As many of you will know, in Johnson v. McIntosh (1823), Chief Justice John Marshall declares the sovereignty of the United States government over American Indian property. According to Marshall, the government had inherited this dominion from Great Britain, which had acquired it through the doctrine of “discovery.” The case granted American Indians a “right of occupancy,” but no more. I was familiar with the Johnson case largely through teaching it in my first-year property course. Among property professors Marshall is praised for having created at least a modicum of rights for Native Americans and for protecting native land from incursions by white settlers (since Indians could only sell to the U.S. government under his ruling, not to individual citizens). The case later served in the mid-twentieth century as a precedent for American Indian land claims. But as I prepped for the workshop, I discovered that recent work in legal history paints a different view, one that brings into question Chief Justice Marshall’s motivations and also demonstrates his own questionable use of history. [… P]roperty professors view the case as good law, in the sense of having created a leg, albeit a weak one, for Indian property rights to stand on; whereas legal historians view the case as bad law, in the sense of being based on inaccurate history (and guided by suspect motivations). So one question that comes to mind for me is this: can bad history make good cases? Does inaccurate history make a case any less legally legitimate?

via Legal History Blog