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Johnson v. McIntosh

Citation. 22 Ill.21 U.S. 543, 8 Wheat. 543, 5 L. Ed. 681 (1823)
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Brief Fact Summary.

Plaintiffs sought to have certain land grants purportedly made by Indian tribal chiefs, recognized by the United States government.

Synopsis of Rule of Law.

The title of land which has been discovered and conquered belongs entirely to the conquering nation, subject only to the right of those natives present to occupy the land.


At issue were two purported grants of land by Indian tribes to private individuals, one in 1773 and the other 1775. The lands constituted the Illinois and Piankeshaw nations. Here, the Plaintiff sought to have the United States government recognize the Plaintiff’s title to the lands, which were alleged to have passed under the grants.


May Indian tribes give a legally recognizable title in land to private individuals, such that the title may be received by the private person and upheld against any claims by courts of the United States?


No. The judgment of the District Court of Illinois denying the Plaintiff’s right to assert title to lands purportedly granted is affirmed.  The rules of property must be drawn from and decided by the nation in which the property which is the subject matter of the lawsuit lies. Due to the historical precedents established by the European discovery of this North America and the subsequent conquest and division thereof, the rule was that among the nations of Europe, title properly belonged to the nation which discovered the new land.

Incident to the principle that title belonged to the nation which discovered the new land, was the subsequent diminishment of the natives ability to dispose of their land. This impairment of native sovereignty was subject to the recognition that the natives could live on the land, but that they could not grant the land to a private individual. This was the case because the land itself was subject to the dominion and control of the nation which discovered and conquered it.

The remaining question is whether the United States accepted or rejected the historical principle. According to the treaty ending the Revolutionary War, Great Britain relinquished any claim to “proprietary and territorial rights of the United States.” Thus, the United States owned the entirety of the lands which were situated within the boundaries of the states existing at that time. It follows that those natives who lived within such boundaries did not own title to the land. Therefore, the Plaintiff does not have a title recognizable by the United States.


The Court, in deciding this case, was faced with a situation where the customs of ownership of lands as between two distinct cultures were at odds. The native culture did not recognize ownership in quite the same way as the United States culture. This case is as much a historical footnote as it is a rule of property law one might see today.

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