8 Wheat. (21 U.S.) 543 (1823), argued 17 Feb. 1823, decided 10 Mar. 1823 by vote of 7 to o; Marshall for the Court. This was the first Supreme Court case to define the legal relationship of Native Americans to the United States. It began in 1775 when the Piankeshaws ceded land in Illinois to a group of speculators, including William Johnson. However, Virginia in 1783 conveyed to the federal government its Illinois claims for the public domain.
In 1818 William McIntosh bought from the United States 11,560 acres of Illinois land that were part of Johnson's purchase. These same lands were claimed by Joshua Johnson and his son, Thomas J. Graham, and they brought an ejectment action against McIntosh. After losing in the lower courts, Johnson and Graham appealed.
The Supreme Court, in a unanimous decision written by Chief Justice John Marshall, found for McIntosh. Marshall held that the principle of discovery gave European nations an absolute right to New World lands. Once established, Native Americans had only a lesser right of occupancy that could be abolished. Marshall also found that the United States acquired title to Native American lands through Great Britain's conquest. He mistakenly declared that a conquered people's rights to property could not be applied to Native Americans because Indians were “fierce nomadic savages” (p. 590).
Thus, Indians could not transfer lands to individuals, such as William Johnson, or to nations other than the United States. Subsequent decisions of the Supreme Court eroded McIntosh, although this decision has yet to be specifically overruled.
John R. Wunder