Native Americans and Natural Law

Over the weekend, I was putting together a new shelf and, for entertainment while I was doing it, fired up Netflix and turned on a Ken Burns documentary about the West from a few years ago. (Yes, Amy also razzed me for my choice of background entertainment.)

It had, as you might expect, a healthy dose of “Native Americans were here first but Europeans did not regard their claims very highly.” That is an uncomfortable topic. In the past, I thought it was uncomfortable simply because it feels a lot like you’re blaming me for the sins of my fathers. I’m supposed to feel bad, even guilty, for the bad things that happened to people 150 years ago?

But, it’s not just guilt. I don’t have a lot of patience for the shaming of white people. In the case of the Native Americans, in a lot of cases, we took it from people who had taken it from others not that long ago. But, it’s valuable to think about, I think, because it puts front and center questions about the nature of property. And I think that’s another reason we don’t like to think about it. We get uncomfortable looking under the hood and examining the nature of property. It’s something magical and fairly immutable.

But, with some exceptions, title to real estate in the U.S. originates with a grant from the United States Government. The government got it by taking it from someone else or sanctioning, after the fact, the taking the grantee had already accomplished. Property does not exist without the framework set up by the government and without its sanction. Without the legal framework, you don’t have property, you have stuff you have managed to acquire for awhile and which no one has yet taken from you.

Americans, by and large, get very uncomfortable with the idea that property is a blessing of government. We like to pretend that government is a necessary evil (sometimes not even that) and don’t like to recognize that government is a fundamental underpinning for our whole way of life. When it comes to property, you’ll get some happy talk about natural rights or being endowed by our Creator with certain inalienable rights. But such talk is entirely inadequate for explaining why it is that the Native Americans don’t dominate the real estate market. The reason is that we alienated the hell out of their right to property and nature’s law didn’t lift a finger to stop us.


  1. says

    Love this post, and posts that make your brain get a little warm while thinking about them.

    Christians would have a hard time using the Bible to explain the idea that anything is owned by them, but that it is owned by God & God may assign caretakers to it.

    Sadly, most of us act like the Steward of Gondor (from the movie) when it comes to the things we’re supposed to be caretakers for.

  2. Carlito Brigante says

    I would argue, I think rather convincingly, that Rule 303 is a much stronger support for American property rights than ‘natural law.”

    Or as the economist Fredric Bastiat wrote: “When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it.”

    Living as as I did in New Mexico for several years, I developed a view of property law that rather practically uncermined some of the legal theory we dabbled at in law school.

    New Mexico has an interesting history. It was marginally colonized by Spaniards. The dominant Nations when the Spanish arrived were Pueblos, small villages of farmers. They were sort of assimilated into the Spanish system, especially in the brutal retaliation for Pope’s rebellion. But over time they transitioned to Catholicism and were pretty well left alone because there was little silver and almost no gold to steal.

    The land was once again taken by force of arms in the Mexican American war, a war of conquest to steal Mexican land (California, Arizona, parts of Utah and New Mexico.) I wonder how many musket balls and bayonet thrusts that worked out to per square mile of annexation?

    But it was nonetheless an effective test of the continued validity of Rule 303, and Rule 303 neatly explained the source of the body of property rights that granted the US the American Southwest. The Treaty of Guadalupe Hidalgo may as well been written on Cherokee Indian buckskin.

    However, Natiive Americans will one day again dominate the American Real Estate market. Most hispanics are mestizos, mixed European and Native American. By 2100, the US will be an Hispanic country and at least some genetic remainder of the first nations will be back.

    I do not believe that James K. Polk, and the racist Southern Democrats (now Republicans) could have imagined that their greed for land would turn the US into Northern Mexico. And rule 303 will give way to the irrestistable force of the multitudes of zygotes.

  3. jharp says

    Very interesting issues.

    I remember the gas company had an underground storage well on my Dad’s farm. They had all kinds of rules that basically gave them all of the rights of owning the property around the well but Dad go the privilege of calling it his and paying the taxes on it.

    And the property tax thing always interests me. I look at it as rent to the govt for having the rights of ownership. So who really does own the property?

    Unless of course, you are a church. Then you own it forever. For free.

