season2 · 27 Jun 2023
Our hosts Philip P. Arnold and Sandy Bigtree speak with Lindsay Robertson.
We begin this episode with a land acknowledgement. Our hosts Prof. Philip P. Arnold and Sandy Bigtree (Mohawk Nation), begin by introducing our guest Lindsay Robertson. He is the Chickasaw Nation Endowed Chair in Native American Law, Faculty Director, the Center for the Study of American Indian Law and Policy, and the Sam K. Viersen Family Foundation Presidential Professor. He is the author of the 2005 book Conquest by Law: How the Discovery of the Americas Dispossessed Indigenous Peoples of Their Lands.
The episode begins with Prof. Robertson providing the context for Johnson v. M’Intosh, Chief Justice John Marshall and the Marshall trilogy, which is Johnson v M’Intosh, 21 US (8 Wheat) 543 (1823), Cherokee Nation v Georgia, 30 US (5 Pet) 1 (1831) and Worcester v Georgia, 31 US (6 Pet) 515 (1832). Early in Prof. Robertson’s career, he was looking to do a history, and he knew these three cases so he began looking into them and began wondering what was the history and story behind the cases. As he dug into the archives, he realized that there were significant gaps in the archive. An Archives at the Historical Society of Pennsylvania helped him get into touch with Jasper Brinton, whose ancestor had been secretary of the land companies at the center of the case. It turns out that the family had preserved the documents and had an incredible archive of the materials necessary to write a history of the Johnson decision. The United Illinois and Wabash Land Companies Collection is available online and thanks to Brinton, Robertson, and the librarians at the University of Oklahoma this open-access resource is available for free online. We encourage you to please avail yourself of it as you listen to the episode.
As Robertson explored the archive, he found an incredible backstory, and an important research question which his book and this podcast episode discuss and that is “where did this discovery doctrine come from and why is it in this opinion in the first place? Because it’s unnecessary to the resolution of the one question that was asked by the litigants in Johnson v. M’Intosh.”
The core of the case is two illegal land purchases from several Indigenous nations that were made during the British colonial period after the establishment of the Royal Proclamation line of 1763 (also discussed in S0E01 with Joe Heath). The question that the land speculators who purchased the land were concerned about was providing that the illegal land purchases were legal under British law in the 1770s. Eventually this British legal question made its way to the United States Supreme Court. The land speculators assumed they could easily win the case because a big part of the revolution was overthrowing British authority and law and also land speculation (11:06-14:05). The Johnson decision does answer this question deep in the opinion. For Prof. Robertson there are two main elements of Johnson:
Underlying title portion
Restraint or alienation portion.
As Robertson notes Marshall was not necessarily interested in the English law question but instead other questions and ideas so Marshall creates the Doctrine of Discovery and pull it beyond the colonial period and into his present. This is why Marshall spends a majority of the decision on thinking through the Doctrine of Discovery.
Our hosts and Robertson discuss how John Marshall is an interesting and complex thinker who is little understood. It was only when Robertson started reading Marshall’s writings in chronological order that he gained a sense of the man himself, how he expressed himself, phrases, idioms, common sources used by Marshall. One of the keys to understanding Marshall and his legal reasoning is Marshall’s book The Life of George Washington, where he goes back to Christopher Columbus to craft a longer narrative not only of the life of Washington but also of the United States. In attempting to write the biography of Washington, Marshall instead writes a history of European colonization which is interesting and clearly influential to his legal reasoning within Johnson and the rest of his “trilogy.” As Robertson notes if one wants to understand Johnson and Marshall they should read his book The Life because it provides a profound insight into Marshall’s thought.
An important but often overlooked element of the American Revolutionary are is the Proclamation Line of 1763. It was a major cause of the war because the colonists wanted land west of the demarcation line and to violate the treaties that had been made with Indigenous nations.
Citation: Encyclopædia Britannica, “Proclamation of 1763: boundary line,” from Encyclopædia Britannica, URL, Access Date, June 26, 2023.
Another overlooked element in understanding “Federal Indian Law” is the non-Intercourse Act, and the regulation of trade by the states and the federal government. Part of the concern with the regulation of trade is limiting the trading power of Indigenous nations and trying to strangle their economies.
Robertson reminds us that, Marshall sees the start of Indian removal and Worcester v. Georgia, which to a certain extent can be read as Marshall trying to lessen the impact of impact of Johnson and is ultimately unsuccessful in this point especially when President Andrew Jackson is able to pick so many Supreme Court justices that keep emphasizing and harkening back to the Johnson decision. In Robertson’s estimation it is Supreme Court Justice Henry Baldwin, who really solidifies into US law and consciousness the contemporary understanding of Johnson and its relationship with the Doctrine of Discovery.
Lindsay Robertson, Conquest by Law (New York: Oxford University Press, 2005)
Peter d’Errico, Federal Anti-Indian Law (New York: Bloosmbury, 2022)
Steven T. Newcomb, “The U.S. Government’s Claim of a Right of Domination,” Doctrine of Discovery Project (16 January 2023)
Philip P. Arnold and Sandra Bigtree, “The Backstory of Johnson v. M’Intosh with Lindsay Robertson,” Mapping the Doctrine of Discovery (Podcast), June 27, 2023. https://podcast.doctrineofdiscovery.org/season2/episode-01.