Property I Outline

What is property?

Property is a bundle of sticks
Title is relative
Property is Power
Property is always owned

·

·

·

·
Property defines our relationships with othersProperty is a means of organizing society’s resourcesLine between property and non-property is a social lineWithout scarcity, property law would be unnecessary
Sticks in a bundle

Property provides

Independence
Sustenance
Power-political power
Stability
Identity
Spiritual dimension
Sovereignty and control

ACQUISITION OF PROPERTY BY DISCOVERY/CONQUEST
– title of property is subject to the right of occupancy; right to extinguish the right of occupancy by CONOUEST or Voluntary Transfer (sale or gift)
DISCOVERY

DISCOVERY
Act of DISCOVERY # ownership (i.e. TITANIC)
CONQUEST can be mental, force, or intimidation

Johnson v. M’Intosh

• Legal tile = right to transfer and alienate property
• Natural law v. human law v. fairness

Efficiency

Public good
Moral v. economic
Labor v. possession
Occupancy v. title first in time
Economic theory of “no waste”

Future
Judicial efficiency v. social good
v. present v. private good
FACTS:

Johnson (P) claims “first in time, first in right” because Indians were first in time, and he purchased the land from the Indians (who were the T.O.)
M’Intosh (D) claims land is his because US gave title to him; claims that title and ownership weren’t legally possessed by Indians

COURT:

1. US had legal title subject to the Indians’ right to occupy
2. US had right to extinguish the right of occupancy by purchase
3. Departs from “first in time’ – used “discovery rule’ to get around first in time
(Marshall)(1823) takes property away from the COMMONS
a. Indians haven’t been productive with the land

b. Indians are inferior/undeserving – they do not deserve the same rights as US citizens
c. Court’s institutional role as “court of the conqueror” – conquest gives title that the court cannot deny
Natural law – Indians did have something, but US had right to extinguish this title of occupancy

PROTECTION OF THE INDIANS:
·

·

·

·
Lots of Indian lands were in a trust-US government make decisions and Indians are the beneficiaries. The above measures helped protect the Indians from being tricked or swindled-fair transfer, not even states could get land from Indians.Government can extinguish rights/Individual people cannotGovernment can discover land/Individual people cannot.

C. WHY DID WE READ THIS CASE?
(1) origin of title, (2) moral struggle, (3) sovereign rights

Tee-Hit-Ton Indians v. U.S

•
• Legal title # right to compensate
• Public v. individual

Moral v. economic v. fairness
Efficiency

Human law

Possession
Occupancy v. title
First in time (principle) didn’t win
Economic theory of “no waste”

Future

Collective
v. individual v. present and past v. present
v. labor v. natural law
• Indians have personhood in property (Radin)

FACTS:

Tee-Hit-Ton Indians (P) claim ownership of land from demonstration of ownership, and that they were given property right through resolution from Congress; argue the 5th amendment. US claims that Indians had no legal right to land or what was on it.

COURT:

1. 5th amendment only protects property interests; here, there is no property interest, so there is no coverage by 5th amendment (no recognized possession by US law)
2. Discovery gives exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest
3. Indians were tribal and had “group’ ownership (seasonal, nomadic, homes were temporary) – no real possession

Case was between US citizens (Indians became citizens in 1924)
Aboriginal title is trumped by Government can extinguish aboriginal title

(Reed) Case of ownership rights(1955)
ACQUISITION OF PROPERTY BY CAPTURE

• Rewards efficiency over fairness
• Bright line rule/efficiency = easily adm