Native Americans And Property Rights
By Leonard P. Liggio
retrieved from The Libertarian Forum VOLUME III, NO. 1 January, 1971

PART 1

Libertarians owe a debt of gratitude to The Individualist for publishing "The Property Rights of American Indians," by Rosalie Nichols (February, 1970). I do not agree with some of the points made by Miss Nichols, but I think that the topic is one of fundamental importance to libertarians. The matter of precise understanding of property rights in actual practice is basic to libertarianism; yet it is an area of the most profound ignorance and plain sloppiness among many libertarian-oriented people. If such people are not reliable on the matter of property rights, one wonders whether they have been drawn to libertarianism not by its rigorous theory and practice but by heaven knows what accidental cultural attractions. Central to the libertarian is which claims and titles are and which are not property; flowing from this theoretical discovery must be action to defend property in the hands of its rightful owners and to place it in the hands of these rightful owners wherever non-owners have occupied or used it. Justice is the ultimate objective of libertarians.

Obviously, any libertarian who concerns himself or herself with such matters is engaged in the preeminent libertarian activity. Rosalie Nichols clearly is such a person. Any differences which I may have with her are secondary to the fact that she has embarked upon preeminent libertarian activity. It is an honor to engage in a dialogue with her.

The history of the European immigrants' relations with the native Americans is one of unrelieved violence. In that shameful history the English immigrants were conspicuous by their violence. Other European peoples have been less violent, and the French were reknowned for the almost good relations which they maintained with all Indians, gaining friends even among former enemies, as Rosalie Nichols notes. For almost four hundred years the English immigrants have maintained a permanent system of violence against the native Americans.

The original sovereignty claimed by Europeans over the American Indians and over the land of North America was based upon the European claim of religious superiority. Since Christianity was viewed by the Europeans as giving Christian governments and Christian individuals a superior claim compared with others, including the inhabitants, the European claim to dominance is based on their Christian religion. This was the basis by which the native Americans were denoted as 'savages' while the barbaric Europeans were denoted as 'civilized.' As Rosalie Nichols indicates, it was the designation as 'savage' or pagan upon which the rights of the American Indians to life, liberty or property were violated. One recalls the famous description of tbe landing of the English in North America: "First, they fell on their knees to pray; then, they fell on the Indians."

Fall on the Indians they did. In New England the Indians first encountered by the English immigrants had the misfortune to occupy and cultivate the better farm lands as well as to prefer to sell their furs to the highest bidder. Clearly savages par excellence; extermination was their fate. The other New England Indian tribes inhabiting the valuable river valleys flowing into Long Island Sound--Pequots, Narragansetts, Mohegans, etc.--were later massacred or sold into slavery in the West Indies by methods too gruesome to describe...but sanctioned, when not led, by ministers of religion and civilized officials. In Virginia several campaigns were fought against the Indians who had originally welcomed the settlers in the James River region; the institutionalization of Black slavery (the Indians were too 'savage' to accept enslavement which was the original hope of the labor-short, land-rich European officials) led directly to the desire for huge plantation tracts and the wars to oust the Indians from the other river valleys.

Whatever the roots of European violence, even the argument that the profound differences between Europeans and native Americans could mitigate some of the violence--irrational as that argument is--is unsupportable; the model of the methods, attitudes and practice of violence carried on by the English upon the native Americans was established in the violence of the English 'plantations' imposed on the Christian, European, and neighboring Irish (of which the current civil war in Ulster is one product). Late nineteenth century English and American social theorists (mainly socialists), creating the intellectual foundation for the New Imperialism of this last century, singled out their English forebears' violence against the Irish, native Americans, et al. as proof of their racial superiority--aggressors and conquerors are defined as superior to the exploited and oppressed in superman theories--and as the justification for the wars of extermination and conquest launched by England and America, and which have culminated in the American aggression in Vietnam.

However rationalized, the Europeans' claim to sovereignty over North America is logically unsupportable. However, Rosalie Nichols claims that the North American continent could be legitimately claimed by the native Americans. She says: "The American continents were not ownerless." Yes, if it is meant that certain lands were owned. Certain lands were owned and the major part was unowned. I doubt if she means that the native Americans claimed sovereignty over North America (although, of course, if such a thing as sovereignty could be legitimate the native Americans would have possessed it and not the Europeans). But, the property rights of the Indians to the land they owned must be recognized; as well as the fact that that right was totally violated by the English immigrants.

