In 1823: SCOTUS holds Natives have no rights to land ownership

http://blog.legalsolutions.thomsonreuters.com/legal-research/today-1823-scotus-holds-natives-rights-land-ownership/

February 28, 2014

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That ruling, Johnson v. M’Intosh, was decided 191 years ago today, on February 28, 1823.

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In 1773 and 1775, Thomas Johnson purchased two tracts of land from Native Americans. The land was left to Johnson’s heirs. In 1818, William M’Intosh purchased a large swath of land from U.S. Congress.

The two discovered that their ownership claims overlapped (although there is some evidence to suggest that this evidence was fabricated to obtain a court ruling on the matter), and Johnson’s heirs sued M’Intosh in U.S. district court to recover full ownership of the land.

The district court ruled in M’Intosh’s favor, finding that Johnson’s purchases from the Native Americans to be invalid because they were not able to convey title to begin with.

On appeal, the Supreme Court unanimously affirmed the district court, going into great detail as to the reasons why Native Americans were unable to own or convey land.

This lack of property rights was due to a principle called the “doctrine of discovery,” which gave European monarchs the right to claim sovereignty over any lands in the New World “discovered” by their subjects. The Native peoples that were living on these “discovered” lands had a right of occupancy, but nothing more. Furthermore, this “right” could be extinguished at any time by the U.S. government.

Why did European (and later, American) explorers have such rights to claim lands already occupied by Native Americans?

Originally, during the “Age of Discovery,” Europeans felt justified in claiming ownership over lands inhabited by Natives because the Natives’ “character and religion” gave to Europeans “an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.”

In other words, because the Natives were not Christian, and because their culture and society were quite dissimilar from their European counterparts’, Europeans felt no need to respect the ownership rights of the Natives. According to the Court, these Europeans believed that they provided “ample compensation to the [Native peoples], by bestowing on them civilization and Christianity.”

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The case was widely cited by the Supreme Court well into the late 20th century, and the “doctrine of discovery” was cited in 2005’s City of Sherrill, New York v. Oneida Indian Nation as the basis for all land ownership in the United States today.

Of course, it is worth noting that the majority (if not all) of these court opinions do not explicitly voice support for this doctrine, but rather cite it as the longstanding basis for land ownership in the New World.

A rejection of this principle (without the substitution of an analogous principle that reached the same result) would likely lead to the mass reversion of lands back to their original respective Native inhabitants, potentially resulting in the complete loss of land over which the U.S. (and other New World nations) claim sovereignty – a result that all but the most radical of judges would want to avoid.

As such, even though opposition to the racist and ethnocentric rationales underlying the “discovery doctrine” expounded on in Chief Justice John Marshall’s Johnson opinion are near-universal today, there seems to be an unspoken, if not uncomfortable, consensus that the United States’ existence is due entirely because of this doctrine.