Bryan Caplan  

Do Indians Rightfully Own America?

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Critics of libertarianism occasionally claim that, if libertarians are correct, the entirety of America rightfully belongs to the Indians.  After all, we stole it from them, didn't we?

Unfortunately, the preceding question is missing a lot of scare quotes.  Yes, "we" stole it from "them."  (And much much worse).  But both the "we" and the "them" have been dead for centuries.  Many of "us" aren't even descended from either side.  In any case, the last time I checked, both libertarians and virtually all of our modern critics reject the doctrine of inherited guilt.  So barring abundant scare quotes, we stole nothing from them.

But what about the Locke/Nozick historical theory of justice?  Isn't anyone who fails to return stolen property to the Indians violating their property rights?  While I'm not a big fan of Murray Rothbard's The Ethics of Liberty, he has a methodical and plausible response to all questions of this form.  I almost never post lengthy blockquotes, but here I'll make an exception:
It is true that existing property titles must be scrutinized, but the resolution of the problem is much simpler than the question assumes. For remember always the basic principle: that all resources, all goods, in a state of no-ownership belong properly to the first person who finds and transforms them into a useful good (the "homestead" principle). We have seen this above in the case of unused land and natural resources: the first to find and mix his labor with them, to possess and use them, "produces" them and becomes their legitimate property owner. Now suppose that Mr. Jones has a watch; if we cannot clearly show that Jones or his ancestors to the property title in the watch were criminals, then we must say that since Mr. Jones has been possessing and using it, that he is truly the legitimate and just property owner.

Or, to put the case another way: if we do not know if Jones's title to any given property is criminally-derived, then we may assume that this property was, at least momentarily in a state of no-ownership (since we are not sure about the original title), and therefore that the proper title of ownership reverted instantaneously to Jones as its "first" (i.e., current) possessor and user. In short, where we are not sure about a title but it cannot be clearly identified as criminally derived, then the title properly and legitimately reverts to its current possessor.

But now suppose that a title to property is clearly identifiable as criminal, does this necessarily mean that the current possessor must give it up? No, not necessarily. For that depends on two considerations: (a) whether the victim (the property owner originally aggressed against) or his heirs are clearly identifiable and can now be found; or (b) whether or not the current possessor is himself the criminal who stole the property. Suppose, for example, that Jones possesses a watch, and that we can clearly show that Jones's title is originally criminal, either because (1) his ancestor stole it, or (2) because he or his ancestor purchased it from a thief (whether wittingly or unwittingly is immaterial here). Now, if we can identify and find the victim or his heir, then it is clear that Jones's title to the watch is totally invalid, and that it must promptly revert to its true and legitimate owner. Thus, if Jones inherited or purchased the watch from a man who stole it from Smith, and if Smith or the heir to his estate can be found, then the title to the watch properly reverts immediately back to Smith or his descendants, without compensation to the existing possessor of the criminally derived "title." Thus, if a current title to property is criminal in origin, and the victim or his heir can be found, then the title should immediately revert to the latter.

Suppose, however, that condition (a) is not fulfilled: in short, that we know that Jones's title is criminal, but that we cannot now find the victim or his current heir. Who now is the legitimate and moral property owner? The answer to this question now depends on whether or not Jones himself is the criminal, whether Jones is the man who stole the watch. If Jones was the thief, then it is quite clear that he cannot be allowed to keep
it, for the criminal cannot be allowed to keep the reward of his crime; and he loses the watch, and probably suffers other punishments besides. In that case, who gets the watch? Applying our libertarian theory of property, the watch is now - after Jones has been apprehended - in a state of no-ownership, and it must therefore become the legitimate property of the first person to "homestead" it - to take it and use it, and therefore, to have converted it from an unused, no-ownership state to a useful, owned state. The first person who does so then becomes its legitimate, moral, and just owner.

