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Newcomb: On the Indian title of ‘occupancy’

In the 1923 case Cramer v. United States, the U.S. Supreme Court said “it has been the policy of the federal government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.” The category of title called “Indian right of occupancy” has otherwise been known as “original Indian title” and “Indian title,” as pointed out by Felix Cohen in his classic 1947 Minnesota Law Review article “Original Indian Title.”

In order to accurately interpret the concept of an Indian right or title of “occupancy” it is important to look behind that category and pay careful attention to the fact that the title of a conquering and dominating “sovereign” is the broader, and often little noticed context of what is termed the Indian title of “occupancy.”

In “Original Indian Title,” Cohen examined “The Doctrinal Origins of Indian Title.” As he put it: “The decisions on Indian title can hardly be understood unless it is recognized that dealings between the federal government and the Indian tribes have regularly been handled as part of our international relations.” He further said, “Our concepts of Indian title derive only in part from common law feudal concepts. In the main, they are traced to Spanish origins, and particularly to doctrines developed by Francisco de Vitoria, the real founder of modern international law.”

Cohen began his discussion of those principles with the following heading: ‘The Sovereign’s Title: Johnson v. McIntosh.’

Vitoria, said Cohen, argued “that Indians were human beings and that their land titles were entitled to respect.” According to Cohen, implicit in Vitoria’s argument “is the doctrine that certain basic rights inhere in men as men not be reason of their race, creed, or color, but by reason of their humanity.”

What about the argument that the pope had granted Indian lands to the kings of Spain and Portugal? Cohen said that Vitoria responded to this argument by contending that “the Pope had ‘no temporal power over the Indian aborigines’” Vitoria further argued that “a division of the New World by the Pope could serve only as an allocation of zones for trading and proselytizing purposes, not as a distribution of land.”

Cohen also explained how Vitoria had responded to the argument of “title by discovery.” He summarized Vitoria’s argument as follows: “Discovery gives title to lands not already possessed. But as the Indians ‘were the true owners, both from the public and the private standpoint,’ the discovery of them by the Spaniards had no more effect on their property than the discovery of the Spaniards by the Indians had on Spanish property.”

So far so good, right? Yet there is something strange about Cohen’s overall discussion of Indian title. For given that Vitoria is often deemed the “father,” or founder of “modern international law,” and given that he supported the idea that the Indians were “the true owners” of their lands, “from the public and private standpoint,” and given that “discovery” had “no effect” on the Indians’ true ownership of their lands, then where in the world does the concept of the Indian title of “occupancy” come from? The answer is that it comes from the U.S. Supreme Court decision Johnson v. M’Intosh in direct contradiction of Vitoria’s views.

In order to accurately interpret the concept of an Indian right or title of ‘occupancy’ it is important to look behind that category.

In keeping with the Johnson ruling, the Indian title of occupancy in U.S. law is predicated on the idea that “ultimate dominion” and “ultimate title” is existing in the United States as “the Sovereign,” based on Christian discovery. This conceptual framework only accords the Indians with a title of “mere occupancy,” subject to the superior dominion and title of the first “discoverer.” This is not even close to the same argument that Vitoria made in support of the Indians’ possessing original “dominium.”

Cohen skillfully treated the category “Indian title of occupancy” as it were the same as Vitoria’s category of “true ownership,” or true Indian “dominium” (to use the actual Latin term Vitoria used in reference to the Indians). Cohen pretended the federal Indian law category of “mere occupancy” is equivalent to the category of “dominium,” which Vitoria attributed to the Indians, and which he said could not be effected by “discovery” or by a grant from the pope.

Contrary to what Vitoria argued about the Indians possessing the true “dominium” to their lands, federal Indian law conceives of American Indians as possessing a title of “mere occupancy” subject to the superior dominion (“dominium”) of the first Christian monarch (or its political successor) to “discover” lands inhabited by “natives, who were heathens.” Cohen clearly acknowledged this counter-narrative in his review of “The Cases.” For as he put it: “The cases on original Indian title show the development across twelve decades [as of 1947] that has never rejected its first principles.” Cohen began his discussion of those principles with the following heading: “The Sovereign’s Title: Johnson v. McIntosh.” Cohen tried to use a linguistic sleight of hand to cover up the doctrine of discovery that he followed as the basis of his reasoning.

Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery” (Fulcrum, 2008).