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  1 ohnson & Graham's Lessee v. McIntosh, 21 U.S. 543 (1823)   Opinions    Syllabus    Case Justia Opinion Summary and Annotations  Annotation Primary Holding Land transfers from Native Americans to private individuals are void. Facts This action for ejectment was based on a land dispute after Thomas Johnson, a Supreme Court Justice, bought land from Native Americans in the Piankeshaw tribe. His descendants inherited the land after Johnson's death and leased it to individuals who brought the action against William M'Intosh. The federal government had given M'Intosh a land patent to allegedly the same land, although in reality it appears that the properties were actually separate. The parties thus brought this litigation in order to obtain a judgment on priority rights to property more generally. Ruling that the Native American tribe did not have the right to convey the land, the federal district court held that Johnson's initial purchase and the chain of title stemming from it were invalid. Note:Marshall;s reliance on international law as basis for disco very doxtrine. Opinions Majority     John Marshall   Bushrod Washington   Henry Brockholst Livingston   William Johnson, Jr.   Thomas Todd   Gabriel Duvall   Joseph Story In an unanimous opinion, Marshall used historical analysis to find that only the government, rather than the Native American tribes, held title to the the land. He argued that the patterns of discovery during the European colonization of the New World meant that each European nation gained sovereignty (and also title) over the land that it discovered. This trumped the right of occupancy of the Native American tribes, at least with regard to the specific colonizing power. In the situation of the U.S., this right belonged to the British when they first acquired colonies. The federal government then inherited the right from Great Britain after the American Revolution. Native Americans cannot sell their land except to the federal government. Case Commentary This case created a distinction between the right of occupancy and the right of ownership that persists in U.S. jurisprudence concerning Native American lands. Economists have pointed out that limiting the right to purchase Native American land to the federal government allows it to be sold at the lowest possible prices because there is no competition. The patronizing tone of the opinion has fallen into disfavor as Native  Americans have come to receive more sympathy from the legal academy, but its holding remains valid. OHNSON V. McINTOSH 8 Wheat. 543 (1823)  ERROR to the District Court of Illinois. This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States. It came up on a case stated, upon which there was a  judgment below for the defendant... ... On the part of the plaintiffs, it was contended, 1. That upon the facts stated in the case, the Piankeshaw Indians were the owners of the lands in dispute, at the time of executing the deed of October 10th, 1775, and had power to sell. But as the United States had purchased the same lands of the same Indians, both parties claim from the same source. It would seem, therefore, to be unnecessary, and merely speculative, to discuss the question respecting the sort of title or ownership, which may be thought to belong to savage tribes, in the lands on which they live. Probably, however, their title by occupancy is to be respected, as much as that of an individual, obtained by the same right, in a civilized state. The circumstance, that the members of the society held in common, did not affect  2 the strength of their title by occupancy. fn-a  In the memorial, or manifesto, of the British government, in 1755, a right of soil   in the Indians is admitted. It is also admitted in the treaties of Utrecht and Aix la Chapelle. The same opinion has been expressed by this Court, fn-b  and by the Supreme Court of New-York.  fn-c  In short, all, or nearly all, the lands in the United States, is holden under purchases from the Indian nations; and the only question in this case must be, whether it be competent to individuals to make such purchases, or whether that be the exclusive prerogative of government... fn-a Grotius, de J. B. ac P. 1. 2. c. 2. s. 4. 1. 2. c. 24. s. 9. Puffen. 1. 4. c. 5. s. 1. 3. fn-b Fletcher v. Peck, 6 Cranch's Rep. 646. fn-c Jackson v. Wood, 7 Johns. Rep. 296. ... On the part of the defendants, it was insisted, that the uniform understanding and practice of European nations, and the settled law, as laid down by the tribunals of civilized states, denied the right of the Indians to be considered as independent communities, having a permanent property in the soil, capable of alienation to private individuals. They remain in a state of nature, and have never been admitted into the general society of nations.  