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Unformatted text preview: PROPERTY - SPRING TERM 1994, PROFESSOR ALEXANDER ACQUIRING PROPERTY RIGHTS I. ACQUISITION by DISCOVERY , pp. 3-20 A. Johnson v. M’Intosh (1823), p.3-11: P had document showing title from Indian conveyance in 1775. Problem is: 1) Royal proclomation that subjects cannot purchase land west of Mississippi; and 2) VA passed law in 1779 that only gov’t can purchase land from Indians and voided all other purchases. Territories were transferred to the US and Â purchased the same land from U.S. in 1818. P brings action in ejectment : person holding land not person w/ title, sometimes brought to quiet title; Title : claim of right to a land; right of ownership. 1. Government right to extinguish/acquire by discovery: Doctrine of Discovery a. Discovery creates title which gives exclusive right to extinguish Indian’s right of occupancy by purchase or conquest . i. Discovery: the sighting or finding of hitherto unknown or unchartered territory; it is frequently accompanied by landing and symbolic taking of possession, acts which give rise to an inchoate title which must subsequently be perfected by effective occupation. ii. Conquest: the taking of possession of enemy territory through force followed by fornal annexationof the defeated territory by the conqueror. b. Law of Nations : only civilized nations allowed to extinguish non-civilized (non-christian, savages) nations. Does not work on two civilized nations. i. Resolves conflicts among nations c. Justification of Law of Nations. i. Indians could not coexist in peace and so no complete integration or separate rule. ii. Crown would lose use of land if Indians have title. iii. – To leave them in possession of their country was to leave the the country in a wilderness .î See Locke’s labor theroy of property infra. d. HYPO: Does Johnson, acting as a US citizen/agent of the gov’t, have the power to extigush the Indian’s occupation interests? => NO, Johnson is not a valid sovereign purchaser. 2.Indians retain residual land interests: right of occupancy a. If Indians have title, neither acts would invalidate their title. i. Proclomation: Indians are not subjects of Crown and Crown cannot take property w/o acts of Parliament. ii. VA act : Cannot annul deed w/o just compensation. Takings clause of V Amendment. b. BUT Ct held that Indians only have a right of occupancy ....
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