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.
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Randall Holcombe’s article “Common Property in Anarcho-Capitalism” (JLS V19 No2) is relevant. Holcombe argues reasonably that common property is not subject to homesteading by a single individual. Indian hunting lands could reasonably be argued to be the common property of those who hunted there on a regular basis.
I’d argue that to the extent you’ve used something, you’ve homesteaded it. If Indians had trekked through the land hunting their, they’ve homesteaded an easement against any future homesteaders: e.g., the right to continue hunting there, even if someone else sets up property there.
That is, any property set up there will be abridged by the easement that the prior hunters who’d homesteaded hunting rights in that land can still do the same.
The idea that one can justly drive people off of land that they have lived on and subsisted from for years while claiming original appropriation is simply to legitimize theft and conquest.
“noted Murray Rothbard, the Indian claims to hunting lands were abstract and invalid”
Is there nothing that Mr Rothbard did not have an opinion on or write about?! The man’s a marvel!
The history of the American Indian is an example of what happens when cultures clash. The migration of a huge number of settlers from Europe inundated the nomadic life, and doomed it. That the inevitable transition to a non-nomadic way of life was helped along by barbarous treatment (intentional decimation through disease, the taking of settled lands, etc.) by some percentage of the European settlers is horrific and shameful.
Regarding Rothbard’s piece on William Penn: if only our current ruling class would just stay home! What a fine example the people of earliest colonial Philadelphia gave the world.
I would agree with Mr. Heinrich on this matter.
“Under a Lockean theory of property”: so what? The colonies were English and English Law had surely long recognised ownwership of uncultivated land used just for hunting e.g. The New Forest, belonging to the crown, and lots of other examples, belonging to the crown and to private owners. What’s so special about ploughing or hoeing? Nor is use in common any objection to ownership: the common land in England was USED in common by designated commoners, but was always owned by someone – the Lord of the Manor, an Abbey, a Town, or whatever. As for “intentional decimation through disease”: I’ve often seen this repeated, but never seen the evidence. Can anyone enlighten me?
Regarding “intentional decimation through disease”: Just to clarify this issue, I was basing this on memory alone, and it does appear on further study to be exaggerated, though not inaccurate. The attempt was made to infect Delaware and Shawnee bands that were holding Fort Pitt (Pittsburgh) under seige in 1763. It appears that two men at least, Capt. Simeon Ecuyer and his commanding officer, General Jeffrey Amherst, came up with the idea nearly simultaneously and without any prior knowledge what the other had in mind. This would lead one to believe that the practice had some history at that point. Most of the deaths by Amerinds in North America at that time were caused by unintentional infection. Still, the intention to use the technique in war was known and, at least in this one instance, actually practiced, though with unknown effect. Apparently some of the intended targets did contract smallpox, but the means of transmission cannot be known with exactitude.
As for ownership, according to the documents held by settlers, the English settlers were the rightful owners, not those who had previously inhabited the land, whether nomadic or settled. Treating the native inhabitants as owners in any way was the exception. The owners, according to English law, appeared to be those with the documents to back up the claim. Here is a case of a clashing of SYSTEMS of law without a well-thought-out means of resolution.
Dwight, These two officers really did it, did they: it wasn’t just bold talk in their cups – you know the sort of thing – “what we ought to do is blah, blah, blah”? Anyway, thanks for the enlightenment. Since the settlers were happy to help themselves to land that the Indians actually cultivated, it seems otiose to discuss the land that the Indians only hunted over.
The idea that various American Indian tribes were unjustly dispossed of their rightful territory by cold-hearted American settlers is deeply ingrained in contemporary American culture.
However, that idea is largely a tragic misconception.
Roaming over a vast area of several hundreds of thousands of square miles, as for example did the Blackfeet, Crow, and Souix in Northwestern America, confers no ownership interest in that territory. One reason is that their territories were acquired by force. For the martial cultures of the plains Indians were no accident: the Souix, Blackfeet and Crow tribes were constantly at war with each other, stealing horses and children, clubbing and stabbing, maiming and killing, as a way of life. Each tribe took from the others whatever it could, and whatever territory each possessed was acquired and maintained through war and conquest. Of course, as George Reisman has pointed out in “Capitalism”, this brutal life was a necessary consequence of the hunter/nomadic way of life, because the territory over which these peoples hunted and fought had limited carrying capacity. The resources and game needed to sustain one tribe were achieved, at least in part, at the cost of the physical security of the others. Before the migration of white people to the North American continent, continental United States supported perhaps one million natives.
The alternative brought by the migration of whites was a division of labor society which has room for unlimited numbers of workers, with incomparably greater physical security and material well-being for every single participant. Which system was the virtuous one: the martial life of Indians, who sought to kill their competitors (and to literally force out into the cold of winter elderly parents) to sustain their own meager existence? Or the “cold-blooded” rational existence of Americans who sought to employ this vast, virtually unused area in various productive enterprises, with room for everyone willing to find a place in the division of labor?
The Indians owned what they built and utilized, but nothing more. When Andrew Jackson attacked the Seminoles in Florida, he destroyed their farms, burned their villages, and murdered helpless people. That was wrongful and criminal. When white settlers built fences and crude homes, and pastured and plowed the lands they owned, the plains tribes murdered their familes, ran off their livestock, burned their homes. That was wrongful and criminal.
When the Nex Pierce Indians of Washington were dispossed of their traditional summer grazing lands in the Wallowa Valley, they were probably wronged. This valley, ringed on both sides by high rocky ridges, had plenty of grass and water. For perhaps a couple hundred years, the Nex Peirce people would drive their thousands of well-bred horses and cattle from winter grazing lands further south to the lush Wallowa Valley, returning in the fall to their wintering area. The cattle and horses that these intelligent native Americans owned they acquired partly by selective breeding, and partly by trading fresh horses and oxen for the worn-out stock of incoming wagon trains of whites. These indians were, in many respects, stockmen and ranchers, though they retained some habits of their earlier nomadic/hunter existence. It would have been relatively easy for the US government to propose some private land division acceptable to those individual ranchers, to complete their integration into the division of labor. Instead the army ran these people off their grazing lands, which precipitated the chase by half the US army of Chief Joseph’s wily band across Idaho and Montana to an unhappy conclusion just south of Canada. Without question, the Nex Pierce were oppressed by the federal government.
It’s too bad that so many decent well-meaning people have uncritically absorbed the false history of this era written by Left–history that is steeped in Rousseau’s mythology of the Noble Savage and worship of the primitive.
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