In the Rothbardian-Hoppean school of libertarianism, all legal disputes come down to property rights and contractual obligations. Therefore, there is much discussion about originary property rights (stemming from homesteading unowned land) and about who has rights to places that people claim to have been displaced from long ago when those areas have been inhabited by many groups, often simultaneously, both pre- and postdispossession.
Many students of the messiest conflicts in history in terms of property rights come to the conclusion that specific evidence of ownership and dispossession must be a requirement in any effort to restore stolen property or provide compensation to those who have been wronged. At the very least this can be called a reasonable position. Specifics matter when property rights, and therefore people’s right to live unmolested and to provide for themselves, hang in the balance.
But although time has rendered many valid claims unenforceable and will do so ever after, sharpening the conception of property will improve libertarians’ ability to vet land claims and to provide redress should the opportunity arise. This is the case with American Indian property claims.
In discussing native property rights in the Americas, some libertarian scholars look to Lockean homesteading (where improvement of land establishes proprietorship) and argue that as “hunter-gatherers,” Indians did not legitimately hold any of the land they produced food on and can rightfully claim as theirs only a few areas where they built towns or otherwise had their homes. Hans-Hermann Hoppe is the most prominent example. In his excellent book A Short History of Man, Hoppe decisively concludes,
[I]t is erroneous to think of land as the collectively owned property of hunter-gatherer societies. . . . They did not exercise control over the nature-given fauna and flora by tending to it or grooming it. They merely picked pieces from nature for the taking. . . .
At best, very small sections of land had been appropriated (and were thus turned into collective property) by hunters and gatherers, to be used as permanent storage places for surplus goods for use at future points in time and as shelters, all the while the surrounding territories continued to be treated and used as unowned conditions of their existence.
Going into further detail, Hoppe claims that hunter-gatherers do not interfere with the land to make it productive. They pick the berries but do not trim or water the bush; they follow and hunt animals, sometimes even herding them, but do not alter the land to corral them or otherwise promote stable reproduction.
Murray N. Rothbard seems to be more familiar with native land use, asserting that the Indian peasantry of tillers in particular was dispossessed of its legitimate landholdings during the Spanish conquest of present-day Latin America. It’s clear that he understood Indian homes, villages, and the extensive fields that surrounded farming groups’ settlements were legitimate landholdings. His interpretation of Lockean homesteading also seems broader. Rothbard writes:
[T]he justification for the ownership of ground land is the same for that of any other property. For no man actually ever “creates” matter: what he does is to take nature-given matter and transform it by means of his ideas and labor energy. But this is precisely what the pioneer—the homesteader—does when he clears and uses previously unused virgin land and brings it into his private ownership. The homesteader—just as the sculptor, or miner—has transformed nature-given soil by his labor and personality. The homesteader is just as much a “producer” as the others, and therefore just as legitimately the owner of his property.
Rothbard seems to leave room for unfamiliar ways of using knowledge and labor to alter places and turn them into sites of productive value and thereby property. He also rightly clarifies that land does not have to be in continual use to be validly owned, but only “be once put into use.” This is an important clarification, given that often when native residential and agricultural lands are acknowledged as property, the implication is that only sites in then current use are considered as such. So-called nomadism renders all old village and hunting camp sites abandoned and therefore unowned, even though most groups were in fact seminomadic/semisedentary, cyclically moving between predetermined places within their established territory.
Nevertheless, Rothbard ultimately seems to be in agreement with many libertarian scholars that the lands and waters that many groups harvested plants, fruit, and especially animals from were illegitimately claimed because they had not been homesteaded. As economic historian Patrick Newman explains, Rothbard unreservedly deems the prospering of the American colonies “a happy accident” made possible in part by “the sheer abundance of unsettled land.”
Although it is true that Indians did not own every square inch of the Americas and that there was therefore ample room for new legitimate homesteaders, the assertion that no one owned any of the forests, lakes, rivers, or other hunting grounds in the Americas seems arbitrary. After all, libertarians in the Rothbardian-Hoppean tradition often mention the legitimacy of holding lands as parks, ecological preserves, and hunting preserves when they defend the free market against environmentalists’ attacks, and they long for the end of the tragedy of the commons in the world’s oceans and largest lakes and rivers, all of which states claim exclusively but let the highest bidders have their way with.
