I. ACQUIRING PROPERTY
A. SOVEREIGNTY
Acquisition by Discovery
Theory of first occupancy (first in time): principle established to protect the ability of people to enjoy the land they already own (and for European nations to stake claim to newly discovered lands)
Johnson v. McIntosh: P received grant from Piankeshaw Indians in two land purchases. Government then conveyed part of the land to McIntosh, who took possession. P sued for ejectment.
Court found for McIntosh: Indians did not have the power to convey land to individuals and therefore, had only a right of occupancy that could always be extinguished by the federal government
Note: Ejectment requires showing that D has possession to which he has no right, and that P has a right to the property (P need not show actual ownership)
Basis of government’s title: acquisition by discovery
Discovering sovereign has absolute title to land, subject only to Natives’ right of occupancy (exclusively revocable by the sovereign)
In theory, would only apply to land that is truly “terra nullius” (belongs to no one); therefore, somewhat inconsistent with the fact that Indians are already there! (explanation: “savage” Natives are thought to have lesser rights than “civilized” Christians)
Sovereignty: “Conquest gives a title which the Courts of the conqueror cannot deny” (positive law–see below)
Moral arguments hold power, but only going to win when you convince guy with sovereignty (power) that it’s the right way to go
FU’s take: Have to convince the person holding the gun to point it in another direction
Doesn’t deny Indians any sovereignty; just considered a lesser sovereignty that must give way to US gov’t (between a clash of two sovereigns the greater sovereign is going to call the shots)
Spratley Islands: Precedent from Palmas and Greenland cases: Discovery alone, with no subsequent act, is presently not enough to establish sovereignty!
Discovery creates only inchoate title; must be completed within a reasonable period
Need peaceful/continuous sovereignty;
The intention and will to act as sovereign
Some actual exercise/display of authority
Contiguity: No positive international rule that sovereignty exists merely because it’s contiguous (Malaysia’s claim not valid)
Theories/Bases of Property Rights
Legal positivism: Law comes from the barrel of a gun
Rights (including property) arise only through gov’t and the power of law
Johnson v. McIntosh: Illustrative of positive law
Marshall’s positive law argument (in favor of D): based on title by discovery/conquest
P’s positive law argument is that Indians are their own sovereigns and not subject to Proclamations, law of GB/US, etc. This is rejected!
Natural law: Legal rights arise as a matter of fundamental justice independent of gov’t.
Natural arguments for each side in Johnson v. McIntosh…
Plaintiff:
First in Time: Indians prior possessors in time
Note: one problem with first in time approach is that it leads to waste of resources (no incentive to preserve resources for future use)
Can’t just take away property w/o due process (P paid for it)
FU’s take: not a sympathetic argument: rich, upper-class speculators vs. guy who got land through a government grant
Defendant:
Indians don’t have any right to more land than they need.
Indians use of the land is less productive (not much respect for their communal life or lack of individual property rights)
Marshall hesitant to firmly accept this argument and rules on a different basis
Note: Notice may play a role in assessing “fairness”
Might want to ask whether the person who was second in time had notice or should have had notice of the first person’s ownership
Actual notice: directly told of the prior claim
Record notice: registry of deeds;
Duty to investigate: going to land and seeing “possession”
Possession is notice in itself (see above)
Moral component too (Labor theory)
Reward people who put their effort into something (as opposed to someone who takes possession of a URL, for instance)
Labor Theory (Locke): A type of natural law theory that rewards those who occupy and use the land productively
If you add your own labor to land, it becomes your property; your labor is unequivocally your own property and you should have a right to keep land which you put effort and energy into
Can be inconsistent with “first in time” theory of ownership
Might want to honor only “first labor” not all labor?
Note: Indians labor not thought “worthy” enough
Other Issues Related to Indian/Aboriginal Rights
Policy Issues: Reasons for restricting rights of Indians
Desire to have a general hand in Indian affairs
Avoid having land sold to people unsympathetic to the US (new country)
Makes it less costly to acquire land (gov’t becomes a monopoly buyer; cheaper than total conquest)
Paternalism (unique trust relationship: parens patria)
Indians had real rights in the land, even if not full ownership
Wanted to make sure the Indians didn’t get ripped off
“In loco parentis” relationship
Not so successful…Indians sold anyway
Oneida v. Oneida Indian Nation: Oneida Indians brought suit against NY counties for 2 years of fair value of rental of land they had sold to NY; sale supposedly invalid b/c of Non-Intercourse Act (prohibited non-approved Indian land sales).
Holding: Oneidas have a right to bring suit; No statute of limitations for actions under non-intercourse act
Damages sought by Oneidas significant: makes it more politically palatable
Tribe always was careful to state that they weren’t after the land
Big ramifications for land all over the United States had they been looking for the land è response would have been for Congress to create legislation
Indians have sovereignty, though clearly a lesser form
Indian title’s real (“right of occupancy as sacred as the fee simple of the whites”), but it comes out of a dependent or diminutive sovereign right è can be taken away
Though court can’t find basis for blocking the action, they invite congressional action on the issue to reduce future uncertainty.
Dissent: Laches should bar the action è legitimate reliance by counties + inexcusable delay (time bars the action)
Oneidas knew they weren’t allowed to sell and did so anyway, and as a result, they knew they had a cause of action for almost 200 years, but never asserted their rights
Counties settled land, spent a lot
s net, fox bites Post & Post loses possession, then Pierson shoots fox and takes it: Post dropped fox w/o interference by Pierson, so it’s Pierson’s fox (not domesticated animal-not returning to Post)
Pierson scares Post (yells boo!), Post drops fox & Pierson shoots him:
FU argues Post has action of trespass on case when Pierson does this
Pierson’s interfered w/ Post’s possessory rights of fox, so that would be trespass; but once Post drops fox, there’s no intention to return b/c it’s a wild animal; therefore, it’s trespass on case b/c he interfered with a non-possessory right
Post catches fish instead of fox & puts them in natural inlet on public land & somehow Pierson gets it: no notice (confining fish in natural habitat not notice) so Pierson gets them.
Elements of Custom & Interference with Trade
Ghen v. Rich: P killed whale with marked “bomb-lance.” This was customary, as whale would sink to bottom, then float back up in a few days and float to shore where whaler would claim the whale. D found whale before P took it, and sold the blubber. P sued to recover value of whale.
Court holds that custom was adequate grounds for granting ownership, even before actual possession by the whaler.
Provides adequate notice: Custom has evolved over the years of marking kill with lance (pervasive throughout industry)
Rationale: Encourages whaling (valuable trade)
If fisherman does all that’s possible to make animal his own, that’s sufficient (not necessarily inconsistent w/ common law)
Don’t want people to put in all that effort and not end up with it
Custom in trade typically exists to promote trade cost effectively and increase profit
Keeble v. Hickeringill: P owned pond and tried to lure ducks. D came to P’s property and shot gun to scare away ducks. P sued for damages.
Property owner has right to use land in pursuit of trade without malicious interference by others
Court notes that lawful competition is a different case (i.e., if D set up a competing duckpond to lure the ducks, that’d be ok)
Rationale: public policy favors those who use land and their skill to promote trade
We desire increased competition and a more efficient economy which increases overall societal wealth
FU’s Take: Economic efficiency is nice, but what about issues of justice, fairness and the individual equities of a case
There is simply a fundamental right to protect your property and use it freely
This is an infringement on property rights è even in another case where the act doesn’t increase economic efficiency, right should still be protected
INSTITUTIONAL CAPACITY ISSUE: Are courts really the right institutions to be effecting broad public policy?
