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.
The Taney Court heard Fellows v. Blacksmith (1857) and New York ex rel. Cutler v. Dibble (1858), the first two aboriginal title cases involving indigenous plaintiffs to reach the Supreme Court since Cherokee Nation v. Georgia (1830), and the first two cases won by indigenous parties in the Supreme 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."
The remaining cases involved no indigenous parties. In United States v. Brooks (1850), the Court refused to inquire into allegations of fraud on the part of Commissioner Jehiel Brooks in negotiating a treaty with the Caddo. Following the Marshall Court's precedent, the Taney Court continued to uphold the validity of state land grants issued before the extinguishment of aboriginal title. Depending on the applicable law, the Taney Court held that aboriginal title could sometimes be asserted as a defense in trespass, ejectment, and writ of right actions, even by those with no claim to title themselves.
United States v. Brooks (1850) In 1835, a treaty negotiated by Commissioner Jehiel Brooks provided for the Caddos to cede certain lands to Franois Grappe and his three sons, Jacques, Dominique, and Balthazar Grappe.United States v. Brooks, 51 U.S. (10 How.) 442, 450–51 (1850). The Grappes sold the land to Col. Brooks.51 U.S. at 460. On February 24, 1846, the United States attorney for the District of Louisiana filed suit against Col. Brooks, alleging that he had fraudulently included the lands within those ceded by the Caddos to the United States.51 U.S. at 454, 459–60. At trial, the judge refused to allow the federal government to read various documents into evidence; the jury returned a verdict for Brooks.51 U.S. at 456–58.
The Court affirmed, holding that "Brooks being the alienee of the Grappes for the entire reservation, he may hold it against any claim of the United States, as his alienors would have done." 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."
The Seneca cases (1857–1858)
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.
Fellows v. Blacksmith (1857)
Fellows v. Blacksmith (1857) was the first litigation of aboriginal title in the U.S. Supreme Court by an indigenous plaintiff since Cherokee Nation v. Georgia (1831), and the first Supreme Court case won by an indigenous plaintiff. According to a contemporary New York Times article: "The questions involved are of great magnitude, and affect more or less the title to a large portion of the State of New York."
The Court affirmed a judgement for the plaintiff on a cause of action of trespass. Moreover, the Court held that Indian removal treaties could not be enforced by private parties, either through self-help or through the courts. Fellows also underscored the importance of the trust relationship between the federal government and the tribes in holding that the federal government retained the sole discretion to enforce, or not enforce, such treaties against the tribes.Fellows v. Blacksmith, 60 U.S. (19 How.) 366 (1857).
New York ex rel. Cutler v. Dibble (1858)
New York ex rel. Cutler v. Dibble (1858) was a companion case to Fellows. 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. At the time Fellows was decided, this case had reached the U.S. Supreme Court but had not yet been argued.Joshua L. Brown, The Tonawanda Indians, Letter to the Editor of the New York Times (February 4, 1858). The defendant-appellants, before the Court, unsuccessfully challenged the state statute under the Indian Commerce Clause of the United States Constitution, the federal Nonintercourse Act and the Treaty of Buffalo Creek between the federal government and the Senecas.New York ex rel. Cutler v. Dibble, 62 U.S. (21 How.) 366 (1858). Because the Senecas relied on state law, and the defendants relied on federal law, the case is essentially the inverse of Nonintercourse Act litigation of over the next 150 years.