When the English immigrants landed in the Chesapeake Bay and the Massachusetts Bay they were welcomed by the Indians. The English settlers brought manufactured products not yet developed by the Indians and the Indians taught the English immigrants agricultural methods not yet developed by the English. The Indians did not view the establishment of private property in land by the immigrants as anything wrong, immoral or in violation of their rights. The Indians along the Atlantic coast recognized that there was more than enough land there to satisfy many hundreds of times the tens of thousands of immigrants who poured out of England to find a freer and better life in America. The difficulty was that the English immigrants were not satisfied to live alongside the Indians in mutual recognition of rights. The English insisted upon the power of government over the lives and the lands of the Indians. According to the English, there could be no free exchange between individuals and groups living their own lives on the wide land. The English had to have the monopoly over people and land. The people and the land had to be obedient to English immigrant officials.

The problem then was not the matter of settlement and private property, but the matter of government. Where government exists, private property rights are negated. When the English immigrants came, they were divided into two groups, or classes, the farmers who settled and worked their private property and the rulers who had assumed government positions. The English immigrant farmers and the Indians tended to live in peace and mutual respect. It was the claim of government over the Indians by the English immigrant officials which was the cause of aggression and genocide against the Indians. The government officials in all the colonies used their offices as the means of their personal enrichment; since there was little in the form of liquid capital to be seized, they seized lands in the hopes that future immigrants would have to purchase lands from them if there were none available for free settlement, The governors did not attempt to develop the land to turn it into private property; rather they assigned each other large tracts of lands which they left unimproved and undeveloped-there was no mixing of labor with the lands. It was pure feudalism or land monopoly, the negation of private property. Most of the lands in the colonies not occupied by settlers were distributed among the government officials as land grants (there were also large land grants given to the courtiers by the English kings).

Of course, these tracts included the areas on which the Indians were settled and had carried out their industries of farming, fishing and hunting. So the Indians suffered the double violence of being placed under the government of English immigrant officials and of English land grantees--often the same people. If the Indians did not accept English immigrant government, war would be made upon them; if they did not accept English feudal landholders, war would be made upon them--by governments. In addition, if the Indians continued to live and to work these lands it would be difficult to get new immigrants, who now had to go to one of the land monopolists to get land, to pay much or any money for land which the Indians already lived upon and worked. The ordinary settler had enough common sense and respect for rights not to want to claim land which the Indians already lived upon and worked.

If the immigrants merely went in and worked unused land the Indians would have no objections, or if they came to an understanding with the Indians who might be using the land--the Indians valued very low economically their marginal uses of the land for hunting and fishing,--the Indians would have no objections, But, this disturbed the feudal landlords who wished to assign lands and collect 'prices' or taxes, The existence of Indian settlement and farming undermined the feudal land monopolies, so the land had to be cleared by the extermination of the native Americans.

During the colonial period, the Middle Colonies witnessed less violence against the Indians. In part, this was due to the fact that most of the settlers there were not English. Like the French in the St. Lawrence and Ohio-Mississippi valleys, the Dutch, Swedes and Germans were more interested in the profits of commerce and good farming in peaceful accord with the Indians than in the destruction of lives and money in the plundering of the Indians, This situation was institutionalized with the founding of Pennsylvania by the Quakers; as in so many other matters, the Quakers are worthy of close analysis by libertarians.

The relations of the Quakers with the Indians were a model of justice which was constantly commended by the Indians themselves. The last of a series of mutually agreeable treaties between the Indians and the Quakers, the Treaty of Easton of 1758, placed the final limitation on European settlement. Pennsylvania released all claim to the soil west of the Alleghenies and of a large section east of the Alleghenies and north of the present Sunbury, as long as the Indians did not sell the territory to any other government.

This treaty of the Quakers was used by English government officials at a conference with northern Indian chiefs at Canajoharie on the Mohawk River west of Albany as an example of English intentions (April, 1759): "I hope this surrender will convince you and all other Indians how ready your brethren the English are to remove from your hearts all jealousies and uneasiness of their desiring to encroach upon your hunting lands, and be a convincing proof to you how false the accusations of the French are that we are at war with them, in order to get your country from you." Of course, the French accusation was accurate; the English had gone to war against the French to gain the trans-Appalachian Indians' land which was protected by the French.

The officials in England in league with the American officials and the heirs of officials, who inherited the huge feudal domains that were the fruits of office-holding in America, hoped for even larger rewards by gaining land monopolies across the Appalachian Mts. Having monopolized the lands along the Atlantic coast, the planters by control of the government apparatus excluded the newer immigrants from homesteading the wide lands along the Atlantic coast. Since the Atlantic coast region is able to support many times its present population there was no economic need for Europeans to settle beyond the mountains. The only attractive resources--minerals--were either in the Appalachian Mts. or bordered major waterways such as the Great Lakes, and could have been extracted by miners whose settlements would be approved by the Indians without any difficulties.