But suppose that Jones is not the criminal, not the man who stole the watch, but that he had inherited or had innocently purchased it from the thief. And suppose, of course, that neither the victim nor his heirs can be found. In that case, the disappearance of the victim means that the stolen property comes properly into a state of no-ownership. But we have seen that any good in a state of no-ownership, with no legitimate owner of its title, reverts as legitimate property to the first person to come along and use it, to appropriate this now unowned resource for human use. But this "first" person is clearly Jones, who has been using it all along. Therefore, we conclude that even though the property was originally stolen, that if the victim or his heirs cannot be found, and if the current possessor was not the actual criminal who stole the property, then title to that property belongs properly, justly, and ethically to its current possessor.

To sum up, for any property currently claimed and used: (a) if we know clearly that there was no criminal origin to its current title, then obviously the current title is legitimate, just and valid; (b) if we don't know whether the current title had any criminal origins, but can't find out either way, then the hypothetically "unowned" property reverts instantaneously and justly to its current possessor; (c) if we do know that the title is originally criminal, but can't find the victim or his heirs, then (c1) if the current title-holder was not the criminal aggressor against the property, then it reverts to him justly as the first owner of a hypothetically unowned property. But (c2) if the current titleholder is himself the criminal or one of the criminals who stole the property, then clearly he is properly to be deprived of it, and it then reverts to the first man who takes it out of its unowned state and appropriates it for his use. And finally, (d) if the current title is the result of crime, and the victim or his heirs can be found, then the title properly reverts immediately to the latter, without compensation to the criminal or to the other holders of the unjust title.
The implications for the Indian question are straightforward.  Namely: In the extremely unlikely event that any particular Indian can show that he personally is the rightful heir of a particular Indian who was wrongfully dispossessed of a particular piece of property, the current occupants should hand him the keys to his birthright and vacate the premises.  Otherwise the current occupants have the morally strongest claim to their property, and the status quo should continue.  Anything more is just the doctrine of collective guilt masquerading as a defense of property rights.


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The author at Samizdata.net in a related article titled Property rights and native American Indians writes:
    From one of my daily reads, the excellent Tim Sandefur. He 's knocking down a piece of nonsense on land rights from the hopeless Matthew Yglesias: It’s typical of the left to argue that all property rights are somehow tainted by past injustices and the... [Tracked on September 20, 2012 9:43 AM]
COMMENTS (45 to date)
Steve Sailer writes:

"In the extremely unlikely event that any particular Indian can show that he personally is the rightful heir of a particular Indian who was wrongfully dispossessed of a particular piece of property ..."

Why is that extremely unlikely? This isn't ancient history. There are lots and lots of written records, especially in the western half of the country.

Eduard writes:

You're assuming that it's a given that "the Indians" were the first people in North America; maybe early Europeans traveling across what was then a frozen Iberian peninsula got there first. And even if "the Indians" were indeed the first, how much land would that entitle them to? All of it, from coast to coast, and from Alaska down to Mexico and beyond? Estimates of native American population numbers, pre-Jamestown, range from a million to a hundred million, so assuming it was 30 million, can each one claim a few hundred square miles to himself, just by dint of having been there "first"?

Why should it have to be a 'particular' Indian? Property can be owned jointly, and in the Roger Williams biography I'm reading, records show Williams took a lot of heat for arguing that Indian land claims should be respected, even back in the earliest days of settlement. That is, he recognized collective ownership of certain areas by tribes.

Using such historical records, I think it would be easy to make the case that certain tribes had mixed sufficient labor into specific areas to merit an ownership claim. It would then follow that the descendants of that tribe would collectively own that property.

JS writes:

The sentiment underlying this principle, that criminals shouldn't profit from their crimes:

"If Jones was the thief, then it is quite clear that he cannot be allowed to keep it, for the criminal cannot be allowed to keep the reward of his crime"

seems to directly contradict the following:

"But suppose that Jones is not the criminal, not the man who stole the watch, but that he had inherited or had innocently purchased it from the thief [...] then title to that property belongs properly, justly, and ethically to its current possessor."

The reasons why this is ridiculous should be obvious enough. The more easily a thief can fence his ill-gotten gains, the more profitable thievery becomes. Providing a disincentive here, in the form of prohibiting the receipt of stolen property, is clearly merited on justice and efficiency grounds, and indeed, this is why doing so knowingly is almost universally prohibited and why doing so unknowingly leaves you liable to confiscation.

