Why Aboriginal Title is a Fee Simple Absolute
Michael C. Blumm
Lewis & Clark Law School
February 14, 2012
Lewis & Clark Law Review, 2011
Lewis & Clark Law School Legal Studies Research Paper No. 2011-24
The Supreme Court’s 1823 decision in Johnson v. M’Intosh is a foundation case in both Indian Law and American Property Law. But the case is one of the most misunderstood decisions in Anglo-American law. Often cited for the propositions of the plenary power of the U.S. Congress over Indian tribes and the uncompensated takings of Indian title lands, the Marshall Court decision actually is better interpreted to recognize that Indian tribes had fee simple absolute to their ancestral lands. This article explains why the "discovery doctrine” should have been interpreted to be a fee simple absolute subject to the federal government’s right of preemption. Had the doctrine laid down by Johnson been properly interpreted, its national and international effects today would have been much less pernicious.
Number of Pages in PDF File: 19
Keywords: Indian law, Property law, discovery doctrine, Marshall Court, legal history
JEL Classification: H82, K11, N51, Q15Accepted Paper Series
Date posted: August 18, 2011 ; Last revised: March 2, 2012
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