While studying colonial period business practices and property rights issues, for a business & finance history class, I read Carl Watner’s Libertarians and Indians: Proprietary Justice & Aboriginal Land Rights, in a 1983 issue of the Journal of Libertarian Studies. Watner smartly refutes the thesis that states, as Roderick Long puts it, “given the “savagery” of the Native Americans, European colonisation of the Americas could not be expected to have occurred peacefully.”
Watner appears to take a two-fold look at the Indian ownership of lands. First, there’s the issue of the land upon which they lived and cultivated, and then there’s the separate but equally important view of whether or not the Indians had the same rights to the uncultivated lands upon which they hunted.Under a Lockean theory of property, to which I subscribe, Lysander Spooner’s argument against Indian ownership of hunting lands appears to be correct. The ownership in question can be reduced to homesteading – the principle of mixing one’s labor with the unowned land and defending one’s title. In fact, Locke notes that there are (3) ways to acquire property:
1) Homestead it via fencing it in, protecting it, and proclaiming that it is under your ownership.
2) Acquiring the property title via voluntary transfer.
3) Claiming abandoned land by adverse possession: move on it, fence it, mix one’s labor with it, etc.
These views are very clear in the Locke’s Second Treatise.
The Indian hunting grounds were not of original appropriation. In other words, one could argue that the Indians did not cultivate the land for permanent use through the means of mixing their labor with the land (production). The homesteader is a producer upon the land, and the Indians, with their roaming tendencies in regards to hunting, cannot have claimed that they brought unused, valueless land into full production via their own productive labor.
Thus, noted Murray Rothbard, the Indian claims to hunting lands were abstract and invalid. However, as Watner notes, were the Indians really so rigid in their claims to rightful ownership of hunting lands (as opposed to their settled lands)?
Interestingly, Roger Williams denied the English Right of Discovery, and made the claim that the Indians did indeed hold the ownership to the “native soil.” However, Watner does not make clear whether or not Williams made the distinction between Indian lands that were lived upon (and thus cultivated) and lands that were uncultivated, sporadic hunting lands.
Without this distinction being clarified, it is difficult to summarize the position of Williams in regards to Indian property rights. Watner makes it appear that perhaps Roger Williams held a broader, more undefined view of property rights (such as purely occupational rights) while John Winthrop may have held the Lockean view of homesteading via the cultivation of unowned land. Or did Winthrop actually claim that ALL Indian lands were unowned, because he defined all of their land as “unimproved,” due to their savage nature?
In the end, Williams may have failed to see the distinction between roaming and homesteading, and thus, failed to properly define ownership. Meanwhile, Winthrop my have drawn the proper conclusions about what constitutes “ownership” (“cultivation, manuring, enclosure”), but he appeared to have made no distinction between lands hunted upon occasionally, and lands lived upon.
As to William Penn, his greatest concern was a quest for justice, as opposed to developing a narrow and absolute definition of property ownership. Penn’s solution was to approach the Indian land situation on the premise that the Indians had “possessory rights,” and thus he wished to compensate them fairly for such rights. Penn’s concern was mostly for political expediency and justice, and he thought that endless negotiation through intellectual exploration was inefficient and unnecessary. As a Quaker, he was primarily concerned with a peaceful resolution via honorable means, and he therefore sought immediate and fair compensation with Indian tribes for their land.
Just last week, Mises.org posted a fascinating Rothbard look at William Penn and his Pennsylvania anarchist experiment.