Further, the Locke/Nozick "homestead principle" is just flat-out silly to begin with. It certainly sounds plausible "that all resources, all goods, in a state of no-ownership belong properly to the first person who finds and transforms them into a useful good (the "homestead" principle)", but let's remember, "first come, first served" is only one of a number of different allocative mechanisms we can choose. Part of the reason that the market as an allocative mechanism is lauded so highly around these parts is that it subjects competing claims to a best-use test of efficiency that truly does often lend itself to the promotion of mutual advantage by optimizing the deployment of scarce social resources.

It's true enough that, having no present owner, criminal goods revert to a state of non-possession. And it's likewise true, that in the case of trivial goods like Jones' watch, there might be legitimate grounds to privilege the claims of the current possessor over others. But the mass of land spanning Nunavut to Tierra Del Fuego is hardly a trivial good. As a hypothetical, even if we could identify a single rightful titleholder to the previously vast holdings of American Indians, I would categorically reject, as would most people, the idea that we ought to cede that property back or provide recompense in proportion to it's immense value.

But here's where it gets interesting. If an absolute right to property can't be sustained (that is, we acknowledge that coercion and violence account for at least part of the basis for our holdings, but refuse to return them to their "rightful" owner on grounds of efficiency/utility/mutual advantage), then any conception of liberty that endorses the right of people to dispose of their property as they please is going to be perpetually charged with ensuring that it passes some sort of test of merit. At which point, the principle with which we choose to evaluate that test is going to become the primary moral good, with liberty, at best, being of secondary concern.

JS writes:

Also, to follow up on Steve Sailer above, let me pose you a question:

Hypothetically, if we identified a single rightful heir, not of a "particular Indian", but of *all* Indians, you would endorse the transfer of the totality of any land inhabited pre-1492 in the Americas to that one person, to dispose of as he/she pleases?

Steve V writes:

Rothbard also defines property as something that you make use of... transforming from nothing into something. USA doesn't own the moon just because we put a flag there.

Farm it or build on it, it's yours. You can't just extend 100s of miles of fence or draw circles on a map from a Rothbardian property rights standpoint.

He begins 'Ethics of Liberty' with a good mental exercise for this - Crusoe meets Friday on a desert island.

Alex Godofsky writes:

Please put something up top to make clear you are only talking about the ideological libertarians, and that the fact that you need to delve into metaphysics to explain why we shouldn't do something silly like "give the land back to the Indians" is evidence that the theory sucks.

Why not recognize property rights as pragmatic creations of law and custom, just say "no, that would be an enormous hassle with no clear gain", and go home?

Tracy W writes:

Hmm, this sounds like a bunch of intelligence used to come to a pre-determined result. It reminds me of Ayn Rand's arguments as to why an Objectivist was entitled to accept government funding.

Proposed moral principles are far more convincing when the proponent of said principle is willing to undergo personal costs for them. (I often fall short of this principle myself).

Incidentally, I think this is quite an American view. If I understand British law rightly, in this the innocent purchaser of stolen land isn't obliged to return them to the original victim, and apparently this is common around the world. See http://en.wikipedia.org/wiki/Torrens_Title
(Note, there have been some nasty cases because of this, eg once an elderly British man moved in with one of his children and left his home vacant, a fraudster then sold it to legitimate buyers, then disappeared, and when the family realised several years later what had happened, they had no redress as the fraudster couldn't be located.)

Yarbel writes:

I wonder what would be your reasoning in regards to the following statement: while it may be true that each individual landowner is morally entitled to his or hers land, it does not follow that Europeans have sovereign rights over the land. Maybe the government should be replaced with a Native-American one?

Tracy W writes:

I should add that in the case I mentioned, so much time had passed before the fraud was discovered that the statute of limitations prevented the family claiming from the government for incorrectly recording the land registration.

david writes:

Approving of this moral code seems to allow quite a lot of perverse incentives regarding what a would-be thief, acting with the welfare of his children in mind, can get away with.

