The Marshall Court (1801–1835) issued some of the earliest and most influential opinions by the Supreme Court of the United States on the status of aboriginal title in the United States, several of them written by Chief Justice John Marshall himself. However, without exception, the remarks of the Court on aboriginal title during this period are dicta., 2005, at 180 ("Johnson could have been a very easy case, decided in a very short opinion. The company's purchases were obviously void under any relevant law—whether that of Britain, Virginia, or the United States—regardless of the nature of Indian property rights. Even if the Indians were deemed the fee simple owners of their unsold land, the purchases would still have been unlawful. Rather than decide the case quickly and easily, however, John Marshall embarked on an extended discussion of the history of the colonization of North America, and a detailed elaboration of Indian property rights. None of this was necessary to dispose of the claims of the United Illinois and Wabash Company."). Only one indigenous litigant ever appeared before the Marshall Court, and there, Marshall dismissed the case for lack of original jurisdiction.See Berman, 1978, at 637 ("Many of the early cases that established important precedents in the development of Indian law were not litigated by the Indian nations.").

Fletcher v. Peck (1810) and Johnson v. McIntosh (1823), the first and the most detailed explorations of the subject by Marshall, respectively, both arose out of collusive lawsuits, where land speculators presented an artificial case and controversy in order to elicit the desired precedent., 2005, at 171–72 ("[N]either side had any incentive to argue that the Indians were the land's owners. The litigation was collusive; both Fletcher and Peck were veteran speculators who stood to gain if the corrupt 1795 grant were upheld. . . . The object of the suit for both sides was for Fletcher to lose—that is, for the 1795 sale to be upheld. . . . The Indians, of course had no voice in Fletcher v. Peck, so no one argued that the land was owned by the Indians. Both sides could accordingly adopt the newer view of Indian property rights without the older view being heard. . . . The litigation was well funded, and both sides wanted Peck to win, so Peck's lawyers were an all-star team John Quincy Adams, Joseph Story, and Robert Goodloe Harper . . . . Fletcher's lawyer, the elderly and alcoholic Luther Martin, . . . was being paid to lose."); id. at 179 ("The litigation was collusive, just like Fletcher v. Peck. The speculators' nominal opponent was an Illinois resident who was alleged to own a parcel with out of the Wabash tracts, which he purchased from the federal government, which in turn had bought much of the same land from the same tribes in the first decade of the nineteenth century.").Kades, 2000, at 1092 ("Mapping the United Companies' claims alongside McIntosh's purchases, as enumerated in the district court records, shows that the litigants' land claims did not overlap. Hence there was no real 'case or controversy,' and M'ntosh, like another leading early Supreme Court land case, Fletcher v. Peck, appears to have been a sham." (footnotes omitted)); id. at 1093 ("McIntosh did not contest a single fact alleged in the complaint, jurisdictional or otherwise. Perhaps he participated in framing the complaint, which became the stipulated facts of the case. Neither the district court nor the Supreme Court questioned any of these facts. Everyone involved, it seems, wanted a decision on the legal question of the validity of private purchases from the Indians." (footnote omitted)). In Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), the dicta of Marshall and the dissenting justices embraced a far broader view of aboriginal title.

Johnson involved a pre-Revolutionary private conveyances from 1773 and 1775; Mitchell v. United States (1835) involved 1804 and 1806 conveyances in Florida under Spanish rule. However, in both cases, the Marshall Court continued to apply the rule that aboriginal title was inalienable, except to The Crown. This inalienability principle—whether embodied by the Royal Proclamation of 1763, the Confederation Congress Proclamation of 1783, the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, or 1833, or the federal common law—remains the crux of the modern Indian land claim litigation.

Several other cases involved disputes between non-Indians holding land grants from different states or state nonintercourse acts; federal courts had subject-matter jurisdiction over such disputes as "Controversies . . . between Citizens of the same State claiming Lands under Grants of different States." Art. III, § 2. For example, Preston v. Browder (1816), Danforth's Lessee v. Thomas (1816), and Danforth v. Wear (1824) involved conflicting land grants from the states of North Carolina and Tennessee.

Background

Earlier Supreme Court decisions Sims' Lessee v. Irvine (1799) was the first Supreme Court decision to discuss aboriginal title (albeit briefly), and the only such decision before the Marshall Court. The Court found ejectment jurisdiction over certain lands, notwithstanding the defendant's claim (in the alternative to the claim that the defendant himself held title) that the lands were still held in aboriginal title because: Without confessing the aboriginal title of the Indian tribes, it is enough for the lessor of the Plaintiff to allege . . . that before the year 1779, they had abandoned and relinquished all the lands . . . and that in pursuance of treaties, they have since receded very distantly from that boundary. Lands may be acquired by conquest; and a relinquishment, in consequence of hostilities, is tantamount to conquest.Sims' Lessee v. Irvine, 3 U.S. (3 Dall.) 425, 452 (1799).

