ALBANY,

Jesse Pierson against Lodowick Post.

August, 1805.

Sanford for the now plaintiff.

Colden contra.

Sanford in reply.

Per curiam, delivered by

Tompkins, J.

This cause comes before us on a return to a certiorari directed to one of the justices of Queen’s county.

The question submitted by the counsel in this cause for our determination is, whether Lodowick Post, by the pur­suit with his hounds in the manner alleged in his declara­tion, acquired such a right to, or property in the fox, as will sustain an action against Pierson for killing and taking him away?

The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and nice question. It is admitted, that a fox is an animal ferae naturae, and that property in such animals is acquired by oc­cupancy only. These admissions narrow the discussion to the simple question of what acts amount to occupancy, ap­plied to acquiring right to wild animals.

If we have recourse to the ancient writers upon gene­ral principles of law, the judgment below is obviously erroneous. Justinian's Institutes, lib. 2. tit. 1. sect. 13, and Fle­ta, lib. iii. c. ii. page 175, adopt the principle, that pursuit alone, vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally inef­fectual for that purpose, unless the animal be actually taken. The same principle is recognised by Bracton, lib. ii. c. i. page 8.

Puffendorf lib. iv. c. 6. sec. 2. & 10. defines occupancy of beasts ferae naturae, to be the actual corporal possession of them, and Bynkershoek is cited as coinciding in this de­finition. It is indeed with hesitation that Puffendorf affirms, that a wild beast mortally wounded, or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The forego­ing authorities are decisive to shew, that mere pursuit, gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.

It therefore only remains to inquire, whether there are any contrary principles, or authorities, to be found in other books, which ought to induce a different decision. Most of the cases which have occurred in England relating to property in wild animals, have either been discussed and decid­ed upon the principles of their positive statute regulations, or have arisen between the huntsman, and the owner of the land upon which beasts ferae naturae have been apprehended; the former claiming them by title of occupancy, and the lat­ter ratione soli. Little satisfactory aid can, therefore, be de­rived from the English reporters.

Barbeyrac in his notes on Puffendorf, does not accede to the definition of occupancy by the latter, but, on the contra­ry, affirms, that actual bodily seizure is not, in all cases, necessary to constitute possession of wild animals. He does not however, describe the acts which, according to his ideas, will amount to an appropriation of such animals to private use, so as to exclude the claims of all other persons, by title of occupancy, to the same animals; and he is far from aver­ring that pursuit alone is sufficient for that purpose. To a certain extent, and as far as Barbeyrac appears to me to go, his objections to Puffendorf’s definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, or possession of wild beasts; but that, on the contrary, the mortal wound­ing of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since thereby, the pursuer manifests an unequivical inten­tion of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control. So, also, encompassing and securing such animals with nets and toils, or otherwise intercepting them, so as to deprive them of their natural liberty, and ren­der escape impossible, may justly be deemed to give pos­session of them to those persons who, by their industry and labor, have used such means of apprehending them. Barbeyrac seems to have adopted, and had in view in his notes, the more accurate opinion of Grotius, with respect to occu­pancy. That celebrated author, lib. ii. c. 8. sect. 3. page 309, speaking of occupancy, proceeds thus, “Requiritur autem corporalis quaedam possessio ad dominium adipiscendum; atque ideo, vulnerasse non sufficit." But in the following section he explains and qualifies this definition of occupan­cy: “Sed possessio illa potest non solis manibus, sed instrumentis, ut decipulis, retibus, laqueis dum quo adsint: primum ut ipsa instrumenta sint in nostra potestate, deinde ut fera, ita inclusa sit, ut exire inde nequeat." This quali­fication embraces the full extent of Barbeyrac's objection to Puffendorf's definition, and allows as great a latitude to acquiring property by occupancy, as can reasonably be inferred from the words or ideas expressed by Barbeyrac in his notes. The case now under consideration is one of mere pursuit, and presents no circumstances or acts which can bring it within the definition of occupancy by Puffendorf, or Grotius, or the ideas of Barbeyrac upon that subject.

The case cited from 11 Mod. 74—130, I think clearly distinguishable from the present; inasmuch, as there the ac­tion was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise; and in the report of the same case 3 Salk. 9. Holt, Chief Justice, states, that the ducks were in the plaintiff’s decoy pond and so in his possession, from which it is obvious the court laid much stress in their opinion, upon the plaintiff’s pos­session of the ducks, ratione soli.

I am the more readily inclined to confine possession or occupancy of beasts ferae naturae, within the limits prescrib­ed by the learned authors above cited, for the sake of cer­tainty, and preserving peace and order in society. If the first seeing, starting or pursuing such animals, without hav­ing so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.

However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet his act was productive of no injury or damage, for which a legal remedy can be applied. I am of opinion the judgment below was erroneous, and ought to be reversed. 

Livingston J.

My opinion differs from that of the court. Of six exceptions, taken to the proceedings below, all are abandoned except the third, which reduces the con­troversy to a single question.

Whether a person, who with his own hounds, starts and hunts a fox, on waste and uninhabited ground, and is on the point of seizing his prey, acquires such an interest in the animal, as to have a right of action against another, who in view of the huntsman and his dogs in full pursuit, and with knowledge of the chase, shall kill and carry him away?

This is a knotty point, and should have been submitted to the arbitration of sportsmen, without poring over Justinian, Fleta, Bracton, Puffendorf, Locke, Barbeyrac or Blackstone, all of whom have been cited; they would have had no difficulty in coming to a prompt and correct conclusion. In a court, thus constituted, the skin and carcase of poor Re­nard would have been properly disposed of, and a precedent set, interfering with no usage or custom which the experi­ence of ages has sanctioned, and which must be so well known to every votary of Diana. But the parties have re­ferred the question to our judgment, and we must dispose of it as well as we can, from the partial lights we possess, leaving to a higher tribunal, the correction of any mistake which we may be so unfortunate as to make. By the plead­ings it is admitted, that a fox is a “wild and noxious beast." Both parties have regarded him, as the law of nations does a pirate “hostem humani generis,” and although “de mortuis nil nisi bonum," be a maxim of our profession, the memory of the deceased has not been spared. His depre­dations on farmers and on barn-yards, have not been for­gotten; and to put him to death, wherever found, is allow­ed to be meritorious, and of public benefit. Hence it fol­lows, that our decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career. But who would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day would mount his steed, and for hours together, “sub jove frigido” or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labours of the chase, were permitted to come in at the death, and bear away In triumph the object of pursuit? What­ever Justinian may have thought of the matter, it must be recollected that his code was compiled many hundred years ago, and it would be very hard indeed, at the distance of so many centuries, not to have a right to establish a rule for ourselves. In his day, we read of no order of men, who made it a business, in the language of the declaration in this cause, "with hounds and dogs to find, start, pursue, hunt, and chase,” these animals, and that too, without any other motive, than the preservation of Roman poultry; if this diversion had been then in fashion, the lawyers who composed his institutes, would have taken care not to pass it by, without suitable encouragement. If any thing there­fore, in the digests or pandects shall appear to militate against the defendant in error, who, on this occasion, was the foxhunter, we have only to say tempora mutantur; and if men them­selves change with the times, why should not laws also undergo an alteration?

It may be expected, however, by the learned counsel, that more particular notice be taken of their authorities. I have examined them all, and feel great difficulty in determining, whether to acquire dominion over a thing, be­fore in common, it be sufficient that we barely see it, or know where it is, or wish for it, or make a declaration of our will respecting it; or whether, in the case of wild beasts, setting a trap, or lying in wait, or starting, or pursuing, be enough; or if an actual wounding, or killing, or bodily tact and occupation be necessary. Writers on general law, who have favored us with their speculations on these points,­ differ on them all; but, great as is the diversity of senti­ment among them, some conclusion must be adopted on the question immediately before us. After mature delibe­ration, I embrace that of Barbeyrac, as the most rational, and least liable to objection. If at liberty, we might imitate the courtesy of a certain Emperor, who, to avoid giving offence to the advocates of any of these different doc­trines, adopted a middle course, and by ingenious distinc­tions, rendered it difficult to say, (as often happens after a fierce and angry contest,) to whom the palm of victory belonged. He ordained, that if a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer. If slain with a dart, a sling or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him.

Now, as we are without any municipal regulations of our own, and the pursuit here, for aught that appears on the case, being with dogs and hounds of imperial stature, we are at liberty to adopt one of the provisions just cited, which comports also with the learned conclusion of Bar­beyrac, that property in animals ferae naturae, may be ac­quired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking, what he has thus discovered an intention of converting to his own use.

When we reflect also that the interest of our husband­men, the most useful of men in any community, will be advanced by the destruction of a beast so pernicious and incorrigible, we cannot greatly err, in saying, that a pursuit like the present, through waste and unoccupied lands, and which must inevitably and speedily have terminated in cor­poral possession, or bodily seisin, confers such a right to the object of it, as to make any one a wrong doer, who shall interfere and shoulder the spoil. The justice’s judge­ment ought therefore, in my opinion, to be affirmed.

(District Court, D. Massachusetts.

Ghen v. Rich.

April 23, 1881.)

H. M. Knowlton, for libellant.

IT. P. llarriman, for respondent.

Nelson, D. J.

This is a libel to recover the value of a fin-back whale. The libellant lives in Provincetown and the respondent in Wellfleet. The facts, as they appeared at the hearing, are as follows:

In the early spring months the easterly part of Massachusetts bay is fre­quented by the species of whale known as the fin-back whale. Fishermen from Provincetown pursue them in open boats from the shore, and shoot them with bomb-lances fired from guns made expressly for the purpose. When killed they sink at once to the bottom, but in the course of from one to three days they rise and float on the surface. Some of them are picked up by vessels and towed into Provincetown. Some float ashore at high water and are left stranded on the beach as the tide recedes. Others float out to sea and are never recovered. The person who happens to find them on the beach usually sends word to Provincetown, and the owner comes to the spot and removes the blubber. The finder usually receives a small salvage for his services. Try-works are established in Provincetown for trying out the oil. The business is of considerable extent, but, since it requires skill and experi­ence, as well as some outlay of capital, and is attended with great exposure and hardship, few persons engage in it. The average yield of oil is about 20 barrels to a whale. It swims with great swiftness, and for that reason can­not be taken by the harpoon and line. Each boat’s crew engaged in the busi­ness has its peculiar mark or device on its lances, and in this way it is known by whom a whale is killed.

The usage on Cape Cod, for many years, has been that the person who kills a whale in the manner and under the circumstances described, owns it, and this right has never been disputed until this case. The libellant has been engaged in this business for ten years past. On the morning of April 9, 1880, in Massachusetts bay, near the end of Cape Cod, he shot and instantly killed with a bomb-lance the whale in question. It sunk immediately, and on the morning of the 12th was found stranded on the beach in Brewster, within the ebb and flow of the tide, by one Ellis, 17 miles from the spot where it was killed. Instead of sending word to Princeton, as is customary, Ellis adver­tised the whale for sale at auction, and sold it to the respondent, who shipped off the blubber and tried out the oil. The libellant heard of the finding of the whale on the morning of the 15th, and immediately sent one of his boat’s crew to the place and claimed it. Neither the respondent nor Ellis knew the whale had been killed by the libellant, but they knew or might have known, if they had wished, that it had been shot and killed with a bomb-­lance, by some person engaged in this species of business.

The libellant claims title to the whale under this usage. The re­spondent insists that this usage is invalid. It was decided by Judge Sprague, in Taber v. Jenny, 1 Sprague, 315, that when a whale has been killed, and is anchored and left with marks of appropriation, it is the property of the captors; and if it is afterwards found, still anchored, by another ship, there is no usage or principle of law by which the property of the original captors is diverted, even though the whale may have dragged from its anchorage. The learned judge says:

“When the whale had been killed and taken possession of by the boat of the Hillman, (the first taker,) it became the property of the owners of that ship, and all was done which was then practicable in order to secure it. They left it anchored, with unequivocal marks of appropriation.”

In Bartlett v. Budd, 1 Low. 223, the facts were these: The first officer of the libellant’s ship killed a whale in the Okhotsk sea, anchored it, attached a waif to the body, and then left it and went ashore at some distance for the night. The next morning the boats of the respondent’s ship found the whale adrift, the anchor not holding, the cable coiled round the body, and no waif or irons attached to it. Judge Lowell held that, as the libellants had killed and taken actual possession of the whale, the ownership vested in them. In his opin­ion the learned judge says:

“A whale, being ferae naturae, does not become property until a firm posses­sion has been established by the taker. But when such possession has become firm and complete, the right of property is clear, and has all the characteris­tics of property.”

He doubted whether a usage set up but not proved by the respond­ents, that a whale found adrift in the ocean is the property of the finder, unless the first taker should appear and claim it before it is cut in, would be valid, and remarked that “there would be great diffi­culty in upholding a custom that should take the property of A. and give it to B., under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.” Both the cases cited were decided without reference to usage, upon the ground that the property had been acquired by the first taker by actual possession and appropriation.

In Swift v. Gifford, 2 Low. 110, Judge Lowell decided that a cus­tom among whalemen in the Arctic seas, that the iron holds the whale, was reasonable and valid. In that case a boat’s crew from the respondent’s ship pursued and struck a whale in the Arctic ocean, and the harpoon and the line attached to it remained in the whale, but did not remain fast to the boat. A boat’s crew from the libellant’s ship continued the pursuit and captured the whale, and the master of the respondent’s ship claimed it on the spot. It was held by the learned judge that the whale belonged to the respondents. It was said by Judge Sprague, in Bourne v. Ashley, an unprinted case referred to by Judge Lowell in Swift v. Gifford, that the usage for the first iron, whether attached to the boat or not, to hold the whale was fully established; and he added that, although local usages of a par­ticular port ought not to be allowed to set aside the general maritime law, this objection did not apply to a custom which embraced an entire business, and had been concurred in for a long time by every one engaged in the trade.

In Swift v. Gifford, Judge Lowell also said:

“The rule of law invoked in this case is one of very limited application. The whale fishery is the only branch of industry of any importance in which it is likely to be much used, and if a usage is found to prevail generally in that business, it will not be open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.”