Dicta in disputes between non-Indians Several decisions note the extinguishment of aboriginal title as a condition of land grants.Clements v. Warner, 65 U.S. (24 How.) 394, 396 (1860); Dubuque & P.R. Co. v. Litchfield, 64 U.S. (23 How.) 66, 78 (1859); Hale v. Gaines, 63 U.S. (22 How.) 144, 147–59 (1859); Dodge v. Woolsey, 59 U.S. (18 How.) 331, 353 (1855); Thredgill v. Pintard, 53 U.S. (12 How.) 24, 24 (1851); Howard v. Ingersoll, 54 U.S. (13 How.) 381, 410–11 (1851); United States v. D'Auterive, 51 U.S. (10 How.) 609, 626 (1850); Le Roy v. Beard, 49 U.S. (8 How.) 451, 454 (1850); Missouri v. Iowa, 48 U.S. (7 How.) 660, 668 (1849); Hickey's Lessee v. Stewart, 44 U.S. (3 How.) 750, 760 (1845); Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) 367, 388 (1842); Clark v. Smith, 38 U.S. (13 Pet.) 195, 198 (1839). More than once, in dicta, the Court cited the purchase of aboriginal title in New Jersey.Jefferson Branch Bank v. Skelly, 66 U.S. (1 Black) 436, 447 (1861); Piqua Branch of State Bank of Ohio v. Knoop, 57 U.S. (16 How.) 369, 385–86 (1853); Armstrong v. Treasurer of Athens County, 41 U.S. (16 Pet.) 281, 281 (1842).
Sac and Fox Half-Breed Tract cases (1850–1854)
An 1824 federal treaty with the Sac and Fox tribes set aside a 119,000 acre Half-Breed Tract in Iowa between the Mississippi River and the Des Moines River. The treaty declared the lands inalienable. In 1834, Congress transferred the fee title to the lands to the Half-Breeds, rendering the land transferable. By 1841, the Tract was owned in fee almost entirely by non-Indians. The Taney Court heard for land disputes involving the Iowa Half-Breed Tract: the first two from the Supreme Court of the Iowa Territory; the second two from the United States District Court for the District of Iowa.
Marsh v. Brooks I (1850) 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. The Iowa Supreme Court refused to let the defendants raise this defense; Justice John Catron, for a unanimous Court, reversed and remanded.Marsh v. Brooks, 49 U.S. (8 How.) 223 (1850). The Court provided the following dicta on aboriginal title: This Indian title consisted of the usufruct and right of occupancy and enjoyment; and, so long as it continued, was superior to and excluded those claiming the reserved lands by patents made subsequent to the ratification of the treaty; they could not disturb the occupants under the Indian title. That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question. 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] . . . .49 U.S. at 232 (citation omitted). The Supreme Court held that an ejectment defendant could assert the defense of aboriginal title, even if the defendant did not even claim to hold the aboriginal title: It was also insisted on the argument here, that, as it did not appear that any half-breeds, or their heirs or assigns, were in existence when the trial below took place, the outstanding title relied on could not be set up by the defendants. To which it may be answered, that it was necessary for the plaintiffs to show themselves to be owners of the land . . . ; and if the land had been previously granted, nothing was left to pass by the second patent . . . . The general rule is, that, where the same land has been twice granted, the elder patent may be set up in defence by a trespasser, when sued by a claimant under the younger grant, without inquiring as to who is the actual owner of the land at the time of the trial.49 U.S. at 233–34.
Webster v. Reid (1850) 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.Webster v. Reid, 52 U.S. (11 How.) 437 (1850).
Marsh v. Brooks II (1852) Marsh v. Brooks (1852) involved the same parties that had been before the Court in 1850. Having re-filed in federal court, the plaintiffs again prevailed, and this time, the Court (again, the opinion authored by Justice Catron) affirmed.Marsh v. Brooks, 55 U.S. (14 How.) 513 (1852). 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. Spain had no treaties with any of the Indian tribes in Louisiana, fixing limits to their claims, so far as we are informed. The Indians were kept quiet, and at peace with Spanish subjects, by kind treatment and due precautions, which did not allow obtrusion on lands claimed by them, without written permits from the Governor; but that such permits were usual, cannot be doubted.55 U.S. at 522.
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.55 U.S. at 524.
Coy v. Mason (1854) Coy v. Mason (1854), another dispute between non-Indians, remarked in dicta that the Half-Breed Tract had been held "by the same title, and in the same manner, that other Indian titles are held."Coy v. Mason, 58 U.S. (17 How.) 580, 580 (1854).
Dred Scott v. Sandford (1857)