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U.S. Supreme Court

Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8 Wheat. 543 543 (1823)

Johnson & Graham's Lessee v. McIntosh

21 U.S. (8 Wheat.) 543


A title to lands under grants to private individuals made by Indian tribes or nations northwest of the River Ohio in 1773 and 1775 cannot be recognized in the courts of the United States.

Discovery the original foundation of titles to land on the American continent as between the different European nations by whom conquests and settlements were made here.

Recognition of the same principle in the wars, negotiations, and treaties between the different European powers.

Adoption of the same principle by the United States.

The exclusive right of the British government to the lands occupied by the Indians has passed to that of the United States.

Foundation and limitation of the right of conquest.

Application of the principle of the right of conquest to the case of the Indian savages. Nature of the Indian title, as subordinate to the absolute ultimate title of the government.

Effect of the proclamation of 1763.

Titles in New England under Indian grants.

This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians and by the defendant under a grant from the United States. It came up on a case stated upon which there was a judgment below for the defendant. The case stated set out the following facts:

1st. That on 23 May, 1609, James I, King of England, by his letters patent of that date, under the great seal of England, did erect, form, and establish Robert, Earl of Salisbury, and others, his associates, in the letters patent named and their successors into a body corporate and politic by the name and style of "The Treasurer and Company of Adventurers and Planters of the City of London for the first Colony in Virginia," with perpetual succession and power to make, have, and use a common seal, and did give, grant, and confirm unto this company, and their successors, chanroblesvirtualawlibrary

Page 21 U. S. 544

under certain reservations and limitations in the letters patent expressed,

"All the lands, countries, and territories situate, lying, and being in that part of North America called Virginia, from the point of land called Cape or Point Comfort all along the seacoast to the northward two hundred miles, and from the said Cape or Point Comfort all along the seacoast to the southward two hundred miles, and all that space and circuit of land lying from the seacoast of the precinct aforesaid up into the land throughout from the sea, west and northwest, and also all the islands lying within one hundred miles along the coast of both seas of the precinct aforesaid, with all the soil, grounds, rights, privileges, and appurtenances to these territories belonging and in the letters patent particularly enumerated,"

and did grant to this corporation and their successors various powers of government in the letters patent particularly expressed.

2d. That the place called in these letters patent Cape or Point Comfort is the place now called and known by the name of Old Point Comfort, on the Chesapeake Bay and Hampton Roads, and that immediately after the granting of the letters patent, the corporation proceeded under and by virtue of them to take possession of parts of the territory which they describe and to form settlements, plant a colony, and exercise the powers of government therein, which colony was called and known by the name of the Colony of Virginia.

3d. That at the time of granting these letters patent and of the discovery of the continent of chanroblesvirtualawlibrary

Page 21 U. S. 545

North America by the Europeans, and during the whole intermediate time, the whole of the territory in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed in full sovereignty by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory and the absolute owners and proprietors of the soil and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever, and that in making settlements within this territory and in all the other parts of North America where settlements were made under the authority of the English government or by its subjects, the right of soil was previously obtained by purchase or conquest from the particular Indian tribe or nation by which the soil was claimed and held, or the consent of such tribe or nation was secured.

4th. That in the year 1624, this corporation was dissolved by due course of law and all its powers, together with its rights of soil and jurisdiction under the letters patent in question were revested in the Crown of England, whereupon the colony became a royal government with the same territorial limits and extent which had been established by the letters patent, and so continued until it became a free and independent state, except so far as its limits and extent were altered and curtailed by the Treaty of February 10, 1763, between Great Britain and France and by the letters patent granted by the King of England chanroblesvirtualawlibrary

Page 21 U. S. 546

for establishing the Colonies of Carolina, Maryland, and Pennsylvania.

5th. That sometime previous to the year 1756, the French government, laying a claim to the country west of the Alleghany or Appalachian Mountains on the Ohio and Mississippi Rivers and their branches, took possession of certain parts of it with the consent of the several tribes or nations of Indians possessing and owning them, and with the like consent established several military posts and settlements therein, particularly at Kaskaskias, on the River Kaskaskias, and at Vincennes, on the River Wabash, within the limits of the Colony of Virginia, as described and established in and by the letters patent of May 23, 1609, and that the government of Great Britain, after complaining of these establishments as encroachments and remonstrating against them, at length, in the year 1756, took up arms to resist and repel them, which produced a war between those two nations wherein the Indian tribes inhabiting and holding the countries northwest of the Ohio and on the Mississippi above the mouth of the Ohio were the allies of France, and the Indians known by the name of the Six Nations or the Iroquois and their tributaries and allies were the allies of Great Britain, and that on 10 February, 1763, this war was terminated by a definitive treaty of peace between Great Britain and France and their allies by which it was stipulated and agreed that the River Mississippi, from its source to the Iberville, should forever after form the boundary between the dominions of chanroblesvirtualawlibrary

Page 21 U. S. 547

Great Britain and those of France in that part of Nor