I see no reason why the usage proved in this case is not as rea­sonable as that sustained in the cases cited. Its application must necessarily be extremely limited, and can affect but a few persons. It has been recognized and acquiesced in for many years. It requires in the first taker the only act of appropriation that is possible in the nature of the case. Unless it is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder. It gives reasonable salvage for securing or reporting the property. That the rule works well in practice is shown by the extent of the industry which has grown up under it, and the general acquiescence of a whole community interested to dispute it. It is by no means clear that without regard to usage the common law would not reach the same result. That seems to be the effect of the decisions in Taber v. Jenny and Bartlett v. Budd. If the fisherman does all that it is possible to do to make the animal his own, that would seem to be sufficient. Such a rule might well be applied in the interest of trade, there being no usage or custom to the contrary. Holmes, Com. Law, 217. But be that as it may, I hold the usage to be valid, and that the property in the whale was in the libellant.

The rule of damages is the market value of the oil obtained from the whale, less the cost of trying it out and preparing it for the mar­ket, with interest on the amount so ascertained from the date of con­version. As the question is new and important, and the suit is con­tested on both sides, more for the purpose of having it settled than for the amount involved, I shall give no costs.

Decree for libellant for $71.05, without costs.

*Johnson and Graham’s Lessee v. William McIntosh.

Indian grants.

A title to lands, under grant to private individuals, made by Indian tribes or nations north-west of the river Ohio, in 1773 and 1775, cannot be recognised in the courts of the United States.1

Error to the District Court of Illinois. This was an action of ejectment for lands in the state and district of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States. It came up on a case stated, upon which there was a judgment below for the defendant. The case stated set out the following facts:

1st. That on the 23d of May 1609, James I., king of England, by his letters-patent of that date, under the great seal of England, did erect, form and establish Robert, Earl of Salisbury, and others, his associates, in the letters-patent named, and their successors, into a body corporate and politic, by the name and style of “The Treasurer and Company of Adventurers and Planters of the City of London, for the first Colony of Virginia,” with perpetual succession, and power to make, have and use a common seal; and did give, grant and confirm unto this company, and their successors, *under certain reservations and limitations in the letters patent expressed, “All the lands, countries and territories, situate, lying and being in that part of North America called Virginia, from the point of land called Cape or Point Comfort, all along the sea-coast, to the northward, two hundred miles; and from the said Cape or Point Comfort, all along the sea-coast to the southward, two hundred miles; and all that space and circuit of land lying from the sea-cast of the precinct aforesaid, up into the land throughout from the sea, west and north-west; and also all the islands lying within one hundred miles along the coast of both seas of the precinct aforesaid; with all the soil, grounds, rights, privileges and appurtenances to these territories belonging, and in the letters-patent particularly enumerated:" and did grant to this corporation, and their successors, various powers of government, in the letters-patent particularly expressed.

2d. That the place, called in these letters-patent, Cape or Point Comfort, is the place now called and known by the name of Old Point Comfort, on the Chesapeake bay and Hampton roads; and that immediately after the granting of the letters-patent, the corporation proceeded, under and by virtue of them, to take possession of parts of the territory which they describe, and to form settlements, plant a colony, and exercise the powers of government therein; which colony was called and known by the name of the colony of Virginia.

*2413d. That at the time of granting these letters-patent, and of the discovery of the continent of *North America, by the Europeans, and during the whole intermediate time, the whole of the territory in the letters-patent described, except a small district on James river, where a settlement of Europeans had previously been made, was held, occupied and possessed, in full sovereignty, by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever: and that in making settlements within this territory, and in all the other parts of North America, where settlements were made, under the authority of the English government, or by its subjects, the right of soil was previously obtained, by purchase or conquest, from the particular Indian tribe or nation by which the soil was claimed and held; or the consent of such tribe or nation was secured.

4th. That in the year 1624, this corporation was dissolved by due course of law, and all its powers, together with its rights of soil and jurisdiction, under the letters-patent in question, were re-vested in the crown of England; whereupon, the colony became a royal government, with the same territorial limits and extent which had been established by the letters-patent, and so continued, until it became a free and independent state; except so far as its limits and extent were altered and curtailed by the treaty of February 10th, 1763, between Great Britain and France, and by the letters-patent granted by the king of England, *for establishing the colonies of Carolina, Maryland and Pennsylvania.

5th. That some time previous to the year 1756, the French government, laying a claim to the country west of the Allegheny or Appalachian mountains, on the Ohio and Mississippi rivers, and their branches, took possession of certain parts of it, with the consent of the several tribes or nations of Indians possessing and owning them; and with the like consent, established several military posts and settlements therein, particularly at Kaskaskias, on the river Kaskaskias, and at Vincennes, on the river Wabash, within the limits of the colony of Virginia, as described and established in and by the letters-patent of May 23d, 1609; and that the government of Great Britain, after complaining of these establishments as encroachments, and remonstrating against them, at length, in the year 1756, took up arms to resist and repel them; which produced a war between those two nations, wherein the Indian tribes inhabiting and holding the countries north-west of the Ohio, and on the Mississippi, above the mouth of the Ohio, were the allies of France, and the Indians known by the name of the Six Nations, or the Iroquois, and their tributaries and allies, were the allies of Great Britain; and that on the 10th of February 1763, this war was terminated by a definitive treaty of peace between Great Britain and France, and their allies, by which it was stipulated and agreed, that the river Mississippi, from its source to the Iberville, should for ever after form the boundary between the dominions of *Great Britain and those of France, in that part of North America, and between their respective allies there.

6th. That the government of Virginia, at and before the commencement of this war, and at all times after it became a royal government, claimed and exercised jurisdiction, with the knowledge and assent of the govern*242ment of Great Britain, in and over the country north-west of the river Ohio, and east of the Mississippi, as being included within the bounds and limits described and established for that colony, by the letters-patent of May 23d, 1609; and that in the year 1749, a grant of 600,000 acres of land, within the country north-west of the Ohio, and as part of Virginia, was made by the government of Great Britain to some of its subjects, by the name and style of the Ohio Company.

7th. That at and before the commencement of the war in 1756, and during its whole continuance, and at the time of the treaty of February 10th, 1763, the Indian tribes or nations, inhabiting the country north and northwest of the Ohio, and east of the Mississippi, as far east as the river falling into the Ohio called the Great Miami, were called and known by the name of the Western Confederacy of Indians, and were the allies of France in the war, but not her subjects, never having been in any manner conquered by her, and held the country in absolute sovereignty, as independent nations, both as to the right of jurisdiction and sovereignty, and the right of soil, except a few military posts, and a small territory around each, *which they had ceded to France, and she held under them, and among which were the aforesaid posts of Kaskaskias and Vincennes; and that these Indians, after the treaty, became the allies of Great Britain, living under her protection as they had before lived under that of France, but were free and independent, owing no allegiance to any foreign power whatever, and holding their lands in absolute property; the territories of the respective tribes being separated from each other, and distinguished by certain natural marks and boundaries, to the Indians well known; and each tribe claiming and exercising separate and absolute ownership, in and over its own territory, both as to the right of sovereignty and jurisdiction, and the right of soil.

8th. That among the tribes of Indians, thus holding and inhabiting the territory north and north-west of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, as described in the letters-patent of May 23d, 1609, were certain independent tribes or nations, called the Illinois or Kaskaskias, and the Piankeshaw or Wabash Indians; the first of which consisted of three several tribes united into one, and called the Kaskaskias, the Pewarias and the Cahoquias; that the Illinois owned, held and inhabited, as their absolute and separate property, a large tract of country, within the last-mentioned limits, and situated on the Mississippi, Illinois and Kaskaskias rivers, and on the Ohio, below the mouth of the Wabash; and the Piankeshaws, another large tract of country, within the same *limits, and as their absolute and separate property, on the Wabash and Ohio rivers; and that these Indians remained in the sole and absolute ownership and possession of the country in question, until the sales made by them, in the manner hereinafter set forth.

9th. That on the termination of the war between Great Britain and France, the Illinois Indians, by the name of the Kaskaskias tribes of Indians, as fully representing all the Illinois tribes then remaining, made a treaty of peace with Great Britain, and a treaty of peace, limits and amity, under her mediation, with the Six Nations, or Iroquois, and their allies, then known and distinguished by the name of the Northern Confederacy of Indians; the Illinois being a part of the confederacy then known and distinguished by *243the name of the Southern Confederacy, and sometimes by that of the Western Confederacy.

10th. That on the 7th of October 1763, the king of Great Britain made and published a proclamation, for the better regulation of the countries ceded to Great Britain by that treaty, which proclamation is referred to, and made part of the case.

11th. That from time immemorial, and always up to the present time, all the Indian tribes, or nations of North America, and especially the Illinois and Piankeshaws, and other tribes holding, possessing and inhabiting the said countries north and north-west of the Ohio, east of the Mississippi, and west of the Great Miami, held their respective lands and territories, each in common, the individuals *of each tribe or nation holding the lands and territories of such tribe, in common with each other, and there being among them no separate property in the soil; and that their sole method of selling, granting and conveying their lands, whether to governments or individuals, always has been, from time immemorial, and now is, for certain chiefs of the tribe selling, to represent the whole tribe, in every part of the transaction; to make the contract, and execute the deed, on behalf of the whole tribe; to receive for it the consideration, whether in money or commodities, or both; and finally, to divide such consideration among the individuals of the tribe: and that the authority of the chiefs, so acting for the whole tribe, is attested by the presence and assent of the individuals composing the tribe, or some of them, and by the receipt by the individuals composing the tribe, of their respective shares of the price, and in no other manner.

12th. That on the 5th of July 1773, certain chiefs of the Illinois Indians, then jointly representing, acting for, and being duly authorized by that tribe, in the manner explained above, did, by their deed-poll, duly executed and delivered, and bearing date on that day, at the post of Kaskaskias, then being a British military post, and at a public counsel there held by them, for and on behalf of the said Illinois nation of Indians, with William Murray, of the Illinois country, merchant, acting for himself and for Moses Franks and Jacob Franks, of London, in Great Britain, David Franks, John Inglis, Bernard Gratz, Michael *Gratz, Alexander Ross, David Sproat and James Milligan, all of Philadelphia, in the province of Pennsylvania; Moses Franks, Andrew Hamilton, William Hamilton and Edmund Milne, of the same place; Joseph Simons, otherwise called Joseph Simon, and Levi Andrew Levi, of the town of Lancaster, in Pennsylvania; Thomas Minshall, of York county, in the same province; Robert Callender and William Thompson, of Cumberland county, in the same province; John Campbell, of Pittsburgh, in the same province; and George Castles and James Ramsay, of the Illinois country; and for a good and valuable consideration in the said deed stated, grant, bargain, sell, alien, lease, enfeoff and confirm to the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William Hamilton, Edmund Milne, Joseph Simons, otherwise called Joseph Simon, Levi Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John Campbell, George Castles and James Ramsay, their heirs and assigns for ever, in severalty, or to George the Third, then King of Great Britain *244and Ireland, his heirs and successors, for the use, benefit and behoof of the grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts or parcels of land, situated, lying and being within the limits of Virginia, on the east of the Mississippi, north-west of the Ohio, and west of the Great Miami, and thus  butted *and bounded:

Beginning, for one of the said tracts, on the east side of the Mississippi, at the mouth of the Heron creek, called by the French the river of Mary, being about a league below the mouth of the Kaskaskias river, and running thence a northward of east course, in a direct line, back to the Hilly plains, about eight leagues more or less; thence the same course, in a direct line to the Crab Tree plains, about seventeen leagues more or less; thence the same course, in a direct line, to a remarkable place known by the name of the Big Buffalo Hoofs, about seventeen leagues more or less; thence the same course, in a direct line to the Salt Lick creek, about seven leagues more or less; then crossing the Salt Lick creek, about one league below the ancient Shawanese town, in an easterly, or a little to the north of east, course, in a direct line, to the river Ohio, about four leagues more or less; then down the Ohio, by its several courses, until it empties into the Mississippi, about thirty-five leagues more or less; and then up the Mississippi, by its several courses, to the place of the beginning, about thirty-three leagues more or less:

And beginning, for the other tract, on the Mississippi, at a point directly opposite to the mouth of Missouri, and running up the Mississippi, by its several courses, to the mouth of the Illinois, about six leagues more or less; and thence up the Illinois, by its several courses, to Chicagou or Garlic creek, about ninety leagues, more or less; thence nearly a northerly course, in a direct line, to a certain remarkable place, being the ground on which a *battle was fought, about forty or fifty years before that time, between the Pewaria and Renard Indians, about fifty leagues more or less; thence by the same course, in a direct line, to two remarkable hills, close together, in the middle of a large prairie or plain, about fourteen leagues more or less; thence a north of east course, in a direct line, to a remarkable spring, known by the Indians by the name of “Foggy Spring,” about fourteen leagues more or less; thence the same course, in a direct line, to a great mountain, to the north-west of the White Buffalo plain, about fifteen leagues more or less; and thence nearly a south-west course to the place of beginning, about forty leagues more or less:

To have and to hold the said two tracts of land, with all and singular their appurtenances, to the grantees, their heirs and assigns, for ever, in severalty, or to the king, his heirs and successors, to and for the use, benefit or behoof of the grantees, their heirs and assigns, for ever, in severalty: as will more fully appear by the said deed-poll, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on the 2d of September 1773, in the office of Vicerault Lemerance, a notary-public, duly appointed and authorized. This deed, with the several certificates annexed to or indorsed on it, was set out at length in the case.

13th. That the consideration in this deed expressed, was of the value of $24,000, current money of the United States, and upwards, and was paid and delivered, at the time of the execution of the deed, by William Murray, one *245*of the grantees, in behalf of himself and the other grantees, to the Illinois Indians, who freely accepted it, and divided it among themselves; that the conferences in which the sale of these lands was agreed on and made, and in which it was agreed that the deed should be executed, were publicly held, for the space of a month, at the post of Kaskaskias, and were attended by many individuals of all the tribes of Illinois Indians, besides the chiefs named as grantors in the deed; that the whole transaction was open, public and fair, and the deed fully explained to the grantors and other Indians, by the sworn interpreters of the government, and fully understood by the grantors and other Indians, before it was executed; that the several witnesses to the deed, and the grantees named in it, were such persons, and of such quality and stations, respectively, as they are described to be in the deed, the attestation, and the other indorsements on it; that the grantees did duly authorize William Murray to act for and represent them, in the purchase of the lands, and the acceptance of the deed; and that the two tracts or parcels of land which it describes, and purports to grant, were then parts of the lands held, possessed and inhabited by the Illinois Indians, from time immemorial, in the manner already stated.

14th. That all the persons named as grantees in this deed, were, at the time of its execution, and long before, subjects of the crown of Great Britain, and residents of the several places named in the deed as their places of residence; and that *they entered into the land, under and by virtue of the deed, and became seised as the law requires.

