Rather than owning objects, property is the collection of rights one may have directed towards such an object. For example, I do not own this computer, but I have the right to transfer, exclude, use, or destroy it. However, there are sets of rules that come from these rights. For instance, government defines what rights people have and not everyone is entitled to every right. Additionally, these rights may continue to change as the law changes.

Right to Transfer

The right to transfer refers to the ability one person may have to transfer property to another. The actual term for transfer is alienate. Most of the time, people can transfer whenever they want. However, there are some limitations on who can transfer and other limitations on what property can be transferred. Most the time, the law also regulates how property is transferred.

Johnson v. M’Intosh

21 U.S. (8 Wheat.) 542 (1823).

Johnson is the plaintiff. Lost and appealed.


Who has the claim to the property? Johnson or the United States? Did the Native Americans have the right to transfer the property?


The government is the exclusive entity to accept claims from Native Americans. Additionally, by conquest, Native Americans were seen as only occupants, to land titled by the United States. As a result, Native Americans did not have a right to transfer property to others.


The transfer made from the Native Americans to Johnson is not a valid title. Judgment in the trial court is affirmed.


Johnson purchased land in 1773 and another company purchased more land in 1775 from the Native Americans. These companies combined into one company. Later, a broad parcel of land that contained the Johnson purchase was purchased by the United States. The United States then provided grants to the land, including to M’Intosh. Wishing to reclaim the land that they purchased, Johnson sought to lobby the government for title. When that failed, they took the case to the courts.


The European way of treating Native Americans is that the Crown had the sovereign right to property by conquest. As a result, Native Americans were treated as occupants of the land. They could remain peacefully, but if “encouraged” to leave, they would do so and the crown would provide “grantees” for the land. After the revolution, this practice continued, giving the United States the sole right to conquest land. Any discovered land would then become the property of the United States, not the person who discovered it.

There are three possible reasons the Native Americans did not have the right to transfer title (according to Marshall). 1. Ample payment was made. 2. The Native Americans abandoned the land (though disputes and following the game). 3. There was undue delay by the Native Americans to claim title to the land.


Ultimately, the Native Americans were treated as occupants without the right to transfer, unless the land was transferred to the United States.

Additional Notes

As far as a background goes, Johnson has purchased title of the land with Native Americans. Later, the government claimed title from England (who presumably got the land from France who got the land from the Native Americans) and M’Intosh purchased the land. M’Intosh was living on the land and Johnson sued for an ejectment to kick M’Intosh off the land.

So the question is whether the transfer from the tribes to Johnson was a valid transfer.

The holding is that the Native Americans do not have the power to transfer land to anyone other than the federal government.

So, how do the theories of law apply? The tribes were the first possessor. So what rational did Justice Marshall apply to override this first possessor? These include that payment was provided, the land was abandoned, or that the title was not properly claimed.

Ultimately, it also comes down to conquest. The United States claimed title through conquest, even if it does not fully feel like justice.

So, there are a few big takeaways from this case:

  1. Original title comes through conquest by the federal government or by transfer to the government.
  2. Native American tribes were not allowed to transfer property unless it was to the government.

Additional Notes

The bundle of rights theory or the bundle of sticks theory is a list of rights of this list includes

  • Transfer
    • Sell
    • Give
    • Devise
  • Exclude
  • Use – Posses
  • Destroy

Multiple people can share property rights at the same time. For instance, a landlord has the right to transfer a rental, but the tenant has the right to use or possess.

Right to Transfer (Alienability)

The law regulates The who, what, and how property is transferred.

For who, the law restricts insane people from transferring. Children are also limited to transfer, depending on the capacity of the property. This has adjusted over time. For instance, once upon a time, women used to not transfer property.

For what, the law prevents you from selling military pensions. Additionally, the law prevents you from selling (although you can give away) body organs such as a kidney. Once again, this has changed over time (consider slavery).

For how, the law provides rules for creating a will, division of an estate at divorce, the transfer of a deed.

Generally, property is transferrable. Johnson v. M’Intosh is an example of an exception to the rule.

Chain of title refers to the line of ownership from one owner to the other. The United States government is considered the first possessor of title. This rule may be considered to have come from Johnson v. M’Intosh.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Spring, Property

Will Laursen

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