Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of their Land

Vol. 16 No.1 (January 2006), pp.78-80

CONQUEST BY LAW: HOW THE DISCOVERY OF AMERICA DISPOSSESED INDIGENOUS PEOPLES OF THEIR LANDS by Lindsay G. Robertson. New York: Oxford University Press, 2005. 263 pp. Hardback. £17.99/$29.95. ISBN : 0-19-514869-X.

Reviewed by Mathew John, Fellow for Law and Culture, Centre for the Study of Culture and Society, Bangalore, India. E-mail: Mathew [at] cscsban.org

In this compelling book Lindsay Robertson undertakes a detailed historical reconstruction of the 1823 US Supreme Court decision in JOHNSON v. M’INTOSH. Justice Marshall’s decision in this case held that the discovery of the Americas “gave the state by whose subjects or by whose authority it was made the exclusive right to settle, possess, and govern the new land, and the absolute title to the soil, subject to certain rights of occupancy only in the natives.” The decision, according to Robertson marked a founding moment in the legal regime that was fashioned to conclusively determine European land claims in the Americas. Moreover, the decision also set in motion a calamitous course of events which eventually led to the forcible appropriation of indigenous Indian lands. This book provides a detailed social history of the parties and processes that took this case through the Supreme Court. In doing so it highlights the significance of the case for the early republic and for indigenous land policy in the US, as well as other British Colonies.

Like any case-centered history, CONQUEST BY LAW focuses the bulk of its attention on describing the various social processes and actors that pulled it together and made for its significance. Robertson traces the origins of the case to the machinations of William Murray, western agent for David Frank and Company a prominent Philadelphia based trading firm. Murray’s speculative dealings in indigenous Indian land lay at the root of the JOHNSON case. He Formed the Illinois and Wabash Companies through which speculative purchases were made in large tracts of indigenous Indian lands west of the Allegheny Mountains. Such purchases were barred by a 1763 proclamation by King George III. Under the shadow of this proclamation, the purchases gave the company only a tenuous claim on the property. Against this background Robertson eases us into the story of the JOHNSON case by devoting detailed attention to the companies’ efforts to clarify title to their dubious transactions. These efforts would lead the company to the guile of Robert Goodloe Harper, a canny counsel who had successfully argued the case of questionable land purchases made by another company, the New England Mississippi Land Company, before the US Supreme Court (Chapter 1).

Harper’s stewardship of the claims of the Illinois and Wabash Companies through Congress and eventually to the US Supreme Court is an important part of the narrative structure of the book. The account of Harper’s charge includes detailed accounts of a series of submissions to Congress as well as [*79] various historical uncertainties, which for a long time kept the JOHNSON case far from the doors of the Supreme Court. However what is most significant to the larger story is the collusive manner in which the case was put together and argued when it eventually did get to the courts. Indeed, the only way the companies could get their case to court was to stage collusive litigation that purported to eject landholders whom the companies would claim were squatting on lands that legitimately belonged to the companies. However, details of the collusion could only come to light through Robertson’s serendipitous discovery of JOHNSON case documents held by the Illinois and Wabash Companies. With these records, Robertson is able to demonstrate that the selection of litigants, the choice of lawyers to represent opposing positions, as well as the determination of arguments were all stage-managed by Harper and his cohorts. One suspects that the milieu of the early American Republic provided seemingly unlimited possibilities to unscrupulous speculators for various forms of unjust enrichment.

Collusion or otherwise, Harper’s elaborately laid out plans were unwittingly scuttled by Justice John Marshall. Harper had meticulously organized arguments so that the parties would agree on all facts and would contest the case on one question alone – the effect of the proclamation of 1763 (pp.53-59). This was a question, Harper believed, to which precedent would compel a resolution in his favor (p.56). He might have well succeeded had it not been for Justice Marshall who reiterated the 1763 proclamation’s ban on indigenous Indian land purchases and, more importantly, went on to elaborate the “discovery doctrine.”

Justice Marshall could have well decided the JOHNSON case without any reference to the “discovery doctrine.” However, as Robertson points out, the case was in effect a pawn in Justice Marshall’s own designs regarding conflicting interests in the early republic, as well as to consolidate the authority of a fledgling Supreme Court. Taking us through Justice Marshall’s effort to mitigate a confrontation with the Virginia legislature as well as his concern for ensuring lands promised to his erstwhile colleagues in the Virginia Revolutionary War militia, Robertson makes the case that it was these contingencies that motivated articulation of the discovery doctrine in the JOHNSON case (Chapter 5). The decision consigned the Illinois and Wabash Companies to the recesses of history and, more importantly, underwrote the Indian removal policies embarked upon by states like Georgia with active support of the Federal Government (Chapter 6).

CONQUEST BY LAW is an important contribution to the study of the extension of European ideas and governance to other parts of the world, and the work sheds considerable light on indigenous land policies in the United States. However, it is precisely in puzzling the broader significance of this case that one finds Robertson’s account a touch limiting. Although the importance of the “discovery doctrine” to the development of indigenous land policy in the US is indisputable, it is not quite so clear that [*80] Justice Marshall’s labors in the JOHNSON case represent the origin of the doctrine. To advance such an account, one must engage the history of ideas to be able mark the ideational horizons within which judicial choices are made. Anthony Pagden (1990) offers precisely such an account when he traces the discussion of property rights of American Indians to the 15th and 16th century debates in early modern Europe. A careful reader would notice that Robertson is not oblivious to the legal possibilities available to Justice Marshall. He acknowledges the observations of key political figures, like Jefferson and others, that mere discovery was insufficient to grant title (pp.87, 127-128). Nonetheless, even though Robertson suggests the diversity of legal choices from which “discovery” was selected, his emphasis on judicial politics eclipses a more forceful discussion of the (limited) horizon of ideas that could be traced to Europe’s appreciation and consequent conquest of native America.

One might argue that the specificity of his enquiry absolves Robertson from a more detailed enquiry into the history of ideas. However, he does indicate that he sees his scholarly labors having a salience for contexts beyond the borders of the US. His “Afterword” is just such an attempt to show how the “discovery doctrine” has traveled to judicial forums in Canada and Australia. Unfortunately, beyond stating the fact that the doctrine has traveled across jurisdictions, the implications of and the questions raised by such conceptual journeys is left unexplored. In an entirely different context Ranajit Guha’s (1996) invaluable work on the permanent settlement of Bengal is an instance of what such implications might be – that is, to point to the limitations of the European legal imagination when faced with the ‘bewildering’ diversity of land relations in contexts such as India. Although Robertson is diffident on this score, his efforts are a timely reminder of the intellectual labors that await us in our future readings of decisions as important as JOHNSON.

REFRENCES:

Guha, Ranajit. 1996. A RULE OF PROPERTY FOR BENGAL: AN ESSAY ON THE IDEA OF PERMANENT SETTLEMENT. Durham: Duke University Press.

Pagden, Anthony (ed). 1990. THE LANGUAGES OF POLITICAL THEORY IN EARLY-MODERN EUROPE. Cambridge: Cambridge University Press.

CASE REFRENCES:

JOHNSON v. M’INTOSH, 21 U.S. 543 (1823).

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