Tuesday, May 20, 2014

Johnson v. M’Intosh case brief summary

Johnson v. McIntosh
a.       Facts: At issue were two purported grants of land by Indian tribes to private individuals, one in 1773 and the other 1775. The lands constituted the Illinois and Piankeshaw nations. Here, the Plaintiff sought to have the United States government recognize the Plaintiff’s title to the lands, which were alleged to have passed under the grants.
b.      Issue: May Indian tribes give a legally recognizable title in land to private individuals, such that the title may be received by the private person and upheld against any claims by courts of the United States?
c.       Holding: No. The judgment of the District Court of Illinois denying the Plaintiff’s right to assert title to lands purportedly granted is affirmed.
The rules of property must be drawn from and decided by the nation in which the property which is the subject matter of the lawsuit lies. Due to the historical precedents established by the European discovery of this North America and the subsequent conquest and division thereof, the rule was that among the nations of Europe, title properly belonged to the nation which discovered the new land.
1.      Have lost the right of fee title (can’t alienate or transfer property) but retain the right of occupancy (easement).
2.      First in the lost of sovereignty-> can’t sell their land.
a.       Murray only had an easement (right of occupancy) form the Indians, which he sold to McIntosh not he fee title of the land.
                                             ii.      Marshall justifies the conquering by the Indians inability to assimilate, not using the land as efficiently as possible--> a weak defense, excuse and a justification.
1.      Marshall attempts to avoid war by retaining the right to occupancy.
a.       Setting up a framework for later decisions.
b.      Exclusive right of European nations to acquire land form Indians.
                                           iii.      Marshall adopts the European “Doctrine of Discovery”: Incident to the principle that title belonged to the nation which discovered the new land, was the subsequent diminishment of the natives ability to dispose of their land. This impairment of native sovereignty was subject to the recognition that the natives could live on the land, but that they could not grant the land to a private individual. This was the case because the land itself was subject to the dominion and control of the nation which discovered and conquered it.
1.      The remaining question is whether the United States accepted or rejected the historical principle. According to the treaty ending the Revolutionary War, Great Britain relinquished any claim to “proprietary and territorial rights of the United States.”
2.      Thus, the United States owned the entirety of the lands which were situated within the boundaries of the states existing at that time. It follows that those natives who lived within such boundaries did not own title to the land. Therefore, the Plaintiff does not have a title recognizable by the United States.


Johnson v. M’IntoshIndians can only sell right of occupancy; conflicting buyer have recourse in indian law; US has right to underlying title – Discovery Doctrine
J. Marshall, 1823
·         Johnson = speculators bought land in 1773 and 1775, M’Intosh = bought from US in 1815
·         All European settlers/countries believed in exclusive right of the discoverer to appropriate lands occupied by the Indians
·         Revolution and treaty granted all right to US land subject to indian right to occupancy that can be extinguished by purchase or conquest
·         Indians did not have right to transfer absolute title to others, only had right to occupancy
o   Indians can sell their title under indian laws, and can transfer indian lands to US and invalidate whatever titles they want
§  Purchaser would only have recourse to indian law, not US
·         à P do not exhibit title that can be sustained in US court
·         Could have settled issue on proclamation of 1763 that crown issued that didn’t allow buying land without permission of the crown
·         Tribe sold their occupancy rights twice
o   Once to mcintosh and once t/treaty
o   But that’s not a US issue – recourse has to be to indian law
§  They can do whatever they want with their occupancy right, US only has right to extinguish underlying title.
Class notes:
·         Anything west of proclamation line is subject to aboriginal title

Doctrine of Discovery
·         European countries agree that discovery grants exclusive right to acquire indian land
·         Indians retain right to occupancy, but land becomes inalienable except to discoverer/sovereign
·         Requerimiento – read in Spanish before entering tribal lands
o   Why the legal formalities?
§  Legitimize taking of land to qualm moral/political issues
Natural law – discovery
·         Indigenous inhabitants:
o   Had rightful occupation of the soil
o   Europeans had no right to appropriate indian lands absent voluntary consent
o   Indians had an obligation to allow European exploration and exploitation of natural resources; failure to follow these precepts could justify military conquest

1 comment:

  1. Johnson v. M’Intosh

    a Πs claim territorial lands under a purchase and conveyance from Native Americans.

    b Δ claims title to the land under a later grant from U.S.

    c Not disputed Chiefs who conveyed the land were the ones who had the power to do so.

    d The right to take the land, even when the land is in previous possession by Native Americans, is a right granted by the crown and established here.

    e While Europeans respected the natives as occupants, the Europeans asserted ultimate dominion over the land, and as a result could convey the land and split up the land however it wanted, despite natives having lived on the land for hundreds of years before.

    f Indians cannot sell the property, but can enter into agreements with the federal government for rights to occupy the land

    g It has never been doubted, that either the U.S., or the States, had a clear title to all the lands within the boundary lines described in the Revolutionary treaty, subject only to the native American right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.

    h The land in question was conveyed in the treaty from England to the States, and all parties who had land conveyed to them were bona fide purchasers. No native claims could supercede an American's claim, for they now had title to the land, and title was power. Thus, if land conveyed by natives was null, and Americans had all power to convey title, then any conveyance by the U.S. trumps a native conveyance, no matter when it took place.

    i Not clear where the United States gets right to do this.

    ii Notes: Steroetypes of Savagery

    a Marshall suggested that the reason for the policy of separate autonomous treatment of Indians was that the natives were “fierce savages” and therefore could not be subjected to assimilation

    b Marshall’s opinion is almost contemporaneous with the appearance of important literary works such as The Last of the Mohicans which depicts the “noble savage”

    c In particular, the common understanding that Europeans “settled” North America has at least three different implications:

    1 It implies that the preexisiting populations did not classify as humanity

    2 It dismisses the Indians’ ability to wrest a generally satisfactory living from the wilderness and to travel over established trails to known destinations

    3 Provides bland misdirection about the Europeans’ intentions, for their common purpose was to exploit rather than to settle.


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