Sovereigns and Individuals

• Author: Christian Turner
• Pages: 352-546

352

7. Sovereigns and Individuals

We have so far considered how property is first acquired, how it is defined to accomplish

various purposes, and how it is transferred and shared. In the final portion of this course, we will

delve more deeply into a group of essential questions posed to any legal system. These questions

concern the appropriate role of the public (the collective or the sovereign) and the freedoms of

individuals.

Property owners typically appeal to rights-based arguments to be free of collective control.

The public, on the other hand, points to conflicts between private conduct and important public

policies (conflicts that may owe to market failures or to a disconnect between private and public

norms). Any society will have to chart a course between the poles of anarchy and stifling statism.

We begin by reading a famous U.S. Supreme Court case establishing the right of the United

States, and its legislature in particular, to define property relations to meet its current needs,

unencumbered by pre-existing natural rights. This case will help us see the difference between

sovereignty, which is roughly the right to make rules, and property ownership, which is a bundle of

rights defined and protected by a sovereign.

Having obtained a better understanding of sovereignty, we will examine private institutions

that exercise attributes of sovereignty. Covenants, like constitutions in the public realm, empower

private legislatures and executives to make law and govern private communities. To what extent

should homeowners’ associations and other private groups have free reign? How should they be

regulated by the public?

Property owners are themselves a kind of sovereign: kings of their abodes. Their right to

exclude others from their realms has been called the most important stick in the bundle of rights

that attend property ownership. Exclusion, though, can be used to carry out private purposes that

are inimical to deeply held public policies. For example, racial discrimination by private businesses

can create a de facto caste system. We will study approaches to regulating private entities’ right to

exclude in order to achieve policies of social inclusion and desegregation. To what private entities

should “inclusion mandates” apply? Which groups or persons need the backing of public law to gain

inclusion? What if it costs money to include? Here again, we will confront a version of the

public/private problem, another aspect of the tension between laudable collective goals and

individual freedom.

We close the course with a traditional and deeply interesting property law topic: takings.

Under what circumstances can we, as the government, take for ourselves the property of a private

individual? This area of law grapples directly with the conflict between public goals and private

prerogatives. We will study two topics: (1) when should government be barred from taking property

even if it pays compensation, and (2) when does a government regulation go so far in limiting

property rights that it should be considered a taking of property for which compensation is due.

This politically charged area of law exposes the inherent difficulty of accomplishing public purposes

in a nation of individuals with radically diverse private views and projects.

353

7.1. Sovereignty

Johnson v. M’Intosh,

21 U.S. 543 (1823)

March 10, 1823

ERROR to the District Court of Illinois. This was an action of ejectment for lands in the

State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the

Piankeshaw Indians, and by the defendant, under a grant from the United States. It came up on a

case stated, upon which there was a judgment below for the defendant. The case stated set out the

following facts:

[The recitation of the facts in this case is lengthy. Though some will be lost in the summary,

what follows is the gist of the dispute. Before 1609 various Native American tribes uses and

occupied the disputed lands. In 1609 the lands were among those included in a massive grant by

James I to the Virginia colonial company. This company was dissolved in 1624 and the lands

reverted to the crown. In 1756, the French and Indian War commenced over the lands west of the

Appalachians, including these lands. In 1763, the war ended and the King issued a proclamation

reserving the lands west of the Appalachians for the Indians and forbidding British subjects from

purchasing these lands. In 1773, despite the proclamation, the Illinois Indians sold the disputed

lands to William Murray (and others, all British subjects) for $24,000. In 1775 another group of

Indians sold lands to Louis Viviat (and others, again all British subjects). In 1783, the lands were

ceded by Virginia to the United States. And in 1818, the United States issued a patent for the lands

to William M’Intosh. The dispute is between those whose claim to the lands derive from the

transactions with the Indians and those whose claim derives from the United States.]

Judgment being given for the defendant on the case stated, the plaintiffs brought this writ of

error.

Feb. 17th., 18th, and 19th.

The cause was argued by Mr. Harper and Mr. Webster for the plaintiffs, and by Mr. Winder and

Mr. Murray for the defendants. But as the arguments are so fully stated in the opinion of the Court, it

is deemed unnecessary to give any thing more than the following summary.

