Picking up where I left off earlier,
Consider this view, excerpted from Gordon I. Bennett, 27 Buff. L. Rev. 617 (1977-1978)
Aboriginal Title in the Common Law: A Stony Path through Feudal Doctrine, Bennett, Gordon I.
[ 20 pages, 617 to 636 ]
"In Johnson v. McIntosh ° and Worcester v. Georgia," two landmark
decisions that still constitute the locus classicus on the subject,
Chief Justice Marshall referred to the principle evolved by the European
powers in their settlement of America that "discovery gave title
to the government by whose subjects, or by whose authority, it was
made, against all other European governments, which title might be
consummated by possession."'' The Chief Justice added the vital
caveat, however, that this principle could not
annul the previous rights of those who had not agreed to it. It regulated
the right given by discovery among the European discoverers;
but could not affect the rights of those already in possession,'either
as aboriginal occupants, or as occupants by virtue of a discovery
made before the memory of man. It gave the exclusive right to purchase,
but did not found that right on a denial of the possessor to
sell.' 3 [The original inhabitants] were admitted to be the rightful occupants
of the soil, with a legal as well as a just claim to retain possession
of it, and to use it according to their own discretion.14
Central to Marshall's analysis was the assertion that aboriginal rights
stem from ancient occupation per se, and are not dependent on a public
grant or official acknowledgment."
"Nor is it true, as respondent urges, that a tribal claim to any
particular lands must be based upon a treaty, statute, or other formal
"This view is confirmed by a whole cluster of Supreme Court decisions
and, most recently, by the Court of Claims in Lipan Apache
Tribe v. United States,'8 where Judge Davis dispelled any lingering
Indian title based on aboriginal possession does not depend on sovereign
recognition or affirmative acceptance for its survival. Once
established in fact, it endures until extinguished or abandoned..."
"The correct enquiry is, not whether the Republic of Texas accorded
or granted the Indians any rights, but whether that sovereign extinguished
their pre-existing occupancy rights."
Time to rest, until tomorrow...
(to be continued)