We’ve been showing in recent weeks that the two legal doctrines used to dispossess Indians don’t have a leg to stand on. These are the doctrines of Christian discovery and the right of conquest, still – incredibly – cited more or less openly by the U.S. Supreme Court. But there is a third, more deeply ingrained in the Euro-American psyche than even these two, although the Supreme Court has found it too dangerous to fold into constitutional law. This one could be called the “right of the most productive user.”
None other than John Wayne gave it pretty good expression. According to his movie biography Web site, he once said of Indians: “I don’t feel we did wrong in taking this great country away from them. There were great numbers of people who needed new land, and the Indians were selfishly trying to keep it for themselves.”
This mainstream contempt for the rights of “selfish” Indians has its origin in one of the most influential works of political philosophy of the past three centuries, John Locke’s “Second Treatise of Civil Government” (1690). Native intellectuals widely and with good reason see Locke as the nemesis. Although he lived from 1632 to 1704, he wrote the blueprint for a political system based on economic individualism. It provided the framework for American politics and created a disaster for Native tribes as the principle behind the Dawes Allotment Act. Even in the late 17th century, Locke shaped his theory with an eye to the taking of American Indian land.
Locke had both a practical and philosophical interest in American Indians and probably knew more about the tribes of his day than any other thinker of his stature. For several years just before the explosion of Native resistance in 1676, in what is called King Philip’s War, he was the bureaucrat in charge of supervising all of Britain’s American colonies. Like other writers of the time, he also cited Indians as examples of men in the ‘State of Nature.’ Locke hypothesized that men living a violent pre-political life came together in a compact to form civil society. (He implied they acted voluntarily as individuals rather than through the natural accretion of families and clans described by Aristotle; this bias against tribal society emerged virulently in the Dawes Act.) For Locke, unlike earlier writers, the purpose of this social compact was the protection of accumulated property.
It was in describing the emergence of property that Locke drew most heavily on American examples. Some of his gratuitous – and inaccurate – detail, we think, was aimed at more than proving a theory. Value, he said, came from labor. So, although an acre of land in England and America could grow as much wheat, an English farm produced 1,000 times the value of the land occupied by the hunting-gathering Indians. “Thus Labour in the Beginning, gave a Right of Property.” So settlers who could put the New World in cultivation had a superior right to the land, supported by Scripture, than its original Natives.
The implications became crystal clear in Emmerich de Vattel’s “The Law of Nations,” a highly influential authority in the age of Andrew Jackson. After ridiculing the papal bulls dividing the New World between Spain and Portugal, Vattel asked if other European nations could take over a territory peopled by small, nomadic bands. “These nations,” he said of the Natives, “cannot exclusively appropriate to themselves more land than they have occasion for, and which they are unable to settle and cultivate.” Their nomadic movements, he said, “cannot be taken for a true and legal possession; and the people of Europe, too closely pent up, finding land of which they make no actual and constant use, may lawfully possess it, and establish colonies there.”
Locke and Vattel, of course, edited the facts to fit their claim. They ignored the extensive Native agriculture, even as it enriched the European diet, and failed to recognize that North America had been depopulated by diseases that came from Europe. Locke even refuted himself internally. At first he said that it was the invention of money, unknown in America, that allowed the accumulation of property. But in a later passage he admitted that Indians also used an imperishable means of exchange, wampompeke, which he named with a close equivalent of the proper Algonquin. But European settlers ignored these inconvenient facts as they eagerly seized an excuse for stealing the land.
The stereotype of the Indian as savage, nomadic hunter-gatherer became deeply engrained not simply from racism but from deep economic and psychological necessity, as the justification for dispossession of the Native. It has a powerful hold to this day. New York Attorney General Eliot Spitzer, now running for governor, used an echo of the theory in a recent brief urging the Supreme Court to kill the Cayuga Nation’s land claim.
Remarkably, though, the Supreme Court has been far more reluctant than the popular mind to embrace Locke’s doctrine. Lawyers pressed the theory forcefully in the seminal 1823 land rights case Johnson v. M’Intosh. They filled their briefs with quotes from Locke and Vattel. But Chief Justice John Marshall didn’t bite. “We will not enter into the controversy,” he wrote, “whether agriculturists, merchants and manufacturers, have a right, upon abstract principles, to expel hunters from the territory they possess, or to contract their limits.”
Marshall might have sensed the slippery slope of this doctrine. If farmer-settlers had the right to expel hunter-gatherers, could factory-farmers take over less productive family farms? And can factories expropriate farmlands? How could anyone maintain a property right against someone who could claim to use the land more productively? Squatters from the United States used this doctrine with devastating effect on the Spanish land grants during the California gold rush. It echoed in what was possibly the most controversial Supreme Court decision of recent times, the Kelo v. City of New London case upholding the city’s right to take private homes through eminent domain to make way for a luxury hotel.
And how about today, when Native enterprises are bringing renewed economic vitality to many stagnant regions? From the middle of Mississippi to central New York to southeastern Connecticut, tribal businesses have become some of the largest, most profitable employers on the scene. By Locke’s terms, wouldn’t they have superior claim to the lands of marginal farmers and struggling small businessmen? At the very least, isn’t it selfish of non-Indians to oppose the full exercise of tribal rights on land that the Indians have already repurchased?
We doubt that many non-Indians, not even John Wayne himself, would endorse a “right of the most productive user” when it worked to the benefit of an Indian tribe. And tribes don’t have to invoke it. They have already earned their land rights twice over, once as the aboriginal inhabitants and a second time as lawful purchasers under the Euro-American legal system. None of the doctrines so prevalent in the Supreme Court or mainstream society – either discovery, conquest or Locke’s theory of property – has any countervailing legitimacy in any tribunal of true justice.