>>Dr. Joshua Nelson: Okay, so they bring the case up in front of Johnson and the Supreme
Court, and how, how do they find?
>>Dr. Lindsay Robertson: Yeah, well, the Supreme Court, John Marshall writes the opinion. Johnson
is the representative of the land company. McIntosh is a guy they found who was willing
to stand as defendant who would acquire the lands later--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --through a claim purchased from the--through purchased from
the United States. So the issue was clearly these land speculators had bought the land
earlier than the United States had. They stipulated that they had paid adequate compensation to
the tribe for the lands, that they were properly defined, they bought from the right Indians
and stuff. The only real question from the company's perspective was were these purchases
legal--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --under the Proclamation of 1763? These, these purchases that were
made before the Revolution commenced, and that question is answered by the Court. The
Court says actually they were illegal. The argument had been that the Proclamation of
1763 was unconstitutional under the British constitution, that Parliament could have said
you can't buy Indian lands, but the King didn't have that power.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: And Marshall says, "Yeah, yeah he did." So that's--
>>Dr. Joshua Nelson: Okay.
>>Dr. Lindsay Robertson: --so that's that. If that were all, we'd never remember this
case--
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: --because who cares if the Proclamation of 1763 was constitutional
under the British Constitution? What the Court did in addition to that--
>>Dr. Joshua Nelson: Uh huh.
>>Dr. Lindsay Robertson: --was to adopt into American law, something called the Discovery
Rule or the Discovery Doctrine.
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: And that's what's important about Johnson versus McIntosh. What
the Court said was that there's an additional reason that the company's purchase was invalid,
and it's this--that under the Court's understanding of international law, back in the 17th and
18th centuries, when the English arrived on the coast of the new world--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --pursuant to international law as understood and applied by European-the
European colonizing nations, they immediately acquired ownership of all indigenous lands.
And while the indigenous peoples retained an occupancy, right, a right to occupy those
lands--
>>Dr. Joshua Nelson: This is what they call a usufruct right?
>>Dr. Lindsay Robertson: Yeah, it's a usufruct right, under-that's the old Latin legal term.
>>Dr. Joshua Nelson: Okay.
>>Dr. Lindsay Robertson: While the indigenous people retained an occupancy right and they
could sell the occupancy right, they could only sell it to the same discovering sovereign.
>>Dr. Joshua Nelson: Okay.
>>Dr. Lindsay Robertson: So there are two parts to this Discovery Doctrine. One is,
what we call the vesting of title or the vesting of fee title portion. That the discovering
European sovereign and the King of England when they plant that flag in the soil, instantly
they own everything they can see.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: But in addition--
>>Dr. Joshua Nelson: Extending maybe even a little farther. [laughs]
>>Dr. Lindsay Robertson: --extending a little farther then they can see.
>>Dr. Joshua Nelson: Yeah, okay.
>>Dr. Lindsay Robertson: But in addition, they acquire the exclusive right to purchase
the, the right to occupy those lands that they now own from the indigenous peoples who
live there. Now in a later decision Marshall's going to say, "Well that's just a rule that
works against other Europeans." But at the time in Johnson versus McIntosh, the Court
essentially said that it's a rule that actually works to the disadvantage of the tribes because
this-these tribes that sold these lands didn't own them at the time, applying this Discovery
Doctrine, that they sold them to these land speculation companies. And, and even though
they did retain an occupancy right--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --and they could sell that, this is sort of the second part,
they could only sell that to the British Crown in 1775. So there's sort of a two-fold reason
for which this, this purchases are invalid, this original sales to these land speculators.
Now, that was kind of interesting. You know, it sort of, it, it was the, it was the death
of the-these land speculators, the United Illinois and Wabash Land Companies. But it
had another immediate application that sort of becomes part of the Indian removal story
and the, the Cherokee Nation case's story. It also has a long-term consequence--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --which is that even today, because this is still the law, with,
with a handful of exceptions - the five tribes in eastern Oklahoma and the Pueblos being
the, the, the, the, the big exceptions--Indian peoples don't own their own lands.
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: That Discovery Doctrine from Johnson versus McIntosh tells us that
the United States, as successor and interest to the British Crowns, owns the title to Indian
lands. The tribes own an occupancy right, a right to occupy those lands. It's actually
more than just a right to be there. It, it includes, according to later Supreme Court
case law, ownership of all the subsurface natural resources and the stuff on top of
the land - the trees and that sort of thing.
>>Dr. Joshua Nelson: And fish, for instance--
>>Dr. Lindsay Robertson: And fish, right.
>>Dr. Joshua Nelson: --game.
>>Dr. Lindsay Robertson: Well, there are certain, yeah--
>>Dr. Joshua Nelson: Uh huh.
>>Dr. Lindsay Robertson: --right, but specifically subsurface natural resources--
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: --and timber are part of the occupancy, right. And, and they
have a right to sell that, but because of the Discovery Doctrine's still the law, they
can only sell those lands to the United States.
>>Dr. Joshua Nelson: Yeah, here's the thing. Listening to you describe it in this way,
it, it sounds like you're describing an enormous legal fiction that Marshall creates more or
less out of whole cloth. Is that right? Is he creating international law? On his own?
Without input from any sort of existing doctrine over discovery? Certainly without input from
indigenous folks.
