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  2. Mr. Justice Thurgood Marshall 1908-1993: A Bio-bibliographic Research Guide
  3. Special Collections Room | Maryland Courts
  4. The Indian Law Legacy of Thurgood Marshall

It is true that Marshall exerted himself to protect "free Indians" from being sold as slaves and that he proposed intermarriage of whites and Indians. While the former is certainly a friendly act, the latter was as much a means to disrupt and assimilate as to befriend the natives:. What is in question here is whether Marshall's opinions in the Indian cases were an expression of "concern for the Indians" or something quite different. The critical perspective developed here will focus on a close textual analysis of the first of the three cases, Johnson v. McIntosh , which produced a legal theory and a jurisprudential basis for all that followed.

Some commentators prefer to focus on the later Cherokee cases, particularly to argue that Marshall's views changed between and Whether a compelling case can be made for that proposition is another matter. What is crucial is that we understand the starting point. The beatification of the fourth Chief Justice as the "definer of a nation" indicates the wider context in which the Indian cases were decided. Marshall celebrated federalism as a basis for cohesion and westward expansion of the United States. He led the Supreme Court through a convoluted period of post-revolutionary politics to establish the notion of national Constitutional law under which a "separation of powers" might govern and protect the security of private property.

Modern "rule of law" theory owes a great deal to Marshall's conception of the Constitution. In this wider context, the Indian cases have more to do with the battle between federal and state powers than they do with the indigenous peoples.

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In each instance, what was at issue in the cases centered not on the Indians, but on competing groups of white men 6 struggling for superior position in the legal framework of politics and economy. The legal status of Indians was created to fit that framework.


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The controversy in Johnson v. McIntosh began with an "action of ejectment" 7 for lands in Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States.


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It came to the Court on a "case stated," 8 upon which there was a judgment below for the defendant. The "case stated" described a history of transactions affecting the land in question from May 23, , to the date of the action.

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The history did not begin with Indians, whose presence was not referred to until the third section. From the point of view of the parties to the case, the starting point was the English crown:. The first "fact" in the history of the case was thus monarchical sovereignty: the capacity to "erect, form, and establish" corporations and to "give, grant, and confirm The case begins in a legal framework derived from monarchy. By , the English crown had been overthrown, but its legacy lived on in the sovereignty of the United States.

As we shall see, Johnson v. McIntosh , among other early Supreme Court decisions, demonstrated how little of English law was actually overthrown by the American revolution. Indians were only the ostensible issue of the case. The real issue was: who would get to inherit the legacy of the crown? The case history continued with a statement that "the corporation proceeded The parties agreed that Indians "were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever Indian sovereignty was thus stated only for the purpose of noting its surrender or defeat.

Marshall's opinion would adopt this device of a transient "American Indian sovereignty," an indigenous sovereignty capable of effacing itself or of being effaced. His opinion in Johnson v. McIntosh would ensconce this as a key feature of federal law.

Mr. Justice Thurgood Marshall 1908-1993: A Bio-bibliographic Research Guide

In the fourth section of the history of the case, the parties recited the sequence of events from the year , when the "corporation was dissolved Next, the litigants provided a capsule history of the French and Indian War, from "some time previous to the year ," when "the French government, laying a claim to the country west of the Allegheny or Appalachian mountains Indian ownership was again postulated only for the purpose of explaining the operation of crown sovereignty.

The function of this broad statement of Indian independence from any crown was, yet again, to set the stage for the demise of such independence. According to the plaintiffs' side of the case, the lands in question had been transferred to one of their predecessors. It was a curiously complex transaction:. This verbose section was the legal core of the plaintiffs' claim. One might suspect from the complex legalese that the Indians had been taken advantage of; certainly the words of conveyance were not derived from the Piankeshaw tongue.

But the verbosity is not a sign that white men had been trying to trick Indians. After all, what possible difference could it have made to the latter whether the "consideration" involved was "good" or "valuable" or both? And if we assume for the moment that the Indians intended to give permanent possession of land to the white men, what difference whether this was referred to as sale, alienation, or enfeoffment?

The verbosity of the transaction is a sign of the confused and changing legal world the white men brought with them. They were concerned about "consideration" because their legal world was struggling with new forms of economic exchange. The series of words -- "grant, bargain, sell, alien, enfeoff, release, ratify, and confirm" -- were alternative links between the circumstances of the transaction and its enforceability. The white men, not sure of their position in an emerging economy of private property, stated claims as individuals free from obligations to a feudal lord and also as "subjects of the crown of Great Britain," of such "quality, station, and residence," as would permit them to negotiate in the name of their king and hold property by feudal tenure.

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In the description of the transaction, legal ambiguity among white men was stated as an ambiguity of action by Indians. Various possible permutations of land tenure among white men were expressed as permutations of verbs characterizing actions of Indians. If white men were free from their king, then Indians "grant, bargain, sell, [and] alien" the tracts of land. If white men were yet vassals, Indians "enfeoff, release, ratify, and confirm. Having set forth the basis for the plaintiffs' claims to "lands held, possessed, and inhabited by the Piankeshaw Indians, from time immemorial," the "case stated" shifted to tell the defendant's history of the land, beginning with the American revolution:.

The language of conveyance is simpler and there is no ethnographic detail about "chiefs" and Indians. The basis of the defendant's claim was stated with neither the verbosity nor ambiguity of the plaintiffs':. The "facts" of the dispute thus set out rival claims from widely divergent perspectives. The official report of the Supreme Court's decision in the case provides a single sentence "syllabus" of the answer: "A title to lands, under grants to private individuals, made by Indian tribes or nations northwest of the river Ohio, in As we shall see, this task -- carried out by one of the most celebrated jurists in the history of the Supreme Court -- was accomplished only by declaring that the power of the state is the law's reason.

In the argument before the Court, counsel for plaintiffs contended, "It would seem, As might be expected, the lawyers for the defendant presented a sharply clashing theory of the case. Counsel urged that "the uniform understanding and practice of European nations, and the settled law, as laid down by the tribunals of civilized states, denied the right of the Indians to be considered as independent communities, having a permanent property in the soil, capable of alienation to private individuals.

They remain in a state of nature, and have never been admitted into the general society of nations. The defendant's argument rang of the most unabashed ethno-centrism. Juan Williams talked about his life, work, and career. He discussed civil rights and race relations in the U. Charles L. Nancy Gertner Judge U. Presidential Library Foundation. More information about Centennial of Thurgood Marshall. Estimated delivery dates - opens in a new window or tab include seller's dispatch time, and will depend on postal service selected.

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