State court decisions The "first known American case to address the issue" of the validity of state land grands to land over which the aboriginal title had not been extinguished was Marshall v. Clark (Va. 1791), decided by the Virginia Supreme Court.Marshall v. Clark, 8 Va. 268 (1791)., 2006, at 161. The plaintiff was John Marshall's father, Thomas Marshall, challenging (on behalf of the state militia's claim to the same land) the validity of a land grant to Revolutionary War veteran George Rogers Clark., 2005, at 162. Marshall argued that the grant could not be valid because the aboriginal title was not extinguished; the Virginia Supreme Court disagreed: The Indian title did not impede . . . the power of the legislature to grant the land. [The grantee] must risque the event of the Indian claim, and yield to it, if finally established, or have the benefit of a former or future extinction thereof.Marshall, 8 Va. at 273. The Pennsylvania Supreme Court and Tennessee Supreme Court soon issued opinions to the same effect, holding that states could grant land that the federal government had not yet purchased from Indians.Glasgow's Lessee v. Smith, 1 Tenn. 144 (1805); Weiser's Lesee v. Moody, 2 Yeates 127 (Pa. 1796). Such transactions, already common, increased in the wake of these decisions; the assumption was that the Indians held fee simple to their land, but that future executory interests could be sold, representing a promise of the state to transfer the land should it ever come into their possession., 2005, at 162–68.

A second, competing view was that the Indians possessed only a possessory right of occupancy, not fee simple to their land. "The first reported American court decision holding that unsold Indian land was owned by the government, subject only to the lesser right of 'possession' or 'occupancy' held by Indians" was Strother v. Cathey (N.C. 1807), decided by the North Carolina Supreme Court., 2005, at 169 (citing Strother v. Cathey, 5 N.C. 162 (1807)). There, the North Carolina court decided that the fee title to the land was held by the state, subject to the tribe's right of occupancy, and that—while the federal government could terminate that right occupancy—the federal government could not acquire fee title by doing so., 2005, at 169.

In Jackson v. Hudson (N.Y. 1808) held that the nature of Indian title was an undecided question in New York, and avoided deciding the issue because neither party claimed its chain of title traced to Indians., 2005, at 160–70.Jackson ex dem. Klock v. Hudson, 3 Johns. 375 (N.Y. Sup. 1808). The next term, when a party before the court claimed to derive title deeds from Indian sellers, the New York court held that such deeds were insufficient in Van Gorden v. Jackson (N.Y. 1809):, 2005, at 170. Though Indian deeds were obtained for the purpose of proving that the rights of the natives were extinguished, [such deeds] were never admitted, as of themselves, to be a source of legal title. [Indian deeds] were presented to government as an inducement to extend its boundary by grant, but the firm and unbending principle has uniformly been, that all titles must be derived, either mediately or immediately, actually or presumptively, from the Crown.Van Gorden v. Jackson, 5 Johns. 440 (N.Y. 1809).

Following Fletcher v. Peck (1810), the latter view prevailed over the former in additional state courts., 2005, at 176.Thompson v. Johnson, 6 Binn. 68 (Pa. 1813). Other state courts disagreed., 2005, at 177.Jackson ex dem. Gilbert v. Wood, 7 Johns. 290, 295 (N.Y. Sup. 1810) ("[it is] a fact too notorious to admit to discussion or to require proof, that the Oneida Indians still reside . . . upon lands which they have never alienated, but hold and enjoy as the original proprietors of the soil.").

Opinions

Fletcher v. Peck (1810)

Oral arguments Fletcher v. Peck (1810) is famous as the "first of the great nineteenth-century Contract Clause cases"; Marshall's majority, at the very end, "included only two sentence about the Indians, but they would prove to be influential.", 2005, at 171, 173. Fletcher was "[t]he first of the Marshall Court decisions to consider the relative rights of an Indian people and a state government in aboriginal lands," and "the first time the Supreme Court of the United States was called on to consider this issue."Hurley, 1982–1983, at 413. In the oral argument, Peck's lawyer "launched into the first discussion of the nature of Indian landownership ever to take place before the U.S. Supreme Court":, 2005, at 172. What is the Indian title? It is a mere occupancy for the purpose of hunting. It is not like our tenures; they have no idea of a title to the soil itself. It is overrun by them, rather than inhabited. It is not a true and legal possession. Vattel, b. 1. § 81. p. 37. and § 209. b. 2. § 97. Montesquieu, b. 18. c. 12. Smith's Wealth of Nations, b. 5. c. 1. It is a right not to be transferred but extinguished. It a right regulated by treaties, not by deeds of conveyance. It depends upon the law of nations, not upon municipal right. Although the power to extinguish this right by treaty, is vested in congress, yet Georgia had a right to sell subject to the Indian claim. The point has never been decided in the courts of the United States, because it has never before been questioned.Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 121 (1810).