“The title was founded on the right of discovery, a right, which was held among the European nations a just and sufficient foundation, on which to rest their respective claims to the American continent.”
“It may be asked, what was the effect of this principle of discovery in respect to the rights of the natives themselves. In the view of the Europeans it created a peculiar relation between themselves and aboriginal inhabitants. The latter were admitted to possess a present right of occupancy, or use in the soil, which was subordinate to the ultimate dominion of the discoverer. They were admitted to be the rightful occupants of the soil, with a legal, as well as just claim to retain possession of it, and to use it according to their own discretion. In a certain sense, they were permitted to exercise rights of sovereignty over it. They might sell or transfer it to the sovereign, who discovered it; but they were denied the authority to dispose of it to any other persons; and until such a sale or transfer, they were generally permitted to occupy it as sovereigns de facto. But, notwithstanding this occupancy the right to grant the soil, while yet in possession of the natives, subject however to their right of occupancy; and title so granted was universally admitted to convey a sufficient title in the soil to the grantees in perfect dominion, or, as it is sometimes expressed in treatises of public law, it was a transfer of plenum et util dominium.”
Joseph Story, Commentaries on the Constitution of the United States, 1833, Book 1, Chapter 1.
In other words, you were living here before me, but when I discovered your land, I became the owner. You can stay here but you can’t sell the land unless it’s to me. And even though you still live here, I can sell the land out from underneath you.
When I think about regulatory planning and land conservation, I can’t help but think how the more things change, the more they remain the same. And it didn’t work out too well for the Indians either.