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

By Chris Sudol

Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands by Lindsay G. Robertson explores how the United States Supreme Court case Johnson v. M’Intosh and the announcement of the discovery doctrine in 1823 by Chief Justice John Marshall unintentionally facilitated American Indian removal. Marshall’s successive attempt to reverse his ruling in Johnson proved futile as Worcester v. Georgia failed to prevent the American Indian removal by Jackson in the 1830s. As a result of how these circumstances played out, court rulings on the removal of indigenous peoples, Robertson declares, should be revisited.

Robertson’s work is broken up into six chronological chapters. He first introduces Johnson v. M’Intosh in the preface. In the preface, he further suggests that the discovery of the Americas was the most significant event as it pertained to land rights and American Indian sovereignty. Robertson’s observation is justified as the early modern era of American history was that of new encounters and exchanges between invading European customs and values of preexisting inhabitants and users of the land.

Robertson introduced the Illinois and Wabash Land Companies and its struggles for land ownership recognition in the first chapter. Legitimization for the land companies’ claims encountered difficulties when King George III established the Proclamation of 1763. During this time in American history legitimization by the hegemonic sovereignty was critical as the continent was a confluence of European and non-European empires and peoples that implemented different customs of land use and ownership. The Crown did not recognize the companies’ land ownership because of the proclamation’s dictate that recognized claims were only to be given by the crown which prevented British subjects from purchasing private lands from American Indians. These restrictive practices were later continued after the American Revolution as exemplified with the Indian Trade and Intercourse Act of 1790.

The companies appealed to the colonial government of Virginia and the Continental Congress after the American Revolution. The new US government subsequently denied their claims. Robertson continues to explain the land companies’ attempts to declare and legitimize their claims. The New England Mississippi Land Company along with the Illinois and Wabash Land Companies fought for their claims in the new colonial government. Lockean and Jeffersonian private property ideals took hold at the turn of the century that promoted Euro-American ownership of land through labor and farming practices. Both companies could not appeal to the Supreme Court, however, because the property they sought to claim lied within territorial, not state boundaries.

The ratification of the US Constitution allowed the land companies a pathway to contest their claims with the US Supreme Court. The third chapter of the book explores the construction of Johnson v. M’Intosh. Thomas Johnson, a shareholder within the Illinois and Wabash Land companies, and William M’Intosh, a private individual who declared a claim within the same area were part of the litigation. Ultimately, Robert Harper’s constructed case failed as Marshall declared that sales to the company under the British Proclamation of 1763 forbade the company to purchase land from American Indians. Marshal further introduced the discovery doctrine as to why the companies’ land claims were invalid.

Subsequent chapters of Conquest by Law explores the aftermath of the case. Chapter four details Marshall’s motive to explore beyond the sufficient explanation for his ruling in Johnson v. M’Intosh. Marshall hoped that his verdict would support Virginia’s veteran land claims as well as any disputed land between Kentucky and Virginia. Kentucky’s claims through the ruling Green v. Biddle were also found to be invalid. Shortly after the ruling, Johnson v. M’Intosh was decided and supported this judgment. Therefore, Marshall’s ruling in Johnson v. M’Intosh was an attempt to settle pre-revolutionary and post-revolutionary land claims. Marshall’s decision was ultimately an attempt to establish Virginia’s rights to Native lands in support of revolutionary veterans was at the heart of the decision. Discovery paved the way for this interpretation which had future unintended consequences with the Jackson presidential administration.

Robertson’s conclusion explored the legacies of the Johnson v. M’Intosh ruling. Establishment of the discovery doctrine ultimately was used to support and justify the Indian Removal Act of 1830. Marshall eventually reversed his view and noted that discovery only supported the first in right to buy the lands of willing American Indians who were willing to sell. Unfortunately, Jacksonian support ruled the courts which saw the number of US Supreme Court Justices changed to nine. Marshall’s decision in Worcester v. Georgia which reversed his decision on the discovery doctrine was overpowered by President Andrew Jackson and his supporters in the high court.

Lindsay G. Robertson explains the Johnson v. M’Intosh ruling and its unintended consequences to prove his thesis. Robertson also provides evidence on how the discovery doctrine came to be and that its implementation should be reconsidered. Robertson provided a detailed timeline which proves useful to the reader as this book is packed with detail. Besides, the author thoroughly explores other court cases and events which impacted and were impacted by Marshall’s ruling in Johnson v. M’Intosh. Robertson’s book is a critical addition to the historiography of American legal and colonial history and establishes a shift in how American colonialism is critiqued and revisited.