22 August 2005

Remainder of assignments on TWEN site

Johnson v. M'Intosh
Introduces the rule of discovery.

Principally used to:
    - justify the US holding of land rights over the Native Americans
    - show some of the animating principles of property law
    - an example of how the rule of law comes out of and responds to certain political events
M'Intosh got title to the land from the US government (sometime later than when Johnson took possession)
Johnson is claiming to have acquired title from two tribes (1773 & 1775)

Central issue is whether the title Johnson received for the land is valid.

When there is a conflict over the title, the courts will trace up the chain of title to determine whose claim to the title is most valid.
 
While tracing the chain of title, Marshall found it necessary to resolve the conflict of property rights between the US and the Native Americans.

The court finds that because M'Intosh got his title from the US, he has a better claim than does Johnson.

Links in the chain of title:
    - English "discovered" the land
    - England grants the land to the colonies by the sword (as part of the peace treaty for the war of Independence.)
    - Once Virginia (and all of the colonies) ratified the constitution, they agreed to give all of their land to the more perfect union.
    - M'Intosh got the patent in a sale by the US government.

Chain of title rests on whatever is the weakest link.  Here, the only one that could be challenged is the "discovery" by England.

"The rule of discovery" -- the European nations arrived at an agreement that whomever discovered land first among them would possess the land.

General principle: First in time is first in right.  "If you're there first you have the rule of discovery on your side."

Rule and exception: Rule of discovery.

What right in land do the Native Americans still have?  The right of occupancy.

    - Marshall juxtaposes two rights: right to occupy vs. right to convey.  Similar to landlord-tenant situation.

What rights are suggested by the rule of discovery?
    - Exclusive right to settlement.  Right to possess.  Two ways for the Engish to accomplish this:
        - purchase
        - conquest
    - Right to convey

What limits the rights to occupancy?  The US has the right to terminate those rights.

Marshall is combining the Rule of Discovery and the Rule of Conquest in this decision.

The Native Americans also have the limited right to convey their right of occupancy, but only to the United States Government.

Next major exception to the the normal way the colonial powers operated under the rule of discovery and rule of conquest.  The general rule is that the people are annexed but keep their property rights.  However, the exception here is that the people can't be lived with, and so we take away their property rights.

Next general principle: Customary International Law
    - If enough countries act toward each other in a particular way, that way of acting becomes customary.

Another general principle: Locke's theory of labor

Justifications for the exceptions to the general principles of the rule of discovery:
    - economic justification: they're not going to use the land anyway, so there's no reason to leave them their property rights.  Why can't the English use Locke's theory?  Because they haven't added any labor to the land.
    -  Status of the Native Americans.  they're different.  What they're doing on this property doesn't count as discovery because their ways of using the land doesn't jibe with the way the Europeans looked at it.
    - Compensation -- they got civilization and Christianity
    - judicial limits -- pgs 8,9,10...  explicit recognition that the courts don't have the power to toss out all of the property rights of the US.
    - pragmatic/utilitarian justification.  Over 100 years of expectations of landowners in the US, and the court wasn't going to toss all of that out.

If the tribes hadn't been conquered, they would have had the right to convey the land they occupied.

What might we pull out of this if we were representing a client?
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