In the 1891 case of McLish v. Roff, the United States Supreme Court addressed a dispute over land in Indian Territory (now Oklahoma). The plaintiff, McLish, was a member of the Chickasaw Nation and claimed that she had been unlawfully dispossessed of her property by Roff. She argued that under an 1866 treaty between the U.S. government and her tribe, she held exclusive rights to occupy and use certain lands within their territory until they were lawfully assigned elsewhere or purchased by non-Indians with federal approval. The defendant countered that he had legally acquired his interest in these lands through various transactions involving other members of the Chickasaw Nation who also claimed rights to them under this same treaty. The Supreme Court ruled against McLish on procedural grounds without addressing these substantive issues directly. It found that because she did not bring her lawsuit within three years after learning about Roff's claims as required by local statute, it was barred regardless of its merits.

In the dissenting opinion for McLish v. Roff, Justice Brewer argued that the majority's decision was inconsistent with previous rulings and principles of equity. He pointed out that in a prior case involving similar circumstances, where an individual had made improvements on land under a mistaken belief of ownership, the court ruled in favor of compensation for those improvements when rightful ownership was determined. In this case however, despite McLish having made significant investments to improve the property while believing he owned it due to government error, no such compensation was awarded upon Roff being declared as rightful owner by virtue of his Native American ancestry and related laws. Brewer contended this inconsistency undermined established legal principles and created unfair outcomes; he believed that if someone improves property under reasonable but mistaken belief they own it due to government assurances or errors - then later learns they do not - fairness dictates they should be compensated for their investment if/when actual owner reclaims possession.