In 1823 the US Supreme Court issued its decision in Johnson v. McIntosh. Writing for the majority, Chief Justice John Marshall held that the Doctrine of Discovery had been an established principle of European law and of English law in effect in Britain’s North American colonies and was also the law of the United States. The Court defined the exclusive property rights that a European country acquired by dint of discovery: “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.” Therefore, European and Euro-American “discoverers” had gained real-property rights in the lands of Indigenous peoples by merely planting a flag. Indigenous rights were, in the Court’s words, “in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired.”

Roxanne Dunbar-Ortiz, An Indigenous Peoples' Hist…, loc. 440198