From “Undoing Manifest Destiny: Settler America, Christian Colonists, and the Pursuit of Justice” by L. Daniel Hawk
In 1823, the US Supreme Court established the doctrine of discovery as the basis for the settler nation’s title to the land. At issue in the case of Johnson v. M’Intosh was the title to a tract of land that a land speculator named William Murray had purchased from the Piankeshaw nation in 1773. Another individual, named William McIntosh, later purchased the land directly from the US government, after the Piankeshaws had ceded the land by treaties in 1803 and 1809. Who held title to the land, and for what reason?
The court ruled in favor of McIntosh and the federal government. Writing on behalf of a unanimous court, Chief Justice John Marshall begins with the premise that a nation has the right to make the laws that govern it. He noted that US law was guided by the principles that governed Christian nations. He then cited Henry VII’s patent to John Cabot to argue that the relevant principle for determining title derived from an unquestioned statute of international (that is, European) law, namely that “discovery gave title to the government by whose subjects, of by whose authority, it was made, against all other European governments, which title might be consummated by possession.” Discovery had given the British the original title to the land in question. When, therefore, the British relinquished its claim to the land now occupied by the United States (at the Treaty of Paris), Britain’s title to the land was transferred to the United States.