First Possession: Acquisition of Property by Discovery, Capture, and Creation
Acquisition by Discovery
Case
Johnson v. M’Intosh (p 3)
Supreme Court of the United States, 1823
Procedural History
Appealed from the District Ct. of Illinois, which judged for Δ (M’Intosh)
Facts
п purchased land from Piankeshaw Indians with 2 grants in 1773 & 1775. Later, land was acquired by Δ from the U.S. п claims that land should be rightfully theirs b/c of their purchase with Indian chiefs
Issue
Did the trial court error in confining the power of the Indians to sell land to private individuals?
– Simple title dispute- who owns the land?
Holding
The trial ct. did not error. The п do not exhibit a title which can be sustained in U.S. cts.
The Indian inhabitants are to be only considered occupants of the land, and are incapable to transferring the absolute title to others.
The Rule(s)
-The discovery of the land, gave title to the government by whose subjects, or authority , it was made. The rights given by discovery of the particular land was given, indefinitely, by Great Britain to the U.S.
-Virginia act passed in 1776, “… no person or persons whatsoever, have, or ever had a right to purchase any lands within the same, from any Indian nation…”- Act annulled all deeds made by Indians, for the private use of purchasers
Reasoning
-The U.S. maintains, such as all other nations have, the exclusive right to the title of the land. This right has been uniform over all territories possessed by Indians.
-The history of America, with other European nations, have recognized the universal principle that the original fundamental principle gives exclusive title to the discoverer.
Disposition
CLASS NOTES
Didn’t have well established entitlements to particular parcels of land. Probably very loose property arrangements. Property of land was very undeveloped as an idea.
– Case suggests that the land is owned by the U.S. government. It only gets divided out in parcels as the government wants it to- which it can be a problem. Easier if said that an individual that settles the land, personally, owns it b/c there’s only so much land that one person can settle in.
1) Discovery:The ‘sighting’ or ‘finding’ of hitherto unknown or uncharted territory; it is frequently accompanied by a landing and the symbolic taking of possession
2) Conquest: taking the possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror
3) Why didn’t land really belong to Indians?
ou’ve mixed something that belongs to you in that thing. Not to take this too seriously.
d. Provision: “At least if as much and as good left for others.”
Give this interpretation (Norick) What if giving property rights to some person increases surplus for others? It may be that you have produced a surplus beyond what you have taken, so you wind up more for the next person. If this is true, then you have plausible story with why 1st person in time is not taking something and taking it out of the common pool.
All these arguments cannot be taken seriously on their own terms.
We want to diffuse all the property, so we leave room for competition.
Professor not completely comfortable with Locke argument, but for the purpose of quick metaphor and quick decision, to stabilize property entitlement may be as good as a theory as the next.
e. John Locke and Johnson v. M’Intosh
Locke reasoned that the “Indian’s occupancy of their aboriginal lands did not involve an adequate amount of “labor” to perfect a “property interest in the soil.”
