Johnson v. M'Intosh Revisited: Through the Eyes of Mitchel v. United States


In the first four decades of the nineteenth century, the United States Supreme Court handed down five seminal decisions written by Chief Justice John Marshall, forming the political-philosophical-legal basis of tribal-state-federal relations. It is unnecessary to elaborate on the principles derived from these decisions—Fletcher v. Peck, New Jersey v. Wilson, Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia—because they have been analyzed or at least broached by virtually every scholar wading into the turbid discipline of federal Indian law.

This article will focus on (1) the question of the legal status of Indian titles (aboriginal possessory rights) to land; and (2) what, if any, limitations are there on the rights of tribes to convey their title to whomever they wish. This set of questions requires us, first, to recapitulate the principles announced in the M'Intosh decision which forcefully addressed the issue of Indian land title and the apparently "diminished" right to tribes to transmit the same and second, to then move to examine in great detail the little-discussed 1835 Supreme Court decision, Mitchel v. United States.

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Copyright © 1994 University of Oklahoma College of Law Digital Commons. This article first appeared in The American Indian Law Review 19:1 (1994), 159-181.

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