An op/ed piece in Indian Country Today calls for the 1823 case of Johnson v. M’Intosh to be reversed.
Attorney and ex-professor Peter d’Errico argues that the case should fall if the three strikes rule were applied to legal cases because the case is guilty of four strikes.
He says that if this case were reversed “a basic problem of federal Indian law would be solved: The doctrine of Christian supremacy – otherwise known as the Doctrine of Christian Discovery – would be out, and the game of American domination of indigenous nations would be over.”
Here’s the four strikes against the case that he notes:
“Strike one: Johnson v. M’Intosh was not a real controversy, but a collusive setup by the parties to win recognition of the real estate titles of the Illinois-Wabash Company. This was demonstrated by Lindsay G. Robertson in his 2005 book, ‘Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands.’”
“Strike two: Johnson v. M’Intosh incorporated religious racism into American law.”
“Strike three is the fact that the judge who wrote the decision in Johnson v. M’Intosh had a conflict of interest in the case. Chief Justice Marshall had personal and family interests in land speculation that were directly implicated by the court’s ruling.”
“Strike four is the fact that the ruling in Johnson v. M’Intosh determined the property rights of people who were not even parties to the case. The Piankeshaw Indians never had the slightest opportunity to participate in the presentation and argument.”
He concludes that “The first step – like the first step in other life-changing processes – is to admit there is a problem. This is already happening with passage of the Episcopal Church resolution, “Repudiating the Doctrine of Discovery.” With lots of discussion and creative thinking by lawyers, law teachers, students and everyone else who wants to be involved in historical change, we can build on these challenges and mark a turning point in history, when Indian lands are recognized in full and the legacy of Johnson v. M’Intosh is overturned.”