UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 34, No. 2WINTER 2011
The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada,and New Zealand,
Blake A. Watson(fn*)
The landmark decision in the United States regarding Indian land rights is Johnson v. McIntosh, an 1823 decision authored by Chief Justice John Marshall. The Supreme Court in Johnson unequivocally rejected the most favorable view of indigenous land rights-that the native inhabitants own the land they occupy and are free to retain or sell their property.(fn1) Yet the Court did not adopt the least favorable view of Indian land rights either-that the tribes of America are trespassers without ownership or possessory rights. Instead, Marshall endorsed an intermediate position. On one hand, he declared the Indian nations "to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion . . . ."(fn2) On the other hand, Marshall proclaimed that European discovery of America "gave exclusive title to those who made it," and that such discovery "necessarily diminished" the power of Indian nations "to dispose of the soil at their own will, to whomsoever they pleased."(fn3)
Johnson v. McIntosh sets forth a "limited possessor" conception of indigenous land rights. Eleven years after Johnson, the United States Supreme Court appeared to adopt a "limited owner" theory of native land rights in Worcester v. Georgia. In Worcester, Marshall wrote that Indians do in fact own the lands they occupy but are not free to sell their lands to whomsoever they please because the discoverer holds a preemptive right to acquire their property rights.(fn4) Michael Blumm describes the native right as a "fee simple [that is] subject to the government's right of preemption" or, alternatively, as a "fee simple with a partial restraint on alienation."(fn5) Either description is consistent with the limited owner conception of indigenous land rights.
Most commentators consider the limited owner theory presented in Worcester to be "the best presentation of Marshall's matured views on property foundations and Indian title."(fn6) Yet Johnson remains the leading decision on native property rights in the United States. In 1955, Justice Stanley Reed relied on the "great case of Johnson v. McIntosh" to hold that Indian title may be terminated by the United States "without any legally enforceable obligation to compensate the Indians."(fn7) More recently, in City of Sherrill v. Oneida Indian Nation, the Supreme Court reaffirmed the limited possessor conception of indigenous land rights by stating that under the doctrine of discovery, "fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign- first the discovering European nation and later the original States and the United States."(fn8)
The Johnson discovery rule has not only diminished native rights in the United States, but has also influenced the definition of indigenous land rights in Australia, Canada, and New Zealand. In 1836, British lawyer William Burge cited Johnson v. McIntosh in support of his conclusion that a private purchase of some 600,000 acres from the Australian Aborigines was invalid as against the Crown.(fn9) British land speculators, settlers, and government officials quoted American jurists in disputes concerning the annexation of New Zealand in the 1840s, and Johnson figured prominently in the colony's first judicial decision regarding Mâori property rights.(fn10) Likewise, when the existence and scope of aboriginal title was finally litigated in Canada in the 1880s, the Johnson decision played a major role.(fn11)
This Article describes the impact of the American doctrine of discovery on native land rights in the former British colonies of Australia, New Zealand, and Canada. Part I briefly describes Johnson v. McIntosh and Worcester v. Georgia. Parts II, III, and IV describe the influence of Johnson on initial formulations of indigenous land rights by British authorities in Australia, New Zealand, and Canada. Parts V, VI, and VII examine the current status of native land rights in the aforementioned countries. Part VIII concludes with a brief discussion of the U.N. Declaration on the Rights of Indigenous Peoples-a movement away from the doctrine of discovery and towards a reconceptualization of indigenous rights.
Johnson v. McIntosh influenced the lawyers and jurists who first addressed the issue of indigenous rights in Australia, New Zealand, and Canada. On one hand, foreign courts used Johnson to limit the land rights of the original occupants. On the other hand, Johnson has been cited to acknowledge that the Australian Aborigines, the Mâori of New Zealand, and the First Nations of Canada possess certain property rights entitled to judicial protection. Although Johnson did not adopt the least favorable view of native land rights, the American doctrine of discovery nonetheless remains a justification for the diminishment of indigenous rights. As the world moves towards re-conceptualizing the rights of indigenous peoples, it is time to reject the American doctrine of discovery, wherever it is applied. By endorsing the U.N. Declaration on the Rights of Indigenous Peoples, the United States, Australia, New Zealand, and Canada would take a significant step in the right direction.
I. The American Doctrine of Discovery
Although American jurisprudence has influenced the definition of native land rights in Australia, New Zealand, and Canada, it would be a mistake to assume that the indigenous inhabitants of those countries hold the same legal rights-and status-as Indians in the United States. The "original Indian title" of American Indians is unique insofar as it is held by tribal groups that have been accorded the status of "domestic dependent nations."(fn12) As Kent McNeil has pointed out,[O]nly the United States acknowledged the internal sovereignty of the Indigenous peoples-the Indian tribes or nations-living within its borders. Canada, Australia and New Zealand all relied on the British constitutional doctrines of unity of the Crown and parliamentary sovereignty to deny official acknowledgement of even the internal sovereignty of their Indigenous peoples.(fn13) While the United States may have acknowledged the internal sovereignty of the American Indians, the Supreme Court, in Johnson, created a strict limitation on this sovereignty as it applied to native land rights.
Johnson v. McIntosh 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."(fn14) The plaintiffs relied on a 1775 deed, pursuant to which eleven Piankeshaw tribal chiefs deeded two large tracts of land along the Wabash River to twenty men from Virginia, Maryland, Pennsylvania, Great Britain, and the Illinois Country.(fn15) In 1805, the Piankeshaw Tribe ceded the same land to the United States.(fn16) William McIntosh subsequently purchased several tracts from the federal government, thus setting up a conflict in title.(fn17)
The defendant McIntosh argued that the 1775 purchase was invalid because Indian tribes lack the legal capacity to sell land to private indi-viduals.(fn18) As restated by Chief Justice Marshall, the dispute in Johnson v. McIntosh concerned "the power of Indians to give, and of private individuals to receive, a title, which can be sustained in the courts of this country."(fn19) To resolve this dispute, Marshall set forth the American version of the doctrine of discovery and denied the right of Indians to convey legal title to the lands they occupy:They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, . . . but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.(fn20)
Under the Johnson discovery rule, Indians possess a right of occupancy but are "deemed incapable of transferring the absolute title to oth-ers."(fn21) The discovering nation gained ownership to all native lands and acquired the "exclusive right to extinguish the Indian title of occupan-cy."(fn22) The indigenous inhabitants thus held limited possessor rights: their right of occupancy was subject to the discoverer's dual rights of ownership and preemption.
John Marshall and the Supreme Court reexamined the discovery doctrine in Worcester v. Georgia.(fn23) In the 1832 decision, Marshall announced that the Cherokee Nation was "a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force . . . ."(fn24) In dicta, the Chief Justice also offered a divergent view of the doctrine of discovery. In Johnson, Marshall noted that the "absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy."(fn25) In Worcester, the Chief Justice dropped the limited possessor view of Indian title in favor of a limited owner conception:This principle . . . gave to the nation making the discovery . . . the sole right...