Never mind the considerable incentive to invest in ways to stealthily corrupt the chain of title in ownership. The law presently grants possession enormous importance simply because it is much easier to defend a living claim than to defend every historical link in the chain of titles; a malicious attacker of a Rothbardian title system simply has to identify a single ambiguous period out of millions where "so your father sold this claim to my father" can be argued.

Steve Sailer writes:

Mao said that political power comes out of the barrel of a gun, and the white man won over the Indian because he had more and better guns.

On the other hand, Congress periodically feels guilty about the whole thing and votes Indians new privileges, such as the very weird system of the last quarter century where each tribe, big or small, gets one casino. It doesn't do hardly anything for the Sioux, but it does wonders for tiny exurban tribes. Indian reservations are also immune to many environmental regulations, so resort golf courses can be built much faster on reservations than in competing areas.

In Hawaii, Native Hawaiians have various legal racial privileges granted them in compensation for the white coup in the 1890s, such as some free housing and a free prep school. They constantly agitate to get themselves the legal privileges granted to American Indians, such as casinos. Casinos in Hawaii would make a lot of money off Chinese tourists.

In summary, this stuff isn't ancient history. The politics of compensatory privileges is just going to go on being argued about for generations.

Daublin writes:

To weigh in on the pragmatic side, as opposed to the ideological one:

1. Statutes of limitations are important in practice. Without them, people and businesses have practically infinite liability, all the time. Everyone would be guilty of something or other, and anyone could be successfully attacked by digging up an ancient wrong to use against them.

2. The homesteading argument resonates with me. I like to see property being used. If someone really just discards a piece of property and leaves it unused, then we are all better off if it's permissible for someone else to take it.

Phill writes:

[Comment removed for policy violations.--Econlib Ed.]

Morgan Warstler writes:

Good lord. This is what you think???

Gah!

Rights stem from force. Period. The end.

We saw this when USSR fell. Smart guys paid big guys to protect their property.

The formation of that state then is smart guys getting together and establishing rule of law that does two things:

1. gives everyone else some protection.

2. allows the smart guys to pay less for their security.

The smart guys are the randian ubermen, who just aren't ideologues.

They are the Hegemony.

In the US the Hegemony, the A Power, is the Tea Party and GOP, the big fish in small ponds. They own 200M guns, run Main Street, the churches, the PTA etc.

The A power can be played to a draw by the B power (the big fish in big ponds) and the C power, the bottom 2/3.

The past 20 years have been the C power playing its hand horribly, by always partnering with B power.

If you can't FORCE your view of property onto reality, you have no rights.

if aliens arrive and exterminate and enslave us, we have no rights.

So, let's be clear:

Matty is wrong, the state, money, monetary policy, all of it is created by the hegemony, for them by them.

Bryan, fer christ's sake, just say that under rule of law, might makes right, BUT the hegemony has the ability to use its might to either consent or to topple.

You can try to change the rules of the game, but the same guys win - get over it.

RPLong writes:

I think libertarians would be best advised to simply acknowledge the truth of the situation: North American land was by and large annexed unfairly by non-indigenous settlers.

But, two things here:

1 - Indigenous factions annexed this land from each other in exactly the same way, so the "most recent" Native American owner does not necessarily have the strongest moral claim to the property even among potential Native American claimants.

2 - Going forward, free market sale/purchase of this property is the one and only way to resolve property ownership peacefully.

#2 is the strongest point here. When you get right down to it, our options are to either fight over the land or peacefully buy and sell it.

What do you choose? I choose peace.

ti writes:

Here's an argument against the above reasoning and ideological libertarianism in general. Would the above argument work if you replace the individual Jones with a corporation owning the land? Since contracts allow institutions to be parties, the answer would be yes. Also, since in this view, inequality isn't basically negative, the corporation can be as large and powerful as possible. So a totalitarian state which erases all forms of property will, after a generation, be the rightful heir of all the land. Because of its enormous powers, due to people needing houses, it can impose any rules and regulations, on the pain of not being allowed to use any land.

