Johnson & Graham’s Lessees v. M’Intosh

US Supreme Court – 21 U.S. (8 Wheat.) 543 (1823)

USA Aboriginal titleDoctrine of discoveryLands reserved for IndiansProperty

The decisions rendered by the “Marshall court”, including this one, marked the starting point for a judicial discussion about Aboriginals.

According to the doctrine of discovery, which binds the Aboriginals, the discoverer holds a title to the lands and an exclusive right to acquire Indian lands.


Does an Indian nation have the capacity to cede parcels of the land they occupied to private individuals?


Unanimous decision: The European nation that establishes itself on a territory obtains the exclusive right to acquire Indian lands.


Between: Thomas Johnson’s lessees, Joshua Johnson and Thomas J. Graham

And: William McIntosh


Purchase of lands

  • In 1773 and 1775, a group of Philadelphia investors, the United Illinois and Wabash Land Companies, purchased, via its agents William Murray and Louis Viviat, lands from the Piankeshaw nation.
  • In doing so, the group defied the Royal Proclamation of 1763 which barred all land purchases from the Indians by English subjects.
  • Thomas Johnson was part of the group, and a parcel of land was allotted to him. However, the investors never had the lands in question in possession because of the American Revolutionary War.

Surrender of the lands by the State

  • In 1783, the State of Virginia transferred all rights, titles and claims on the lands under its jurisdiction to the United States. This cession included the land already seceded by the Piankeshaw tribe.
  • In 1818, William McIntosh bought 11,560 acres from the United States.


  • In 1819, Joshua Johnson and Thomas J. Graham inherited the lands once owned by Thomas Johnson.
  • The two properties overlapped, and Johnson’s lessees petitioned the Court to invalidate the title of McIntosh on the overlapping part of the lands.


Both parties anticipated a definitive decision regarding the validity of the sale of the lands by the Indians.

Decision of the lower courts

The District Court for Illinois (1820) ruled in favour of the defendant, McIntosh.

Reasons for Judgement


Marshall, Washington, Johnson, Livingston, Todd, Duvall, Story


Discovery doctrine

The “discovery doctrine” contains two elements. Firstly, the discovery of America by the Europeans gave them title to the land and a right of occupancy to the Indians.

Since Great Britain was the only European country to establish colonies on the site of what is now the continental United States, it held the title. When the Thirteen Colonies gained their independence, they acquired Britain’s title.

Exclusive right

The European nation that establishes itself to the exclusion of all others, gains the exclusive right to acquire land from the Indians. In 1773 and 1775, the Piankeshaw tribe could only sell the land they occupied to the British Crown. Therefore, the sale between them and the United Illinois and Wabash Land Companies is void.


This case is one of many written by the chief justice of the U.S. Supreme Court, justice Marshall.

In this judgement, we see that Chief Justice Marshall empathized with the Indians, who were the rightful occupants of the land. This decision, however, was not the most generous in Aboriginal law.

However, he knew that he could not stop the US expansion to the West. He tried to come up with a legal theory which would protect them from cruel entrepreneurs by making the State act as their trustee, meaning that it could only sell the land the Indians occupied if it was in the Indians’ best interest.

Furthermore, the interpretation made of the doctrine of discovery was reversed a few years later in the Worcester decision. As a result of the negative consequences of his previous decisions, Justice Marshall changed position and concluded that the simple act of discovery is insufficient to justify possession of lands and the power to dispel their first inhabitants. Consequently, he determined that the U.S. had no right on Cherokee land (Patrick, 2002).

Related Cases

Cherokee Nation Georgia, 30 U.S. (5 Peters) 1 (1831)

Worcester  v. State of Georgia, 31 U.S. 530 (1832)


Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823)

Burke Joseph C. 1969. The Cherokee Cases: A Study in Law, Politics and Morality, The Stanford Law Review 21 (3). En ligne. Accessed June 4, 2009.

Kades Eric. 2001. History and Interpretation of the Great Case of Johnson v. M’Intosh, Law and History Review 19 (1). En ligne., 2001. Accessed June 3, 2009.

PATRICK, John; PIOUS, Richard et RITCHIE, Donald. 2002. Worcester v. Georgia.The Oxford Guide to the United States Governement. En ligne : Accessed July 15, 2013.

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