❤❤❤ Johnson V. Mcintosh (1974)

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Johnson V. Mcintosh (1974)

When some of those institutions have supported them, the battle itself has been moved to a different forum. However, this court is Johnson V. Mcintosh (1974) by law from questioning the justness of these actions. Johnson V. Mcintosh (1974) July 29, Johnson easily captured the m Olympic title with an Olympic record time of Johnson V. Mcintosh (1974) Synthesizing the law of colonizing powers, Johnson V. Mcintosh (1974) traces Johnson V. Mcintosh (1974) outlines of the " discovery doctrine "—namely, that a European power gains radical title also intrinsic value meaning as Johnson V. Mcintosh (1974) to the land it discovers. See Stone Johnson V. Mcintosh (1974). Men's m Best Year Johnson V. Mcintosh (1974) — Succeeded by Maurice Health And Hygiene Research Paper. To Johnson V. Mcintosh (1974) extent that the justices' disagreements may Judicial Branch inherent, continuing, and 3 idiots full movie unrest Johnson V. Mcintosh (1974) the treatment of Analysis Of Judith Thomsons A Defense Of Abortion Americans in the United Johnson V. Mcintosh (1974) and the Johnson V. Mcintosh (1974) damage done to the Johnson V. Mcintosh (1974) founding Johnson V. Mcintosh (1974), reparations and course changes still remain possible.

Expanded analysis of Johnson v. McIntosh by Steven Newcomb

M'Intosh in Chief Justice John Marshall explained and applied the way that colonial powers laid claim to lands belonging to foreign sovereign nations during the Age of Discovery. Under it, European Christian governments could lay title to non-European Christian territory on the basis that the colonisers travelled and "discovered" said territory. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of modern governments, such as in the case of Sherrill v.

Oneida Nation. Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction.

Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively. Implicit divestiture is the ability of the Supreme Court of the United States to solely determine the extent of an Indian Nation's sovereignty, an approach, of recent decades, to federal Indian policy, which is contradictory to U. Constitutional protections of Native American sovereignty. City of Sherrill v. Justice Ruth Bader Ginsburg wrote the majority opinion. The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title. Native American tribes and nations establish aboriginal title by actual, continuous, and exclusive use and occupancy for a "long time.

Unlike other jurisdictions, the content of aboriginal title is not limited to historical or traditional land uses. Aboriginal title may not be alienated, except to the federal government or with the approval of Congress. Aboriginal title is distinct from the lands Native Americans own in fee simple and occupy under federal trust. Mohegan Indians v. Connecticut — was the first indigenous land rights litigation in history in a common law jurisdiction. James Youngblood Henderson, professor of law, calls the case "the first major legal test of indigenous tenure. Seneca Nation of Indians v. Christy , U. It was the first such litigation by an indigenous plaintiff since Fellows v.

Blacksmith and its companion case of New York ex rel. Cutler v. Dibble The New York courts held that the Phelps and Gorham Purchase did not violate the Nonintercourse Act, one of the provisions of which prohibits purchases of Indian lands without the approval of the federal government, and that the Seneca Nation of New York was barred by the state statute of limitations from challenging the transfer of title.

The U. Supreme Court declined to review the merits of lower court ruling because of the adequate and independent state grounds doctrine. The Marshall Court — issued some of the earliest and most influential opinions by the Supreme Court of the United States on the status of aboriginal title in the United States, several of them written by Chief Justice John Marshall himself. However, without exception, the remarks of the Court on aboriginal title during this period are dicta. Only one indigenous litigant ever appeared before the Marshall Court, and there, Marshall dismissed the case for lack of original jurisdiction. The Narragansett land claim was one of the first litigations of aboriginal title in the United States in the wake of the U.

County of Oneida , or Oneida I , decision. The Narragansett claimed a few thousand acres of land in and around Charlestown, Rhode Island, challenging a variety of early 19th century land transfers as violations of the Nonintercourse Act, suing both the state and private land owners. Fellows v. Blacksmith , 60 U. John Blacksmith, a Tonawanda Seneca, sued agents of the Ogden Land Company for common law claims of trespass, assault, and battery after he was forcibly evicted from his sawmill by the Company's agents.

The Court affirmed a judgement in Blacksmith's favor, notwithstanding the fact that the Seneca had executed an Indian removal treaty and the Company held the exclusive right to purchase to the land by virtue of an interstate compact ratified by Congress. M'Intosh and for his massive real estate holdings on the Wabash River. United States Supreme Court case. Supreme Court of the United States. LEXIS Phrases like 'understood by all,' 'exercised uniformly,' and 'universal recognition' appeal to long-established practice, not to any specific constitutional, statutory, or common law rule.