But, as a result of the feudal land system along the Atlantic coast, the new immigrants could not pay the high 'prices' demanded by the government officials and their heirs; they hoped to be able to homestead across the mountains. Crossing out of the control of the seaboard officials, into the lands of the western Indian tribes, these settlers could and did homestead farms and gained the recognition of the local Indians. An ideal situation would have been the acceptance by the European settlers of the essentially stateless society of the Indians. The Europeans could have developed among themselves and with the Indians a social system based on free exchange which was the basis of much of the economic life of the Indians. The Quakers' excellent relations with the Indians were based on the fact that they were the only Europeans dedicated to social relations based upon equal and free exchange--which explains why Quakers have always been out of step with other Europeans.

An imperfect but acceptable system was proposed by some of the wise organizers who carried forward the American Revolutionary struggle against English officialdom and their associated American feudal landholders. The revolutionary impetus for the abolition of feudal holdings and their replacement with the institution of private property would have meant that there would be plenty of land for homesteading along the Atlantic seaboard. But, retaining elements of Christian messianism, the United States government claimed the trans-Appalachian territories inhabited by the Indian tribes, However, the trans-Appalachian areas were projected as states in the American Confederation: states composed of and controlled by the Indians themselves.

During the period of the American Revolution the control of the trans-Appalachian territory by the Indians was recognized in treaties with the American Congress such as that between the Delawares and the Continental Congress (September, 1778). In return for a trade dependency in which the Americans had the monopoly right of supplying goods for purchase by the Indians, the United States proposed that the Indians could form state governments in the trans-Appalachian area which would be equal to the states of the European settlers on the Atlantic coast. "...the United States do engage to guarantee to the aforesaid nation of Delawares, and their heirs, all their territorial rights in the fullest and most ample manner as it hath been bound by former treaties, as long as the said Delaware nation shall abide by and hold fast the chain of friendship now entered into. And it is further agreed on between the contracting parties should it for the future be found conducive for the mutual interest of both parties to invite any other tribes who have been friends in the interest of the United States, to join the present confederation, and to form a state whereof the Delaware nation shall be the head, and have a representation in Congress." A similar project was promised to the Southwest Indians in the Hopewell Treaty of November, 1785 with the Cherokee Nation: "That the Indians may have full confidence in the justice of the United States, respecting their interest, they shall have the right to send a deputy of their choice, whenever, they think fit, to Congress."

The Northwest Ordinance passed by the Continental Congress in 1787 declared: "The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress." In conforming with that a treaty was drawn up with the Indian tribes north of the Ohio River and west of the Allegheny mountains. Signed in January, 1789, the United States did "confirm the said boundary line; to the end that the same may remain as a division line between the lands of the United States of America, and the lands of said nations forever," and did "relinquish and quit claim to the said nations respectively, all the lands lying between the limits above described, for them the said Indians to live and hunt upon, and otherwise to occupy as they shall see fit."

This reasonable arrangement was quickly overthrown by the new government which took control in April, 1789 as a result of the overthrow of the Continental Congress and the Articles of Confederation by the coup d'etat in Philadelphia in 1787. The control and exploitation of the lands west of the mountains was a major cause for the calling of the secret conclave in Philadelphia and for the Constitution it produced. Just as the impetus for the abolition of feudal holdings and the institution of private property following the revolution was blunted, so the impetus for the aboliton of slavery had been blunted. Part of the drive for the new, more powerful central government was in defense of slavery. The limitation against slavery in the whole west as originally intended was restricted to the Northwest territory, opening the Southwest territory to slavery. The plantation areas of the coast had become depleted and the slave-holders required new territories extending through Georgia, Florida, Tennessee, Alabama, and Mississippi for plantation cultivation. Land clearing by the extermination of the Indians was necessary to make room for the slave quarters.

The early aggressions by the new United States government were defeated by the Northwest Indians in November 1791; but the United States army reversed this defeat and "the big push westward over the prostrate bodies of slaughtered Indians was begun." A thorough and detailed description of the process of genocide carried out by the United States government against the American Indians would be required for a final view of the subject. A study of the "Five Civilized Nations" of the Old Southwest would be a good beginning. The Cherokee, Chocktaw, Chickasaw, Creek and Seminole had some of the most developed and productive villages among the American Indians. Their skill in agricultural industry made them especially subject to elimination. By 1838 the "Five Civilized Nations" had been driven over the "Trail of Tears" from their rich lands to the barren territory across the Mississippi River.