New Book by Blake Watson on Johnson v. M’Intosh

Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights 

Blake A. Watson has served as an attorney with the U.S. Department of Justice and is now Professor of Law at the University of Dayton.

The backstory on the court decision that defined and limited American Indian property rights

The U.S. Supreme Court ruling in Johnson v. McIntosh established the basic principles that govern American Indian property rights to this day. In the case, more than one Anglo-American purchaser claimed title to the same land in what is now southern Illinois. The Piankeshaw Indians had deeded the land twice—once to speculators in 1775, and again, thirty years later, to the United States by treaty. The Court decided in favor of William McIntosh, who had bought the land from the U.S. government. Writing for the majority, Chief Justice John Marshall declared that the “discovery” of America had given “exclusive title to those who made it”— namely, the European colonizers. According to Johnson, the Piankeshaws did not own what they thought was their land. Indeed, no Indian tribe did.

Blake A. Watson’s examination of Johnson v. McIntosh and its impact offers a comprehensive historical and legal overview of Native land rights since the European discovery of the New World. Watson sets the case in rich historical context. After tracing Anglo-American views of Native land rights to their European roots, Watson explains how speculative ventures in Native lands affected not only Indian peoples themselves but the causes and outcomes of the French and Indian War, the American Revolution, and ratification of the Articles of Confederation. He then focuses on the transactions at issue in Johnson between the Illinois and Piankeshaw Indians, who sold their homelands, and the future shareholders of the United Illinois and Wabash Land Companies.

The final chapters highlight the historical legacy of Johnson v. McIntosh for federal policy with regard to Indian lands. Taught to first-year law students as the root of title for real property in the United States, the case has also been condemned by the United Nations and others as a Eurocentric justification for the subjugation of the Indians. Watson argues that the United States should formally repudiate the discovery doctrine set forth in Johnson v. McIntosh.

The thorough backstory and analysis in this book will deepen our understanding of one of the most important cases in both federal Indian law and in American property law.

Michael Blumm on Why Aboriginal Title is Fee Simple Absolute

Michael Blumm has posted a paper with the title, “Why Aboriginal Title is Fee Simple Absolute” on SSRN. It is forthcoming in the Lewis & Clark Law Review.

Here is the abstract:

The Supreme Court’s 1823 decision in Johnson v. M’Intosh is a foundation case in both Indian Law and American Property Law. But the case is one of the most misunderstood decisions in Anglo-American law. Often cited for the propositions of the plenary power of the U.S. Congress over Indian tribes and the uncompensated takings of Indian title lands, the Marshall Court decision actually is better interpreted to recognize that Indian tribes had fee simple absolute to their ancestral lands. This article explains why the “discovery doctrine” should have been interpreted to be a fee simple absolute subject to the federal government’s right of preemption. Had the doctrinel laid down by Johnson been properly interpreted, its national and international effects today would have been much less pernicious.

Knauer on Legal Fictions and Juristic Truth

Nancy Knauer has posted “Legal Fictions and Juristic Truth” on SSRN. It is forthcoming from the St. Thomas Law Review. There is extensive discussion of Johnson v. M’Intosh, truly a case of legal fiction on numerous levels.

Here is the abstract:

The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. Attractive nuisance re-imagines the child trespasser as an invitee. A host of doctrines bearing the term “constructive” in their titles adopt an “as if” rationalization that deems something to have occurred despite the fact that it did not (e.g., constructive notice, constructive eviction, and constructive discharge). Continue reading

Ohio Appellate Court Holds that Ohio Holds Title in Trust to Submerged Lands in Lake Erie

The Doctrine of Discovery strikes again! Here is the opinion of the Ohio Court of Appeals (11th Dist.) in State ex rel. Merrill v. State. Here is one of the key questions presented:

The state of Ohio, through the Ohio Department of Natural Resources (“ODNR”), has asserted trust ownership rights to the area of land along the southern shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group, 1 (“OLG”), along with several of its members, many of whom own property adjoining Lake Erie, dispute the authority of ODNR to assert these trust ownership rights without first acquiring the property in question through ordinary land appropriation proceedings. The validity of the ordinary high water mark, set at 573.4 feet International Great Lakes Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water mark is a boundary that must be determined on a case-by-case basis with respect to each parcel bordering the lake. Further, the ODNR’s authority to require landowners to lease land from the state of Ohio when that land is already contained within the legal description in their respective deeds is disputed.

The court holds that Ohio has trust title to the submerged lands, but that the water mark identified by the Army Corps of Engineers must be re-established at trial.

The history of Ohio lands from the moment of “discovery” in 1497 begins in paragraph 26. It may be worth discussing for anyone teaching Johnson v. M’Intosh this week (like me!).

Judith Younger on Teaching Indian Law and Marital Property

Judith Younger has published her talk “Across Curricular Boundaries: Searching for a Confluence between Marital Agreements and Indian Land Transactions” in the Journal of Law & Inequality. Here is an excerpt:

Students view Johnson v. McIntosh with a jaundiced eye. To them, it is a case of Indians against Europeans. I point out that there were no Indian parties to the litigation, just two groups of European land speculators. I also point out that the Indians did well in this particular trade; they sold and got paid for the same land twice. The students are unmoved. “The Indians were here first,” they say. “Justice thus demands a decision for plaintiffs who claim through them.” “What about the fact that the land purchases were clearly illegal?” I ask. The students reject that too. They say the Europeans “owned” the legal system; it was skewed against the Indians. They tell me–as if I did not know it–that now the Indians have lost all but a tiny fraction of their original lands and that their efforts to regain those lands are a continual source of tension in our society.

Political Status of Indian Tribes Article in St. John’s Law Review

My new article, “The Original Understanding of the Political Status of Indian Tribes,” published in the St. John’s Law Review is here.

Here’s the introduction:

Continue reading