Johnson v. M'Intosh

21 U.S. 543, 5 L. Ed. 681, 1823 U.S. LEXIS 293, 8 Wheat. 543

Supreme Court of the United States

Whether plaintiffs' title to land, conveyed by a Native American tribe, was superior to defendants' title, conveyed by the United States government.




LexisNexis Headnote 2:Native Americans, Authority & Jurisdiction The United States have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold the country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands, resided, while it was colonies, in the crown, or its grantees. The validity of the titles given by either has never been questioned in the courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute must be an exclusive title, or at least a title that excludes all others not compatible with it. All institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

Discussion of Johnson v. M'Intosh in recent case:
B. Aboriginal Title and the Sovereign (1823)
Pueblo of Jemez v. United States, 790 F.3d 1143, 2015 U.S. App. LEXIS 10955
In Johnson v. M'Intosh, 21 U.S. at 572, the Supreme Court first addressed Indian aboriginal right of occupancy and possession as against the sovereign. Plaintiffs in Johnson claimed land under a grant by the chiefs of the Illinois and Plankenshaw Nations, forcing the Court to ask "whether this title can be recognised in the Courts of the United States?" Id. In holding "that a private land sale of Indian land not consented to by the sovereign gave the purchaser no valid title against the sovereign," Cohen, supra at 47, the Court explained the possessory right of occupancy held by the Indians:


Plaintiffs, mostly British subjects and their heirs, claimed title to property in Illinois that was conveyed to them by the Piankeshaw Indians prior to the American Revolution. They contended that their title ran directly from the Native Americans who had owned the property and that it was therefore superior to defendants' title.


Defendants' land grant came directly from the United States government and the district court held that defendants' claim was superior. The court based this decision on the idea that the Piankeshaw were not actually able to convey the land because they never "owned" it in the traditional sense of the word. The Court agreed and upheld the defendants' title by land grant.

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