If legitimate property rights in these kinds of nonagricultural, nonresidential areas can exist for contemporary people, in groups and as individuals, and if people do not have to be omnipresent to own multiple pieces of land, the same rules must apply to people who came before. But that doesn’t mean passively accepting native peoples’ claims to vast tracts of land. Quite the contrary. As libertarians argue all the time, property is a universal and specific concept. It is everywhere characterized by exclusive control of a resource by owners and the exclusion of nonowners (enforced by legitimate retributive violence under the nonaggression principle). But landholders’ specific arrangements and practices are temporally, locally, and culturally contingent.
Taking the time to be more specific and local, there is ample evidence of different American Indian groups holding property in nonagricultural, nonresidential lands and waters.
Indians of the Northeast—eastern Algonquian and Iroquoian peoples including Wampanoags, Mahicans (Mohicans), Lenapes (Delawares, such as Munsees), and Iroquois (Mohawks, Onondagas, Oneidas, Cayugas, and Senecas)—held their territory as groups, although it should be noted that within the tribal lands, individuals and kin groups occupied specific areas, usually under a usufruct system (but sometimes seemingly in freehold). Because these groups usually hunted and gathered in addition to cultivating crops, their communally held territories included forests, meadows, rivers, beaches, and other wild-resource areas.
Because of the purpose that wild-resource areas serve, whether hunting, fishing, or gathering, it does not always make sense to compartmentalize them, to disturb them by carrying out nonharvesting activities in them, or to otherwise traffic them constantly. It is also sometimes a good idea to exploit these lands intermittently to prevent declines in game stocks and wild plant yields. In some cases, this strategy of land use—land management, more appropriately—gives the impression that these resource areas are unowned. But exclusion and control are the common features of property ownership across humanity, and these were clearly present in Indian wild-resource areas in the Northeast.
As historian Tom Arne Midtrød explains,
In precontact times, Indian groups in the Northeast tended to inhabit the land on both sides of drainages and river valleys. Beyond these core territories they utilized large hunting and foraging grounds with permeable boundaries that allowed several groups to make use of them at once.
Multiple claims to the same resource area were very common, but this does not mean that the area was unowned or illegitimately claimed. In all cases of shared wild-resource areas, the land was claimed by specific parties, usually neighboring groups. It was not merely open to all. Certainly, foreigners and other strangers could not freely use these lands without risking retribution.
In addition to simply making use of an area to the exclusion of nonowners, hierarchical claims of varying strength also existed. In these cases, certain specific groups owned and used the land almost as equals but one group preemptively retained certain rights. For example, Midtrød notes that the Peconic River formed the boundary between the Shinnecock and Yeanocock lands of eastern Long Island. Accordingly, the two groups had an arrangement in which both c0uld freely hunt the land around the river. The exception was that “the pelts and fat of drowned bears,” the skins of deer drowned or killed in the river, and the baby eaglets found in the area were the exclusive privilege of the Shinnecocks, a sign of the latter’s stronger claim to the area.
These kinds of unequal overlapping claims persisted in the Northeast after European settlement had begun, with Indians retaining hunting, fishing, and even planting rights as a condition of selling certain parcels. For example, in 1639, the sachem who sold present-day Queens County, Long Island, to the Dutch retained the right to “be allowed, with his people and friends, to remain upon the aforesaid land, plant corn, fish, hunt and make a living there as well as he can.”
Apart from claiming wild-resource lands for their exclusive use, neighboring Algonquian and Iroquoian peoples purposefully preserved them as foraging and hunting areas through maintenance and control of their development. That many of the overlapping claims on such lands specified who could hunt and what could be taken suggests that the proprietors restricted the use of these lands to hunting and foraging. Additionally, wild-resource lands were harvested regularly, but only at specific times of year, and like villages and their nearby fields, which were moved every twenty or thirty years within a group’s particular territory, allowing sites to lie temporarily fallow with the goal of ultimately reusing them, wild-resource lands were also allowed to recover from periods of regular use.
