Johnson v. McIntosh denied Indians property ownership rights

Evidence

In the eighteenth and nineteenth centuries, the US government repeatedly violated treaties that it had negotiated with Tribal Nations, resulting not only in the seizure of land but also in the loss of valuable rights included in landownership, such as the ability to sell timber and grazing rights. Such treaties, which were often negotiated against a backdrop of threats of starvation, resulted in “agreements” with unconscionable terms because tribes were left with little option but to agree or face certain death. As if the scales weren’t already tipped in the government’s favor, in Johnson v. McIntosh in 1823 the Supreme Court established a legal doctrine that stripped Tribal Nations of many of the landownership rights enjoyed by non-Indian landowners. The Court codified the notion of “discovery,” which enabled the United States to claim that it was the only entity that had a right to buy Native Tribal land. The law did not recognize the right of Tribal Nations to own property—only their right to occupy the land. That rule, of course, hastened the federal government’s ability to strip Tribal land away. Even when bloodshed was avoided—and bloodshed was rarely avoided—the constant appropriation of more and more land amounted to a violent and hostile act. — Dorothy A. Brown, Getting to Reparations, 147

Categorization

• ADDENDUM: The takings architecture here (legal doctrine primed on starvation-backed ‘agreements’) gives Brown a comparative model for how uncompensated-taking claims get litigated.
• XREF: connects to: Courts voided private purchases of Indian land as unmarketable title. — Supreme Court of the United States (Marshall Court, 1823), Johnson & Graham’s Lessee v. M’Intosh,…, 5