The Indian tribesman's claim to his ancient stomping grounds can't be reduced to a title search at the deeds office. That's the stuff of the positive law. And this was the point I took away from a conversation, circa 2000, with Mr. Property Rights himself, Hans-Hermann Hoppe.
Dr. Hoppe argued unassailably—does he argue any other way?—that if Amerindians had repeatedly traversed, for their livelihood, the same hunting, fishing and foraging grounds, they would have, in effect, homesteaded these, making them their own. Another apodictic profundity deduced from that conversation: The strict Lockean stipulation, whereby to make property one's own, one must transform it to Western standards, is not convincing.
In an article marking Columbus Day—the day Conservatism Inc. beats up on what remains of America's First People—Ryan McMaken debunked Ayn Rand's specious claim that aboriginal Americans "did not have the concept of property or property rights." This was Rand's ruse for justifying Europeans' disregard for the homesteading rights of the First Nations. "[T]he Indian tribes had no right to the land they lived on because" they were primitive and nomadic.
Cultural supremacy is no argument for the dispossession of a Lesser Other. To libertarians, Lockean—or, rather Hoppean—homesteading is sacrosanct. He who believes he has a right to another man’s property ought to produce proof that he is its rightful owner. “As the old legal adage goes, 'Possession is nine-tenths of the law,' as it is the best evidence of legitimate title. The burden of proof rests squarely with the person attempting to relieve another of present property titles.” (Into The Cannibal's Pot: Lessons for America from Post-Apartheid South Africa, p. 276.)
However, even if we allow that "the tribes and individual Indians had no concept of property," which McMaken nicely refutes—it doesn't follow that dispossessing them of their land would have been justified. From the fact that a man or a community of men lacks the intellectual wherewithal or cultural and philosophical framework to conceive of these rights—it doesn't follow that he has no such rights, or that he has forfeited them. Not if one adheres to the ancient doctrine of natural rights. If American Indians had no attachment to the land, they would not have died defending their territories.
Neither does the fact the First Nations formed communal living arrangements invalidate land ownership claims, as McMaken elucidates. Think of the Kibbutz. Kibbutzim in Israel instantiate the principles of voluntary socialism. As such, they are perfectly fine living arrangements, where leadership is empowered as custodian of the resource and from which members can freely secede. You can't rob the commune of its assets just because members elect to live communally.
Conservatism's Perennial Piñata
Columbus Day has become an occasion for neoconservatives, conservatives and their followers to vent their spleen against American Indians. And woe betide the deviationist who pens anything remotely fair or sympathetic about, say the genocide of the Indians, the trail of tears, or the relegation of Indians to reservations. Berated he will be for daring to lament the wrongs visited on the original inhabitants of this continent on the grounds, mostly, that they were savages.
Come Columbus Day, the same hackneyed observations are disgorged. You'd think conservatives were cutting through the Left's rhetoric of moral superiority to challenge a cultural script that upholds the myth of the purity of primitive life, juxtaposed to the savagery of Western Culture. But they're not.
I mean, who doesn't know that natives were hardly nature's custodians? This fallacy was popularized by Jean-Jacques Rousseau's panegyric on the Noble Savage. Pre-Columbian America was no pristine natural kingdom. Native tribes likely engaged in bi-annual forest burning to flush out the species the Indians most wanted to hunt. There was the stampeding, during a hunt, of herds of animals over a cliff. Used repeatedly, some buffalo jumps hold the remains of hundreds of thousands of animals, with patterns of local extinction being well-documented. Where agriculture was practiced in the central and southern parts of America, evidence from sediment points to soil erosion, which was, too, likely ongoing before the arrival of Europeans.
It's old hat that the Americas are scattered with archeological evidence of routine massacres, cannibalism, dismemberment, slavery, abuse of women and human sacrifice among native tribes. In no way can these facts mitigate or excuse the cruel treatment natives have endured. For is such exculpation not the crux of the American exceptionalism creed, peddled by neoconservatives? "The world is up to no good. As a superior 'nation,' let American power remake it in its image." By hook or by crook, if necessary.
Neoconservative deity Dinesh D'Souza likes to claim Native-Americans were decimated not by genocide or ethnocide, "but by diseases brought from Europe by the white man." Not quite. In his magisterial History of the American People, historian Paul Johnson, a leading protagonist for America, details the rather energetic "destruction of the Indians" by Andrew Jackson.
Particularly poignant are Red Eagle's words to Jackson, on April 14, 1814, after the president-to-be had rampaged through villages, burning them and destroying crops in a ruthless campaign against the Indians east of the Mississippi: "I am in your power. My people are gone. I can do no more but weep over the misfortunes of my nation." Jackson had just "imposed a Carthaginian peace on 35 frightened Indian chiefs," forcing them to part with the lion's share of their ancestral lands.
Equally moving is the account of another philoamerican, philosopher and historian Alexis de Tocqueville. The Frenchman describes a crowd of displaced Choctaw warriors—having been subjected to ethnic cleansing (in today's parlance):
There was an air of ruin and destruction, something which gave the impression of a final farewell, with no going back; one couldn't witness it without a heavy heart. … it is an odd coincidence that we should have arrived in Memphis to witness the expulsion, or perhaps the dissolution, of one of the last vestiges of one of the oldest American nations.