… In Part I below, I will explain why Indian title matters. Part II explicates the sources of the misconceptions about Indian title and why they are (mostly) misconceptions. Part III analyzes the real holding of Johnson v M’Intosh: Indian title is full ownership by a sovereign Indian nation subject to a restraint on alienation and a right of first refusal in the United States. Indian title is an estate in land, but the package of rights it entails is different from the package associated with the typical fee simple. Moreover, as the Supreme Court held in 1835, Indian title is ‘as sacred as the fee simple of the whites’. If we view Indian title accurately, and in the appropriate context, perhaps we will have a new bulwark against conquest … (more)
Joseph William Singer, ‘Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest’, Albany Government Law Review 10:1 (2017).