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Property rights and native American Indians

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 therefore that government can redistribute to whatever groups wield sufficient political power to demand a share of the spoils. Of course, that is a non sequitur; past injustices do not justify new ones, against people who did not commit the original wrong. It’s true that, as Twain said, there’s not a foot of land that has not been stolen and restolen countless times. But isn’t this good reason to stop stealing what belongs to people? Instead of institutionalizing as social policy into the indefinite future a system that deprives people of their earnings, their belongings, and their substance, to serve priorities that others consider more important? The American Indian suffered terrible abuses, and stands today as an object lesson in what happens when government is given too much power to seize and redistribute property. Yet Yglesias praises that state of affairs and urges its repetition! That really is outrageous.

Absolutely. When debating collectivists over issues such as property ownership, I sometimes come up against the “but the original owners of land stole it” line, except that even if true, it seems absurd to suggest that every subsequent transaction, however free of coercion, is somehow tainted in some way. So a caveman beat up his neighbour and took a patch of territory – that hardly means I am not the legitimate owner of my small apartment in Pimlico.

Update: Related thoughts from Bryan Caplan. It includes an example of Murray Rothbard at his very best.

22 comments to Property rights and native American Indians

  • I don’t think it’s quite as simple as you and Sandefur make it out to be.

    If I steal a car and sell it to you, and I get caught and I admit that I stole the car, the original owner of the car gets his car back. That, at any rate, is the idea. And it’s a good idea. Quite what you get in compensation depends partly on whether you knew I’d stolen it, and partly on whether I have any money left to give you. If you did know I stole it, you presumably lose your money.

    What Yglesias is doing is taking this principle and stretching it way, way beyond its reasonable limits, while trampling all over some other equally valid principles, which it would be much more reasonable to go with in this case.

    But it isn’t straightforward wall-to-wall bollocks. It’s bollocks on a tiny foundation of non-bollocks. The more dangerous sort of bollocks, I would say.

    I keep coming back to it, that 1984 Libertarian International talk by Leon Louw, in which he said that there is no legal principle that does not have a potential grey area attached to it, where it is unclear whether the principle applies or not. Somewhere between you losing your Pimlico flat and it being given to the descendants of the presumed tribal brethren of an ancient cave-man (actually political chancers), and you buying a stolen car, for an obviously stolen car price, that you knew had been stolen, there is yet another such grey area.

  • Jaded Voluntaryist

    In the case of Native American rights the car analogy is not quite right.

    Rather, your great-great-great grandfather stole someone’s car and used that car to achieve a degree of success in business. Whereas the person whose car was stolen endured a life of hardship at least in part because of the theft.

    The Native American rights movement is akin to the victim’s great-great-great grandson coming to you – asking for his great-great-great grandfather’s car back, and also wanting compensation for the intervening 4 generations who have had difficult lives because of your ancestor.

    And people criticised the Hebrews for the whole “sins of the father” thing. The politically correct “race guilt” industry extend it to “the sins of the great great great grandfather”, or even earlier.

    It is certainly true that much of what our hypothetical descendant of a thief may possess will have originally been stolen – but he had nothing whatsoever to do with the theft. The theft occurred before he was even born.

    So he could in no way be held culpable for it. Likewise it is unreasonable to expect him to pay compensation for something he didn’t do.

  • Yglesias is a scumbag so no surprise there

  • Paul Marks

    Bran is correct – but so is J.P.

    As both the Common Law tradition and the Roman Law tradition understand – there is a vast difference between buying stolen goods when the owner (the owner who was robbed) is recent, and buying stuff (including land) from someone who bought it, from someone who bought it….. (and back to the year dot).

    But do not bother trying to explain this to the “libertarian” left.

    In fact do not try and explain anything to them.

    Not that the Labour Theory of Value is nonsense, or that the employers being better off than employees does not mean “exploitation”, or…..

    Or, as said above, anything at all.

  • TDK

    The argument is usually presented as the following

    A person steals something from you. A third party buys it in good faith. That good faith does not negate your right to restitution. The third party must return the property to you and take up a claim against the thief.

    The problem with this argument is not that it is invalid but that in the question of land it is exceeding difficult to determine the status quo ante, and without knowing that we cannot definitively put right the wrongs of the past. Take for example the Native American. Whilst we can determine that frequently land was “stolen” from the Indian in by the US, we know also that the Indian frequently stole it from other Indians and inevitably most of those events were in pre-history. The Current owners regardless of when you select your datum were almost certainly not legitimate owners whether they stole or bought in good faith.

    The method doesn’t solve the problem it merely establishes a grievance and sets up an legitimate authority to bring about restitution even knowing that the authority cannot ipso facto resolve the problem.

  • To clarify: I agree with Micklethwait. I don’t deny that the ill-gotten-gains problem is a real one–though in the end, I think it does not defeat the validity of property rights. It’s unnecessary to address that issue, though since (a) even if we grant its validity, it doesn’t warrant Yglesias’ conclusion, and (b) on the contrary, Yglesias’ view of property rights makes it untenable for him to regard Indian Removal as an evil.

  • Russ

    @Jaded: unfortunately, you’re hitting with a broad brush that obscures some legitimate issues, such as the enforcement of treaty rights (which the feds generally work to support, and states routinely do their best to trample).

    By treaty, the Mohawk have the right to hunt anywhere in NY, *period.* If right-wingers were to hire Mohawk guys to hunt those antlered lawn-rats off their yards, in exchange for cold, hard cash and a cut of the venison, I suspect that this would lead to a significant change in leftist attitudes regarding collective rights…

  • PersonFromPorlock

    Ah, but the Amerinds migrated into the empty Americas 12,000 years ago and spread throughout the continents in an orderly manner, thereafter living in peace and harmony with both nature and their neighbors.

    So that’s different.

  • Laird

    The concept of “stealing” land from the American indians makes no real sense, and this whole discussion confuses the distinction between private ownership and sovereign dominion.

    It is certainly true that large swaths of land were once claimed by various indian tribes in a collective sense, but (as far as I know) individual indians never “owned” specific plots of land. This collective ownership is more akin to a national claim, and is really little different than the US government’s dominion over all the land in the country (even if some of it is nominally privately owned). Indeed, the various indian tribes are specifically referred to as “nations”, and have treaties qua nations with the US government. Thus the taking of tribal lands by the US is no different than any other conquest of territory by one nation from another. In a similar vein the US acquired much of California and the southwest as a consequence of the Mexican-American war, and while many Mexicans would like to see it returned the fact remains that it was not “stolen” in any legal sense: it was ceded (admittedly at bayonet-point) by treaty from one government to another. That territory was acquired by right of conquest, the oldest form of national claim which exists. You don’t have to like it, but it’s there.

    Various indian nations may have claims against the US government for treaty violations (good luck with that, given the doctrine of sovereign immunity and the undisputed ability of a nation to withdraw from any treaty at its pleasure), but no individual has any legitimate claim against any other over this. My little plot of land in South Carolina may once have been a part of the vast Cherokee Nation but it is no longer, and no Cherokee has any legitimate claim against me with respect to it.

  • Tedd

    What Laird said.

  • Richard Thomas

    There are some very real issues with the concept of the ownership of land. I think we can all agree (mostly) that we should a secure in our abodes and almost certainly some of the land around it. There’s a gray area somewhere between that and monopolizing all the land such that non-land-owners have to pay you rent merely to live. Then there are conflicts such as between the ranchers and cattlemen in the old west, settlers and nomads.

    The status quo works after a fashion but it is far from the “correct” way to handle it.

  • Laird

    “Ownership” of land is a very large concept, and includes a lot of different things depending upon a variety of factors. One can “own” surface rights, mineral rights, water rights, air rights or any combination thereof. One can “own” any such interests for a term of years or in perpetuity; subject to reversionary or springing rights upon the occurrence of certain events; subject to temporary or permanent transit rights of third parties (either defined persons or the general public); subject to conditions and limitations established by prior owners; etc. And in any case whatever rights you “own” are subject to the superior sovereign rights of the various governments having jurisdiction over it (zoning and land use rules, taxing authority, flyover rights, etc.). Even the right to be “secure in your abode” is subject to all sorts of qualifications and limitations. It’s not simple, and there most certainly is no ” ‘correct’ way to handle it.”

  • Sean

    A lot of these issues could be quickly sorted if the problem was properly defined. The concept of ‘ownership’ as defined in the West is/was unknown to most ingenous people. They ‘posessed’ the land – for as long as they could hold it against a stronger tribe/claim/force. Once it was taken they moved on or fought to get it back. The concept of ‘ownership’ ie. it is mine no matter what the other party says/does was introduced to them in the same way ceramics, metalurgy, and literacy was. To pretend otherwise is the root of the current ‘problem’.

  • Jaded Voluntaryist

    For some reason this is putting me in mind of that Futurama episode with the “native Martians” who eventually find out the “bead” they traded their whole planet for was in fact a massive diamond:

    Singing Wind: We always thought bead was worthless. We assumed our ancestors were cheated because they not have concept of ownership.

    Bender: So we can have the diamond?

    Singing Wind: No, we do have concept of ownership.

    Singing Wind: You are free to go. Sorry about all the rustling and kidnapping.

    Turanga Leela: But what about your sacred land?

    Singing Wind: Land, schmand. We don’t wanna live on this planet. It’s a dump. We buy new planet and act like it’s sacred. With cash like this, who’s going to argue? Nobody, that’s who.

  • thefrollickingmole

    I think the point being missed is this whole “stolen land” issue is aimed at (generally) white, democratic, proserous nations.

    And that it laegely reared its head during the cold war, yet another angle for the soviets to delegitimise the “west”, and of course taken up with gusto by the morons in our intelligencia.
    Also note its a call to collective ownership of land as a “natrual, untarnished by evil capitalisms” dead hand.

    A lot of rediculous hangovers from the cold war exist, this is just one of them. The professors first seduced by utopianism have raised the next generation, we may never be rid of them.

    The rather silly “Dances with Na’vi” film was a symptom.

    The Australian magazine quadrant in its articles does show a strong overlap between ex-communists/socialists and the Aboriginal land rights movements in Australia.

  • Ian Bennett

    As I understand it, though, the Australian Aboriginal issue is not so much with ownership of land per se as with access to it. It’s not as though they intend to build on it to any great extent, or farm it or mine it; they just want to be able to live on it and wander around.

  • Malcolm

    It’s typical of the left to argue that all property rights are somehow tainted by past injustices and therefore that government can redistribute to whatever groups wield sufficient political power to demand a share of the spoils. Of course, that is a non sequitur; past injustices do not justify new ones, against people who did not commit the original wrong.

    It’s also another kind of non-sequitur: even if the looting and pillaging of the Duke of Westminster’s great-something-great-grandfather somehow taints my ownership of the flat I bought off him, how does this somehow give the government the right to confiscate/tax/otherwise appropriate my property interest?

    If you (not-very-hypothetical leftie) say my ownership is said to be tainted, are you saying that any random passer-by is entitled to come into my home and make free? If not, what is there in this theory of original sin that elevates the government above any other bunch of bandits? Nothing: the idea that my (allegedly vacated) interest must revert to the government owes nothing to this theory, and is imported from entirely separate assumptions of government sovereignty – theories that if true would independently justify confiscation/taxation/whatever without any reference to this theory of original property sin, which is a pure red herring.

    By contrast, if you don’t start with the assumption of government sovereignty, even if you accept that my ownership of my home is tainted, you still have to dispose of it somehow. How best to do so?

    The contenders appear to be as follows:
    (1) any random passerby
    (2) a powerful bunch of people with a (contested) claim to be acting in the best interests of society
    (3) other, somewhat less powerful bunches of people making similar claims, who would doubtless spring up if they had any chance of successfully garnishing this valuable residence
    (4) me, who bought the premises in question in good faith, using funds honestly acquired through voluntary labour, prudent investments and binding commitments to third parties to repay loans, from someone who had held it long enough, unchallenged, that there is nobody to be found with any better claim.

    On that basis, (4) seems the best choice for a civilised society both in terms of the moral good and, separately, in terms of pragmatic and utilitarian economic consequences, even having accepted, for the sake of argument, this supposed original moral taint.

    The “original taint” to property argument is nothing more than a sleight of hand to disguise the real assertion being made (“‘and so’ all property be ultimately be owned by the government”). Whatever the merits and demerits of that position, the “original taint” theory lends nothing to support it.

  • Alisa

    Ian: why should it make any difference?

  • Rob

    The problem for the Left is that this argument could very plausibly be used by Jews to support the state of Israel, which would somewhat stick in the throat of your average Leftie.

  • Jaded Voluntaryist

    Ah Israel.

    Every country in the world had its borders defined by war and conquest. Then the UN boys club got together in the 40s and decided they liked the maps how they were and that any further redefining of borders through war would be called “illegal occupation”.

    Funny how rent seeking, unionisation, gaming the system and barriers to entry scale up to whole countries aint it?

    Given the Syrian snipers fondness for taking potshots at Israeli school kids, I think “occupying” the Golan Heights was a bloody good idea.

    The UN of course disagrees.

  • Paul Marks


    Actually land was bought from Arab landowners – going back as far as the 19th century.

    Of course this did not stop the forces of Islam trying to exterminate the Jews, both in the First Word War, and in the progrom efforts of the 1920s and 1930s, or in the war of 1947-8 , or the endless attacks between then and 1967 or…….

    Oddly enough the international media (and education systems) do not report much of this.

    Although they do report (for example in a Spectator magazine book review) that the Jews (for example) “drove the Arabs out of Jaffa”.

    The Arabs (including Muslim Arabs) that I observed in Jaffa were clearly a delusion of mine.

    It was actually the Grand Mufti (Hitler’s pal – although he was much more eager to go and watch the process in the extermination camps that Hitler was) who asked Muslims to leave the Holy Land – so that Arab armies would have a clear field of fire to exterminate the Jews (it did not quite work out that way).

    Still the general issue.

    There is a test to see whether people who denounce “unjust acquistion” of land are sincere.

    It is a bit like the test to see whether the global warmists are sincere – are they in favour of nuclear power (if not then …. them).

    If an “unjust land ownership” person is sincere he (or she) will spend time and effort finding the “true owner” and present this individual (with the various documents – to be tested and so on).

    If the person does this – there may (although there may also may not) be an argument to be examined.

    However, normally it is very different…..

    Normally it is…..

    “This land is not rightfully yours – so we must DISTRIBUTE [or “REDISTRIBUTE”] it”.

    If this is what comes out of the person’s mouth then they are not really concerned with “just ownership” at all.

    They are just swine.

    By the way – Indian tribes, they had various different ideas and practices about ownership.

    But Chief Seattle, the person most commonly quoted as saying that land could not be owned – did not believe this at all.

    The words claimed to be his were actually made up – and made up as recently as the 1970s.

    The real Chief Seattle certainly did believe that land could be owned – but he also made a profit out of it, he sold his land (indeed was eager to do so).

  • 'Nuke' Gray

    As a matter of semantics, the original owners are the ones who could not have stolen it, since original means first, in this context.
    Re: Aborigines. I think we should treat our occupation as similar to a continent-wide act of resumption, except we haven’t yet paid compensation. Once a year, perhaps on Australia Day, we pay one tribe a price for the land we took from that tribe, and that can be declared to settle the matter. After a few hundred years, we’ll have settled up. We let the tribes sort out who belongs to which tribe, and the elders can allocate funding. No worries, mate!