In order to ascertain that the person selling a piece of property has fee simple (complete ownership with no interest), prospective buyers must conduct a title search. The title search scans back through the chain of title to ascertain who the seller obtained the land from, and whether any interests (mortgages, liens, etc) were placed on the land. The title search continues to go back through each step of the chain. From the most recent owner, to the second-most-recent owner, to the third, fourth, fifth, etc. How far back does it go? That varies. Though, for some oil and gas leases (big in Texas), title searches actually go back to the Sovereign–when the Republic of Texas was formed.

The Dukeminier & Krier book has this excellent (but apocryphal) example of how far back titles can go to the sovereign:

A New Orleans lawyer had searched title back to 1803 for his client, a federal agency. The agency asked who owned the land prior to that date. The lawyer replied:

Gentlemen: I am in receipt of your letter of the fifth of this month inquiring as to the state of the title prior to the year 1803. Please be advised that in the year 1803 the United States ofAmerica acquired the Terri- tory of Louisiana from the Republic of France by purchase. The Republic of France previously acquired title from the Spanish Crown by conquest. Spain acquired title by virtue of the discov- eries of one Christopher Columbus, a Genoese sailor who had been duly authorized to embark upon his voyage of discovery by Isabella, Queen of Spain. Before granting such authority, Isabella, a pious and cautious woman, obtained the sanction of His Holiness, the Pope. The Pope is the Vicar on earth of]esus Christ, the only son and heir apparent of God. God made Louisiana.

But this isn’t right–and this is a point I raised in class. The land in New Orleans was most certainly occupied by someone before the Louisiana Purchase, before the conquest by the French, before the conquest by the Spanish, and before Columbus set sail. Turn back to 1491 (an excellent book I discussed here in the context of Indians and liberty).

How can it be that a valid title search skips over the American Indians, the native residents of the Americas at the time of the conquest. Do they have no claim to the title?

Let’s flash back to another 1L Property case–Johnson v. M’Intosh (I wonder if this case has the same flipped commaas M’Cullough v. Maryland) (Also this case was argued by Daniel Webster in 1824). In this case, Chief Justice Marshall considered “the power of Indians to give, and of private individuals to receive, a title [of property] which can be sustained in the courts of this country”:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence. But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted should be regulated as between themselves. This principle was 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 exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented.

It was discovery by Columbus and his ilk that granted title. There was no need for the Indians to be involed.

Thus, this letter from the New Orleans lawyer was entirely consistent with Johnson.

I would note that Marshall’s holding is not in agreement with Locke’s Second Treatise on Property (as some may think). Locke wrote:

the inhabitants of any country, who are descended, and derive a title to their estates from those who are subdued, and had a government forced upon them against their free consents, retain a right to the possession of their ancestors, though they consent not freely to the government, whose hard conditions were by force imposed on the possessors of that country: for the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves from the usurpation or tyranny which the sword hath brought in upon them, till their rulers put them under such a frame of government as they willingly and of choice consent to.

According to Locke, the Indians would retain a link in the chain of title–somewhere between Columbus and Christ, as ironic as that may be.

For what it is worth, 8 years later in Worcester v. Georgia (1832), Marshall writing for the Court held that the state of Georgia could not impose laws in the Cherokee territory, since only the federal government could regulate Indian matters (see the Indian commerce clause). Andrew Jackson was purported to have said “John Marshall has made his decision; now let him enforce it! … Build a fire under them. When it gets hot enough, they’ll go.” Though, I have read that this is apocryphal. In any event, Marshall may have made amends with the Indian people from his opinion in Johnson. Or not.

I get unnecessarily excited when I find an interesting constitutional law issue in Property.