The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada, and New Zealand
![handle is hein.journals/sealr34 and id is 511 raw text is: The Impact of the American Doctrine of Discovery on
Native Land Rights in Australia, Canada,
and New Zealand
Blake A. Watsont
The landmark decision in the United States regarding Indian land
rights is Johnson v. McIntosh, an 1823 decision authored by Chief Jus-
tice John Marshall. The Supreme Court in Johnson unequivocally re-
jected 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.' 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 interme-
diate 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 ....
On the other hand, Marshall proclaimed that European discovery of
America gave exclusive title to those who made it, and that such dis-
covery necessarily diminished the power of Indian nations to dispose
of the soil at their own will, to whomsoever they pleased.
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 In-
dians 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 preemp-
tive right to acquire their property rights.4 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
t Professor of Law, University of Dayton School of Law. J.D., Duke University School of Law,
1981; B.A., Vanderbilt University, 1978.
1. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 574 (1823).
2. Id (emphasis added).
3. Id (emphasis added).
4. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 544 (1832).
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The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada, and New Zealand
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