Indian Land Tenure Foundation (ILTF)

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Adapted from The Relentless Business of Treaties by Martin Case

The US-Indian treaties were moments when the natural world became property in the United States. In 1823, John Marshall explained this transformation in a Supreme Court case called Johnson v. M’Intosh.​  His majority opinion in that case assigned to the treaties a critical role in creating the titles – public, corporate, and individual – by which land is owned.

Marshall was trying to explain why one person’s claim to property ownership was more valid than another’s. Backing far away from the facts of the case, he placed land titles in the context of what is now called the “Doctrine of Discovery.” He desperately wanted to claim that land titles are comprised of two rights—dominion (the right to rule a territory) and occupancy (the right to live there). 

Marshall claimed that the right of dominion was created when a territory was “discovered” by a colonialist power. To justify this dogmatically Eurocentric claim, Marshall felt compelled to fabricate nothing less than “the history of America from its discovery to the present day” in less than 20 pages. And what Marshall found in that history was a remarkable (in fact, fictional) degree of consensus among European governments on the importance of “discovery.” 

As they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law. . . . This principle was that discovery gave title to the government by whose subjects or by whose authority it was made. . . . It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented.

Of course, in the real world there was no “doctrine” that kept Europeans from “conflicting settlement” or “consequent war”; they interfered with each other constantly. But the right of dominion, based on colonialist “discovery,” became in Marshall’s formulation one of two components for a valid property title.

The other component was the right of occupancy, or “right to the soil.” Marshall acknowledged that, originally, Indigenous nations had the right to occupy the entire continent. He went so far as to say that “their right of possession has never been questioned.”  This right was later called aboriginal title.

Marshall then spelled out the relationship between right of dominion and right of occupancy. Discovery, as the shaky foundation of dominion, “gave to the nation making the discovery the sole right of acquiring the soil from the natives.”  And to Marshall, this arrangement trumped any relationship to the land among Indigenous nations.

Indian inhabitants are to be considered merely as occupants, . . . incapable of transferring the absolute title... [T]heir power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it... Absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy. 

The practical effect of Johnson v. M’Intosh was that the US needed to extinguish aboriginal title—primarily through treaties—in order to make any practical claim to control land. And Indigenous nations could “dispose of the soil” only by ceding it to the federal government—not to individuals, to corporations or even to states. Once the government held a perfected title, based on both dominion and occupancy, it could sell or grant property to anyone. 

This legal title today often is taken for granted as the basic relationship between people and the natural world. Americans may argue about who owns what, but the more fundamental aspect of a property system is that everything is owned by someone – and that ownership is grounded in US-Indian treaties