Excerpted From: Sheila Simon, Johnson V. M'intosh: 200 Years of Racism That Runs with the Land, 47 Southern Illinois University Law Journal 311 (Winter, 2023) (412 Footnotes) (Full Document)


sheilasimonThe United States Supreme Court case of Johnson v. M'Intosh is a foundation of property law in the United States. It established the United States government as the only possible buyer of land from people native to the continent. As the only possible buyer, the United States government had the power to negotiate a low purchase price. The bargain basement purchases are at the root of title for most of the property in the western half of the country.

The case also forms an early and critical component of many property law textbooks. The case can be used to introduce the idea of acquisition by discovery and the idea that land ownership and the right to sell land can be limited. Sadly, the case is also a perfect introduction to how racism is fundamental to the law of the United States. The decision rests, at least in part, on “facts” that Christian Europeans considered themselves “superior genius” to the “fierce savage, whose occupation was war, and whose subsistence was drawn chiefly from the forest.”

Learning about the idea of property ownership, how property can be bought and sold, and how our law is built upon race-based assumptions is important for law students. But at Southern Illinois University, we have a special interest in the case because our law school is located on one of the disputed parcels of land. Our location gives us both knowledge of the area and, I believe, an obligation to consider what responsibilities we may have that stem from the result of the case.

This article will first examine the land in the case and establish that, despite assertions to the contrary, the land claimed by the two parties to the case was overlapping. Next, the article will outline the rather shady path of the case up to the Supreme Court. Then, the article will examine the decision, what important facts were missed, and the impact of the decision in the United States and beyond our borders. Finally, the article proposes actions that we, particularly those of us who live and work in the disputed territory, may take based on our more complete understanding of the case.

Before proceeding, I want to acknowledge my own strengths and limitations. I know the land as an almost life-long resident of Southern Illinois, as a landowner myself, as the wife of a man who was raised on a Southern Illinois farm, as someone who has been involved in many political campaigns covering the area, and as an avid bicycle rider in the area. My limitations are in my knowledge of cultures that were native to this area. I have the background of ordinary Illinoisans in this matter, which is to say I have learned very little about the original inhabitants of the territory in which I live. It is my connection to the land that drives my desire to learn more about its history and whether, based on that history, we have responsibilities today.

[. . .]

The United States Supreme Court's decision in the 1823 case of Johnson v. M'Intosh was based on a dispute that was mostly fictional. The two parties to the case likely owned overlapping interests in land, but they never had a real dispute between them. The parties were picked to get a case before the Court, only after one side failed in a long series of attempts to get the legislature to endorse their title. The case was presented on agreed facts, so no judge was able to dig more deeply into what was presented. And neither the parties to the case nor the judges considered including representation for those who lost the most in the case-- the Illinois, the Piankeshaw, and all other native people who lived on the land as their ancestors had before them. Without any representation from the indigenous groups, the agreed facts and the Court's conclusions were full of assumptions and flat-out factual errors, many of them based on an unwillingness to see land through the eyes of a different culture with different gender-based roles with regard to the land. The decision allowed for cheap western expansion by European peoples at a very high cost to native peoples. And the decision continues to have an impact in the United States and beyond. Two hundred years after the decision, it is time to reconsider our national, state, local, and personal response to Johnson v. M'Intosh.

On the national level, our courts can take at least one lesson from Johnson v. M'Intosh that should still be valid--look to international law. Just as Chief Justice Marshall found ample international sources on the law of discovery, United States courts now have ample international sources on indigenous rights. The United Nations adopted the International Declaration on the Rights of Indigenous Peoples in 2007, which recognizes the injustice involved in the dispossession of native lands. While the United States was only one of four countries to vote against the Declaration, in 2010, President Barack Obama announced that the United States would support the Declaration. The Organization of American States also has general language on private property rights, and an autonomous body to protect human rights, the Inter-American Commission on Human Rights (“IACHR”).

The Inter-American Court of Human Rights has already provided one authoritative counterweight to United States courts' continued denial of native land rights. Sisters Mary and Carrie Dann, whose claim was rejected in a 1985 case citing Johnson, took their case to the IACHR and won a recommendation that the United States review its laws, procedures, and practices to ensure conformity with the American Declaration of the Rights and Duties of Man. While the United States declined to comply with the court's determination, the favorable determination exists for future use.

