Acquisition by Discovery

Case: Johnson v. M'Intosh

Procedural History: district court found for D. In Supreme Court.

Facts: Johnson (P) bought land from Indian tribes. D, M'Intosh, subsequently
obtained a land patent to this same land from the United States federal
government. The Plaintiffs were lessees of Johnson's descendants, who had
inherited the land. P brought an action for ejectment against D in the Illinois
District Court, contending that it the land belonged to them by virtue of
Johnson's purchases. P further contended that their title was superior to D's
title because P's title ran directly from Native Americans. The district court
held that defendant M’Intosh’s claim was superior on the grounds that the Indian
tribes were not able to actually convey the land because they never “owned” it in
the traditional sense of the word.

Issue: Whether United States Courts shall recognize the power of Native
Americans to give or sell land to private individuals.

Holding: Held for D.

Reasoning: Court discusses the "Discovery Doctrine," which consisted of two key
elements:
(1) European nations assumed free title to lands they "discovered"; Native
Americans on those lands, according to this doctrine, retained the right of
occupancy (like tenants in an apartment building), but had never really been
considered "owners" of the land.
(2) Second, the doctrine established a restriction on alienability of the
tribes' occupancy rights, which meant that tribes could sell their limited rights
of occupancy only to the discovering sovereign.
The Court frankly acknowledged that this longstanding European and U.S. practice
treated Native Americans "as an inferior race of people, without the privileges of
citizens, and under the perpetual protection and pupilage of the government."

Notes

• Pg 3. Johnson v. M'Intosh
○ Indian tribe wants to sell some of its property (land). Sells land to x.
Then state sells the same land to y.
§ How does the state sell land owned by Indians?
§ They do recognize Indian's ownership, but if they decide they
don’t want Indians to own anything, that's ok.
§ Rights of discovery - we discovered this land and have the
right of ownership
○ But they were here before us
§ Might makes property - John Marshall (Judge) makes this point
§ Means by which change of property is enforced
§ Property changes hands by force
§ Also by a moral issue (current inhabitants are sinners and must
get out, etc.)
○ Johnson v Mc'Intosh - US recognize American native's property rights, but
changes them and takes them away