Here's the crux of the issue - no state of affairs, a socialist democracy, a corporatist state, a dictatorship is, by itself, opposable by hard libertarianism. This is an exaggeration (some will oppose slavery, no matter what), but not by much. It's primarily a history of transactions which is seen as relevant. So, once an institution manages to own the majority of resources, say land, electric supply, and metal resources it can use its monopoly power to essentially make any rules it wants, ie act like a state, but not necessarily hold any elections. The fact that no corporation will reach this state is an empirical claim which is not obvious at all. There could be some event which allows one market actor to gain huge influence. Many of the anti-trust laws preventing market dominance and subsequent arbitrary price increases are opposed by libertarians as preventing freedom of contract.

Snorri Godhi writes:

Contrary to a coupe of comments above, I don't think that the Rothbard rules give much of an incentive to thieves to dispose of property asap: the thieves still risk ending up in jail and having to return their ill-gotten gains.

Rather, they provide a disincentive to buy anything which is not brand new, because how can you be sure that it was not stolen, and therefore somebody can reclaim it from you anytime, without compensation?

Arakiba writes:

Israelis use this logic all the time - a thousand or so years ago, their ancestors owned that land, so never mind who was living on it in the 1940's...it still belonged to them and they had the right to kick everyone else off it. Their religion said their god gave it to them, and that was supposed to be good enough for everyone! So why not let the American Indians take back the land their ancestors lived on long ago? I'm sure their religions said it belonged to them too, and if we're respecting the Jewish faith, we should respect all others as well. It's only logical.

Matt writes:

Homesteading is foolishness; it can never establish a right of property in land.

As for the argument, see Chapter 7: The Great-Great-Grandson of Captain Kidd of Henry George's The Irish Land Question (youtube version here).

The main issue is not the theft of the land by Europeans hundreds of years ago, but the ongoing, fresh robbery of the land every minute of every day.

simon... writes:

"...the first to find and mix his labor with them, to possess and use them, "produces" them and becomes their legitimate property owner." Does this mean that I can legitimately extract oil from my neighbor's property if I was the first one to discover it (as long as I don't harm his crops)?

Costard writes:

There's another angle: the Indians were for the most part sovereign. Up until the Civil War - and notwithstanding what happened in 1830 - they gave (almost) as good as they got. For several hundred years they were belligerent nations, not private actors operating under a regime of clearly-defined rights. They operated independently and took sides in 1775 and 1812. Violence was often initiated by the natives in response to encroachment by settlers -- so we are not merely talking about a property rights dispute. Oftentimes land was ceded willingly because there was simply no understanding of property rights on the part of the Indians. They didn't understand what they were signing; nevertheless they signed.

For better or worse, justice is a matter of what can be proved legally -- and not something to be saddled on the back of ideology.

KLO writes:

It seems odd to me that a very general normative principle, that the first to add value to some non-owned property becomes its owner, would lean so heavily on a pragmatic principle, that where the chain of title becomes hazy the strong presumption of rightful ownership favors the current owner, to justify the current ownership structure of all the land in North and South America. Why not place the burden on the current owner where he is aware that someone, somewhere in the past stole the property he currently claims to own? Certainly there is nothing morally compelling about Rothbard's burden-shifting rule. Indeed, I wonder if a rule that shifts the burden onto the rightful owner to establish his rightful ownership even when the current owner knows that, were the identity of the rightful owner known it would not be him, is actually consistent with the basic moral precept it is supposed to augment. It is the sort of argument that Lance Armstrong's supporters make in his defense: he may have cheated, but because many others also cheated and because we cannot reliably identify the fastest non-cheating rider, Lance should get to keep his Tour de France titles. Is this really morally defensible?

Mike Rulle writes:

Not all people who lose power struggles are worthy of return. First, we would have to trace who took what from whom among the American Indians. We might also have to trace back to when we believe the American Indians became American. I think it is believed they came from East Asia across Alaska---at least some part of the population. Then we would need to figure out who may have screwed who in Asia and get that settled out.

Unless we have a timetable of how far to go back. Maybe limit it to 200 years. But then Europe would really have a mess to untangle. So many empires, so many unwound. Then Russia and East Europe. Germany and the Jews. China and the intellectuals. The Africans who participated in the slave trade would share costs with their English and American trading partners among current black Americans.

