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That Time When SCOTUS Said Your Land Is My Land

That Time When SCOTUS Said Your Land Is My Land

Did ya’ll know the United States government, in 1823, decided that Natives did not actually have rights to the land they’d been on forever? When I say the US government, I really me the Supreme Court of the United States (“SCOTUS”). It’s this thing called “Title by Discovery” and “Title by Conquer”. Here’s the case: Johnson v. M’Intosh, Supreme Court of the United States 21 U.S. (8 Wheat.) 543 (1823).

Long story short: What had happened was Johnson purchased and was conveyed land from a local Native American tribe. M’Intosh later received the same land as a grant from the US gov’t. Johnson sued claiming right of first possession.

So, what happened?

Well, SCOTUS said the power of the Natives to convey land to individuals is denied by the principle that “discovery gave exclusive title to those who made it.” Basically, they didn’t discover the land so no title. SCOTUS also said Natives were rightful occupiers and possessors of the land, but the exclusive right to convey belonged to the US government through the treaty with England after the war. Kinda like how I occupy and possess my apt but can’t sell it.

It gets worse

The court believed the Native Americans lived off of the land in its natural state and would not develop it for the good of society, nor that the Native Americans were civilized enough to know what to do with the land. I SWEAR it says this. Go read the case.

“But Tiara, what is ‘title by discovery/conquer’?” In short, it’s some ish the US/England made up to justify stealing Native land. Okay it goes a lil something like this:

  • Title by Discovery: The finder of land finds it for his government, not himself, and such discovery was recognized by other European countries, as the US would do for other colonizer countries. So! England held title bc they “discovered it” and then the U.S. got it from England (title tracing).
  • Title by Conquest: (where this case turns) Generally, the conqueror would not bother the private land of the conquered, (yeah, right). But they carved out an exception: Natives will not have this right (of not having their private land bothered), they only the right to occupy the land, not hold title. So, they held a revocable license.

Okay, What? How??

Here’s how SCOTUS justified all this: They said Natives were “savage” and would have left the land a wilderness and could not be governed (assimilated). Also, since the we, the U.S., gained title from England, we get to make up the law, this version of title says, “you kind of, sort of own the land but, you really don’t”.

And THAT amigos is how the U.S. justified land stealing: “You can live on it, but it ain’t yours even tho you’ve been here and use it as you please, and have used it that way for generations. But we are superior white men and we know better and also England gave it to us so even if you want to sell the land you can’t. Oh well.”


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