On the part of the plaintiffs, it was contended, 1. That upon the facts stated in the case, the

Piankeshaw Indians were the owners of the lands in dispute, at the time of executing the deed of

October 10th, 1775, and had power to sell. But as the United States had purchased the same lands

of the same Indians, both parties claim from the same source. It would seem, therefore, to be

unnecessary, and merely speculative, to discuss the question respecting the sort of title or ownership,

which may be thought to belong to savage tribes, in the lands on which they live. Probably,

however, their title by occupancy is to be respected, as much as that of an individual, obtained by

354

the same right, in a civilized state. The circumstance, that the members of the society held in

common, did not affect the strength of their title by occupancy.1 In the memorial, or manifesto, of

the British government, in 1755, a right of soil in the Indians is admitted. It is also admitted in the

treaties of Utrecht and Aix la Chapelle. The same opinion has been expressed by this Court,2 and by

the Supreme Court of New-York.3 In short, all, or nearly all, the lands in the United States, is holden

under purchases from the Indian nations; and the only question in this case must be, whether it be

competent to individuals to make such purchases, or whether that be the exclusive prerogative of

government.

2. That the British king’s proclamation of October 7th, 1763, could not affect this right of

the Indians to sell; because they were not British subjects, nor in any manner bound by the authority

of the British government, legislative or executive. And, because, even admitting them to be British

subjects, absolutely, or sub modo, they were still proprietors of the soil, and could not be devested of

their rights of property, or any of its incidents, by a mere act of the executive government, such as

this proclamation.

3. That the proclamation of 1763 could not restrain the purchasers under these deeds from

purchasing; because the lands lay within the limits of the colony of Virginia, of which, or of some

other British colony, the purchasers, all being British subjects, were inhabitants. And because the

king had not, within the limits of that colonial government, or any other, any power of prerogative

legislation; which is confined to countries newly conquered, and remaining in the military possession

of the monarch, as supreme chief of the military forces of the nation. The present claim has long

been known to the government of the United States, and is mentioned in the Collection of Land

Laws, published under public authority. The compiler of those laws supposes this title void, by

virtue of the proclamation of 1763. But we have the positive authority of a solemn determination of

the Court of King’s Bench, on this very proclamation, in the celebrated Grenada case, for asserting

that it could have no such effect.4 This country being a new conquest, and a military possession, the

crown might exercise legislative powers, until a local legislature was established. But the

establishment of a government establishes a system of laws, and excludes the power of legislating by

proclamation. The proclamation could not have the force of law within the chartered limits of

Virginia. A proclamation, that no person should purchase land in England or Canada, would be

clearly void.

4. That the act of Assembly of Virginia, passed in May, 1779,5 cannot affect the right of the

plaintiffs, and others claiming under these deeds; because, on general principles, and by the

constitution of Virginia, the legislature was not competent to take away private, vested rights, or

appropriate private property to public use, under the circumstances of this case. And because the act

is not contained in the revisal of 1794, and must, therefore, be considered as repealed; and the repeal

reinstates all rights that might have been affected by the act, although the territory, in which the

lands in question lie, was ceded to the United States before the repeal. The act of 1779 was passed

after the sales were made, and it cannot affect titles previously obtained. At the time of the

purchases there was no law of Virginia rendering such purchases void. If, therefore, the purchases

were not affected by the proclamation of 1763, nor by the act of 1779, the question of their validity

comes to the general inquiry, whether individuals, in Virginia, at the time of this purchase, could

legally obtain Indian titles. In New-England, titles have certainly been obtained in this mode. But

whatever may be said on the more general question, and in reference to other colonies or States, the

fact being, that in Virginia there was no statute existing at the time against such purchases, mere

general considerations would not apply. It may be true, that in almost all the colonies, individual

purchases from the Indians were illegal; but they were rendered so by express provisions of the local

law. In Virginia, also, it may be true, that such purchases have generally been prohibited; but at the

time the purchases now in question were made, there was no prohibitory law in existence. The old