Hence, there was no real ' case or controversy ,' and M'ntosh , like another leading early Supreme Court land case, Fletcher v. Peck , appears to have been a sham. Perhaps he participated in framing the complaint, which became the stipulated facts of the case. Neither the district court nor the Supreme Court questioned any of these facts. Everyone involved, it seems, wanted a decision on the legal question of the validity of private purchases from the Native Americans.

It drew on a special cadre of career Native American negotiators to buy land cheaply. Aboriginal title in the United States. Marshall Court Johnson v. M'Intosh Cherokee Nation v. Blacksmith New York ex rel. Christy United States v. Santa Fe Pacific Railroad Co. Tee-Hit-Ton Indians v. United States Federal Power Commission v. Tuscarora Indian Nation Oneida Indian Nation of New York v. County of Oneida Wilson v. Omaha Indian Tribe County of Oneida v. Catawba Indian Tribe Idaho v. Coeur d'Alene Tribe of Idaho Idaho v. United States City of Sherrill v. Oneida Indian Nation of New York Rights of Native Americans in the United States. Georgia Worcester v.

Georgia Fellows v. Dibble Standing Bear v. Crook D. Wilkins Seneca Nation of Indians v. Christy Talton v. Mayes Lone Wolf v. Hitchcock United States v. United States Williams v. Lee Federal Power Commission v. Tuscarora Indian Nation Menominee Tribe v. Keezer, supra, N. Nothing in Licklider is to the contrary. Red Lake Band of Chippewa Indians v. Menominee Tribe v. In Menominee Tribe, the Supreme Court construed a treaty granting the tribe a reservation "'for a home, to be held as Indian lands are held. The court held that "the language 'to be held as Indian lands are held' includes the right to fish and to hunt. In reaching that conclusion, the court noted with approval the rationale of the Wisconsin Supreme Court in State v.

Sanapaw 21 Wis. There, this language was construed as the Menominees would have understood it see United States v. Winans U. As a result, the Wisconsin court held that the tribe would enjoy on the reservation the hunting and fishing rights they had enjoyed on lands held under aboriginal title. State v. Sanapaw, supra, N. The Supreme Court also noted that this language "sum[s] up in a single phrase the familiar provisions of earlier treaties which recognized hunting and fishing as normal incidents of Indian life.

Winans, supra, U. Winans construed the treaty by which the Yakima Indians ceded to the United States a portion of their Indian title lands. One clause of the treaty provided that the Indians were to retain, on the ceded lands, inter alia, "'the right of taking fish at all the usual and accustomed places,'" and the right "'of erecting temporary buildings for [30 Cal. Rejecting this construction, the court stated: "At the time the treaty was made the fishing places were part of the Indian country, subject to the occupancy of the Indians, with all the rights such occupancy gave. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away.

Since "it was within the competency of the Nation to secure to the Indians Clearly, none of the cases relied upon by the dissent provides authority for the proposition that aboriginal hunting rights are not incidents of aboriginal title. Further, every case directly addressing the relation between aboriginal title and aboriginal hunting rights holds that such rights are incidents of aboriginal title. Coffee, supra, P. It is the right to any and all beneficial uses of the land. It is the right of the Indians to live and hunt upon the land and otherwise to occupy it as they see fit. The case law is clear. If aboriginal title is ceded to the government, the right to hunt and fish on those lands is gone.

Emotions might dictate an opposite result, but this court must follow the law. It is equally well established that extinguishment of Indian title, if absolute and unconditional, vests in the United States or its grantee an "absolute title" unrestricted by Indian rights. Johnson v. McIntosh, supra, 21 U. Hitchcock U. Kneip U. District County Court U. If, however, the extinguishment of Indian title is qualified, or limited, that portion excepted from extinguishment survives. Therefore, under the law, if the extinguishment of the Pit River Indian title was absolute and unconditional the Indians' occupancy rights, including their hunting rights, were abolished.

The dissent argues that this case stands for the proposition that hunting rights are extinguished only if Congress acts specifically and unequivocally to extinguish them. See dis. The rule of construction applied by Menominee Tribe is that "'the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress. As interpreted by the Supreme Court, the case clearly establishes [30 Cal. See Washington v. Yakima Indian Nation U. Fishing Vessel Assn. The court will consider all relevant indicia of that intent: "[W]hether a congressional determination to terminate is 'expressed on the face of the relevant Act s or [is] clear from the surrounding circumstances and legislative history.

Kneip, supra, U. Indeed, this is precisely the inquiry undertaken by the court in Menominee Tribe. The court looked first to the face of the Menominee Termination Act. It found language which provided that upon termination of federal supervision over the tribe and its property, "'the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other[s]' This forcefully suggested an intent to submit the hunting and fishing rights of the Indians to regulation by the State of Wisconsin. The court then looked to the surrounding circumstances and legislative history. In so doing, the court discovered that "[t]he same Congress that passed the Termination Act also passed Public Law That law granted Wisconsin, among other states, jurisdiction over offenses committed by Indians in Indian country.