15th. That on the 18th of October 1775, Tabac, and certain other Indians, all being chiefs of the Piankeshaws, and jointly representing, acting for, and duly authorized by that nation, in the manner stated above, did, by their deed-poll, duly executed, and bearing date on the day last mentioned, at the post of Vincennes, otherwise called post St. Vincent, then being a British military post, and at a public council there held by them, for and on behalf of the Piankeshaw Indians, with Louis Viviat, of the Illinois country, acting for himself, and for the Right Honorable John, Earl of Dunmore, then governor of Virginia, the Honorable John Murray, son of the said Earl, Moses Franks and Jacob Franks, of London, in Great Britain, Thomas Johnson, jr., and John Davidson, both of Annapolis, in Maryland, William Russel, Matthew Ridley, Robert Christie, sen., and Robert Christie, jr., of Baltimore town, in the same province, Peter Campbell, of Piscataway, in the same province, William Geddes, of Newtown Chester, in the same province, collector of his majesty’s customs, David Franks and Moses Franks, both of Philadelphia, in Pennsylvania, William Murray and Daniel Murray, of the Illinois country, Nicholas St. Martin and Joseph Page, of the same place, Francis Perthuis, late of Quebec, in Canada, but then of post St. Vincent, and for good and valuable considerations, in the deed-poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify and confirm to the said Louis Viviat, and the other persons last mentioned, their heirs and assigns, equally to be divided, or to George III., then King of Great Britain and Ireland, his heirs and successors, for the use, benefit and behoof of all the above-mentioned grantees, their heirs and assigns, in severalty, by which ever of those tenures they might most legally hold, all those two several tracts of land, in the deed particularly described, situate, lying and being north-west of the Ohio, east of the Mis*246sissippi, and west of the Great Miami, within the limits of Virginia, and on both sides of the Ouabache, otherwise called the Wabash; which two tracts of land are contained respectively within the following metes and bounds, courses and distances, that is to say:

Beginning, for one of the said tracts, at the mouth of a rivulet called Riviere du Chat, or Cat river, where it empties itself into the Ouabache or Wabash, by its several courses, to a place called Point Coupee, about twelve leagues above post St. Vincent, being forty leagues, or thereabouts, in length, on the said river Ouabache, from the place of beginning, with forty leagues in width or breadth, on the east side, and thirty leagues in breadth or width, on the west side of that river, to be continued along from the place of beginning to Point Coupee. And beginning, for the other tract, at the mouth of White river, where it empties into the Ouabache, about twelve leagues below post St. Vincent, and running thence down the Ouabache, by its several courses, until it empties into the Ohio; being from White river to the Ohio, about fifty-three leagues in length, more or less, with forty *leagues in width or breadth on the east side, and thirty in width or breadth, on the west side of the Ouabache, to be continued along from the White river to the Ohio; with all the rights, liberties, privileges, hereditaments and appurtenances, to the said tract belonging:

To have and to hold to the grantees, their heirs and assigns, for ever, in severalty, or to the king, his heirs and successors, for the use, benefit and behoof of the grantees, their heirs and assigns; as will more fully appear by the deed itself, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on the 5th of December 1775, in the office of Louis Bomer, a notary-public, duly appointed and authorized. This deed, with the several certificates annexed to or indorsed on it, was set out at length.

16th. That the consideration in this deed expressed, was of the value of $31,000, current money of the United States, and upwards, and was paid and delivered, at the time of the execution of the deed, by the grantee, Lewis Viviat, in behalf of himself and the other grantees, to the Piankeshaw Indians, who freely accepted it, and divided it among themselves; that the conferences in which the sale of these two tracts of land was agreed on and made, and in which it was agreed, that the deed should be executed, were publicly held for the space of a month, at the post of Vincennes, or post St. Vincent, and were attended by many individuals of the Piankeshaw nation of Indians, besides the chiefs named as grantors in the deed; that the whole transaction was open, public and fair, and the deed fully explained to the grantors and other Indians, by skillful interpreters, and fully understood by them, before it was executed; that it was executed in the presence of the several witnesses by whom it purports to have been attested, and was attested by them; that the grantees were all subjects of the crown of Great Britain, and were of such quality, station and residence, respectively, as they are described in the deed to be; that the grantees did duly authorize Lewis Viviat to act for, and represent them, in the purchase of these two tracts of land, and in the acceptance of the deed; that these tracts of land were then part of the lands held, possessed and inhabited by the Piankeshaw Indians, from time immemorial, as is stated above; and that the several grantees under this deed entered into the land which it purports to grant, and become seised as the law requires.

*24717th. That on the 6th of May 1776, the colony of Virginia threw off its dependence on the crown and government of Great Britain, and declared itself an independent state and government, with the limits prescribed and established by the letters-patent of May 23d, 1609, as curtailed and restricted by the letters-patent establishing the colonies of Pennsylvania, Maryland and Carolina, and by the treaty of February 10th, 1763, between Great Britain and France; which limits, so curtailed and restricted, the state of Virginia, by its constitution and form of government, declared should be and remain the limits of the state, and should bound its western and northwestern extent.

*18th. That on the 5th of October 1778, the general assembly of Virginia, having taken by arms the posts of Kaskaskias and Vincennes, or St. Vincent, from the British forces, by whom they were then held, and driven those forces from the country north-west of the Ohio, east of the Mississippi, and west of the Great Miami, did, by an act of assembly of that date, entitled, “an act for establishing the county of Illinois, and for the more effectual protection and defence thereof,” erect that country, with certain other portions of territory within the limits of the state, and northwest of the Ohio, into a county, by the name of the county of Illinois.

19th. That on the 20th of December 1783, the state of Virginia, by an act of assembly of that date, authorized their delegates in the congress of the United States, or such of them, to the number of three at least, as should be assembled in congress, on behalf of the state, and by proper deeds or instruments in writing, under their hands and seals, to convey, transfer, assign and make over to the United States, in congress assembled, for the benefit of the said states, all right, title and claim, as well of soil as jurisdiction, which Virginia had to the territory of tract of country within her limits, as defined and prescribed by the letters-patent of May 23d, 1609, and lying to the north-west of Ohio; subject to certain limitations and conditions in the act prescribed and specified; and that on the 1st of March 1784, Thomas Jefferson, Samuel Hardy, Arthur Lee and James Monroe, then being four of the delegates *of Virginia to the congress of the United States, did, by their deed-poll, under their hands and seals, in pursuance and execution of the authority to them given by this act of assembly, convey, transfer, assign and make over to the United States, in congress assembled, for the benefit of the said states, all right, title and claim, as well of soil as jurisdiction, which that state had to the territory north-west of the Ohio, with the reservations, limitations and conditions in the act of assembly prescribed; which cession the United States accepted.

20th. That on the 20th day of July, in the year of our Lord 1818, the United States, by their officers duly authorized for that purpose, did sell, grant and convey to the defendant in this action, William McIntosh, all those several tracts or parcels of land, containing 11,560 acres, and butted, bounded and described, as will fully appear in and by the patent for the said lands, duly executed, which was set out at length.

21st. That the lands described and granted in and by this patent, are situated within the state of Illinois, and are contained within the lines of the last, or second, of the two tracts, described and purporting to be granted and conveyed to Louis Viviat and others, by the deed of October 18th, 1775 and that William McIntosh, the defendant, entered upon these lands, *248under and by virtue of his patent, and became possessed thereof, before the institution of this suit.

22d. That Thomas Johnson, one of the grantees, *in and under the deed of October 18th, 1775, departed this life, on or about the 1st day of October 1819, seised of all his undivided part or share of and in the two several tracts of land, described and purporting to be granted and conveyed to him and others by that deed, having first duly made and published his last will and testament in writing, attested by three credible witnesses, which he left in full force, and by which he devised all his undivided share and part of those two tracts of land, to his son, Joshua Johnson, and his heirs, and his grandson, Thomas J. Graham, and his heirs, and the lessors of the plaintiff in this action, as tenants in common.

23d. That Joshua Johnson and Thomas J. Graham, the devisees, entered into the two tracts of land last above mentioned, under and by virtue of the will, and became thereof seised as the law requires. That Thomas Johnson, the grantee and devisor, during his whole life, and at the time of his death, was an inhabitant and citizen of the state of Maryland; that Joshua Johnson and Thomas J. Graham, the lessors of the plaintiff, now are, and always have been citizens of the same state; that the defendant, William McIntosh, now is, and at and before the time of bringing this action was, a citizen of the state of Illinois; and that the matter in dispute in this action is of the the value of $2000, current money of the United States, and upwards.

24th. And that neither William Murray, nor any other of the grantees under the deed of July the 5th, 1773, nor Louis Viviat, nor any other of the *grantees under the deed of October the 8th, 1775, nor any person for them, or any of them, ever obtained, or had the actual possession, under and by virtue of those deeds, or either of them, of any part of the lands in them, or either of them, described and purporting to be granted; but were prevented by the war of the American revolution, which soon after commenced, and by the disputes and troubles which preceded it, from obtaining such possession; and that since the termination of the war, and before it, they have repeatedly, and at various times, from the year 1781, till the year 1816, petitioned the congress of the United States to acknowledge and confirm their title to those lands, under the purchases and deeds in question, but without success.

Judgment being given for the defendant on the case stated, the plaintiffs brought this writ of error.

February 17th-19th.

The cause was argued by Harper and Webster, for the plaintiffs, and by Winder and Murray, for the defendants.

But as the arguments are so fully stated in the opinion of the court, it is deemed unnecessary to give anything more than the following summary.

On the part of the plaintiffs, it was contended: 1. That upon the facts stated in the case, the Piankeshaw Indians were the owners of the lands in dispute, at the time of executing the deed of October 10th, 1775, and had power to sell. But as the United States had purchased the same lands of the same Indians, both parties claim from the same source. It would seem, therefore, to be unnecessary, and merely speculative, to discuss *the question respecting the sort of title or ownership, which may be *249thought to belong to savage tribes, in the lands on which they live. Probably, however, their title by occupancy is to be respected, as much as that of an individual, obtained by the same right, in a civilized state. The circumstance, that the members of the society held in common, did not affect the strength of their title by occupancy. Grotius, de Jure Belli ac Pacis, lib. 2, c. 2, § 4; lib. 2, c. 24, § 9; Puffend. lib. 4, c. 5, § 1, 3. In the memorial or manifesto of the British government, in 1755, a right of soil in the Indians is admitted. It is also admitted in the treaties of Utrecht and Aix-la-Chapelle. The same opinion has been expressed by this court, Fletcher v. Peck, 6 Cranch 87; and by the supreme court of New York, Jackson v. Wood, 7 Johns. 296. In short, all, or nearly all, the lands in the United States, is holden under purchases from the Indian nations; and the only question in this case must be, whether it be competent to individuals to make such purchases, or whether that be the exclusive prerogative of government.

2. That the British king’s proclamation, of October 7th, 1763, could not affect this right of the Indians to sell; because they were not British subjects, nor in any manner bound by the authority of the British government, legislative or executive. And because, even admitting them to be British subjects, absolutely, or sub modo, they were still proprietors of the soil, and could not be divested of their rights of property, or any of its *incidents, by a mere act of the executive government, such as this proclamation.

3. That the proclamation of 1763 could not restrain the purchasers under these deeds from purchasing; because the lands lay within the limits of the colony of Virginia, of which, or of some other British colony, the purchasers, all being British subjects, were inhabitants. And because the king had not, within the limits of that colonial government, or any other, any power of prerogative legislation; which is confined to countries newly conquered, and remaining in the military possession of the monarch, as supreme chief of the military forces of the nation. The present claim has long been known to the government of the United States, and is mentioned in the Collection of Land Laws, published under public authority. The compiler of those laws supposes this title void, by virtue of the proclamation of 1763. But we have the positive authority of a solemn determination of the court of king’s bench, on this very proclamation, in the celebrated Grenada Case, for asserting that it could have no such effect. ( Campbell v. Hall, Cowp. 204.) This country being a new conquest, and a military possession, the crown might exercise legislative powers, until a local legislature was established. But the establishment of a government, establishes a system of laws, and excludes the power of legislating by proclamation. The proclamation could not have the force of law, within the chartered limits of Virginia. A proclamation, *that no person should purchase land in England or Canada, would be clearly void.

4. That the act of assembly of Virginia, passed in May 1779,(a) cannot *250affect the right of the plaintiffs, and others claiming under these deeds; because, on general principles, and by the constitution of Virginia, the legislature was not competent to take away private, vested rights, or appropriate private property to public use, under the circumstances of this case. And because the act is not *contained in the revisal of 1794, and must, therefore, be considered as repealed; and the repeal re-instates all rights that might have been affected by the act, although the territory, in which the lands in question lie, was ceded to the United States, before the repeal. The act of 1779 was passed, after the sales were made, and it cannot affect titles previously obtained. At the time of the purchases, there was no law of Virginia rendering such purchases void. If, therefore, the purchases were not affected by the proclamation of 1763, nor by the act of 1779, the question of their validity comes to the general inquiry, whether individuals, in Virginia, at the time of this purchase, could legally obtain Indian titles. In New England, titles have certainly been obtained in this mode. But whatever may be said on the more general question, and in reference to other colonies or states, the fact being, that in Virginia, there was no statute existing at the time, against such purchases, mere general considerations would not apply. It may be true, that in almost all the colonies, individual purchases from the Indians were illegal; but they were rendered so by express provisions of the local law. In Virginia, also, it may be true, that such purchases have generally been prohibited; but at the time the purchases now in question were made, there was no prohibitory law in existence. The old colonial laws on the subject had all been repealed. The act of 1779 was a private act, so far as respects this case. It is the same as if it had enacted, that these particular deeds were void. Such acts *bind only those who are parties to them, who submit their case to the legislature.

