From other peoples – The meaning of sovereignty



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  1. Introduction: Acquiring Property
  1. From other peoples – The meaning of sovereignty


Chapter 1 (pp. 1-32)

Johnson v. M’Intosh


Focus on the concepts of sovereignty and chain of title (how one justifies claims to ownership in property)

Facts: Proclamation of 1763 forbid private purchase but in 1773 and 1775 people still bought land from the Indians directly.

Chain of title

P Joshua Johnson received the property by will Thomas Johnson received by 1775 sale/deed Piankeshaw owned the land by possession, this was a fairly sophisticated legal deal. The colonist anticipated the problem of communal ownership so they negotiated with the chiefs to ensure that they had the power, legitimacy to convey the land. The Piankeshaw may have gotten the land through conquest.

D M’Intosh received property by 1818 patent/sale United States rec’d property by 1783 ceding Virginia took by force 1776 Great Britain by discovery under monarchy of James I 1603-1640. Discovery gives the right to go in and conquer or purchase as agreed to by all European nations.

1773: Murray et al set up two transactions, he wants to go with legally valid transactions with the Illinois Indians. The second deal was in the name of the king. Raises the question of who owns it. The court finds neither transaction valid. In answer the question of who legally holds the land, the court says specifically the king. The deal between William Murray and the Illinois Indians was considered an unusual, unknown transaction. Murray et al wants the protection of the crown. Also there was uncertainty due to the Proclamation of 1763 which says they can’t do what they are doing. They had the gall to put in a request for the King’s protection, recognition of ownership.

Was the deal with the Indians a fair one? It was bargained for, they were paid a significant sum of money. Illinois rec’d 24,000 and the Piankeshaw rec’d 31,000. The documents were drawn up by the buyers to ensure that George won’t get it. The money from the buyers to the Indians, not the king. William Murray owns the land. They are really land speculators directly flaunting the royal proclamation so they determine that if they lose the property they want it to go to the crown.



Beneficial Trust: Murray was creating a trust, a legal construct. One party holds legal title (George III), but he or she holds wealth for the use, benefit, and behoof of someone else. Marshall says sales of Indian lands to individuals are invalid. The legal title belongs to George III. William Murray has use and benefits of the land.

Cause of action: common law action for ejectment. Only tenants can bring the action.

Johnson’s argument:

1) First in time/superior claim. P is asking the court to evict the current occupant and recognize his superior claim. Get rid of M’Intosh because Johnsons have a legal claim to the land. The Johnsons are looking for a declaration that the land belongs to them as a result of the 1775 sale.



  1. The Indians are not subjects of the crown. If the proclamation of 1763 is an unconstitutional act then the Johnsons get the land because the Indians were within their rights to convey.

  2. P Natural Law Arguments: The government cannot divest one of the use of land without a representative process and compensation. P also uses a constitutional argument, can’t deal with colonies like conquered territory. Mere act of the executive government cannot divest the Indians of rights in the land. Invalidates the Proclamation of 1763. Validates deeds of 1773 and 1775. Can’t be taken away without some sort of process. Land speculators, don’t really care.

MacIntosh’s argument:

1) Possession requires going to the land. The Johnsons never went to the land and weren’t present at the time of the dispute over the land. M’Intosh is on the land and wanted the use of the land. He went there and was in possession of the land – “became possessed thereof.” Johnson claiming that he is seizoned by having the deed delivered to him.



  1. Notion of superior sovereignty. “Conquest gives title which the courts of the conqueror cannot deny.” The sovereign wants the exclusive right to extinguish title. Why is this important? Otherwise disorderly scramble for land, multiple, unauthorized sales. A registry of deeds type decision. The Indian’s don’t have enough sovereignty to alienate their own land. They have the right of occupancy from continued use of the land. Inhabitants, organized group, entered into treaties. Authorized to enter into deals and treaties. They have their own sovereignty though it is diminutive.

  2. D Natural Law Arguments: People ought to learn to share. Don’t have any right to more than you need. Two sovereigns: U.S., just desserts argument. Have the Indians put enough labor into the land to decide to keep it? Moral entitlement/idea of productive use view. But the Indians wouldn’t say they had more than they needed. Indians did not have enough control over the land to be recognized, use of the land not intensive enough.

- Idea of Productive Use: Marshall admits may be a question of whether one use of land is superior to another. If principle asserted in the first instance it cannot be denied later. But steps back at times to demand that humanity comes in. Settlement made the land valuable, either give up the land or assert power.