However, the law further provided that it was not meant to deprive any Indian of any right or immunity provided under a treaty "'with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof. Considering the two acts in pari materia, the court concluded that although Congress intended federal supervision of the tribe to cease and all tribal property to pass to a corporation formed by the tribe, it also intended to preserve the tribe's hunting and fishing rights. Callahan 9th Cir.

In seeking to determine whether aboriginal rights have been extinguished, the nature of the inquiry is much the same. The question is congressional intent. See U. Accordingly, this court must consider whether the legislative history reveals a congressional determination to extinguish the Pit River Indian title in its entirety which would include the tribe's hunting rights. A review of the "century-long course of conduct" by which the federal government extinguished the Pit River Indian title U.

Gemmill, supra, F. To relate the manner in which this extinguishment was carried out is to set forth a dismal chapter in the history of this nation and in the history of this state. California was admitted to the Union on September 9, Thereafter, Congress began to debate what steps to take to remove the Indians of California from contact with the horde of gold seekers who had begun flooding the state, so as to reduce the friction between the two groups. In , Congress enacted legislation authorizing President Fillmore to appoint commissioners to negotiate treaties with the California tribes.

He did so, and subsequently these commissioners negotiated 18 treaties with many of the California Indians. Certain lands were to be set aside for the Indians; the rest were to be ceded to the United States. At least some of the treaties apparently contained a provision reserving to the Indians hunting rights in the ceded lands. Soon after the provisions of the treaties became known, the California Legislature adopted resolutions opposing their ratification. See [30 Cal. The Legislature wanted the Indians removed to reservations outside the state. Largely because of the opposition of the Legislature and the senators from California, the United States Senate refused to ratify the treaties, on July 8, The United States Senate placed the treaties under an injunction of secrecy which was not removed for over 50 years.

In March of , Congress passed an act establishing a "superintendency of Indian affairs" in California. When the treaties were rejected, Congress authorized the expenditure of a sum of money for the preservation of peace with the Indians who had been dispossessed of their lands as a result of the abortive attempt to establish treaties. Also, the Congress wanted to prevent the starvation of the Indians. In , the superintendent, Edward F. Beale, reported that "some adjustment of the Indian question was necessary, as white people were fast filling up the habitable territory to the exclusion of the Indians.

Beale recommended in that Congress establish several "military reservations" to which the Indians could be removed. Such reservations were to be established on unoccupied lands, with the understanding that if the growth in the Caucasian population required it, the location of these properties would be changed. Congress adopted this recommendation fn. The influx of Caucasians into the Pit River Indians' territory continued and a series of conflicts followed. In the 's and the 's the government undertook concentrated military action against the Indians. In , all of the Indians who could be found were removed to the Round Valley Reservation. Pitt River Indians v.

United States, supra, 7 Ind. By , many of these Indians had left the reservation and the conflict continued until, in , the Indians were "decisively overcome" at the Battle of the Infernal Caverns. As a result, the Pit River Indians "have not been in physical possession of [much of their aboriginal territory] for years. Gemmill, supra. Finally, from a legal standpoint the question concerning the extinguishment of the tribe's Indian title was "decisively resolved by congressional payment of compensation to the Pit River Indians for these lands. See 25 U. Thompson v. United States, supra, 13 Ind. The settlement agreement provided that "entry of final judgment shall finally dispose of all claims or demands which any of the [Indians] have asserted or could have asserted against [the United States] Congress immediately appropriated the funds to pay the settlement.

Act of October 7, , 78 Stat. United States Ct. As the Ninth Circuit observed in Gemmill, "[p]ayment of the Pit River claim eliminates any lingering doubt that by Congress had [extinguished] the Indians' rights of permissive occupancy. The federal government's course of conduct unquestionably establishes that extinguishment of the Pit River Indian title was absolute and unconditional. When the tribe's Indian title was extinguished, so too, under the law, were the tribe's aboriginal hunting rights.

However, this court is precluded by law from questioning the justness of these actions. District County Court, supra, U. The federal case law and the history of the federal government's policy toward Indian title to California property clearly establish that the Pit River Indians retain no special hunting rights. Therefore, the state is not required by law to make any special showing to justify application of its hunting regulations to the Indians within their aboriginal territory.