Northeastern Indians also actively altered wild-resource landholdings so that they would better yield the goods they needed. Most famously, northeastern Indians practiced controlled burning of their forests. As historian Andrew Lipman explains,
Regular burning cleared the way for easy foot travel, while ashes became a potent fertilizer, creating an artificial landscape that was highly suited for people’s hunting and collecting needs. Fire-enriched soil anchored hardwood forests heavy with maples that leaked sugary sap plus oaks and chestnuts that littered the ground with wholesome, protein-rich nuts. Especially at the edges of recently burned areas, colorful clusters of vitamin-loaded berries flourished in dense bushes, which in turn allowed game populations to spike.
Nor were their alterations limited to dry land. Among others northeasterners, coastal peoples such as Pequots, Narragansetts, Wampanoags, and Munsees built wood and stone weirs and set massive handwoven nets (around five hundred feet long) over river mouths to trap fish. These and other adaptations turned wild lands into valuable sites of wild food production for those who had wrought the transformation using their labor and wit.
Although neither Algonquian or Iroquoian groups claimed ownership of marine lands, other groups did. The Makahs, hunter-gatherers living in roughly five small communities on Cape Flattery, in present-day Washington State, are a prominent example. In this more stratified society, individual chiefs owned specific offshore fishing grounds in addition to beaches, locations for weirs, cranberry bogs, and more typical hunting and gathering spots, bequeathing these to their heirs and kinsmen. As historian Joshua L. Reid explains, “Chiefs managed and monitored use of these resources and extended usufruct rights . . . to family members and others [especially commoners who accepted their authority], even possibly to non-Makahs on an occasional, case-by-case basis.” Those with use rights gave a portion of their harvest to the owner of the resource; others were actively excluded, and trespassers were met with defensive violence against person and property.
Although knowledge of a site’s name and resources cannot be said to establish ownership in themselves, lack of knowledge was a clear sign of someone with no rights to an area in Makah and many other Amerindian societies. Makah terrestrial and marine landholders’ thorough and localized knowledge of their resources allowed them to successfully produce large-scale harvests of fish and whales for export in the nineteenth century. In actively working particular stretches of ocean, Makahs “mixed their labor with the ocean . . . [and] transformed the sea into their country.”
These land use and management practices—especially the universal custom of barring nonowners from landed property—improved wild-resource areas, keeping them fruitful for the benefit and enjoyment of those who owned them, and protecting them from the overharvesting that plagues true commons (open-access zones). As such, these practices are redolent of the Lockean idea of acquisition of property rights via the labor exerted on land as well as Hoppean notions of landed property’s origins in tending land.
Libertarians in the Rothbardian-Hoppean tradition should continue to posit specificity and proof as the only avenue toward justice in land disputes. However, they should also strive to look beyond traditional fencing, clearing, and tillage as demonstrating human manipulation and use of land for productive purposes and establishing landownership. The only real way we can hope to fairly evaluate claims in terms of specific individuals and groups under natural law is to open ourselves to the realities of decentralization and the idiosyncrasies of land tenure that have sprung from humans acting out their right to self-determination the world over. In doing so, Rothbardian-Hoppean libertarians will be better equipped to help properly vet land claims and move toward resolving historical and contemporary disputes as the opportunity arises.
Not least important, firming up the concept of property and its origin is a necessary step in ridding natural legal theory of the faint traces of arbitrariness that its earliest articulators impressed it with. Arbitrary notions of how validly held land must look serve to obscure the universal nature of private property and natural law in humanity. The stench of hypocrisy and irrational bias repulses potential newcomers, sending them sailing back, for the truth seems like a perverted dogma. To draw people away from the enemies of liberty and peace, we must dig deeper to uncover all the intricacies of property rights, that the truth of the peaceful, voluntary interaction that it fosters may be an unmistakable beacon.