archivist and librarian I wish the author had provided some background on the discovery of the records of the Illinois and Wabash Land Companies and what that experience was like. Sadly, it wasn’t always clear in the text when the newly found records were being employed. That said the fact that the original sources were available to generate a new way of looking at a familiar case is a fine example of the difference that access to the original source(s) can make.

[Ryan · Rating 5 out of 5]

Robertson breaths new life into the case of Johnson v. M'Intosh - already a notorious case that is taught in every single law school - by revealing new information about its procedural history that highlights the extent of the fraud and collusion that took place in order to get the case in front of the Supreme Court; the background to the case also provides an insight into the corruption and fraud that land speculators in the late 18th - early 19th century perpetrated.

[Yunis · Rating 4 out of 5]

This book is a compliment to the work closure by Gary fields. The author Lindsay G. Robertson focuses on the case of Johnson vs M'Intosh and the history of the decision that Supreme court justice Marshal divergent had an impact on history.

[Brian · Rating 3 out of 5]

Further subtitled: "Justice Marshall was a huge dick."

This book is primarily about Johnson v. M'Intosh, a case which mostly decided that private citizens did not have the right to purchase land from the Native American tribes, and that instead only the federal government held that right. Due to Justice Marshall wanting to set up a precedent for an entirely different case, however, he wrote in a few passages about how the Native Americans didn't hold an absolute right to their traditional lands, but instead just had tenancy rights:

In the establishment of the relationship between [the discoverer and the discovered], the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.

Or, in summary, "Europeans are so awesome that we own every place we go and screw the rest of you. But I guess you can still live there." The author even mentions that the fact that very few Native Americans appear in the book is, above all, a testimony to how little their wishes and sovereignty was even considered when deciding the disposition of their lands.

Johnson v. M'Intosh, obviously, would have extremely far-reaching consequences beyond the bounds of a case about a group of speculators who bought land illegally from a tribe that may not even have lived on the land they were selling. It was one of the primary justifications for Andrew Jackson's program of Indian Removal and led to effective ethnic cleansing of the majority of the lands east of the Mississippi River. And what's worse, it's still the basis for law today. Examples are even given of cases decided in Canadian and Australian courts that cite Johnson v. M'Intosh to establish that the natives don't have an absolute right to their land.

To his somewhat credit, towards the end of his life Justice Marshall realized what he had unleashed and started laying the ground for its removal in Worcester v. Georgia, a case that stemmed from Georgia's desire to seize the Creek and Cherokee lands within its borders. His death, and the eventually appointment of nine Supreme Court justices by Andrew Jackson, reversed his reversal handily and left essentially nothing of Worcester intact.

It's quite good and extensively footnoted--over half the book is footnotes, a bibliography, and the full text of the manuscript that the Illinois and Wabash Company submitted to Congress as part of their unsuccessful bid for the lands they had purchased. My rating has little to do with how informative I found the book (which was very), but more with my experience of reading it.

Conquest by Law is relatively dense, at least for someone who isn't a legal scholar or who has a formal legal education. I consider myself more well-educated than average, but the only formal legal education I had was on the philosophy of law and I'm certainly not a lawyer. The beginning of the book, dealing thus with the various legal chicanaries by the Illinois and Wabash Company in order to try to get a case to the Supreme Court--spanning 40 years and involving plenty of bribery, court-packing, and fraud--was somewhat difficult to follow. If you're expecting a definition of in fee simple or seisin or obiter dicta, then I can only say that it's a good thing we have the internet.

Scholars of the law would probably get a lot more out of this book than I did. It's quite comprehensive and a very valuable source, but the layman looking for a an overview of why America screwed the natives so much and so thoroughly should probably look elsewhere.

[Margo Brooks · Rating 4 out of 5]

This short account of the context, history and consequences of the discovery doctrine, as conceived by Supreme Court Justice John Marshall in Johnson v. M'Intosh presents a balanced discussion of early politics, legislative, and legal history in an easy to follow way. He spends half the book discussing the context and legal history of the case itself and discusses in depth colonial and post colonial land speculation. This is aided by his fortuitous discovery of the complete records of the United Illinois and Wabash Land Companies, giving him a unique perspective on the fraud the company tried for over 40 years to legalize and the unintended consequences that sprung from Marshall's decision. Robertson recounts how many of our country's founding leaders embroiled themselves in the controversy--either for or against illegal land claims--and how the context of states rights, Revolutionary War compensation, and the perpetuation of the union lead to the misguided decision and its perpetuation both in the United States and in other former British colonies. A very well written account of a complex subject.

[Claire · Rating 5 out of 5]

Incredible,eye-opening book for legal history nerds, particularly of the Aboriginal law persuasion. Explains the fraud behind the Johnson v M'Intosh case, and how a decision that a judge later regretted writing, became the foundation for the legal dispossession of indigenous peoples lands throughout the U.S., and subsequently, Canada. The stories behind cases can be so much more interesting and informative than the cases themselves...

[César Hernández · Rating 4 out of 5]

This is an excellent book about Johnson v. M'Intosh, the legal case that concluded that all land in what's now the USA belonged to the discovering Europeans. Includes great archival research and analysis of the immediate aftermath of the case.

[E.C. Frey · Rating 5 out of 5]

Brilliant.