On the part of the defendants, it was insisted, that the uniform understanding and practice of European nations, and the settled law, as laid down by the tribunals of civilized states, denied the right of the Indians to be considered as independent communities, having a permanent property in the soil, capable of alienation to private individuals. They remained in a state of nature, and have never been admitted into the general society of nations. Penn v. Lord Baltimore, 1 Ves. 445; 2 Ruth. Inst. 29; Locke, Govern*251ment, B. 2, c. 7, § 87-9; c. 12, § 143; c. 9, § 123-30; Jefferson’s Notes 126; Colden’s Hist. Five Nations 2-16; Smith’s Hist. New York 35-41; Montesquieu, Esprit des Loix, liv. 18, c. 11, 12, 13; Smith’s Wealth of Nations, B. 5, c. 1. All the treaties and negotiations between the civilized powers of Europe and of this continent, from the treaty of Utrecht, in 1713, to that of Ghent, in 1814, have uniformly disregarded their supposed right to the territory included within the jurisdictional limits of those powers. 5 Annual Reg. 56, 233; 7 Niles’ Reg. 229. Not only has the practice of all civilized nations been in conformity with this doctrine, but the whole theory of their titles to lands in America, rests upon the hypothesis, that the Indians had no right of soil, as sovereign, independent states. Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives. Marten’s Law of Nations 67, 60; Vattel, Droit des Gens, lib. 2, c. 7, § 83; lib. 1, c. 18, § 204-5. The sovereignty and *eminent domain thus acquired, necessarily precludes the idea of any other sovereignty existing within the same limits. The subjects of the discovering nation must necessarily be bound by the declared sense of their own government, as to the extent of this sovereignty, and the domain acquired with it. Even if it should be admitted, that the Indians were originally an independent people, they have ceased to be so. A nation that has passed under the dominion of another, is no longer a sovereign state. Vattel, lib. 1, c. 1, § 11. The same treaties and negotiations, before referred to, showed their dependent condition. Or, if it be admitted, that they are now independent and foreign states, the title of the plaintiffs would still be invalid: as grantees from the Indians, they must take according to their laws of property, and as Indians subjects. The law of every dominion affects all persons and property situate within it (Cowp. 204); and the Indians never had any idea of individual property in lands. It cannot be said, that the lands conveyed were disjoined from their dominion; because the grantees could not take the sovereignty and eminent domain to themselves.

Such then, being the nature of the Indian title to lands, the extent of their right of alienation must depend upon the laws of the dominion under which they live. They are subject to the sovereignty of the United States. The subjection proceeds from their residence within our territory *and jurisdiction. It is unnecessary to show that they are not citizens, in the ordinary sense of that term, since they are destitute of the most essential rights which belong to that character. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants, with diminutive rights. Vattel, lib. 1, c. 19, § 213. The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government. The act of Virginia of 1662, forbade purchases from the Indians, and it does not appear that it was ever repealed. The act of 1779 is rather to be regarded as a declaratory act, founded upon what has always been regarded as the settled law. These statutes seem to define sufficiently the nature of the Indian title to lands; a mere right of usufruct and habitation, without power of alienation. By the law of nature, they had not acquired a fixed property, capable of being transferred. The measure of property acquired by occupancy is determined, according to the law of *252nature, by the extent of men’s wants, and their capacity of using it to supply them. Grotius, lib. 2, c. 11; Barbeyr.; Puffend. lib. 4, c. 4, § 2, 4; 2 Bl. Com. 2; Puffend. lib. 4, c. 6, § 3; Locke on Government, B. 2, c. 5, § 26, 34-40. It is a violation of the rights of others, to exclude them from the use of what we do not want, and they have an occasion for. Upon this principle, the North American Indians could have acquired no proprietary interest in the vast tracts *of territory which they wandered over; and their right to the lands on which they hunted, could not be considered as superior to that which is acquired to the sea by fishing in it. The use in the one case, as well as the other, is not exclusive. Locke, c. 5, § 36-48; Grotius, lib. 2, c. 11, § 2; Montesq. tom. 2, p. 63; Chalmers’ Polit. Annals, 5; 6 Cranch 87. According to every theory of property, the Indians had no individual rights to land; nor had they any, collectively, or in their national capacity; for the lands occupied by each tribe were not used by them in such a manner as to prevent their being appropriated by a people of cultivators. All the proprietary rights of civilized nations on this continent are founded on this principle. The right derived from discovery and conquest can rest on other basis; and all existing titles depend on the fundamental title of the crown by discovery. The title of the crown (as representing the nation) passed to the colonists by charters, which were absolute grants of the soil; and it was a first principle in colonial law, that all titles must be derived from the crown. It is true, that, in some cases, purchases were made by the colonies from the Indians; but this was merely a measure of policy to prevent hostilities; and William Penn’s purchase, which was the most remarkable transaction of this kind, was not deemed to add to the strength of his title. Penn v. Lord Baltimore, 1 Ves. 444; Chalmers’ Polit. Annals 644; Sullivan’s Land Tit. c. 2 ; Smith’s Hist. N. Y. 145, 184. In most of the colonies, the *doctrine was received, that all titles to land must be derived exclusively from the crown, upon the principle that the settlers carried with them, not only all the rights, but all the duties of Englishmen; and particularly the laws of property, so far as they are suitable to their new condition. 1 Bl. Com. 107; 2 P. Wms. 75; 1 Salk. 411, 616. In New England alone, some lands have been held under Indian deeds. But this was an anomaly arising from peculiar local and political causes. Sulliv. Land Tit. 45.

As to the effect of the proclamation of 1763: if the Indians are to be regarded as independent sovereign states, then, by the treaty of peace, they became subject to the prerogative legislation of the crown, as a conquered people, in a territory acquired, jure belli, and ceded at the peace. Cowp. 204; 7 Co. 17 b; 2 Meriv. 143. If, on the contrary, this country be regarded as a royal colony, then the crown had a direct power of legislation; or, at least, the power of prescribing the limits within which grants of land and settlements should be made within the colony. The same practice always prevailed, under the proprietary governments, and has been followed by the government of the United States.

March 10th, 1823.

1

s. p. Mitchel v. United States, 9 Pet. 712; Clark v. Smith, 13 Id. 195; Lattimer v. Poteet, 14 Id. 4; United States v. Rillieux’s Heirs, 14 How. 189; Sparkman v. Porter, 1 Paine 457. And see Smith v. Stevens, 10 Wall. 321; United States v. Cook, 19 Id. 591; Beecher v. Wetherby, 95 U. S. 517, 525.

(a)

This statute is as follows: “An act for declaring and asserting the rights of this commonwealth, concerning purchasing lands from Indian natives. To remove and prevent all doubt concerning purchases of lands from the Indian natives, be it declared by the general assembly, that this commonwealth hath the exclusive right of *250pre-emption from the Indians, of all the lands within the limits of its own chartered territory, as described by the act and constitution of government, in the year 1776. That no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchases on the public account, formerly for the use and benefit of the colony, and lately of the commonwealth, and that such exclusive right or pre-emption will and ought to be maintained by this commonwealth, to the utmost of its power. And be it further declared and enacted, that every purchase of lands heretofore made, by, or on behalf of, the crown of England or Great Britain, from any Indian nation or nations, within the before-mentioned limits, doth and ought to inure for ever, to and for the use and benefit of this commonwealth, and to or for no other use or purpose whatsoever; and that all sales and deeds which have been, or shall be, made by any Indian or Indians, or by any Indian nation or nations, for lands within the said limits, to or for the separate use of any person or persons whatsoever, shall be, and the same are, hereby declared utterly void and of no effect.”

Marshall, Ch. J.,

delivered the opinion of the court. — The plaintiffs in this cause claim the land in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain *Indian tribes, constituting *253the Illinois and the Piankeshaw nations; and the question is, whether this title can be recognised in the courts of the United States? The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title, which can be sustained in the courts of this country.

As the right of society to prescribe those rules by which property may be acquired and preserved is not, and cannot, be drawn into question; as the title to lands, especially, is, and must be, admitted, to depend entirely on the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not simply those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision.

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an *ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated, as between themselves. This principle was, that 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. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

*In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired. 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; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, *254that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.

The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles. Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title. France, also, founded her title to the vast territories she claimed in America on discovery. However *conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country, not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. Her monarch claimed all Canada and Acadie, as colonies of France, at a time when the French population was very inconsiderable, and the Indians occupied almost the whole country. He also claimed Louisiana, comprehending the immense territories watered by the Mississippi, and the rivers which empty into it, by the title of discovery. The letters-patent granted to the Sieur Demonts, in 1603, constitute him Lieutenant-General, and the representative of the king, in Acadie, which is described as stretching from the 40th to the 46th degree of north latitude; with authority to extend the power of the French over that country, and its inhabitants, to give laws to the people, to treat with the natives, and enforce the observance of treaties, and to parcel out, and give title to lands, according to his own judgment. The States of Holland also made acquisitions in America, and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith, in his History of New York, that Henry Hudson, who sailed, as they say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed to the 43d degree of north latitude; and this country they claimed under the title acquired by this voyage. *Their first object was commercial, as appears by a grant made to a company of merchants in 1614; but in 1621, the States-General made, as we are told by Mr. Smith, a grant of the country to the West India Company, by the name of New Netherlands. The claim of the Dutch was always contested by the English; not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword.

No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. *255To this discovery, the English trace their title. In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries “ then unknown to all Christian people;" and of these countries, Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, *notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. The same principle continued to be recognised. The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen and barbarous lands, as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms.

By the charter of 1606, under which the first permanent English settlement on this continent was made, James I. granted to Sir Thomas Gates and others, those territories in America, lying on the sea-coast, between the 34th and 45th degrees of north latitude, and which either belonged to that monarch, or were not then possessed by any other Christian prince or people. The grantees were divided into two companies, at their own request. The first, or southern colony, was directed to settle between the 34th and 41st degrees of north latitude; and the second, or northern colony, between the 38th and 45th degrees. In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged charter was given by the crown to the first colony, in which the king granted to the “Treasurer and Company of Adventurers of the city of London for the first colony in Virginia,” in absolute property, the lands extending along the sea-coast four hundred miles, and *into the land throughout from sea to sea. This charter, which is a part of the special verdict in this cause, was annulled, so far as respected the rights of the company, by the judgment of the court of king’s bench, on a writ of quo warranto; but the whole effect allowed to this judgment was, to revest in the crown the powers of government, and the title to the lands within its limits.

At the solicitation of those who held under the grant to the second or northern colony, a new and more enlarged charter was granted to the Duke of Lenox and others, in 1620, who were denominated the Plymouth Company, conveying to them in absolute property all the lands between the 40th and 48th degrees of north latitude. Under this patent, New England has been in a great measure settled. The company conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts; and in 1628, a charter of incorporation, comprehending the powers of government, was granted to the purchasers. Great part of New England was granted by this company, which, at length, divided their remaining lands among themselves; and in 1635, surrendered their charter to the crown. A patent was granted to Gorges, for Maine, which was allotted to him in the division of property. All the grants made by the Plymouth Company, so far as we can learn, have been respected.

In pursuance of the same principle, the king, in 1664, granted to the Duke of York the country of New England, as far south as the Delaware *bay. His royal highness transferred New Jersey to Lord *256Berkeley and Sir George Carteret. In 1663, the crown granted to Lord Clarendon and others, the country lying between the 36th degree of north latitude and the river St. Mathes; and in 1666, the proprietors obtained from the crown a new charter, granting to them that province in the king’s dominions in North America, which lies from 36 degrees 30 minutes north latitude to the 29th degree, and from the Atlantic ocean to the south sea.

Thus has our whole country been granted by the crown, while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial government, the king claimed and exercised the light of granting lands, and of dismembering the government, at his will. The grants made out of the two original colonies, after the resumption of their charters by the crown, are examples of this. The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the crown, unaccompanied by the powers of government, as in the case of the northern neck of Virginia. It has never *been objected to this, nor to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account.

These various patents cannot be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only, would never contain words expressly granting the land, the soil and the waters. Some of them purport to convey the soil alone; and in those cases in which the powers of government, as well as the soil, are conveyed to individuals, the crown has always acknowledged itself to be bound by the grant. Though the power to dismember regal governments was asserted and exercised, the power to dismember proprietary governments was not claimed; and in some instances, even after the powers of government were revested in the crown, the title of the proprietors to the soil was respected. Charles II. was extremely anxious to acquire the property of Maine, but the grantees sold it to Massachusetts, and he did not venture to contest the right of that colony to the soil. The Carolinas were originally proprietary governments. In 1721, a revolution was effected by the people, who shook off their obedience to the proprietors, and declared their dependence immediately on the crown. The king, however, purchased the title of those who were disposed to sell. One of them, Lord Carteret, surrendered his interest in the government, but retained his title to the soil. That *title was respected until the revolution, when it was forfeited by the laws of war.

Further proofs of the extent to which this principle has been recognised, will be found in the history of the wars, negotiations and treaties, which the different nations, claiming territory in America, have carried on, and held with each other. The contests between the cabinets of Versailles and Madrid, respecting the territory on the northern coast of the gulf of Mexico, were fierce and bloody; and continued, until the establishment of a Bourbon on the throne of Spain, produced such amicable dispositions in the two *257crowns, as to suspend or terminate them. Between France and Great Britain, whose discoveries as well as settlements were nearly contemporaneous, contests for the country, actually covered by the Indians, began, as soon as their settlements approached each other, and were continued until finally settled in the year 1763, by the treaty of Paris. Each nation had granted, and partially settled the country, denominated by the French, Acadie, and by the English, Nova Scotia. By the 12th article of the treaty of Utrecht, made in 1703, his most Christian Majesty ceded to the Queen of Great Britain, “all Nova Scotia or Acadie, with its ancient boundaries.” A great part of the ceded territory was in the possession of the Indians, and the extent of the cession could not be adjusted by the commissioners to whom it was to be referred. The treaty of Aix-la-Chapelle, which was made *on the principle of the status ante bellum, did not remove this subject of controversy. Commissioners for its adjustment were appointed, whose very able and elaborate, though unsuccessful, arguments, in favor of the title of their respective sovereigns, show how entirely each relied on the title given by discovery to lands remaining in the possession of Indians.

After the termination of this fruitless discussion, the subject was transferred to Europe, and taken up by the cabinets of Versailles and London. This controversy embraced not only the boundaries of New England, Nova Scotia, and that part of Canada which adjoined those colonies, but embraced our whole western country also. France contended not only that the St. Lawrence was to be considered as the centre of Canada, but that the Ohio was within that colony. She founded this claim on discovery, and on having used that river for the transportation of troops, in a war with some southern Indians. This river was comprehended in the chartered limits of Virginia; but though the right of England to a reasonable extent of country, in virtue of her discovery of the sea-coast, and of the settlements she made on it, was not to be questioned, her claim of all the lands to the Pacific ocean, because she had discovered the country washed by the Atlantic, might, without derogating from the principle recognised by all, be deemed extravagant. It interfered, too, with the claims of France, founded on the same principle. She, therefore, sought to strengthen her original title to *the lands in controversy, by insisting that it had been acknowledged by France, in the 15th article of the treaty of Utrecht. The dispute respecting the construction of that article has no tendency to impair the principle, that discovery gave a title to lands still remaining in the possession of the Indians. Whichever title prevailed, it was still a title to lands occupied by the Indians, whose right of occupancy neither controverted, and neither had then extinguished.

