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Johnson v. M’Intosh1823 Chief Justice Marshall pg. 3
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Facts: Plaintiff bought land from Piankeshaw and Illinios Nations in 1773 and 1775. The chiefs who they bought the land from were empowered by their people to do so. The chiefs were also in rightful possession of the land they sold. Procedural History: District Court of Illinois ruled against Johnson. Issues: Did the lower court error in deciding the Johnson did not have a legal title from the lands he bought in 1773 & 1775? (No) Judgment: “Judgment affirmed, with costs” Holding: The US, then, have unequivocally acceded to the great and broad rule (conquest or discovery) by which its civilized inhabitants now hold this country. 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. Re: Types of argument Rationale: Native Americans did not own the land, but only had a right of occupancy. Therefore it was open to “discovery or conquest.” When England “discovered” the lands it owned them and thus negated the ability of the Native Americans to sell the lands to private individuals. Dis: it’s not the law but he helps you understand he case---ask where do I stand on this issue- Why is it there and what does this say about property law or subject matter. Comments: By itself this seems pretty horrible. Classifying all Native Americans. Didn’t some live in houses? Didn’t some fulfill what Europeans considered owning property? Cole’s Comments: “Possession is 9/10th of the law” still rings true today. The first in time rule merely reflects what people do (refer to seats in school). Begin by telling of the facts. But most helpful to start with cause of action. This is what the P and D are fighting about. In this case it is legal ownership of lands, and “action for ejectment.” Each attempting to exercise the right to exclude over the other. Trespass is an ejectment. This type of ejectment is known at quiet title, to make title certain who owns this piece of land. When attempting to quiet title there will be a winner and a loser. Notes: being there first somehow justifies ownership rights is a venerable ad persistent one. The theory of first occupancy, or first possession, data back to roman law and played a considerable part in the writings of Hugo Grotius and Samuel Puf. - The common and civil law alike adopted the proposition that “ taking possession of unowned things is the only possible way to acquire ownership of them” - John Locke – drew first occupancy into his labor theory of property (which he believed the native Americans were no part of ) the …He feels you work for it---that should be your land to keep and not first come, first keep.
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