>>Dr. Lindsay Robertson: Yeah, certainly without input from indigenous folks. He cites some
sources, in his opinion. He cites Vitale, he cites--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --sort of some of the old Gro-Grotius, some of the old 17th
century international law scholars,--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --he cites old English charters. What I discovered when I was working
on the, on the book—oh, I should say that I think for a long time it was the, it was
the conventional belief that Marshall being John Marshall must be telling the truth, and
this must be the way things had been. When I was working on the book, I discovered to-and
I'll admit to my great sort of surprise and, and, and disappointment, maybe? I don't know.
Hard to say. I was educated in this tradition too.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: That, that in fact, the, the, the background, the, the, the, the
precedent, if you will, the authority for this Discovery Rule might generously be described
as suspect. That he had actually lifted it--the the the portions of the Opinion that that
justify the the finding that this is the the rule, these are the consequences of European
discovery--from a book that he himself had written years earlier, Volume I in a multi-volume
biography of George Washington--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --that he wrote without benefit of any primary sources, that he apologized
for when it first came out on the grounds that he hadn't had access to primary sources,
and he had a full time job.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: You know, he was the Chief Justice of the United States [both
laugh], so--
>>Dr. Joshua Nelson: So, he didn't have to do his homework.
>>Dr. Lindsay Robertson: Well, he didn't have time to do much homework, so he put this thing
out there. To his credit, it is, I think, the first comprehensive colonial history in,
history of the, of the American colonies--north and south, mostly north-- in English.
>>Dr. Joshua Nelson: Let, let me clarify for the sake of, of people who may not have had
much exposure about to the politics of Indian law. What you're saying is that under the
Doctrine of Discovery, American Indian people, even though they own their land, do not own
their land.
>>Dr. Lindsay Robertson: Yeah, they don't because they don't--they own an occupancy
right to their land. But the title to their land is owned by the United States.
>>Dr. Joshua Nelson: Seems like that could cause some problems.
>>Dr. Lindsay Robertson: Yeah. Well, more of--candidly in other-elsewhere than here--I
mean, that's the rule, this rule has gotten exported throughout the English colonial world.
So it's the rule in Canada, it's the rule in Australia, you know. And in those countries
the consequences I think are, are more dire because the, the U.S. Supreme Court has recognized
an occupancy right that's fairly robust because it includes subsurface natural resources--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --and timber. That isn't the case in these other countries.
>>Dr. Joshua Nelson: Okay.
>>Dr. Lindsay Robertson: It's just sort of a surface right.
>>Dr. Joshua Nelson: But in any event, it sounds like it's the kind of law that is set
up to serve colonizing.
>>Dr. Lindsay Robertson: Well, this, in my view, is set up to serve a slightly different
purpose. And this, this story is told in full in, in the book if, if you know, if anyone's
interested in in learning more about it. The story that, that, that I came to, to understand
as this, this sort of the background story for Johnson versus McIntosh, was it wasn't
so much that, that Marshall was attempting to, to invent a rule that would facilitate
colonial expansion.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: I, I think his ends were a lot more modest than that. He was,
he had an immediate situation calling out for resolution involving Virginia military
veterans from the Revolution, who had been promised lands--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --or granted lands in southwestern Virginia as compensation for
their military service.
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: Those lands were Chickasaw lands, it turns out, and the Chickasaws
weren't interested in sharing. So, so the Virginians sort of abandon this attempt to
provide these lands as compensation. And then Kentucky became an independent state in 1792.
And, and then the Chickasaws eventually signed a treaty leaving their lands in southwestern
Kentucky, at which point Virginia said, "Great, now our veterans can get-have access to them."
And state of Kentucky said, "Over our dead body-- [laughs]
>>Dr. Joshua Nelson: [laughs]
>>Dr. Lindsay Robertson: --It's Kentucky now." And that dispute was, was hot and live at
the time Johnson versus McIntosh came up. So, my understanding of Johnson versus McIntosh
is that what Marshall did was what he commonly did, which was to use one case to, to settle
two problems.
>>Dr. Joshua Nelson: Ah.
>>Dr. Lindsay Robertson: One was to get rid of the Illinois and Wabash Land Companies,
but the other was to resolve this Virginia military veterans' claim. The ground of objection
was that these were Indian lands at the time that Virginia reported to grant them. So Virginia
had nothing to grant.
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: And what the Discovery Doctrine rule says is actually they did because
Virginia, as the successor and interest to the British Crown, owned the underlying title.
So what Virginia had to grant was the ownership of the lands. And even though the Chickasaws
retained an occupancy right they didn't give up until decades later,--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --that title had passed to these veterans.
>>Dr. Joshua Nelson: Okay.
>>Dr. Lindsay Robertson: And so they were entitled to go out now and occupy their lands.
>>Dr. Joshua Nelson: So the question of how to go about passing the right of occupancy
comes up for Marshall again in the Cherokee Nation v. Georgia case.
>>Dr. Lindsay Robertson: So the vesting of fee title portion from the Johnson versus
McIntosh Discovery Rule turns out to be what triggers the, the, the circumstances giving
rise to Cherokee Nation versus Georgia.
>>Dr. Joshua Nelson: Okay, well we'll see if we can figure that one out on the next
go around.