S02E03 - Johnson v M’intosh and Federal Anti-Indian Law with Peter d’Errico

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Moving into a discussion of Chief Justice John Marshall’s cases, including Johnson v M’Intosh, Arnold compares and contrasts d’Errico’s perspective to Lindsay Robertson (S2E1), and Robert J. Miller (S2E2). In d’Errico’s analysis, “Johnson v. M’Intosh sets the premise that native peoples do not and cannot have title to the land once a Christian discoverer has come onto the scene.” In Cherokee v. Georgia, the Cherokee nation appeals to the Supreme Court, arguing that the courts have a duty to help protect them against Georgia, and Marshall is faced with a dilemma because both the Cherokee nation and the US claim title to Cherokee lands. Ultimately Marshall ignores the Cherokee Nation’s argument and concludes that the Cherokee Nation does not own land; they do not have standing to bring the case, and he ignores the treaties completely. Johnson’s argument in Cherokee v. Georgia raises questions for d’Errico about Johnson’s so-called brilliance in legal argumentation.

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