Why are we even theorizing on such topics? Mankind can be brutal. I assume this is not new information. We exist today with current laws. It is hard enough to do that right, let alone try to correct a billion wrongs.

This is an infinite regress. Please stop.

This is an infinite regress. Please stop.

Exactly. We can't just begin with America, nor even with Julius Caesar taking Gaul.

Btw, the Jews bought the land that later became Israel from its owners, with the permission of the Ottoman rulers, in the 19th century. We have a rich history of the wasteland that was Palestine from a lot of people who traveled through it back then.

Some of them famous, such as Mark Twain, Herman Melville, Thomas Cook.... All agree it was nothing but desert, swampland and scrub forest. It was the Jews developing it, beginning late in the 19th century that attracted Arabs to move there.

Roy Langston writes:

How convenient for us that our ancestors arranged for their ancestors not to have any identifiable heirs....

The landowner can always contrive some pretext upon which to claim that his forcible removal of others' rights to liberty without just compensation is rightful.

wophugus writes:

If I have property that clearly used to belong to a corporation, and that corporation still exists and is legally recognized, do I have to give it back?

If yes, replace "corporation" with "tribe" and explain if there is a difference. 'Cause I think lots of tribes can prove they were usefully using land, no one now living can prove they had superior title to it, and then they got disposed by force.

There's no getting around it: lot's of people had stuff taken from their ancestors and can prove it. A utilitarian property regime would just say "tough, giving everything back now would be too disruptive." You people actually have to go through with untangling it all.

I think the statute of limitation argument holds most sway for me. At a certain point, it becomes impossible to disentangle completing claims for justice, without introducing injustices as great as those one is trying to correct.

Mr. Econotarian writes:

There are plenty examples of Native American tribes engaging in war among each other for land, so it is possible that some of the land "stolen" by Europeans was previously "stolen" by Native Americans as well.

An interesting recent development was the class action suit against the Dept. of Interior for mismanaging "indian trust funds" based on income from lands allotted to indians in 1887:

During the late 1800s, Congress and the Executive branch believed that the best way to foster assimilation of Indians was to "introduce among the Indians the customs and pursuits of civilized life and gradually absorb them into the mass of our citizens." Under the General Allotment Act of 1887 (the Dawes Act), tribal lands were divided and assigned to heads of households as individually owned parcels 40–160 acres in size. The Dawes Rolls are the records of the members of each tribe who were registered at the time. The total land area comprised by the allotments was small compared to the amount of land that had been held communally by tribes in their reservations at the passage of the Act. The government declared Indian lands remaining after allotment as "surplus" and opened them for non-Indian settlement.

Section 5 of the Dawes Act required the United States to “hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made…” During the trust period, individual accounts were to be set up for each Indian with a stake in the allotted lands, and the lands would be managed for the benefit of the individual allottees. Indians could not sell, lease, or otherwise encumber their allotted lands without government approval. Where the tribes resisted allotment, it could be imposed.

By passage of a series of statutes in the early 1900s, the government’s trusteeship of these lands increasingly was made a permanent arrangement.

Today, there are approximately four million owner interests in the 10,000,000 acres of individually owned trust lands, a situation the magnitude of which makes management of trust assets extremely difficult and costly...There are now single pieces of property with ownership interests that are less than 0.0000001% or 1/9 millionth of the whole interest, which has an estimated value of .004 cent.

mark writes:

I enjoyed both the post and the comments which seemed all quite insightful.

I am in the middle of Philbrick's "Mayflower" and so it is interesting to note how much of the land that the Puritans settled on was either (a) considered by the Native Americans to be unproductive such that they were happy to let the Puritans settle there, or (b) was transferred in an exchange by the legitimate representative of the tribe that controlled the land at the time. There was also much vacant land that no one claimed to hold or control, not solely because of a communitarian ethic but in part due to the unintended large scale depopulation that came from a plague epidemic shortly before the Pilgrims landed, likely transmitted from French trading ships in the Maine - Canadian area. And that many of the conflicts that occurred were not solely settler vs native but were often native and settler vs other natives. And that the settlers began selling arms to the natives pretty quickly.