These conflicting claims produced a long and bloody war, which was terminated by the conquest of the whole country east of the Mississippi. In the treaty of 1763, France ceded and guarantied to Great Britain, all Nova Scotia or Acadie, and Canada, with their dependencies; and it was agreed, that the boundaries between the territories of the two nations, in America, should be irrevocably fixed by a line drawn from the source of the Mississippi, through the middle of that river and the lakes Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has always been understood to cede, the whole country, on the English side of the dividing line, between the two nations, although a great and valuable part of it was *258occupied by the Indians. Great Britain, on her part, surrendered to France all her pretensions to the country west of the Mississippi. It has never been supposed, that she surrendered nothing, although she was not in actual possession of a foot of land. She surrendered all right to acquire the country; and any after-attempt to purchase it from the Indians, would have been considered *and treated as an invasion of the territories of France. By the 20th article of the same treaty, Spain ceded Florida, with its dependencies, and all the country she claimed east or south-east of the Mississippi, to Great Britain. Great part of this territory also was in possession of the Indians. By a secret treaty, which was executed about the same time, France ceded Louisiana to Spain; and Spain has since retroceded the same country to France. At the time both of its cession and retrocession, it was occupied, chiefly, by the Indians. Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American states rejected or adopted this principle?

By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the “propriety and territorial rights of the United States,” whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these states. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It *has never been doubted, that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.

Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act, in the year 1779, declaring her “exclusive right of pre-emption from the Indians, of all the lands within the limits of her own chartered territory, and that no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchase; formerly for the use and benefit of the colony, and lately for the commonwealth.” The act then proceeds to annul all deeds made by Indians to individuals, for the private use of the purchasers. Without ascribing to this act the power of annulling vested rights, or admitting it to countervail the testimony furnished by the marginal note opposite to the title of the law, forbidding purchases from the Indians, in the revisals of the Virginia statutes, stating that law to be repealed, it may safely be considered as an unequivocal affirmance, on the part of Virginia, of the broad principle which had always been maintained, that the exclusive right to purchase from the Indians resided in the government. In pursuance of the same idea, Virginia proceeded, at the same session, to open her *land-office, for the sale of that country which now constitutes Kentucky, a country, every acre of which was then claimed and possessed by Indians, who maintained their title with as much persevering courage as was ever manifested by any people.

*259The states, having within their chartered limits different portions of territory covered by Indians, ceded that territory, generally, to the United States, on conditions expressed in their deeds of cession, which demonstrate the opinion, that they ceded the soil as well as jurisdiction, and that in doing so, they granted a productive fund to the government of the Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded with the whole country north-west of the river Ohio. This grant contained reservations and stipulations, which could only be made by the owners of the soil; and concluded with a stipulation, that “all the lands in the ceded territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United States as have become, or shall become, members of the confederation,” &e., “ according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever.” The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.

*After these states became independent, a controversy subsisted between them and Spain respecting boundary. By the treaty of 1795, this controversy was adjusted, and Spain ceded to the United States the territory in question. This territory, though claimed by both nations, was chiefly in the actual occupation of Indians. The magnificent purchase of Louisiana, was the purchase from France of a country almost entirely occupied by numerous tribes of Indians, who are in fact independent. Yet, any attempt of others to intrude into that country, would be considered as an aggression which would justify war. Our late acquisitions from Spain are of the same character; and the negotiations which preceded those acquisitions, recognise and elucidate the principle which has been received as the foundation of all European title in America.

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown or its grantees. The validity of the titles given by either has never *been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence to any right which may conflict with and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

We will not enter into the controversy, whether agriculturists, merchants *260and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the titles which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword. The title *to a vast portion of the lands we now hold, orignates in them. It is not for the courts of this country to question the validity of this title, or to sustain one which is incompatible with it.

Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers. When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, *or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him ; and he cannot neglect them, without injury to his fame, and hazard to his power.

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high-spirited as they were fierce, and were ready to repel by arms every attempt on their independence. What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred. Frequent and bloody wars, in which the whites were not always the aggressors, unavoida*261bly ensued. European policy, numbers and skill prevailed; as the white population advanced, that of the Indians necessarily receded; the country in the immediate neighborhood of agriculturists became unfit for them; the game fled *into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies.

That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty. However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be *adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice.

This question is not entirely new in this court. The case of Fletcher v. Peck, grew out of a sale made by the state of Georgia, of a large tract of country within the limits of that state, the grant of which was afterwards resumed. The action was brought by a sub-purchaser, on the contract of sale, and one of the covenants in the deed was, that the state of Georgia was, at the time of sale, seised in fee of the premises. The real question presented by the issue was, whether the seisin in fee was in the state of Georgia, or in the United States. After stating, that this controversy between the several states and the United States had been compromised, the court thought it necessary to notice the Indian title, which, although entitled to the respect of all courts, until it should be legitimately extinguished, was declared not to be such as to be absolutely repugnant to a seisin in fee on the part of the state. This opinion conforms precisely to the principle which has been supposed to be recognised by all European governments, from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with a seisin in fee, than a lease for years, and might as effectually bar an ejectment.

Another view has been taken of this question, *which deserves to be considered. The title of the crown, whatever it might be, could be acquired only by a conveyance from the crown. If an individual might *262extinguish the Indian title, for his own benefit, or, in other words, might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them, by a title dependent on their laws. The grant derives its efficacy from their will; and, if they choose to resume it, and make a different disposition of the land, the court of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a particular tract of land in severalty. As such a grant could not separate the Indian from his nation, nor give a title which our courts could distinguish from the title of his tribe, as it might still be conquered from, or ceded by his tribe, we can perceive no legal principle which will authorize a court to say, that different consequences are attached to this purchase, because it was made by a stranger. By the treaties concluded *between the United States and the Indian nations, whose title the plaintiffs claim, the country comprehending the lands in controversy has been ceded to the United States, without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their cession of the country, without a reservation of this land, affords a fair presumption, that they considered it as of no validity. They ceded to the United States this very property, after having used it in common with other lands, as their own, from the date of their deeds to the time of cession; and the attempt now made, is to set up their title against that of the United States.

The proclamation issued by the king of Great Britain, in 1763, has been considered, and we think, with reason, as constituting an additional objection to the title of the plaintiffs. By that proclamation, the crown reserved under its own dominion and protection, for the use of the Indians, “all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west,” and strictly forbade all British subjects from making any purchases or settlements whatever, or taking possession of the reserved lands. It has been contended, that, in this proclamation, the king transcended his constitutional powers; and the case of Campbell v. Hall (reported by Cowper), is relied on to support this position. *It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connection with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it. If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is sup*263posed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.

According to the theory of the British constitution, all vacant lands are vested in the crown, as representing the nation; and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown, that this principle was as fully recognised in America as in the islands of Great Britain. All the lands we hold were originally granted by the crown; and the establishment of a regal government has never been considered as *impairing its right to grant lands within the chartered limits of such colony. In addition to the proof of this principle, furnished by the immense grants, already mentioned, of lands lying within the chartered limits of Virginia, the continuing right of the crown to grant lands lying within that colony was always admitted. A title might be obtained, either by making an entry with the surveyor of a county, in pursuance of law, or by an order of the governor in council, who was the deputy of the king, or by an immediate grant from the crown. In Virginia, therefore, as well as elsewhere in the British dominions, the complete title of the crown to vacant lands was acknowledged. So far as respected the authority of the crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to grant that title. The lands, then, to which this proclamation referred, were lands which the king had a right to grant, or to reserve for the Indians.

According to the theory of the British constitution, the royal prerogative is very extensive, so far as respects the political relations between Great Britain and foreign nations. The peculiar situation of the Indians, necessarily considered, in some respects, as a dependent, and in some respects, as a distinct people, occupying a country claimed by Great Britain, and yet too powerful and brave not to be dreaded as formidable enemies, required, that means should be adopted for *the preservation of peace; and that their friendship should be secured by quieting their alarms for their property. This was to be effected by restraining the encroachments of the whites; and the power to do this was never, we believe, denied by the colonies to the crown.

In the case of Campbell v. Hall, that part of the proclamation was determined to be illegal, which imposed a tax on a conquered province, after a government had been bestowed upon it. The correctness of this decision cannot be questioned, but its application to the case at bar cannot be admitted. Since the expulsion of the Stuart family, the power of imposing taxes, by proclamation, has never been claimed as a branch of regal prerogative; but the powers of granting, or refusing to grant, vacant lands, and of restraining encroachments on the Indians, have always been asserted and admitted. The authority of this proclamation, so far as it respected this continent, has never been denied, and the titles it gave to lands have always been sustained in our courts.

In the argument of this cause, the counsel for the plaintiffs have relied *264very much on the opinions expressed by men holding offices of trust, and on various proceedings in America, to sustain titles to land derived from the Indians. The collection of claims to lands lying in the western country, made in the 1st volume of the Laws of the United States, has been referred to; but we find nothing in that collection to support the argument. Most of the titles were derived *from persons professing to act under the authority of the government existing at the time; and the two grants under which the plaintiffs claim, are supposed, by the person under whose inspection the collection was made, to be void, because forbidden by the royal proclamation of 1763. It is not unworthy of remark, that the usual mode adopted by the Indians for granting lands to individuals, has been to reserve them in a treaty, or to grant them under the sanction of the commissioners with whom the treaty was negotiated. The practice, in such case, to grant to the crown, for the use of the individual, is some evidence of a general understanding, that the validity even of such a grant depended on its receiving the royal sanction.

The controversy between the colony of Connecticut and the Mohegan Indians, depended on the nature and extent of a grant made by those Indians to the colony; on the nature and extent of the reservations made by the Indians, in their several deeds and treaties, which were alleged to be recognised by the legitimate authority; and on the violation by the colony of rights thus reserved and secured. We do not perceive, in that case, any assertion of the principle, that individuals might obtain a complete and valid title from the Indians.

It has been stated, that in the memorial transmitted from the Cabinet of London to that of Versailles, during the controversy between the two nations, respecting boundary, which took place in 1755, the Indian right to the soil is recognised. *But this recognition was made with reference to their character as Indians, and for the purpose of showing that they were fixed to a particular territory. It was made for the purpose of sustaining the claim of his Britannic majesty to dominion over them.

The opinion of the attorney and solicitor-general, Pratt and Yorke, have been adduced to prove, that, in the opinion of those great law-officers, the Indian grant could convey a title to the soil, without a patent emanating from the crown. The opinion of those persons would certainly be of great authority on such a question, and we were not a little surprised, when it was read, at the doctrine it seemed to advance. An opinion so contrary to the whole practice of the crown, and to the uniform opinions given on all other occasions by its great law-officers, ought to be very explicit, and accompanied by the circumstances under which it was given, and to which it was applied, before we can be assured that it is properly understood. In a pamphlet, written for the purpose of asserting the Indian title, styled “Plain Facts,” the same opinion is quoted, and is said to relate to purchases made in the East Indies. It is, of course, entirely inapplicable to purchases made in America. Chalmers, in whose collection this opinion is found, does not say to whom it applies; but there is reason to believe, that the author of “Plain Facts” is, in this respect, correct. The opinion commences thus: “In respect to such places as have been, or shall be acquired, by treaty or grant, from any of the Indian princes or governments, *your majesty's letters-patent are not necessary." The words *265“princes or governments,” are usually applied to the East Indians, but not to those of North America. We speak of their sachems, their warriors, their chiefmen, their nations or tribes, not of their “princes or governments.” The question on which the opinion was given, too, and to which it relates, was, whether the king’s subjects carry with them the common law, wherever they may form settlements. The opinion is given with a view to this point, and its object must be kept in mind while construing its expressions.

Much reliance is also placed on the fact, that many tracts are now held in the United States, under the Indian title, the validity of which is not questioned. Before the importance attached to this fact is conceded, the circumstances under which such grants were obtained, and such titles are supported, ought to be considered. These lands lie chiefly in the eastern states. It is known that the Plymouth Company made many extensive grants, which, from their ignorance of the country, interfered with each other. It is also known, that Mason, to whom New Hampshire, and Gorges, to whom Maine was granted, found great difficulty in managing such unwieldy property. The country was settled by emigrants, some from Europe, but chiefly from Massachusetts, who took possession of lands they found unoccupied, and secured themselves in that possession by the best means in their power. The disturbances in *England, and the civil war and revolution which followed those disturbances, prevented any interference on the part of the mother country, and the proprietors were unable to maintain their title. In the meantime, Massachusetts claimed the country and governed it. As her claim was adversary to that of the proprietors, she encouraged the settlement of persons made under her authority, and encouraged, likewise, their securing themselves in possession, by purchasing the acquiescence and forbearance of the Indians.

After the restoration of Charles II., Gorges and Mason, when they attempted to establish their title, found themselves opposed by men, who held under Massachusetts, and under the Indians. The title of the proprietors was resisted; and though, in some cases compromises were made, and in some, the opinion of a court was given ultimately in their favor, the juries found uniformly against them. They became wearied with the struggle, and sold their property. The titles held under the Indians, were sanctioned by length of possession; but there is no case, so far as we are informed, of a judicial decision in their favor.

Much reliance has also been placed on a recital contained in the charter of Rhode Island, and on a letter addressed to the governors of the neigh boring colonies, by the king’s command, in which some expressions are inserted, indicating the royal approbation of titles acquired from the Indians.

The charter to Rhode Island recites, “that the said John Clark, and others, had transplanted *themselves into the midst of the Indian nations, and were seised and possessed, by purchase and consent of the said natives, to their full content, of such lands,” &c. And the letter recites, that “Thomas Chifflinch and others, having, in the right of Major Asperton, a just propriety in the Narraghanset country, in New England, by grants from the native princes of that country, and being desirous to improve it into an English colony,” &c., “are yet daily disturbed.” The impression this language might make, if viewed apart from the circum*266stances under which it was employed, will be effaced, when considered in connection with those circumstances.

In the year 1635, the Plymouth Company surrendered their charter to the crown. About the same time, the religious dissensions of Massachusetts expelled from that colony several societies of individuals, one of which settled in Rhode Island, on lands purchased from the Indians. They were not within the chartered limits of Massachusetts, and the English government was too much occupied at home, to bestow its attention on this subject. There existed no authority to arrest their settlement of the country. If they obtained the Indian title, there were none to assert the title of the crown. Under these circumstances, the settlement became considerable. Individuals acquired separate property in lands which they cultivated and improved; a government was established among themselves; and no power existed in America which could rightfully interfere with it.

