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  • Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights by Blake A. Watson, and: The Trail of Broken Treaties: Diplomacy in Indian Country from Colonial Times to Present ed. by Bartosz Hlebowicz with Adam Piekarski
  • Marcus Gallo
Blake A. Watson. Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights (Tulsa: University of Oklahoma Press, 2012). Pp. xvi, 456. Illustrations, notes, bibliography, index. Cloth, $45.00.
Bartosz Hlebowicz with Adam Piekarski, editors. The Trail of Broken Treaties: Diplomacy in Indian Country from Colonial Times to Present (Wyższa Szkoła Gospodarki, 2011). Pp. 237, illustrations, notes, index. Polish, with English translations. Pricing unavailable.

Did Native Americans truly own the land they inhabited? As law professor Blake A. Watson demonstrates in Buying America from the Indians, this question vexed generations of early American legal theorists. Ultimately, most agreed that Native Americans did not hold absolute title to their lands, which instead belonged to the European powers that had “discovered” those lands. While the book is primarily a history of the landmark 1823 Supreme Court case of Johnson and Graham’s Lessee v. McIntosh, Watson also explains how early American legal doctrines continue to affect the land rights of indigenous groups in the United States and abroad. His book will interest scholars of property law, Native American rights, and early American land speculation, as well as laypeople who enjoy narrative history.

The case of Johnson v. McIntosh stemmed from two separate land deals that speculators conducted in 1773 and 1775 with the Illinois and the Piankeshaws, who lived in present-day Illinois and Indiana. While the British Proclamation of 1763 had banned white expansion beyond the Appalachian Mountains, a variety of speculators conducted direct purchases of Indian lands around this time. Some were buoyed by the Camden-Yorke [End Page 193] opinion of 1757, in which England’s solicitor general and attorney general held that land sales in the Indian subcontinent could be transacted between Indians and individual Europeans. Others aimed to entice well-connected politicians with shares in backcountry land companies, hoping to develop new colonies in the West. As Watson recounts, the American Revolution intervened to dash these plans. Because private speculative activities undercut the potential for the new patriotic governments to profit from sales of western lands, the revolutionaries promptly mimicked British policies by preventing individuals from transacting land deals with Indians and temporarily halting expansion beyond the Appalachians.

Nevertheless, the purchasers of the Illinois’ and Piankeshaws’ lands sought to cash in on their original agreement, either by securing legitimate land titles or by receiving compensation from the US government for extinguishing Indian title to millions of acres of land. While some possibility of remuneration remained in the first few decades after the Revolution, this outcome became increasingly unlikely as the United States began to purchase much of the land in question in separate treaties. The heirs to the original purchasers, along with subsequent investors in the project, pressed for a lawsuit to settle the issue. The case that ultimately proceeded through the court system depended on a legal fiction, based on the conceit that “Simeon Peaceable” had leased land from two of the speculators (Johnson and Graham), only to be forcibly ejected by another lessee, “Thomas Troublesome,” who rented from William McIntosh. A merchant who had bought land in Illinois from the federal government, McIntosh likely agreed to be a defendant in return for a financial reward from the speculators.

In the colonial era, only a handful of intellectuals like Roger Williams of Rhode Island believed that Indians held full legal ownership of their land. Most believed that Indians could not truly own land since they lacked the civility of Christians and failed to sufficiently improve land for agriculture in the European style. The legal basis for these beliefs rested on the internationally recognized doctrine of discovery, which held that the European nation that discovered land in the New World had the exclusive right to own it. A small minority of early American legal scholars also believed in the doctrine of terra nullius: that Indians deserved no right at all to their lands, and that...

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