Why Aboriginal Title is a Fee Simple Absolute
Document Type
Article
Publication Title
Lewis & Clark Law Review
Journal Abbreviation
Lewis & Clark L. Rev.
Abstract
The Supreme Court’s 1823 decision in Johnson v. M’Intosh is a foundation case in both Indian Law and American Property Law. But the case is one of the most misunderstood decisions in Anglo-American law. Often cited for the propositions of the plenary power of the U.S. Congress over Indian tribes and the uncompensated takings of Indian title lands, the Marshall Court decision actually is better interpreted to recognize that Indian tribes had fee simple absolute to their ancestral lands. This article explains why the "discovery doctrine” should have been interpreted to be a fee simple absolute subject to the federal government’s right of preemption. Had the doctrine laid down by Johnson been properly interpreted, its national and international effects today would have been much less pernicious.
First Page
975
Last Page
993
Publication Date
2011
Recommended Citation
Michael Blumm,
Why Aboriginal Title is a Fee Simple Absolute,
15
Lewis & Clark L. Rev.
975
(2011).
Available at:
https://lawcommons.lclark.edu/faculty_articles/38