indian title

What happened

Indian title, or the right of occupancy, is the tribal right to possess and use land. Under the rule set out in Johnson v. M'Intosh (1823), European discovery vested ultimate title in the discovering government, "subject only to the Indian right of occupancy." The same case said the tribes' "power to dispose of the soil at their own will, to whomsoever they pleased, was denied." Only the sovereign could buy.

Congress wrote that rule into statute. The Trade and Intercourse Act of 1790 provided that no sale of lands by any Indians or tribe "shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States." The Supreme Court quotes that language in City of Sherrill v. Oneida Indian Nation (2005). The rule survives today in 25 U.S.C. 177.

Courts have enforced it for tribes. In Oneida II (1985), the Court held that the tribes have "a federal common-law right of action for violation of their possessory rights," and that this right was not pre-empted by the Nonintercourse Acts.

But Indian title has limits. In Tee-Hit-Ton (1955), the Court held that occupancy without government recognition of ownership gives no Fifth Amendment protection against taking by the United States.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error