    Kinda babbling but in a hurry and wanted to share those two thoughts. I hope I made my points.

    • says

      Conceptually, one of the more helpful things I learned in law school was that “property” shouldn’t be confused with an object. Rather “property” is a bundle of rights associated with the object.

      If it’s real estate – the right to walk over it, the right to build stuff on it, the right to mine it, the right to exclude others from it, the right to sell rights to others, etc.

      And, as to government as landlord and taxes as rent, I just think the analogies between government and private entities breakdown pretty fast. Government is the Leviathan. So, in exchange for government eliminating the multitudes of lesser predators, we tolerate things from government as the superpredator. So, for example, taxation isn’t theft even if it would be if a private entity made the same demands.

    • Carlito Brigante says

      I would not call tax rent to the government, but it is protection money. We have a fairly well developed body of property rights in this country and a government that defends them fairly well. Ultimately, at the point of a gun.

      • jharp says

        Fascinating stuff, property rights and all.

        The canoeing of certain rivers in certain states is allowed because no one owns the water. And yet neighboring states treat it quite differently.

        And the access to the beach issues everywhere.

        And the complete socialist treatment of the Great Lakes and other lakes and rivers.

        Interesting stuff.

  4. Gene says

    I have to reject the invocation of the plight of indigenous populations to bash natural law.

    The government-centric mindset says that rights and freedoms are granted by government. Natural law basically is the opposite view, that people have rights, and government exists to protect those rights. The US is evolving from the latter to the former.

    Totalitarianism (pick a flavor – communism, fascism, monarchy) starts with the idea that rights are granted by government.

    The Indians were kicked out of Indiana because they threatened the expansion of white people.

    • says

      I’m not really understanding what makes you think natural rights are real except that it would be nice if they were. And, possibly, the world seems like a less nice place if they are not.

      The point of bringing up Native Americans is because they are a case study in natural rights not existing. Or, if such rights do exist, then any claim you might currently make that you hold rights to real estate is extremely problematic.

    • Carlito Brigante says

      What is the source of those “natural rights?” A monotheistic sky man that owns everything and miracles it to Rome and armed groups of Bronse age tribes?

      So-called natural rights is an attempt to justify a system of ownership of property and division of power to a point in time just after the dominant group stole the land from someone else and before another group threatens to take it from them. “We stole it fair and square” goes the principled justification for continued occupation.

  5. Wilson Allen says

    One of my favorite quotations comes from one of the early French Utopian Socialists: “God made the land and a gang of thieves made fences.”

  6. Wilson Allen says

    I thought a quick Google search would answer the question but apparently it was me! I’ve used it several times on the Internet and Google picked those up. Now I can’t find any attribution to Saint-Simon or Fourier or the like but I do recall reading it forty years ago or more…

  7. says

    “Get off this estate.”
    “What for?”
    “Because it’s mine.”
    “Where did you get it?”
    “From my father.”
    “Where did he get it?”
    “From his father.”
    “And where did he get it?”
    “He fought for it.”
    “Well, I’ll fight you for it.”

    – from Carl Sandburg’s “The People, Yes”

  8. says

    What, exactly, is totalitarian about a stateless, classless society wive no restrictions on individual acts except “don’t hurt other people”?

    Why were white Europeans more entitled to live on that land than the people already there?

    Why do you resort to such ignorant, essentialized, and flat-out incorrect descriptions of how people who do not think like you, think?

    Why do you hate freedom and individual liberty so much?

    Why are you such a collectivist?

    • says

      In a stateless society, what is the mechanism by which the rule about not hurting other people enforced?

      And, who decides what constitutes a harm against another person? If I punch someone in the nose, presumably that counts. If I pee in a stream that someone downstream drinks from, have I harmed them? How about if I sneeze on them? How about if I refuse to get inoculated, thereby increasing the risk of disease to others?

  9. MartyL says

    Excellent post Doug.

    Somehow, “Natural Law” reminds me of the classic axiom of water law in the arid American West: “water runs uphill to money”.

  10. Carlito Brigante says

    MartyL, that is an excellent axiom. And if the Western movies are to be believed, water is easily tempted uphill by the barrel of a gun.

    Maybe that is the “nature” of Natural Law.


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