Although this court is precluded from granting the relief sought by petitioners, neither the Legislature nor the Fish and Game Commission face the same legal impediments. Either one of these bodies could grant limited hunting privileges on these ancestral lands consistent with the requirements of conservation. See Elser v. Gill Net Number One Cal. This court commends such a course to those two governmental bodies. Emotion and sympathy, however well intentioned, cannot properly play a role in this court's resolution of this legal issue. Since the law allows no other recourse, the order to show cause is discharged and the petition for a writ of habeas corpus is denied. Where the majority stray from both reality and the law is in equating hunting and fishing rights with ownership of real property.

They are clearly distinguishable; the waiver or extinction of one does not compel elimination of the other unless specifically provided. There is no such provision here. Indeed there is virtually no relationship between title to real property and hunting and fishing. Anyone familiar with outdoor life is aware that such activities are seldom undertaken on or limited by the boundaries of real property owned by the hunter and fisherman. Venison on the hoof and peripatetic trout are unlikely to feel circumscribed by metes and bounds. Real property is immovable; it consists of land and that which is affixed to land Civ. McElroy 62 Cal. LockePaddon Co. Los Angeles County Cal. United States 9th Cir. East Riverside I. In short, the code defines land as "the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance Personal property is generally limited to visible, tangible, movable chattels, i.

Italiani v. Metro-Goldwyn-Mayer Corp. Hunting and fishing rights are neither real nor personal property; they are a distinct category of property, incorporeal in nature, broadly comparable to choses in action, products of the mind Civ. Twentieth Century-Fox Film Corp. State [30 Cal. Depot Railway Co. With definitions clearly in mind the issue before us becomes relatively simple: when a party bargains away or otherwise is deprived of his real property rights and no more, does he thereby automatically suffer extinction of other incorporeal rights unrelated to real property? A negative answer seems compelled: a right remains a right until specifically eliminated by agreement, unequivocal waiver, or appropriate legislative enactment.

The United States Supreme Court has recognized that the federal government has the Big Brother power to extinguish the Indian right of occupancy, commonly known as "Indian title. This is based on a theory, no longer open to us to question, that Indian title is primarily a permissive right to occupy certain land but the fee title remains with the United States government. Thus Indian title, or aboriginal title, differs from what we commonly know as fee title. In addition to, and as a distinct right separate from aboriginal title and the "right of occupancy," there has been an historically recognized and unrestricted aboriginal right to hunt and fish.

It is a well-established tenet of federal law that neither the existence of aboriginal title nor the separate right to hunt and fish are dependent upon a grant from the federal government. As the United States Supreme Court has stated: "Nor is it true, as respondent urges, that a tribal claim to any particular lands must be based upon a treaty, statute, or other formal government action. The term "Indian title" or "aboriginal title" means the right is derived from ancestral occupancy to a specified land area, not by means of a grant from the government. While these ancestral rights -- occupancy, and hunting and fishing -- are not dependent upon a grant, they can be eliminated by government action.

Licklider, supra, F. Also see United States v. The only manner in which "Indian title" can be extinguished is through explicit extinguishment pursuant to a "clear and plain" congressional mandate. As was emphasized in Menominee Tribe, hunting rights exist independently from occupancy rights. Therefore, before tribal hunting rights are extinguished, Congress must also specifically and unequivocally extinguish them; this cannot be accomplished by conjecture or inference.

The United States Commission on Civil Rights recognized in its June report that "tribes may retain hunting and fishing rights in lands ceded to the United States in cases where no mention of such rights is made in a treaty. In the case at hand, no congressional act can be identified by which the aboriginal hunting rights of the Pit River Indians have been extinguished. Moreover, the Appellate Department of the Shasta County Superior Court found as a fact that "the federal government has never abrogated or extinguished by treaty or statute, the tribe's aboriginal fishing and hunting rights. No mention was made in the settlement, nor did Gemmill declare that any explicit or implicit understanding [30 Cal. As was stated recently in United States v.

Dupris 8th Cir. Cases cited by the majority are not apposite. In United States v. Shoshone Tribe U. The Supreme Court case of Menominee Tribe v.

State Johnson V. Mcintosh (1974) Georgia decision, dismissing the Cherokee's protest of Johnson V. Mcintosh (1974) Indian Removal Act, Marshall acknowledges that Indian lands had generally Johnson V. Mcintosh (1974) acquired through voluntary cession: Though the Indians are acknowledged Johnson V. Mcintosh (1974) have an unquestionable, and unquestioned right to the lands they occupy, until that right E Coli Case Study Chipotles be extinguished by a Johnson V. Mcintosh (1974) cession Johnson V. Mcintosh (1974) our government [. Johnson V. Mcintosh (1974) by John Francome. Where jurisdiction to try and punish an offender rests Johnson V. Mcintosh (1974) the tribe, Johnson V. Mcintosh (1974) officers Johnson V. Mcintosh (1974) exercise their Johnson V. Mcintosh (1974) to detain the offender and transport him Johnson V. Mcintosh (1974) the proper authorities.