Johnson & Graham’s Lessee v. M’Intosh


Two grants were made over the same parcel of land. The first was made from two Indian tribes to P in 1773 prior to the American Revolutionary War.  A second grant was made by the United States to D.  In the second grant, the United States had received the land by virtue of its capture from British troops during the Revolutionary War.  The United States kept this land until 1819 and then sold it to D, claiming its right to own the land through having seized it during the Revolutionary War.


Do native Americans have the power to sell land?  As occupants of the land, can native Americans sell it to settlers?  Can “mere occupants” of the land have the right to sell/transfer title of land?


Native Americans, as mere occupants, do not have the right to sell the land and therefore P’s claim is invalid.  Britain discovered the relevant parcel of land and made clear that it was seizing the land at the outset.  The British were then defeated in the Revolutionary War and forfeited title to the land to the United States through treaty.  The relevant parcel of land was part of Virginia at the time and Virginia made clear that it had the sole power to buy and sell land occupied by Native Americans.

Chief Justice Marshall cited what he called “discovery doctrine.”  This doctrine was an agreed upon principle of held by all advanced European nations stating that those who discovered the land were entitled to its ownership and had rights to the land.  Native Americans were conquered by European settlers and should be classified as occupants of the land.  Occupants do not have the rights to the land, and therefore do not have the ability to sell it.  The “right to occupancy” is extinguishable, according to the court, because discovery doctrine supersedes occupancy in terms of who owns title.  Throughout history, the occupants of land who are conquered, as the Native Americans were in this case, can eventually gain rights to the title after being conquered.  However, the Natives are “fierce savages,” according to the court, and should not be given title and right to property as a result.

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