2005 PSP Award for Excellence, Honorable Mention in Law

Description

In 1823, Chief Justice John Marshall, a Revolutionary War veteran, former Virginia legislator, and a well known land speculator handed down a Supreme Court decision of monumental importance in defining the rights of indigenous peoples throughout the English-speaking world. The case was Johnson v. M'Intosh , and at the heart of the decision was a "discovery doctrine" that gave rights of ownership to the European sovereigns who "discovered" the land and converted the indigenous owners into tenants. Though its meaning and intention has been fiercely disputed, more than 175 years later, this doctrine remains the law of the land and indigenous peoples all over the world have been dispossessed of their property as a result.

In 1991, while investigating the discovery doctrine's historical origins Lindsay Robertson made a startling find. In the basement of a Pennsylvania furniture-maker Robertson discovered a trunk with the complete corporate records, some in code, of the Illinois and Wabash Land Companies, the plaintiffs in Johnson v. M'Intosh . This book provides, for the first time, the complete and troubling account of the European "discovery" of the Americas.

The tale the documents tell is unsettling. Johnson v. M'Intosh was a collusive case, an attempt to buy off many of the leading figures of the early republic, and sought to take advantage of loopholes in the early federal judicial system to win a favorable decision from the Supreme Court.

This is a gripping tale of political collusion and unintended consequences. It is a story of how a spurious claim gave rise to a doctrine--intended to be of limited application--which itself gave rise to a massive displacement of persons and the creation of a law that governs indigenous people and their lands to this day.

Features

• Based on a startling find of previously unknown corporate records and materials in a basement in Philadelphia, this is the first complete account of the "discovery doctrine" or the law that dispossessed Native Americans, which is still in effect 175 years later
• Disrupts the canonical view of John Marshall, showing that his property interests played a role in this key decision
• Rewrites the history of the foundational Supreme Court opinion on the land rights of indigenous peoples, raising troubling questions about the legal basis of the claims of the US, Canada, Australia, and New Zealand to ownership of indigenous lands

Reviews

"Drawing upon previously unknown historical records, Professor Robertson has written a major book destined to force a significant reconsideration of the legal principles and the landmark judgment relied upon in the USA, as well as in many other countries, to legitimate colonial assertions of ownership overriding indigenous ones."--Bradford W. Morse, Professor of Law, University of Ottawa

"Robertson's painstaking research jumps off the pages of this excellent book that preserves the truth of the "discovery doctrine."--The Oklahoman

"A meticulously researched analysis of the political rivalries and personal greed surrounding a landmark Supreme Court decision that set the stage for the judicial conquest of Native America.... Robertson's study is based on rediscovered historical records that clearly reveal how greed for land and power instigated the Trail of Tears and similar tragedies."--Booklist

"At last a comprehensive examination of the circumstances surrounding Johnson v. M'Intosh , a Supreme Court decision used and abused by generations of lawyers and judges. Robertson brings the case into the historical world from which it has been missing for 180 years."--Vine Deloria, Jr., Professor Emeritus of History, University of Colorado, Boulder

"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."--Law and Politics Book Review

"Lindsay Robertson's Conquest by Law opens exciting new vistas on American politics and law in the republic's formative years. Robertson brilliantly reconstructs the history of Johnson v. M'Intosh , the foundational case in federal Indian law in which Chief Justice John Marshall set forth the "discovery" doctrine, showing how this failed feigned case led to tragic, unintended consequences for Indian peoples in the U.S. and beyond. Deeply researched and lucidly argued, Conquest by Law > is a remarkable contribution both to the literature of American history and to our national self-understanding."--Peter Onuf, author of Jefferson's Empire

"Lindsay Robertson's outstanding book pulls off the frail cover of the articulated court reasoning in Johnson v. M'Intosh to expose the often ugly reality that the case was orchestrated to satisfy the greed of speculators. More disturbing, the decision was expanded for the purpose of rewarding Marshall's friends. It points to one of those historic moments wherein had integrity persevered, many tribes, including the Cherokee Nation, may not have faced the infamous Trail of Tears; and federal and tribal relations would have been founded on solid law, rather than fleeting political desires. Professor Robertson has done a great service to the country, to the law, to the Indian nations by exposing the truth through painstaking research." --Chad Smith, Principal Chief, Cherokee Nation

"This is an exceptional work that breaks new ground and contributes to our understanding not only of a specific case, but of the role of the Supreme Court in the American Republic. An important contribution to both the study of law and the history of the West."--Rennard Strickland, Philip H. Knight Professor of Law, University of Oregon

Product Details

272 pages; 8 maps, 7 halftones; 6-1/8 x 9-1/4; ISBN13: 978-0-19-514869-5ISBN10: 0-19-514869-X

About the Author(s)