Obviously there are other stories - the Trail of Tears in the SE, for instance, and I am well aware of them.

IVV writes:

I might just go for this.

My family had an estate taken from them during the Mexican Revolution. Earlier than that, my ancestors lost their homeland... to my ancestors. Go back further, and my ancestors had to give up their holdings and religion during the Reconquista, once again, to my ancestors. I suspect we can follow this path back to Ancient Egypt with some digging.

Now, for my other family branch, my ancestors lost property in England thanks to Cromwell. If we indict Oliver Cromwell, can we claim that land back? I suspect that my Gaulish ancestors had to give up land to my Gothic ancestors, too.

Ooh! Irish! I've got links back to County Donegal! Bet the English ran us off a few times, too! Probably was Cromwell again!

I like this game. I should own a good portion of North America and Europe. I should marry a Manchu and have our kid claim northern Asia.

MichaelM writes:

Why do we need some abstract ideological principles for this kind of thing? We've already got the law. Settling up with pre-Columbian Americans would just consist of untangling the mess of legal knots surrounding land rights in the US. Identifying ill-enforced or outright violated treaties, tracking down land purchases (while simultaneously working out whether it was real title being offered in said purchases or merely something like usufructory rights), deciding when and where principles like adverse possession would apply, etc etc.

It would be horrifically complicated, but that's the kind of thing lawyers live for: Never-ending paid work.

Steve Sailer writes:

By the way, speaking of compensation, Mitt Romney's dad received a few thousand dollars in 1938 from the Mexican government in settlement for the Romneys being thrown off their Mexican farm during the Mexican Revolution a quarter of a century earlier. I suspect from the date that the Mexican government deciding to settle long-standing lawsuits against it from ethnically cleansed Americans like the Romneys was tied into the nationalization of the American-owned oil industry that same year, as sort of a sop to placate some aggrieved Americans.

Steve Sailer writes:

I also do think the homestead argument is not wholly unreasonable. For example, when you visit Peru, you notice how hard the Incas worked and how large their population must have been. For example, all over the Peruvian highlands, there are abandoned terraces on steep mountainsides that had been laboriously built to grow more potatoes. Those guys worked hard and worked smart, doing things like building 100 mile long aqueducts comparable to, say, Roman aqueducts. So, when some leftist populist Inca-based Peruvian political party wants to tax the (white) rich more in retribution for Pizarro, I can see where they are coming from.

In contrast, the U.S. has a couple of orders of magnitude fewer Indian tourist-attraction ruins. The Indians of California lived particularly lightly on the land. The Indian population of what's now the U.S. was growing as corn was slowly adapted to growing in higher latitudes, but population densities were only rarely approaching those seen in Latin America.

James writes:

Morgan,

Why do you believe that "Rights stem from force?"

To be clear, I'm not asking you to defend the position that force is sometimes necessary to persuade people to recognize the rights of others as your example of the old USSR amply demonstrates.

Wil writes:

So basically.. the Lockean view of property is absolutely useless- no property owner has a moral-chain-of-custody, so the whole thing is worthless.

In practice, property rights are just whoever-can-hold-it-gets-it.

Snorri Godhi writes:

Steve: "I also do think the homestead argument is not wholly unreasonable."

That's a good way of putting it: the argument is reasonable as presented by Locke. The trouble starts when it is turned into an axiom: then you need sophistry to justify statutes of limitations and to protect people who buy stolen goods in good faith, without which it would be unworkable.

Also, the homestead principle does not protect tribes which did not cultivate their land. (Nor, contrary to Rothbard's example, the user of a watch, unless she repairs it, or pays to get it repaired.) And how much cultivation is needed? a potato per square meter? a potato per hectare? You might see this as invalidating the land claims of those tribes, I see it as a limit of the homestead principle.

Snorri Godhi writes:

BTW David Friedman's distinction between moral, legal, and positive rights is relevant here.
The homestead principle gives a (not indisputable) moral right to ownership.
It also gives a legal right, but only when and where it is adopted as law (this could be unwritten customary law).
Unfortunately for the native Indians, they did not have a positive right to land, in the sense that they could not defend it for long. To do so, they would have had to keep pace with European developments in warfare technology.

