Popup Template

In 1823 the Supreme Court had to settle a dispute between two parties that claimed ownership to the same piece of land. Party #1 had purchased the land in question from the Piankeshaw Indigenous nation (prior to the formation of the United States). Party #2 was later granted the same piece of land by the United States government.

In this landmark case, Johnson v. McIntosh, the Supreme Court ruled in favor of Party #2. They ruled that the U.S. (not the Piankeshaw) had rightful title over the land to grant it to Party #2 as they saw fit.

In ruling the United States as the rightful title holder, the Supreme Court had to make a very fundamental determination about where U.S. title over the land in question came from? The Supreme Court ruled in favor of Party #2's argument: U.S. title over the land in question came from Britain and other European governments through the principle of discovery.

The Court explains discovery rights further:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.

[Paraphrase: European nations wanted North America for themselves. They considered Christianity and civilization to be worthwhile compensation to the natives for claiming ownerwhip over their lands.]

But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

[Paraphrase: Europeans needed a law amongst themselves to govern and regulate land grabs. They decided that discovery would be the law they followed. It would determine exclusive title over the land.]

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

[Paraphrase: Only the given discovering nation could acquire land from the natives. Other European nations (or individuals) couldn't come and buy land from the natives behind the given discovering nation's back.]

No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.

[Paraphrase: An English sailor by the name of Cabot stumbled on North America. Based on the right of discovery, this gave the British government title over native lands.]

In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries 'then unknown to all Christian people;' and of these countries Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.

[Paraphrase: Britain was able to claim ownership of North America because the natives were heathens, not Christians. Had the natives been Christians, or had other Christians already claimed discovery, Britain would not have gained ownership.]

The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.

Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American States rejected or adopted this principle?

[Paraphrase: America was founded on European principles of the right to discovery. Does the U.S. continue to recognize this principle?]

By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the 'propriety and territorial rights of the United States,' whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these States....It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.

[Paraphrase: Yes, because the U.S. inherited Britain's discovery rights to the soil.]

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired....(Johnson v. McIntosh).

[Paraphrase: Again, the United States (not independent indigenous nations) has title to land because it was acquired from European nations who had acquired it through discovery.]

This decision has never been turned over. The principle of discovery (rooted in the inferiority of Indigenous Peoples for not being Christians) still remains the foundation of U.S. authority over Indigenous land holdings.