One area where national law can be changed is in how the federal government disposes of lands it owns. Canadian law gives preference to indigenous groups when disposing of nationally owned land. The United States Department of the Interior is taking at least one step in that direction by working with a group of indigenous nations and tribes to manage Bears Ears National Monument. A lieutenant governor of the Zuni Pueblo tribe said, “Today, instead of being removed from a landscape to make way for a public park, we are being invited back to our ancestral homelands to help repair them.”

While changing the law would be the best recognition of indigenous property rights, other meaningful steps can be taken as well. In the infamous Korematsu decision, the Supreme Court allowed the internment of United States citizens of Japanese heritage. When a later dissenting opinion referred to the Korematsu case, the majority used the occasion to clarify, “The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and--to be clear--‘has no place in law under the Constitution.”’ The legislative and executive branches moved in the same direction regarding Korematsu, passing and signing a law that offered a formal apology and compensation to victims of the internment. Compensation, and an apology from the Court, would be significant for people injured by Johnson v. M'Intosh.

State-level courts and legislatures may have an even more free hand to correct the injustices that stem from Johnson v. M'Intosh. State courts can, just like federal courts, look to international law in considering land disputes. State legislatures and executives can, like the response to Korematsu, offer compensation and apology for a European takeover of lands that was on the cheap. State-level institutions can also play a role, as is demonstrated by the Illinois State Museum, which recently created its first position of director of tribal relations.

Organized activity at a level geographically smaller than the state may offer even more room for creative solutions. Private organizations focusing on reserving natural environments can work to return land, as Save the Redwoods League has done in California, returning ownership of hundreds of acres to an intertribal council. Private and state universities, along with school districts, can take action to promote a better understanding of the lives of native peoples at the time Europeans arrived on the continent. Land acknowledgments at the start of meetings--a reminder that the land once belonged to different peoples--are becoming more common in the United States and even have a longer tradition in Australia and New Zealand. Knowing the history of the land can help ensure that future decisions are less likely to be based on racial generalizations and assumptions, as was the case in Johnson.

The University of Illinois, located close to the Upper Illinois purchase of 1773, has a record of some action. The school may be most famous for having “Chief Illiniwek” as its mascot, despite criticism from indigenous people and debate for decades. Maybe because of the controversy over the mascot, or maybe in spite of it, the University has made connections with the Peoria tribe. Two actual chiefs from the Peoria tribe visited the school in 2009, sharing information about their history and culture. The school also has a full tuition scholarship program for members of the Peoria tribe.

As a professor at Southern Illinois University, and a long-time resident of Southern Illinois, I am interested in actions that can be taken here, in how our University and community can be a part of educating about the heritage of this area and the people who once lived, farmed and hunted here. In this region, we all live and work in the area that was once the home of the Illinois people, now organized as the Peoria Tribe of Indians of Oklahoma.

Our University, and particularly the law school where I teach, can establish connections with the Peoria Tribe so that our students can learn more about the history of the land. Thanks to the pandemic, our ability to make a meaningful connection across a long distance is better than ever. Scholarships, like the ones at the University of Illinois, also seem to be a good goal. But the connections should not be limited to university and graduate students. Connections could be established between grade school and high school students and the Peoria Tribe. Imagine a rural Southern Illinois school where students, whose parents farm rich river bottom land, connect with the descendants of those who farmed the land 200 years ago.

And the University itself can go further. The University system is governed by a board of trustees who are appointed by the governor of Illinois. The governor could, simply by choice of appointees, ensure that a member of the Peoria Tribe is serving on the board at all times. This would be one way to incorporate a sense of responsibility to the land itself from people with a historical connection to the land.

Finally, knowledge of the case and the injustice it has caused over 200 years has to inspire us to take individual action. That action could be working together on institutional, local, state, or national ways to address injustice. The action could also be much more personal, seeking out information about those who used to occupy the land we occupy now. It could be as easy and fun as enjoying indigenous foods. That alone should reinforce the importance of being open to and interested in understanding cultures other than the ones in which we have been raised. Because while we need to address the injustices of Johnson v. M'Intosh, we also need to be watchful to prevent injustices of our own time and our own making.

Sheila Simon teaches at the Southern Illinois University School of Law in Carbondale, Illinois.