On the restoration of Charles II., this small society *hastened to acknowledge his authority, and, to solicit his confirmation of their title to the soil, and to jurisdiction over the country. Their solicitations were successful, and a charter was granted to them, containing the recital which has been mentioned. It is obvious, that this transaction can amount to no acknowledgment, that the Indian grant could convey a title paramount to that of the crown, or could, in itself, constitute a complete title. On the contrary, the charter of the crown was considered as indispensable to its completion.

It has never been contended, that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. The object of the crown was, to settle the sea-coast of America; and when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious, to expel them from their habitations, because they had obtained the Indian title, otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the crown, and its words convey the same idea. The country granted, is said to be “ our island called Rhode Island;" and the charter contains an actual grant of the soil, as well as of the powers of government.

*The letter was written a few months before the charter was issued, apparently at the request of the agents of the intended colony, for the sole purpose of preventing the trespasses of neighbors, who where disposed to claim some authority over them. The king, being willing himself to ratify and confirm their title, was, of course, inclined to quiet them in their possession. This charter, and this letter, certainly sanction a previous unauthorized purchase from Indians, under the circumstances attending that particular purchase, but are far from supporting the general proposition, that a title acquired from the Indians would be valid against a title acquired from the crown, or without the confirmation of the crown.

The acts of the several colonial assemblies, prohibiting purchases from the Indians, have also been relied on, as proving, that, independent of such prohibitions, Indian deeds would be valid. But, we think, this fact, at most, *267equivocal. While the existence of such purchases would justify their prohibition, even by colonies which considered Indian deeds as previously invalid, the fact that such acts have been generally passed, is strong evidence of the general opinion, that such purchases are opposed by the soundest principles of wisdom and national policy.

After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the court is decidedly of opinion, that the plaintiffs do not exhibit a title which can *be sustained in the courts of the United States; and that there is no error in the judgment which was rendered against them in the district court of Illinois.

Judgment affirmed, with costs.

United States Court of Appeals, Ninth Circuit.

No. 90-55840.

Vanna WHITE, Plaintiff-Appellant, v. SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation, and David Deutsch Associates, Inc., a New York corporation, Defendants-Appel­lees.

Decided July 29, 1992.

Argued and Submitted June 7, 1991.

Before: GOODWIN, PREGERSON, and ALARCON, Circuit Judges.

Blaine Greenberg, John Genga, Hill Wynne Troop & Meisinger, Los Angeles, Cal., for plaintiff-appellant.

Anthony Liebig, Kenneth Kulzick, Liebig & Kulzick, Los Angeles, Cal., for defen­dants-appellees.

GOODWIN, Senior Circuit Judge:

This case involves a promotional “fame and fortune” dispute. In running a partic­ular advertisement without Vanna White’s permission, defendants Samsung Electron­ics America, Inc. (Samsung) and David Deutsch Associates, Inc. (Deutsch) attempt­ed to capitalize on White’s fame to enhance their fortune. White sued, alleging in­fringement of various intellectual property rights, but the district court granted sum­mary judgment in favor of the defendants. We affirm in part, reverse in part, and remand.

Plaintiff Vanna White is the hostess of “Wheel of Fortune,” one of the most popu­lar game shows in television history. An estimated forty million people watch the program daily. Capitalizing on the fame which her participation in the show has bestowed on her, White markets her identi­ty to various advertisers.

The dispute in this case arose out of a series of advertisements prepared for Sam­sung by Deutsch. The series ran in at least half a dozen publications with wide­spread, and in some cases national, circula­tion. Each of the advertisements in the series followed the same theme. Each de­picted a current item from popular culture and a Samsung electronic product. Each was set in the twenty-first century and conveyed the message that the Samsung product would still be in use by that time. By hypothesizing outrageous future out­comes for the cultural items, the ads cre­ated humorous effects. For example, one lampooned current popular notions of an unhealthy diet by depicting a raw steak with the caption: “Revealed to be health food. 2010 A.D.” Another depicted irrev­erent “news”-show host Morton Downey Jr. in front of an American flag with the caption: “Presidential candidate. 2008 A.D.”

The advertisement which prompted the current dispute was for Samsung video­cassette recorders (VCRs). The ad depict­ed a robot, dressed in a wig, gown, and jewelry which Deutsch consciously selected to resemble White’s hair and dress. The robot was posed next to a game board which is instantly recognizable as the Wheel of Fortune game show set, in a stance for which White is famous. The caption of the ad read: “Longest-running game show. 2012 A.D.” Defendants re­ferred to the ad as the “Vanna White” ad. Unlike the other celebrities used in the campaign, White neither consented to the ads nor was she paid.

Following the circulation of the robot ad, White sued Samsung and Deutsch in feder­al district court under: (1) California Civil Code § 3344; (2) the California common law right of publicity; and (3) § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The dis­trict court granted summary judgment against White on each of her claims. White now appeals.

I. Section 3344

White first argues that the district court erred in rejecting her claim under section 3344. Section 3344(a) provides, in pertinent part, that “[a]ny person who knowingly uses another’s name, voice, sig­nature, photograph, or likeness, in any manner, ... for purposes of advertising or selling, ... without such person’s prior con­sent ... shall be liable for any damages sustained by the person or persons injured as a result thereof.”

White argues that the Samsung adver­tisement used her “likeness” in contraven­tion of section 3344. In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir.1988), this court rejected Bette Midler’s section 3344 claim concerning a Ford television commer­cial in which a Midler “sound-alike” sang a song which Midler had made famous. In rejecting Midler’s claim, this court noted that “[t]he defendants did not use Midler’s name or anything else whose use is prohib­ited by the statute. The voice they used was [another person’s], not hers. The term ‘likeness’ refers to a visual image not a vocal imitation.” Id. at 463.

In this case, Samsung and Deutsch used a robot with mechanical features, and not, for example, a manikin molded to White’s precise features. Without deciding for all purposes when a caricature or impression­istic resemblance might become a “like­ness,” we agree with the district court that the robot at issue here was not White’s “likeness” within the meaning of section 3344. Accordingly, we affirm the court’s dismissal of White’s section 3344 claim.

II. Right of Publicity

White next argues that the district court erred in granting summary judgment to defendants on White’s common law right of publicity claim. In Eastwood v. Superi­or Court, 149 Cal.App.3d 409, 198 Cal.­Rptr. 342 (1983), the California court of appeal stated that the common law right of publicity cause of action “may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Id. at 417, 198 Cal.Rptr. 342 (citing Prosser, Law of Torts (4th ed. 1971) § 117, pp. 804-807). The district court dismissed White’s claim for failure to satisfy East­wood’s second prong, reasoning that defen­dants had not appropriated White’s “name or likeness” with their robot ad. We agree that the robot ad did not make use of White’s name or likeness. However, the common law right of publicity is not so confined.

The Eastwood court did not hold that the right of publicity cause of action could be pleaded only by alleging an appropriation of name or likeness. Eastwood involved an unauthorized use of photographs of Clint Eastwood and of his name. Accordingly, the Eastwood court had no occasion to consider the extent beyond the use of name or likeness to which the right of publicity reaches. That court held only that the right of publicity cause of action “may be” pleaded by alleging, inter alia, appropria­tion of name or likeness, not that the action may be pleaded only in those terms.

The “name or likeness” formulation re­ferred to in Eastwood originated not as an element of the right of publicity cause of action, but as a description of the types of cases in which the cause of action had been recognized. The source of this formulation is Prosser, Privacy, 48 Cal.L.Rev. 383, 401-­07 (1960), one of the earliest and most enduring articulations of the common law right of publicity cause of action. In look­ing at the case law to that point, Prosser recognized that right of publicity cases in­volved one of two basic factual scenarios: name appropriation, and picture or other likeness appropriation. Id. at 401-02, nn. 156-57.

Even though Prosser focused on appro­priations of name or likeness in discussing the right of publicity, he noted that “[i]t is not impossible that there might be appro­priation of the plaintiff’s identity, as by impersonation, without the use of either his name or his likeness, and that this would be an invasion of his right of privacy.” Id. at 401, n. 155.1 At the time Prosser wrote, he noted however, that “[n]o such case appears to have arisen.” Id.

Since Prosser’s early formulation, the case law has borne out his insight that the right of publicity is not limited to the ap­propriation of name or likeness. In Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir.1974), the defendant had used a photograph of the plaintiff's race car in a television commercial. Al­though the plaintiff appeared driving the car in the photograph, his features were not visible. Even though the defendant had not appropriated the plaintiff's name or likeness, this court held that plaintiff's California right of publicity claim should reach the jury.

In Midler, this court held that, even though the defendants had not used Mi­dler’s name or likeness, Midler had stated a claim for violation of her California com­mon law right of publicity because “the defendants ... for their own profit in sell­ing their product did appropriate part of her identity” by using a Midler sound-alike. Id. at 463-64.

In Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir.1983), the defendant had marketed portable toi­lets under the brand name “Here’s John­ny”—Johnny Carson’s signature “Tonight Show” introduction—without Carson’s per­mission. The district court had dismissed Carson’s Michigan common law right of publicity claim because the defendants had not used Carson’s “name or likeness.” Id. at 835. In reversing the district court, the sixth circuit found “the district court’s con­ception of the right of publicity ... too narrow” and held that the right was impli­cated because the defendant had appropri­ated Carson’s identity by using, inter alia, the phrase “Here’s Johnny.” Id. at 835-37.

These cases teach not only that the common law right of publicity reaches means of appropriation other than name or likeness, but that the specific means of appropriation are relevant only for deter­mining whether the defendant has in fact appropriated the plaintiff’s identity. The right of publicity does not require that appropriations of identity be accomplished through particular means to be actionable. It is noteworthy that the Midler and Car­son defendants not only avoided using the plaintiff’s name or likeness, but they also avoided appropriating the celebrity’s voice, signature, and photograph. The photo­graph in Motschenbacher did include the plaintiff, but because the plaintiff was not visible the driver could have been an actor or dummy and the analysis in the case would have been the same.

Although the defendants in these cases avoided the most obvious means of appro­priating the plaintiffs’ identities, each of their actions directly implicated the com­mercial interests which the right of publici­ty is designed to protect. As the Carson court explained:

[t]he right of publicity has developed to protect the commercial interest of celeb­rities in their identities. The theory of the right is that a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identi­ty. ... If the celebrity’s identity is com­mercially exploited, there has been an invasion of his right whether or not his “name or likeness” is used.

Carson, 698 F.2d at 835. It is not impor­tant how the defendant has appropriated the plaintiff’s identity, but whether the de­fendant has done so. Motschenbacher, Midler, and Carson teach the impossibility of treating the right of publicity as guarding only against a laundry list of specific means of appropriating identity. A rule which says that the right of publicity can be infringed only through the use of nine different methods of appropriating identity merely challenges the clever advertising strategist to come up with the tenth.

Indeed, if we treated the means of appro­priation as dispositive in our analysis of the right of publicity, we would not only weak­en the right but effectively eviscerate it. The right would fail to protect those plain­tiffs most in need of its protection. Adver­tisers use celebrities to promote their prod­ucts. The more popular the celebrity, the greater the number of people who recog­nize her, and the greater the visibility for the product. The identities of the most popular celebrities are not only the most attractive for advertisers, but also the easi­est to evoke without resorting to obvious means such as name, likeness, or voice.

Consider a hypothetical advertisement which depicts a mechanical robot with male features, an African-American complexion, and a bald head. The robot is wearing black hightop Air Jordan basketball sneak­ers, and a red basketball uniform with black trim, baggy shorts, and the number 23 (though not revealing “Bulls” or “Jor­dan” lettering). The ad depicts the robot dunking a basketball one-handed, stiff-arm­ed, legs extended like open scissors, and tongue hanging out. Now envision that this ad is run on television during profes­sional basketball games. Considered indi­vidually, the robot’s physical attributes, its dress, and its stance tell us little. Taken together, they lead to the only conclusion that any sports viewer who has registered a discernible pulse in the past five years would reach: the ad is about Michael Jor­dan.

Viewed separately, the individual aspects of the advertisement in the present case say little. Viewed together, they leave lit­tle doubt about the celebrity the ad is meant to depict. The female-shaped robot is wearing a long gown, blond wig, and large jewelry. Vanna White dresses exact­ly like this at times, but so do many other women. The robot is in the process of turning a block letter on a game-board. Vanna White dresses like this while turn­ing letters on a game-board but perhaps similarly attired Scrabble-playing women do this as well. The robot is standing on what looks to be the Wheel of Fortune game show set. Vanna White dresses like this, turns letters, and does this on the Wheel of Fortune game show. She is the only one. Indeed, defendants themselves referred to their ad as the “Vanna White” ad. We are not surprised.

Television and other media create mar­ketable celebrity identity value. Considera­ble energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity’s sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof. We decline Samsung and Deutch’s invitation to permit the evis­ceration of the common law right of public­ity through means as facile as those in this case. Because White has alleged facts showing that Samsung and Deutsch had appropriated her identity, the district court erred by rejecting, on summary judgment, White’s common law right of publicity claim.

III. The Lanham Act

White’s final argument is that the district court erred in denying her claim under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The version of section 43(a) ap­plicable to this case2 provides, in pertinent part, that “[a]ny person who shall ... use, in connection with any goods or services ... any false description or representation ... shall be liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any such false description or designation.” 15 U.S.C. § 1125(a).

To prevail on her Lanham Act claim, White is required to show that in running the robot ad, Samsung and Deutsch created a likelihood of confusion, Academy of Mo­tion Picture Arts v. Creative House, 944 F.2d 1446, 1454 (9th Cir.1991); Toho Co. Ltd. v. Sears Roebuck & Co., 645 F.2d 788, 790 (9th Cir.1981) New West Corp. v. NYM Co. of California, 595 F.2d 1194, 1201 (9th Cir.1979), over whether White was endors­ing Samsung’s VCRs. HMH Publishing Co. v. Brincat, 504 F.2d 713 (9th Cir.1974); Allen v. National Video, Inc., 610 F.Supp. 612 (D.C.N.Y.1985).