4) D Positive Law Arguments: D argues that the Indians have no dominion/sovereignty and they didn’t have it in 1763. The Proclamation of 1763 is valid because the Indians were subjects and only held an Indian title that could be extinguished by U.S. act, in this case the land grant of 1818 to M’Intosh. Distinguishing the purpose of being on the land from inhabiting land. Intensity of use required to get rights to the land. The Indians are a defeated nation subject to the British crown. Even if the sale is valid, all P got was Indian title that can be extinguished by an act of the crown. Man made law, statutory, constitutional. The Indians do not have the power to give and individuals to receive title. The Proclamation of 1763 did bind the Indians.



Rule: Gives judgment to MacIntosh, Indian’s have Indian Title but don’t have the right of alienation. Have the use of the land at the approval of the sovereign. Marshall relies on the Proclamation of 1763 to recognize that Great Britain had exclusive right to sell property, based on discovery, implicit, not direct. There is a question of Virginia’s jurisdiction because Virginia’s proclamation of 1779 occurred after the sales of the 1773 and 1775 have been completed. Can’t grandfather back land right restrictions. Marshall uses Proclamation of 1779 to state the rights, because he characterizes the Proclamation of 1763 as a fundamental right.

Why does Marshall need to state it so clearly if its already fundamental, stated in Proclamation of 1763, VA Proclamation of 1779? It is not clear that it is an obvious, fundamental right. Really a political move, why not rely on the Proclamation of 1763? Based on his thoughts on its legitimacy. “Mere act of the executive government.” This is a legal/political question, constitutionally invalid, not a conquered territory of Marshall law. This is a way for Marshall to not recognize the Proclamation of 1763 without losing effect – codifies existing law.



Upham Perspective: Is Marshall’s opinion totally ruthless? Conquest gives title that the courts of the conqueror cannot deny. What is the source of sovereignty? Can’t deny title taken by force, Mao Tse Tung, power comes from the barrel of a gun. Upham likes parts of the opinion.

Joint Tribal Council of the Passamaquoddy Tribe v. Morton

Facts: P wants declaratory judgment that U.S. Government is required to sue the state of Minnesota for violation of rights. P gave up land for value, negotiated a treaty. P wants either the land or the value of the land in the end.

Holding: the tribe is entitled to have the U.S. Government sue the state of Minnesota. The U.S. Government cannot deny P on the sole ground that no trust relationship exist. No injunctive relief, they don’t have to sue. Passamoquoddy’s don’t have to be recognized specifically to have a trust relationship. They are included in the Non-Intercourse Act under the generalization of “Indian Nations.”

Parens Patria: the parent can sue on behalf of the ward, no right to title. The Proclamation of 1790 is similar to 1763, 1779, it is the Non Intercourse Act. The court posing the question of if can sue to establish statute of limitations. The government has a conflict of interest. It is supposed to represent the interest of the Indians. It is also interested in not clouding titles.

Upham Perspective: The government could not take the case for other reasons – the Passamoquoddy’s not consistently a tribe over time. In this case it was stipulated that they had been in continuous existence.

Oneida v. Oneida Indian Nation


Issue: will the government invalidate titles based on an act 200 years ago or will it be time barred? Will the European American’s long occupation of Indian land extinguish Indian claims? As such it boils down to a statute of limitations type case – which opinion gets it right?

Majority: the outcome will not be time barred.

Dissent: Should be barred by gross laches. Acts not kept secret, no subterfuge, too much time has passed. Third party would be effected, people who have been living on the land with current investments.

Doctrine of laches: those that sit on their rights cannot receive the benefit of the courts. Determined by a statute of limitations and looking at other factors.

Upham Perspective: The doctrine of gross laches against the whole idea of parens patria: sat on rights too long, didn’t protect yourself and people counted on you not protecting yourself. Says not fair, Indians knew about the trade, sale to others, they have to protect themselves. Against the whole point of parens patria, should not be punished for not acting.

Benedict Kingsbury - International v. National Law and doctrine of aboriginal title (Mabo)

Close interaction between international law and local property law issues. See int’l. law as a continuum, social practice, judicial understanding, courts talking to each other. Integration, trying to get to a broader understanding.



Europeans agreed on legal ideas based on shared Christian ideas, shared thoughts about natural law. No sharp differences with international law. In the scramble for colonization needed some law to adjust claims, to get to shared solutions. Law of title/territory quickly evolved. In the cases, see close relationship between law of title and territory and how they would deal with the law of indigenous peoples.
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