Conquest By Law Analysis

1778 Words 8 Pages
Lindsay G. Robertson's Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands centers on the landmark 1823 Supreme Court case Johnson vs. M'Intosh. Robertson's research provides previously undiscovered knowledge of the circumstances surrounding the case, placing the case in a new context. Robertson tells the story of a costly mistake, one made by the American judicial system but paid for by indigenous people who to this day suffer from the effects of American settlement.

As reviewer Christopher Tomlin writes, "Robertson's narrative is far less concerned with parsing its legal doctrine, than with the historical circumstances of the case itself." Robertson begins his story in the middle of the 18th century,
…show more content…
But it was the content of Marshall's opinion, rather than the mere ruling, from which the case would draw its lasting impact. The case was simple and could have remained so; the company's claim to the land was founded on a fraudulent and illegal purchase. But rather than dismiss the claim on the grounds that it violated the Proclamation of 1763, as the Senate had done in a dispute regarding a separate land claim five weeks earlier, Marshall used the Doctrine of Discovery to support his ruling. The Discovery Doctrine grants the title to a piece of land to any European government whose subjects "discover" the land, so long as the indigenous inhabitants of the land are not European. Through this Doctrine, Britain (and, through Revolutionary inheritance, the USA) had earned the title to the lands that would make up colonial America, rendering the Indians as mere tenants of the land, with no property rights. Marshall used the Doctrine to conclude that, because the land belonged to the European discoverer, the Indians did not own it and therefore had never had the right to sell it to Murray's …show more content…
First, to "explain the meaning of Johnson and the Discovery Doctrine by placing its resolution in legal and political contexts." Second, to "expose the process of judicial lawmaking in the early republic." Third, to re-consider Marshall's prescience, and to offer "an instructive picture of how intelligent people can sometimes unthinkingly create catastrophic problems they find themselves powerless to fix." Finally, to "encourage a reassessment of the jurisprudential legacy of Johnson in light of its procedural and political history." Through his painstaking research of the case and the circumstances that led to it, synthesized into a readable, accessible narrative, Robertson accomplishes the first two aims. Through his discussion of the case's aftermath, he hits his other two

Related Documents