fn-a   All the treaties and negotiations between the civilized powers of Europe and of this continent, from the treaty of Utrecht, in 1713, to that of Ghent, in 1814, have uniformly disregarded their supposed right to the territory included within the  jurisdictional limits of those powers.  fn-b  Not only has the practice of all civilized nations been in conformity with this doctrine, but the whole theory of their titles to lands in America, rests upon the hypothesis, that the Indians had no right of soil as sovereign, independent states. Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives.  fn-c  The sovereignty and fn-a Penn v. Lord Baltimore, 1 Ves.  445. 2 Rutherforth's Inst.  29. Locke, Government,  b. 2. c. 7. s. 87 -- 89. c. 12. s. 143. c. 9. s. 123 -- 130. Jefferson's Notes , 126. Colden's Hist. Five Nations,  2 -- 16. Smith's Hist. New-York,  35 -- 41. Montesquieu, Esprit des Loix,  1. 18. c. 11, 12, 13. Smith's Wealth of Nations,  b. 5. c. 1. fn-b 5  Annual Reg.  56. 233. 7 Niles' Reg.  229. fn-c Marten's Law of Nations,  67. 69. Vattel, Droit des Gens.  1. 2. c. 7. s. 83. 1. 1. c. 18. s. 204, 205. eminent domain thus acquired, necessarily precludes the idea of any other sovereignty existing within the same limits. The subjects of the discovering nation must necessarily be bound by the declared sense of their own government, as to the extent of this sovereignty, and the domain acquired with it. Even if it should be admitted that the Indians were srcinally an independent people, they have ceased to be so. A nation that has passed under the dominion of another, is no longer a sovereign state.  fn-a  The same treaties and negotiations, before referred to, show their dependent condition. Or, if it be admitted that they are now independent and foreign states, the title of the plaintiffs would still be invalid: as grantees from the Indians , they must take according to their   laws of property, and as Indian subjects. The law of every dominion affects all persons and property situate within it;  fn-b  and the Indians never had any idea of individual property in lands. It cannot be said that the lands conveyed were disjoined from their dominion; because the grantees could not take the sovereignty and eminent domain to themselves. Such, then, being the nature of the Indian title to lands, the extent of their right of alienation must depend upon the laws of the dominion under which they live. They are subject to the sovereignty of the United States. The subjection proceeds from their residence within our territory and jurisdiction. It is unnecessary to show, that they are not citizens  in the ordinary sense of that term, since they are destitute of the most essential rights which belong to that character. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants with diminutive rights. fn-a'  The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government. The act of Virginia of 1662, forbade purchases from the Indians, and it does not appear that it was ever repealed. The act of 1779 is rather to be regarded fn-a Vattel,  1. 1. c. 1. s. 11. fn-b Cowp. Rep.  204. fn-a' Vattel,  1. 1. c. 19. s. 213. as a declaratory act, founded upon what had always been regarded as the settled law. These statutes seem to define sufficiently the nature of the Indian title to lands; a mere right of usufruct and habitation, without power of alienation. By the law of nature, they had not acquired a fixed property capable of being transferred. The measure of property acquired by occupancy is determined, according to the law of nature, by the extent of men's wants, and their capacity of using it to supply them.  fn-b'  It is a violation of the rights of others to exclude them from the use of what we do not want, and they have an occasion for. Upon this principle the North  American Indians could have acquired no proprietary  3 interest in the vast tracts of territory which they wandered over; and their right to the lands on which they hunted, could not be considered as superior to that which is acquired to the sea by fishing in it. The use in the one case, as well as the other, is not exclusive. fn-a   According to every theory of property, the Indians had no individual rights to land; nor had they any collectively, or in their national capacity; for the lands occupied by each tribe were not used by them in such a manner as to prevent their being appropriated by a people of cultvators. All the proprietary rights of civilized nations on this continent are founded on this principle. The right derived from discovery and conquest, can rest on no other basis; and all existing titles depend on the fundamental title of the crown by discovery.The title of the crown (as representing the nation) passed to the colonists by charters, which were absolute grants of the soil; and it was a first principle in colonial law, that all titles must be derived from the crown. It is true that, in some cases, purchases were made by the colonies from the Indians; but this was merely a measure of policy to prevent hostilities; and William Penn's purchase, which was the most remarkable transaction of this kind, was not deemed to add to the strength of his title.  