Introduction to 200 Years of Johnson v. M’Intosh: Law, Religion, and Native American Lands

In 1823, Chief Justice John Marshall based the supposed right of colonizing forces to dominate and take ownership of the land on what he viewed as the natural order of conquest. To justify this “pretension,” he wove together theological and legal justifications for land theft. Marshall’s creation would go on to shape not only U.S. property law but also international property law, as Tonya Gonnella Frichner and Robert J Miller underscore. The Doctrine of Discovery, and the 15^th-century Papal Bulls that influenced Marshall remain relevant today. Justice Ruth Bader Ginsburg famously cited the Doctrine of Discovery in a footnote to her 2005 majority opinion in the City of Sherrill, New York v. Oneida Indian Nation. As Joseph J. Heath and Dana Lloyd explain, Sherrill continues to have a massive impact on Indigenous sovereignty. It is a significant factor in multinational corporations’ extractive enterprises on Indigenous lands. As Steven Newcomb’s contribution to this series highlights, the framework of domination on which the Doctrine of Christian Discovery is built serves the goals of settler colonial conquest and its attendant racism and xenophobia. We invite religious and legal scholars to reflect upon this framework.

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