This circuit recognizes several dif­ferent multi-factor tests for determining whether a likelihood of confusion exists. See Academy, 944 F.2d at 1454, n. 3. None of these tests is correct to the exclu­sion of the others. Eclipse Associates Ltd. v. Data General Corp., 894 F.2d 1114, 1118 (9th Cir.1990). Normally, in reviewing the district court’s decision, this court will look to the particular test that the district court used. Academy, 944 F.2d at 1454, n. 3; Eclipse, 894 F.2d at 1117-1118. However, because the district court in this case ap­parently did not use any of the multi-factor tests in making its likelihood of confusion determination, and because this case in­volves an appeal from summary judgment and we review de novo the district court’s determination, we will look for guidance to the 8-factor test enunciated in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979). According to AMF, factors relevant to a likelihood of confusion include:

(1) strength of the plaintiff’s mark;

(2) relatedness of the goods;

(3) similarity of the marks;

(4) evidence of actual confusion;

(5) marketing channels used;

(6) likely degree of purchaser care;

(7) defendant’s intent in selecting the mark;

(8) likelihood of expansion of the product lines.

599 F.2d at 348-49. We turn now to con­sider White’s claim in light of each factor.

In cases involving confusion over endorsement by a celebrity plaintiff, “mark” means the celebrity’s persona. See Allen, 610 F.Supp. at 627. The “strength” of the mark refers to the level of recogni­tion the celebrity enjoys among members of society. See Academy, 944 F.2d at 1455. If Vanna White is unknown to the segment of the public at whom Samsung’s robot ad was directed, then that segment could not be confused as to whether she was endorsing Samsung VCRs. Converse­ly, if White is well-known, this would allow the possibility of a likelihood of confusion. For the purposes of the Sleekcraft test, White’s “mark,” or celebrity identity, is strong.

In cases concerning confusion over celeb­rity endorsement, the plaintiff’s “goods” concern the reasons for or source of the plaintiff’s fame. Because White’s fame is based on her televised performances, her “goods” are closely related to Samsung’s VCRs. Indeed, the ad itself reinforced the relationship by informing its readers that they would be taping the “longest-running game show” on Samsung’s VCRs well into the future.

The third factor, “similarity of the marks,” both supports and contradicts a finding of likelihood of confusion. On the one hand, all of the aspects of the robot ad identify White; on the other, the figure is quite clearly a robot, not a human. This ambiguity means that we must look to the other factors for resolution.

The fourth factor does not favor White’s claim because she has presented no evi­dence of actual confusion.

Fifth, however, White has appeared in the same stance as the robot from the ad in numerous magazines, including the covers of some. Magazines were used as the mar­keting channels for the robot ad. This factor cuts toward a likelihood of confu­sion.

Sixth, consumers are not likely to be particularly careful in determining who en­dorses VCRs, making confusion as to their endorsement more likely.

Concerning the seventh factor, “defen­dant’s intent,” the district court found that, in running the robot ad, the defendants had intended a spoof of the “Wheel of For­tune.” The relevant question is whether the defendants “intended to profit by con­fusing consumers” concerning the endorse­ment of Samsung VCRs. Toko, 645 F.2d 788. We do not disagree that defendants intended to spoof Vanna White and “Wheel of Fortune.” That does not preclude, how­ever, the possibility that defendants also intended to confuse consumers regarding endorsement. The robot ad was one of a series of ads run by defendants which fol­lowed the same theme. Another ad in the series depicted Morton Downey Jr. as a presidential candidate in the year 2008. Doubtless, defendants intended to spoof presidential elections and Mr. Downey through this ad. Consumers, however, would likely believe, and would be correct in so believing, that Mr. Downey was paid for his permission and was endorsing Sam­sung products. Looking at the series of advertisements as a whole, a jury could reasonably conclude that beneath the sur­face humor of the series lay an intent to persuade consumers that celebrity Vanna White, like celebrity Downey, was endors­ing Samsung products.

Finally, the eighth factor, “likelihood of expansion of the product lines,” does not appear apposite to a celebrity endorsement case such as this.

Application of the Sleekcraft factors to this case indicates that the district court erred in rejecting White’s Lanham Act claim at the summary judgment stage. In so concluding, we emphasize two facts, however. First, construing the motion pa­pers in White’s favor, as we must, we hold only that White has raised a genuine issue of material fact concerning a likelihood of confusion as to her endorsement. Cohen v. Paramount Pictures Corp., 845 F.2d 851, 852-53 (9th Cir.1988). Whether White’s Lanham Act claim should succeed is a matter for the jury. Second, we stress that we reach this conclusion in light of the peculiar facts of this case. In particular, we note that the robot ad identifies White and was part of a series of ads in which other celebrities participated and were paid for their endorsement of Samsung’s prod­ucts.

IV. The Parody Defense

In defense, defendants cite a num­ber of cases for the proposition that their robot ad constituted protected speech. The only cases they cite which are even remote­ly relevant to this case are Hustler Maga­zine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) and L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.1987). Those cases involved parodies of advertisements run for the purpose of pok­ing fun at Jerry Falwell and L.L. Bean, respectively. This case involves a true ad­vertisement run for the purpose of selling Samsung VCRs. The ad’s spoof of Vanna White and Wheel of Fortune is subservient and only tangentially related to the ad’s primary message: “buy Samsung VCRs.” Defendants’ parody arguments are better addressed to non-commercial parodies.3 The difference between a “parody” and a “knock-off” is the difference between fun and profit.

V. Conclusion

In remanding this case, we hold only that White has pleaded claims which can go to the jury for its decision.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

1

Under Professor Prosser's scheme, the right of publicity is the last of the four categories of the right to privacy. Prosser, 48 Cal.L.Rev. at 389.

2

The statute was amended after White filed her complaint. The amendments would not have altered the analysis in this case however.

3

In warning of a first amendment chill to ex­pressive conduct, the dissent reads this decision too broadly. See Dissent at 1407. This case concerns only the market which exists in our society for the exploitation of celebrity to sell products, and an attempt to take a free ride on a celebrity’s celebrity value. Commercial adver­tising which relies on celebrity fame is different from other forms of expressive activity in two crucial ways.

First, for celebrity exploitation advertising to be effective, the advertisement must evoke the celebrity’s identity. The more effective the evo­cation, the better the advertisement. If, as Sam­sung claims, its ad was based on a "generic" game-show hostess and not on Vanna White, the ad would not have violated anyone’s right of publicity, but it would also not have been as humorous or as effective.

Second, even if some forms of expressive ac­tivity, such as parody, do rely on identity evoca­tion, the first amendment hurdle will bar most right of publicity actions against those activities. Cf. Falwell, 485 U.S. at 46, 108 S.Ct. at 876. In the case of commercial advertising, however, the first amendment hurdle is not so high. Cen­tral Hudson Gas & Electric Corp. v. Public Ser­vice Comm’n of New York, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). Realizing this, Samsung attempts to elevate its ad above the status of garden-variety commer­cial speech by pointing to the ad’s parody of Vanna White. Samsung’s argument is unavail­ing. See Board of Trustees, State Univ. of N. Y. v. Fox, 492 U.S. 469, 474-75, 109 S.Ct. 3028, 3031, 106 L.Ed.2d 388 (1988); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 67-68, 103 S.Ct. 2875, 2880-81, 77 L.Ed.2d 469 (1983). Un­less the first amendment bars all right of public­ity actions—and it does not, see Zachini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977)—then it does not bar this case.

ALARCON, Circuit Judge,

concurring in part, dissenting in part:

Vanna White seeks recovery from Sam­sung based on three theories: the right to privacy, the right to publicity, and the Lanham Act. I concur in the majority’s conclu­sions on the right to privacy. I respectful­ly dissent from its holdings on the right to publicity and the Lanham Act claims.

I.

RIGHT TO PRIVACY (CAL.CIV.CODE § 3344(a))

I agree with the majority’s conclusion that no reasonable jury could find that the robot was a “likeness” of Vanna White within the meaning of California Civil Code section 3344(a).

II.

RIGHT TO PUBLICITY

I must dissent from the majority’s hold­ing on Vanna White’s right to publicity claim. The district court found that, since the commercial advertisement did not show a “likeness” of Vanna White, Samsung did not improperly use the plaintiff’s identity. The majority asserts that the use of a likeness is not required under California common law. According to the majority, recovery is authorized if there is an appro­priation of one’s “identity.” I cannot find any holding of a California court that sup­ports this conclusion. Furthermore, the record does not support the majority’s find­ing that Vanna White’s “identity” was ap­propriated.

The district court relied on Eastwood v. Superior Court, 149 Cal.App.3d 409, 198 Cal.Rptr. 342, (1983), in holding that there was no cause of action for infringement on the right to publicity because there had been no use of a likeness. In Eastwood, the California Court of Appeal described the elements of the tort of “commercial appropriation of the right of publicity” as “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plain­tiff's name or likeness to defendant’s ad­vantage, ...; (3) lack of consent; and (4) resulting injury.” Id. at 417, 198 Cal.Rptr. 342. (Emphasis added).

All of the California cases that my re­search has disclosed hold that a cause of action for appropriation of the right to pub­licity requires proof of the appropriation of a name or likeness. See, e.g., Lugosi v. Universal Pictures, 25 Cal.3d 813, 603 P.2d 425, 160 Cal.Rptr. 323 (1979) (“The so-­called right of publicity means in essence that the reaction of the public to name and likeness ... endows the name and likeness of the person involved with commercially exploitable opportunities.”); Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860, 603 P.2d 454, 457, 160 Cal.Rptr. 352, 355 (1979) (use of name of Rudolph Valentino in fictional biography allowed); Eastwood v. Superior Court, supra (use of photo and name of actor on cover of tabloid news­paper); In re Weingand, 231 Cal.App.2d 289, 41 Cal.Rptr. 778 (1964) (aspiring actor denied court approval to change name to “Peter Lorie” when famous actor Peter Lorre objected); Fairfield v. American Photocopy Equip. Co., 138 Cal.App.2d 82, 291 P.2d 194 (1955), later app. 158 Cal. App.2d 53, 322 P.2d 93 (1958) (use of attor­ney’s name in advertisement); Gill v. Cur­tis Publishing Co., 38 C.2d 273, 239 P.2d 630 (1952) (use of photograph of a couple in a magazine).

Notwithstanding the fact that California case law clearly limits the test of the right to publicity to name and likeness, the ma­jority concludes that “the common law right of publicity is not so confined.” Ma­jority opinion at p. 1397. The majority relies on two factors to support its innova­tive extension of the California law. The first is that the Eastwood court’s state­ment of the elements was permissive rath­er than exclusive. The second is that Dean Prosser, in describing the common law right to publicity, stated that it might be possible that the right extended beyond name or likeness. These are slender reeds to support a federal court’s attempt to cre­ate new law for the state of California.

In reaching its surprising conclusion, the majority has ignored the fact that the Cali­fornia Court of Appeal in Eastwood specifi­cally addressed the differences between the common law right to publicity and the stat­utory cause of action codified in California Civil Code section 3344. The court ex­plained that “[t]he differences between the common law and the statutory actions are: (1) Section 3344, subdivision (a) requires knowing use whereas under case law, mis­take and inadvertence are not a defense against commercial appropriation and (2) section 3344, subdivision (g) expressly pro­vides that its remedies are cumulative and in addition to any provided by law.” East­wood, 149 Cal.App.3d at n. 6, 198 Cal.Rptr. 342 (emphasis in original). The court did not include appropriations of identity by means other than name or likeness among its list of differences between the statute and the common law.

The majority also relies on Dean Pros­ser’s statement that “[i]t is not impossible that there might be an appropriation of the plaintiff’s identity, as by impersonation, without the use of either his name or his likeness, and that this would be an invasion of his right of privacy.” Prosser, Privacy, 48 Cal.L.Rev. 383, 401 n. 155 (1960). As Dean Prosser noted, however, “[n]o such case appears to have arisen.” Id.

The majority states that the case law has borne out Dean Prosser’s insight that the right to publicity is not limited to name or likeness. As noted above, however, the courts of California have never found an infringement on the right to publicity with­out the use of the plaintiff’s name or like­ness.

The interest of the California Legislature as expressed in California Civil Code sec­tion 3344 appears to preclude the result reached by the majority. The original sec­tion 3344 protected only name or likeness. In 1984, ten years after our decision in Motschenbacher v. R.J. Reynolds Tobacco Company, 498 F.2d 821 (9th Cir.1974) and 24 years after Prosser speculated about the future development of the law of the right of publicity, the California legislature amended the statute. California law now makes the use of someone’s voice or signa­ture, as well as name or likeness, action­able. Cal.Civ.Code sec. 2233(a) (Deering 1991 Supp.). Thus, California, after our decision in Motschenbacher specifically contemplated protection for interests other than name or likeness, but did not include a cause of action for appropriation of another person’s identity. The ancient maxim, inclusio unius est exclusio alterius, would appear to bar the majority’s innovative ex­tension of the right of publicity. The clear implication from the fact that the Califor­nia Legislature chose to add only voice and signature to the previously protected inter­ests is that it wished to limit the cause of action to enumerated attributes.

The majority has focused on federal deci­sions in its novel extension of California Common Law. Those decisions do not pro­vide support for the majority’s decision.

In each of the federal cases relied upon by the majority, the advertisement affirma­tively represented that the person depicted therein was the plaintiff. In this case, it is clear that a metal robot and not the plain­tiff, Vanna White, is depicted in the com­mercial advertisement. The record does not show an appropriation of Vanna White’s identity.

In Motschenbacher, a picture of a well-­known race driver’s car, including its unique markings, was used in an advertise­ment. Id. at 822. Although the driver could be seen in the car, his features were not visible. Id. The distinctive markings on the car were the only information shown in the ad regarding the identity of the driver. These distinctive markings com­pelled the inference that Motschenbacher was the person sitting in the racing car. We concluded that “California appellate courts would ... afford legal protection to an individual’s proprietary interest in his own identity.” Id. at 825. (Emphasis add­ed). Because the distinctive markings on the racing car were sufficient to identify Motschenbacher as the driver of the car, we held that an issue of fact had been raised as to whether his identity had been appropriated. Id. at 827.

In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir.1988), a singer who had been instructed to sound as much like Bette Mi­dler as possible, sang a song in a radio commercial made famous by Bette Midler. Id. at 461. A number of persons told Bette Midler that they thought that she had made the commercial. Id. at 462. Aside from the voice, there was no information in the commercial from which the singer could be identified. We noted that “[t]he human voice is one of the most palpable ways identity is manifested.” Id. at 463. We held that, “[t]o impersonate her voice is to pirate her identity,” id., and concluded that Midler had raised a question of fact as to the misappropriation of her identity.

In Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir.1983), the Sixth Circuit was called upon to inter­pret Michigan’s common-law right to pub­licity. The case involved a manufacturer who used the words, “Here’s Johnny,” on portable toilets. Id. at 832-33. These same words were used to introduce the star of a popular late-night television pro­gram. There was nothing to indicate that this use of the phrase on the portable toi­lets was not associated with Johnny Car­son’s television program. The court found that “[h]ere there was an appropriation of Carson’s identity,” which violated the right to publicity. Id. at 837.

The common theme in these federal cases is that identifying characteristics unique to the plaintiffs were used in a context in which they were the only information as to the identity of the individual. The commer­cial advertisements in each case showed attributes of the plaintiff’s identities which made it appear that the plaintiff was the person identified in the commercial. No effort was made to dispel the impression that the plaintiffs were the source of the personal attributes at issue. The commer­cials affirmatively represented that the plaintiffs were involved. See, e.g., Midler at 462 (“The [Motschenbacher] ad suggest­ed that it was he.... In the same way the defendants here used an imitation to con­vey the impression that Midler was singing for them.”). The proper interpretation of Motschenbacher, Midler, and Carson is that where identifying characteristics unique to a plaintiff are the only informa­tion as to the identity of the person appear­ing in an ad, a triable issue of fact has been raised as to whether his or her identity as been appropriated.

The case before this court is distinguish­able from the factual showing made in Motschenbacher, Midler, and Carson. It is patently clear to anyone viewing the commercial advertisement that Vanna White was not being depicted. No reason­able juror could confuse a metal robot with Vanna White.

The majority contends that “the individu­al aspects of the advertisement ... [v]iewed together leave little doubt about the celebrity the ad is meant to depict.” Majority Opinion at p. 1399. It derives this conclusion from the fact that Vanna White is “the only one” who “dresses like this, turns letters, and does this on the Wheel of Fortune game show.” Id. In reaching this conclusion, the majority confuses Vanna White, the person, with the role she has assumed as the current hostess on the “Wheel of Fortune” television game show. A recognition of the distinction between a performer and the part he or she plays is essential for a proper analysis of the facts of this case. As is discussed below, those things which Vanna White claims identify her are not unique to her. They are, in­stead, attributes of the role she plays. The representation of those attributes, there­fore, does not constitute a representation of Vanna White. See Nurmi v. Peterson, 10 U.S.P.Q.2d 1775 (C.D.Cal.1989) (distin­guishing between performer and role).

Vanna White is a one-role celebrity. She is famous solely for appearing as the host­ess on the “Wheel of Fortune” television show. There is nothing unique about Van­na White or the attributes which she claims identify her. Although she appears to be an attractive woman, her face and figure are no more distinctive than that of other equally comely women. She performs her role as hostess on “Wheel of Fortune” in a simple and straight-forward manner. Her work does not require her to display what­ever artistic talent she may possess.

The majority appears to argue that be­cause Samsung created a robot with the physical proportions of an attractive wom­an, posed it gracefully, dressed it in a blond wig, an evening gown, and jewelry, and placed it on a set that resembles the Wheel of Fortune layout, it thereby appropriated Vanna White’s identity. But an attractive appearance, a graceful pose, blond hair, an evening gown, and jewelry are attributes shared by many women, especially in Southern California. These common attrib­utes are particularly evident among game-­show hostesses, models, actresses, singers, and other women in the entertainment field. They are not unique attributes of Vanna White’s identity. Accordingly, I cannot join in the majority’s conclusion that, even if viewed together, these attrib­utes identify Vanna White and, therefore, raise a triable issue as to the appropriation of her identity.

The only characteristic in the commercial advertisement that is not common to many female performers or celebrities is the imi­tation of the “Wheel of Fortune” set. This set is the only thing which might possibly lead a viewer to think of Vanna White. The Wheel of Fortune set, however, is not an attribute of Vanna White’s identity. It is an identifying characteristic of a tele­vision game show, a prop with which Van­na White interacts in her role as the cur­rent hostess. To say that Vanna White may bring an action when another blond female performer or robot appears on such a set as a hostess will, I am sure, be a surprise to the owners of the show. Cf. Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663 (7th Cir.1986) (right to publicity in videotaped performances preempted by copyright of owner of telecast).

The record shows that Samsung recog­nized the market value of Vanna White’s identity. No doubt the advertisement would have been more effective if Vanna White had appeared in it. But the fact that Samsung recognized Vanna White’s value as a celebrity does not necessarily mean that it appropriated her identity. The record shows that Samsung dressed a ro­bot in a costume usually worn by television game-show hostesses, including Vanna White. A blond wig, and glamorous cloth­ing are not characteristics unique to the current hostess of Wheel of Fortune. This evidence does not support the majority’s determination that the advertisement was meant to depict Vanna White. The adver­tisement was intended to depict a robot, playing the role Vanna White currently plays on the Wheel of Fortune. I quite agree that anyone seeing the commercial advertisement would be reminded of Vanna White. Any performance by another fe­male celebrity as a game-show hostess, however, will also remind the viewer of Vanna White because Vanna White’s celeb­rity is so closely associated with the role. But the fact that an actor or actress be­came famous for playing a particular role has, until now, never been sufficient to give the performer a proprietary interest in it. I cannot agree with the majority that the California courts, which have consist­ently taken a narrow view of the right to publicity, would extend law to these unique facts.

III.

THE LANHAM ACT

Vanna White’s Lanham Act claim is easi­ly resolved by applying the proper legal standard. Vanna White seeks damages for violation of section 43(a) of the Lanham Act. To succeed, Vanna White must prove actual deception of the consuming public. Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 208 (9th Cir.1989) (claim for damages under section 43(a) requires showing the defendant “actually deceived a significant portion of the consuming pub­lic.”); see also PPX Enterprises, Inc. v. Audiofidelity Enterprises, Inc., 818 F.2d 266, 271 (2d Cir.1987) (“to establish entitle­ment to damages for violation of section 43(a): [Plaintiffs] must establish actual confusion or deception resulting from the violation.”); J. Gilson, Trademark Protec­tion and Practice section 7.02[8] at 7-137 to 7-138 (1991) (plaintiffs must show actual deception to obtain damages under section 43(a)). Vanna White offered no evidence that any portion of the consuming public was deceived. The district court was cor­rect in granting summary judgment on Vanna White’s Lanham Act claim.

The majority finds that because a majori­ty of factors set forth in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), favor Vanna White, the district court erred in granting summary judgment.

The AMF test is designed to aid in deter­mining whether two marks are so suffi­ciently similar that it is likely that a con­sumer would confuse them. Where the marks are so obviously different that no confusion could possibly occur, the test is unnecessary. That is the situation in this matter. The attempt to use the Lanham Act to prevent “misappropriations” of which a court does not approve results in the distortion of the law which makes it more difficult to apply the law in appropri­ate cases. See Hanson & Walls, Protecting Trademark Goodwill: Towards a Federal Standard of Misappropriation, 81 Trade­mark Rep. 480, 511-513 (1991). This case is an example of such distortion.

The majority assumes the conclusion that the AMF test is designed to disclose. In repeatedly stating that the robot “identi­fies” Vanna White, the majority has usurped the fact finding function of the district court.

The majority holds that the first factor of the AMF test, strength of the mark, weighs in Vanna White’s favor. It equates this factor with the strength of Vanna White’s fame, citing Allen v. National Video, Inc., 610 F.Supp. 612 (D.C.N.Y. 1985). Allen involved a celebrity look-alike who bore a remarkable resemblance to Woody Allen. Id. at 617. The instant mat­ter involves a robot that bears no resem­blance to Vanna White.

It is unclear whether the “mark” for which Vanna White seeks protection is her screen image or the imitation Wheel of Fortune. Although Vanna White is cer­tainly famous for being famous, there is no evidence in the record that consumers iden­tify the specific characteristics at issue, i.e., blond hair and fancy dress, solely with Vanna White. The majority ignores this important distinction.

The majority has glossed over the third AMF factor—similarity of the marks—the most important factor in this case. The majority finds this factor “ambiguous” be­cause the common characteristics “identi­fy” Vanna White. Majority Opinion at p. 1400. We are required, however, to com­pare marks in their entirety. California Cooler, Inc. v. Loretto Winery, 774 F.2d 1451 (9th Cir.1985). In this matter, the consumer is confronted with two entities. One is Vanna White. The other is a robot. No one could reasonably confuse the two.

Certain aspects of a mark may have a greater impact than other aspects. When a mark has certain salient characteristics, they are given greater weight. Country Floors, Inc. v. Gepner, 930 F.2d 1056 (3d Cir. 1991); Henri’s Food Products Co. v. Kraft, Inc., 717 F.2d 352 (7th Cir.1983); Giant Food, Inc. v. Nations’ Foodservice, Inc., 710 F.2d 1565 (Fed.Cir.1983). The face of Vanna White and the features of the robot are obviously more important characteristics than their hair, dress, physi­cal proportions, jewelry, or the decoration of the set. Thus, the features of the robot and Vanna White should be given great weight in the analysis. It should be clear to anyone viewing the commercial adver­tisement that the crude features of the robot are very dissimilar to Vanna White’s attractive and human face.

The majority’s analysis of the intent or seventh factor in AMF is similarly suspect. The question presented here is whether there is any evidence in the record that Samsung intended to confuse consumers. It did not.

Where the circumstances are sufficient to eliminate any likelihood of confusion, this court has repeatedly held that there is no claim for a violation of the Lanham Act. See Toho Co., Ltd. v. Sears, Roebuck & Co., 645 F.2d 788 (9th Cir.1981) (“Bagzilla” garbage bags did not infringe “Godzilla” mark); Walt Disney Prods. v. Air Pi­rates, 581 F.2d 751 (9th Cir.1978), cert. denied sub nom O’Neill v. Walt Disney Prods, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979) (“Silly Sympathies” in adult comic books did not infringe on Dis­ney’s “Silly Symphonies”). The use of a robot in the commercial advertisement makes it clear that Vanna White did not endorse Samsung’s product.

Although likelihood of confusion may usually be a factual question, “courts re­tain an important authority to monitor the outer limits of substantial similarity within which a jury is permitted to make the fac­tual determination whether there is a likeli­hood of confusion.” Warner Bros., Inc. v. American Broadcasting Cos., Inc., 720 F.2d 231, 246 (2d Cir.1983). “[S]ummary judgment is appropriate if the court is sat­isfied that the products or marks are so dissimilar that no question of fact is presented.” Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112 (2d Cir.1984).

“There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Vanna White has presented no evidence of actual decep­tion. Thus, she has failed to raise a genu­ine issue of material fact that would sup­port her Lanham Act claim.

IV.

SAMSUNG’S FIRST AMENDMENT DEFENSE

The majority gives Samsung’s First Amendment defense short shrift because “[t]his case involves a true advertisement run for the purpose of selling Samsung VCRs.” Majority opinion at p. 1401. I respectfully disagree with the majority’s analysis of this issue as well.

The majority’s attempt to distinguish this case from Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), and L.L. Bean, Inc. v. Drake Pub­lishers, Inc., 811 F.2d 26 (1st Cir.1987), is unpersuasive. The majority notes that the parodies in those cases were made for the purpose of poking fun at the Reverend Jerry Falwell and L.L. Bean. But the ma­jority fails to consider that the defendants in those cases were making fun of the Reverend Jerry Falwell and L.L. Bean for the purely commercial purpose of selling soft-core pornographic magazines.

Generally, a parody does not constitute an infringement on the original work if it takes no more than is necessary to “con­jure up” the original. Walt Disney Prods, v. Air Pirates, 581 F.2d 751, 756 (9th Cir. 1978). The majority has failed to consider these factors properly in deciding that Van­na White may bring an action for damages solely because the popularity of the fame show, Wheel of Fortune.

The effect of the majority’s holding on expressive conduct is difficult to estimate. The majority’s position seems to allow any famous person or entity to bring suit based on any commercial advertisement that de­picts a character or role performed by the plaintiff. Under the majority’s view of the law, Gene Autry could have brought an action for damages against all other sing­ing cowboys. Clint Eastwood would be able to sue anyone who plays a tall, soft-­spoken cowboy, unless, of course, Jimmy Stewart had not previously enjoined Clint Eastwood. Johnny Weismuller would have been able to sue each actor who played the role of Tarzan. Sylvester Stallone could sue actors who play blue-collar boxers. Chuck Norris could sue all karate experts who display their skills in motion pictures. Arnold Schwarzenegger could sue body builders who are compensated for appear­ing in public.

The majority’s reading of the Lanham Act would provide a basis for “commercial” enterprises to maintain an action for sec­tion 43(a) violations even in the absence of confusion or deception. May Black and Decker, maker of the “Dustbuster” porta­ble vacuum, now sue “Bust-dusters,” the Los Angeles topless cleaning service. Can the Los Angeles Kings hockey team state a cause of action against the City of Las Vegas for its billboards reading “L.A. has the Kings, but we have the Aces.”

Direct competitive advertising could also be affected. Will BMW, which advertises its automobiles as “the ultimate driving machine,” be able to maintain an action against Toyota for advertising one of its cars as “the ultimate saving machine”? Can Coca Cola sue Pepsi because it depict­ed a bottle of Coca Cola in its televised “taste test”? Indeed, any advertisement which shows a competitor’s product, or any recognizable brand name, would appear to be liable for damages under the majority’s view of the applicable law. Under the ma­jority’s analysis, even the depiction of an obvious facsimile of a competitor’s product may provide sufficient basis for the mainte­nance of an action for damages.

V.

CONCLUSION

The protection of intellectual property presents the courts with the necessity of balancing competing interests. On the one hand, we wish to protect and reward the work and investment of those who create intellectual property. In so doing, how­ever, we must prevent the creation of a monopoly that would inhibit the creative expressions of others. We have tradition­ally balanced those interests by allowing the copying of an idea, but protecting a unique expression of it. Samsung clearly used the idea of a glamorous female game show hostess. Just as clearly, it avoided appropriating Vanna White’s expression of that role. Samsung did not use a likeness of her. The performer depicted in the com­mercial advertisement is unmistakably a lifeless robot. Vanna White has presented no evidence that any consumer confused the robot with her identity. Indeed, no reasonable consumer could confuse the ro­bot with Vanna White or believe that, be­cause the robot appeared in the advertise­ment, Vanna White endorsed Samsung’s product.

I would affirm the district court’s judg­ment in all respects.