fn-b  In most of the colonies, the fn-b' Grotius,  1. 2. c. 11. Barbeyr. Puffend.  1. 4. c. 4. s. 2. 4. 2 Bl. Comm.  2. Puffend.  1. 4. c. 6. s. 3. Locke on Government,  b. 2. c. 5. s. 26. 34 -- 40. Vol. VIII fn-a Locke , c. 5. s. 36 -- 48. Grotius,  1. 2. c. 11. s. 2. Montesquieu,  tom. 2. p. 63. Chalmers' Polit. Annals,  5. 6 Cranch's Rep.  87. fn-b Penn v. Lord Baltimore, 1 Ves.  444. Chalmers' Polit. Annals , 644. Sullivan's Land Tit.  c. 2. Smith's Hist.  N.Y. 145. 184. doctrine was received, that all titles to land must be derived exclusively from the crown, upon the principle that the settlers carried with them, not only all the rights, but all the duties of Englishmen; and particularly the laws of property, so far as they are suitable to their new condition. fn-a  In New-England alone, some lands have been held under Indian deeds. But this was an anomaly arising from peculiar local and political causes.  fn-b   As to the effect of the proclamation of 1763: if the Indians are to be regarded as independent sovereign states, then, by the treaty of peace, they became subject to the prerogative legislation of the crown, as a conquered people, in a territory acquired,  jure belli  , and ceded at the peace.  fn-c  If, on the contrary, this country be regarded as a royal colony, then the crown had a direct power of legislation; or at least the power of prescribing the limits within which grants of land and settlements should be made within the colony. The same practice always prevailed under the proprietary governments, and has been followed by the government of the United States. Mr. Chief Justice MARSHALL delivered the opinion of the Court. The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw nations; and the question is, whether this title can be recognised in the Courts of the United States? The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewis show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country.  As the right of society, to prescribe those rules by which property may be acquired and preserved is not, and cannot be drawn into question; as the fn-a 1 Bl. Comm. 107. 2 P. Wms.  75. 1 Salk.  411. 616. fn-b Sulliv. Land Tit.  45. fn-c Cowp.  204. 7 Co. Rep.  17 b.2 Meriv. Rep.  143. title to lands, especially, is and must be admitted to depend entirely on the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision. On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offerend an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample  4 compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. In the establishment of these relations, the rights of the srcinal inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the srcinal fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles. Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title. France, also, founded her title to the vast territories she claimed in America on discovery. However conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. Her monarch claimed all Canada and Acadie, as colonies of France, at a time when the French population was very inconsiderable, and the Indians occupied almost the whole country. He also claimed Louisiana, comprehending the immense territories watered by the Mississippi, and the rivers which empty into it, by the title of discovery. The letters patent granted to the Sieur Demonts, in 1603, constitute him Lieutenant General, and the representative of the King in Acadie, which is described as stretching from the 40th to the 46th degree of north latitude; with authority to extend the power of the French over that country, and its inhabitants, to give laws to the people, to treat with the natives, and enforce the observance of treaties, and to parcel out, and give title to lands, according to his own  judgment. The States of Holland also made acquisitions in  America, and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith, in his History of New-York, that Henry Hudson, who sailed, as they say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed to the 43d degree of north latitude; and this country they claimed under the title acquired by this voyage. Their first object was commercial, as appears by a grant made to a company of merchants in 1614; but in 1621, the States General made, as we are told by Mr. Smith, a grant of the country to the West India Company, by the name of New Netherlands. The claim of the Dutch was always contested by the English; not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword. No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people , and to take possession of them in the name of the king of England. Two years
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