The U.S. Supreme Court recently bolstered a citizen’s right to privacy from police surveillance in the digital age, in the case of United States v. Antoine Jones. Although there were three separate opinions, the decision was unanimous; only about one-third of Supreme Court decisions are unanimous. Most amazing, the majority managed to apply the “original” meaning of the U.S. Constitution in a case of 21st century technology. This has implications for Indigenous issues, which we will examine in a moment.
The justices looked at a wide range of digital privacy issues. Justice Sotomayor’s concurring opinion was especially direct: “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.”
Sotomayor quoted a 2009 New York State court, referring to data gathered by GPS as including “trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”
The majority opinion acknowledged these serious privacy concerns related to the breadth and depth of information routinely exchanged by people in ordinary 21st century life, but said a fundamental 18th century doctrine of property was a sufficient basis to rule against the government. This is how they fit the case into the “original” meaning of the Constitution. They reserved until another day the need to apply the 20th century legal concept of “a reasonable expectation of privacy,” which the other four justices relied on to rule against the government.
What is the fundamental 18th century doctrine of property? The Jones majority opinion stated it by quoting a 1765 English case, Entick v. Carrington: “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” The majority said the Entick case is “a monument of English freedom undoubtedly familiar to every American statesman at the time the U.S. Constitution was adopted, and considered to be the true and ultimate expression of constitutional law”; thus, the majority said, this is the “original” meaning of the Constitution: property is “sacred.”
According to the common law, as the Jones opinions acknowledge, any unauthorized intrusion on private property is actionable (i.e., the owner can take legal action against the intruder). The Fourth Amendment to the U.S. Constitution was written with that context in mind; it says the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As the majority opinion pointed out, a seizure of property occurs “when there is some meaningful interference with an individual’s possessory interests in that property.”
From an indigenous point of view, this is the most significant part of the Jones case; it has nothing to do with privacy and everything to do with property: specifically, the court affirmed a property right that was in place during the time of Christian colonization and said that right is still alive. More precisely, the court affirmed a property right that is completely contrary to the doctrine of Christian Discovery (i.e., that non-Christian “savages” could not own property, but only use it by permission).
As Professor Kent McNeil demonstrates in his immensely detailed 1989 book, “Common Law Aboriginal Title,” the common law doctrine of property would have protected Indigenous property rights against colonial claims in America, if it had been applied. The 1823 Supreme Court case of Johnson v. McIntosh refused to apply the common law, and developed the doctrine of Christian Discovery to justify this refusal. All the rest of federal Indian law grows from that doctrine, including the concepts of “wardship,” and “trust.”
In a nutshell, the common law that “No man may set foot on his neighbor’s property without permission” was a legal obstacle to Christian colonization. The Supreme Court headed by John Marshall invented the Doctrine of Christian Discovery precisely to overcome the common law right of property.
Can we imagine a case being brought in the 21st century to challenge Christian Discovery on the grounds of the 18th century rule that it violated? The Jones case suggests we should look at this anew, and not simply accept the violation of a right that is still fundamental.
Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinébe’iiná Náhii?na be Aga’diit’ahii Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues.