Many Tribal Hunting and Foraging Grounds Were Private Property
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.1
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.2
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.3 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.4
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.”5 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.”6
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).7 Because these groups usually hunted and gathered in addition to cultivating crops,8 their communally held territories included forests, meadows, rivers, beaches, and other wild-resource areas.
Because of the purpose that wild-resource areas serve, whether huntin
Article from LewRockwell