Aboriginal title in the Taney Court

The Supreme Court of the United States, under Chief Justice Roger B. Taney (1836–1864), issued several important decisions on the status of aboriginal title in the United States, building on the opinions of aboriginal title in the Marshall Court.

In Marsh v. Brooks (1850), in dicta, the Court declared: "That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question."

[3] At trial, the judge refused to allow the federal government to read various documents into evidence; the jury returned a verdict for Brooks.

"[2] The court refused to consider "conjectural intimations, which were made in the argument of it, concerning the influences which were used to secure the reservation, or the designs of the commissioner in having it done.

"[2] The two aboriginal title cases involving indigenous litigants to reach the Taney Court both involved the Tonawanda Band of Seneca Indians and the Tonawanda Reservation, both argued by John H. Martindale (first as the district attorney of Genesee County, New York, then in private practice), and both originated in the New York state courts.

An individual Seneca party of interest, prevailed in a suit brought under a New York statute authorizing state district attorneys to remove non-Indian trespassers from Indian lands in county courts.

Marsh v. Brooks (1850), a writ of right action, involved a plaintiff holding an 1839 federal land patent (issued under an 1836 statute) and a trespasser defendant asserting that the plaintiff's title was invalid because of the Half-Breed Tract treaty and legislation.

This is the result of the decision in [Johnson v. McIntosh and Cornet v. Winton, written by Justice Catron while he was on the Tennessee high court] .

[12]In Webster v. Reid (1850), the Court declared unconstitutional an Iowa territorial statute that authorized bench trials against "‘the Owners of the Half-breed Lands lying in Lee County," with notice by publication.

[14] In dicta, the Court offered the following interpretation of the status of aboriginal title in the Spanish Louisiana territory: That the Sacs and Foxes did claim the country generally, where this land lies, is not controverted; nor was their claim ceded to the United States till 1824.

And this raises the question whether, according to Spanish usage, whilst that power governed Louisiana, an existing Indian claim to territory precluded inhabitation and cultivation under a permit to inhabit and cultivate a particular place designated in the permit, and which was in the Indian country.

[15]Again in dicta, the Court seemed to apply the concept of adverse possession to aboriginal lands: [The plaintiff's tract] was held and improved by authority of the Spanish government, and claimed as individual property, to which the Indian right of possession did not extend; of this the Indians never complained, nor do they now complain; no half-breed owner and Indian descendant is defending this suit; it is defended by trespassers, showing no color of claim under the half-breeds, or any one else; shelter is sought under the assumption that Honoré's permit and inhabitation were neither known or recognized by the Sacs and Foxes, and that therefore, the additional article of the treaty of 1804, cannot protect the title of Reddick.

[I]t must be presumed that the Indians both had knowledge and assented to Honoreé's claim; and we are furthermore of opinion, that the Indian tribes, and the half-breeds, who claim under them, must be held to knowledge, and to consent, that Honoré took and held, rightful possessions, from the fact of his open and notorious actual occupancy, and holding for himself, in their midst.

[19] Dred Scott, in dicta, opined the following on aboriginal title: The situation of [blacks] was altogether unlike that of the Indian race.

[21]Lattimer's Lessee v. Poteet (1840) was an appeal from a judgment for the defendant in an ejectment action in the United States circuit court of North Carolina.

[22] Before the Supreme Court, the plaintiffs argued that it was "not in the power of the United States and the Cherokee nation, by the treaty of Tellico in 1798, to vary in any degree the treaty line of Holston; so as to affect private rights, or the rights of North Carolina.

Chief Justice Taney concurred in the judgment, but disagreed that the political branches had interpreted the Tellico treaty to demarcate the relevant boundary.

[36] Justice Wayne, noted that the case involved the same plaintiff as in Mitchel v. United States (1835), a decision of the Marshall Court.

[37] Therefore, Wayne opined, "[t]he case before us does not require any discussion upon the nature and extent of the property held by the Florida Indians in these lands, under Spain.

"[38] The Court further noted: "We will not enter into the question, how far the appropriation of the land for a fortress, by order of the government, extinguished the Indian title.

It might be done successfully, upon the positions taken by this court in respect to the rights of European monarchs to Indian lands in North America, in Johnson v.

[39] In Chouteau v. Molony (1853), Justice Wayne, for a unanimous Court, interpreted a grant from the Fox tribe to be a mere right to mine lead, rather than a grant of land because it was not confirmed by the Spanish authorities as required by Spanish law and because it included a Fox village which the tribe would have been unlikely to cede.

[40] Chief Justice Taney held in Maney v. Porter (1846) that the Court had no jurisdiction to review state court actions claiming money damages from fraudulent land sales where: [T]he suit was not brought to uphold any title or right which the complainant claimed under the Choctaw treaty, or under the law of Congress which he states to have been passed upon the subject.

In the case before us, no such title, right, or privilege was claimed by the bill, and of course no decision was made against it in the state court.

[41]In Gaines v. Nicholson (1850), Justice Nelson wrote the following in dicta: There is no doubt but that all persons in whose behalf reservations were made under [an Indian] treaty .

He holds, strictly speaking, not under the treaty of cession, but under his original title, confirmed by the government in the act of agreeing to the reservation.