Keith writes:

"In the extremely unlikely event that any particular Indian can show that he personally is the rightful heir of a particular Indian who was wrongfully dispossessed of a particular piece of property, the current occupants should hand him the keys to his birthright and vacate the premises."

Bryan, what do you think of the Republic of Lakotah movement?

Links: http://en.wikipedia.org/wiki/Republic_of_Lakotah
http://www.republicoflakotah.com/

John Smith writes:

To Tracy W:

The old man in your case effectively abandoned the land, and therefore the new owners held legit title to the land after the legally required duration has passed by. From my understanding, this is standard legal doctrine in many countries. You are obligated to enforce your title. If you refuse to enforce your title, your title is deemed to be released.

Richard Reinsch writes:

I have something of a response to this post at Law and Liberty: http://libertylawsite.org/2012/09/20/on-brian-caplans-inquiry-do-indians-rightfully-own-america/

Matt writes:

Bottom line is that homesteading is just nonsense. Using land in a certain area in no way confers a property right on that area. The only reason such a nonsensical and self-contradictory basis of property rights was even conceived is that property in land had been established, and the status quo had to be justified somehow.

What everyone really has is a right to use land; an equal right to use land. There was never any valid justification for property rights in land; it was simply a clumsy means of securing property rights in fixed improvements. There's no valid basis to make a portion of the earth's surface into property: all land is claimed on a basis of force, period. This must be accepted, and then the focus should turn to how best to reconcile equal rights, given this fact. Continued reliance on this 'homesteading' canard is just the stuff of property fetish.

Martin Brock writes:

Homesteading is a principle that I reject rather than nonsense, but I agree with Matt otherwise.

I accept the Lockean premise that people ought to govern fruits of their labor. The fruits of a man's labor can be inseparable from a parcel of land, but this fact does not imply any right of hereditary title in perpetuity. For one thing, the value of fruits of a man's labor, bound to a parcel of land, depreciate over time.

If I increase the value of land by clearing and plowing it, I have this sort of right to the cleared, plowed land, but rains wash away the furrows I plow, and I must clear the land of weeds again next year.

I have no similar right to gold beneath the surface or to rain falling on the land or to countless other determinants of the value of the land. I have a right to a marginal improvement, and if I do not continually labor on the land myself, the value of my improvement gradually declines until nothing is left of it.

Hereditary title may nonetheless be useful, as opposed to some other system like state ownership, but it is not justified simply by the propriety of a man's sovereignty over the fruits of his own labor.

Dennis writes:

As a documented descendant of an American Indian tribe I must respond: "Many of "us" aren't even descended from either side." Well you just met one, and there are thousands, millions left that the Genocide just could not kill off. "In any case, the last time I checked, both libertarians and virtually all of our modern critics reject the doctrine of inherited guilt." To an Indian, heritage means everything. It is why Indians (to some inordinate) respect burial places and for example will stop the Keystone XL project from willy nilly desecration of them. Some will never understand a right ends where another begins. Just because a people hold for truth (one being the loose respect of property rights) a value system that is not made real by the scientific method or overwhelming force is not an excuse for its non-respect, nor is it license for Genocide. To this descendant current subscribers to the rejection of the 'doctrine of inherited guilt' blind themselves to the historical context in which they thrive. On the one hand they willingly inherit from their parents, if not directly, indirectly by a system designed, bought, and paid for for their benefit and benefit from generational accumulation of benefits tangible and intangible, and on the other hand deny any responsibility for their position AND say to original owner's descendants, stop being a victim, there is plenty of opportunity - go out and get it. We get this is 2012. We also get the spiritual tie that binds us to our ancestors, not needing an I-phone 5 to make the connection. Today you are our brothers and sisters, get that? We would be remiss as a brother not to remind you that you inherit from a multicultural set of shoulders and this inheritance comes with both benefits and responsibilities. We would have you see, and not blind.

Tomkow writes:

All parties to this dispute need a more sophisticated theory of property.

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