aboriginal title

What happened

Aboriginal title, also called Indian title or the right of occupancy, rests on the fact that Native nations lived on and used the land before European arrival. In Johnson v. M'Intosh (1823), Chief Justice Marshall wrote that discovery "gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments." European grants of land were understood to convey a title "subject only to the Indian right of occupancy."

That right is real in court. In Oneida Indian Nation v. County of Oneida (1985), the Supreme Court said Indians have a federal common-law right to sue to enforce their aboriginal land rights, and that their "right of occupancy need not be based on a treaty, statute, or other Government action."

But the Court has also limited what aboriginal title protects. In Tee-Hit-Ton Indians v. United States (1955), concerning Alaska timber, it held that "Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment." In plain terms, Congress may take land held only by aboriginal title without owing compensation, unless Congress has recognized the title by treaty or statute.

The Court's own tone in Tee-Hit-Ton is part of the record. It wrote that "Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force." The decision is cited here as law, not endorsed; the opinion's reasoning about conquest is the Court's.

Summarized with AI assistance from 5 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error