Indian Property Rights   Leave a comment

So now that we’ve laid some myths to rest, let’s look at what the Indians got right. While the tribes occasionally suffered from the “tragedy of the commons,” most American Indian tribes understood the importance of getting the incentives right. Personal ethics and spiritual values were important, but those ethics and values worked along with private and communal property rights. YES, property rights that strictly defined who could use resources and acted to reward good stewardship.

In a short story like “Bridge at Adelphia”, I could not really explain pre-Columbian Indian institutions and how they differed and correlated with the modern context of law, government, and property rights. The Indians didn’t lack rules. Sometimes they were customs, other times they were formal, but history is replete with examples of how Native American property rights conditioned human interaction with the natural environment.

Indian land ownership/control systems varied considerably according to tribe. Some tribes had completely or almost completely communal systems, while other tribes had systems that were hardly less individualistic than our own. The degree of private ownership reflected the scarcity of land and the difficulty or ease of defining and enforcing rights. Truly communal property was scant among American Indians. In my mother’s tribe, the tribe allocated plots to families, who farmed them and harvested the bounty to be stored in the family’s own storehouse. Boundaries were marked and the agricultural land was considered privately owned by a family or clan rather than by individuals.

Families among the Mahican Indians in the Northeast possessed hereditary rights to use well-defined tracts of garden land along rivers. Away from the rivers, however, where the value of land for crops was low, it was not worth establishing ownership.

In the Southeast, where Indians engaged in settled agriculture, private ownership of land was common. “The Creek town is typical of the economic and social life of the populous tribes of the Southeast,” writes historian Angie Debo. “Each family gathered the produce of its own plot and placed it in its own storehouse. Each also contributed voluntarily to a public store which was kept in a large building in the field and was used under the direction of the town chief for public needs.”

Fruit and nut trees, which required long-term investment, were privately owned and usually inherited. “So important were the piñon resources that groves of trees were considered family property in several locations” within the Great Basin area of the West, says a historian (Fowler 1986, 65). In one case a Northern Paiute reflected that his father “paid a horse for a certain pinon-nut range,” suggesting that the property rights were valuable and tradable.

Where Indians depended on hunting and fishing, it was imperative that they controlled access to hunting territories and to specific harvest sites. Hunting groups among the Montagnais-Naskapi of Quebec between Hudson Bay and the Gulf of St. Lawrence recognized family and clan hunting areas, particularly for beaver. Similar hunting groups and rules existed in other regions.

Quoting Indian informants, anthropologists Frank G. Speck and Wendell S. Hadlock report that for Indians in New Brunswick,

It was . . . an established “rule that when a hunter worked a territory no other would knowingly or willfully encroach upon the region for several generations.” Some of the men held districts which had been hunted by their fathers, and presumably their grandfathers.

They even had a colloquial term that translates to “my hunting ground.”

Indian tribes of western North America defended their hunting, fishing, and gathering territories against trespass. Steward reports that among Paiute Indians of the Owens Valley in California, “communal groups stayed within their district territory,” which was bounded by natural features such as mountains, ridges, and streams.

Each distinct Apache band “had its own hunting grounds and, except when pressed by starvation, was reluctant to encroach upon those of a neighbor. . . . Each local group had exclusive rights to certain farm sites and hunting localities, and each was headed by a chief who directed collective enterprises. . . . ” Keith H. Basso

Customs and norms regulated the harvest. There was a district head man who determined where and when to hunt based on his knowledge from the past.

In the Pacific Northwest, Indians had well-defined fishing rights. To capture salmon returning from the ocean to spawn in freshwater streams, Indians placed fish wheels, weirs, and other fixed appliances at falls or shoals where the fish were naturally channeled.

Unfortunately, the white man’s law usurped these secure Indian fishing rights and replaced them with a system that encouraged the tragedy of the commons.

Their technology was so efficient that they could have depleted salmon stocks, but they realized the importance of allowing some of the spawning fish to escape upstream. Robert Higgs quotes a Quileute Indian born about 1852: “When the Indians had obtained enough fish they would remove the weirs from the river in order that the fish they did not need could go upstream and lay their eggs so that there would be a supply of fish for future years.”

Relying on salmon as their main source of food, the coastal Tlingit and Haida Indians established clear rights to fishing locations where salmon congregated on their journey to spawning beds. The management units could exclude other clans or houses from their fishing territories. When territories were infringed upon, the trespasser was required to repay the owning group or potentially face violent consequences. The eldest clan male who was the “keeper of the house” had the power to make and enforce decisions regarding harvest levels, escapement, fishing seasons, and harvest methods.The upshot was that salmon runs were sustained by rules made locally.

Unfortunately, the white man’s law usurped these secure Indian fishing rights and replaced them with a system that encouraged the tragedy of the commons. It was “economically inferior to the property system originally established by the tribes,” one scholar concludes.

Even where activities were communal, positive incentives, including incentives quite similar to ownership, made success possible.

Faced with the reality of scarcity, Indians understood the importance of incentives and built their societies around institutions that encouraged good human and natural resource stewardship.

On a buffalo hunt, the successful hunter was “entitled to keep the skin and some choice portion of the meat for his family,” writes Steward. An elaborate nomenclature was used by the Omaha to describe rewards for those who killed and butchered buffalo. “To the man who killed the animal belonged the hide and one portion of tezhu [side of meat] and the brains.” Brains were used to tan the hide, so it makes sense that the brains would go with the hide. Other portions were as follows: “To the first helper to arrive, one of the tezhu and a hind-quarter; to the second comer, the ugaxetha [includes the stomach, beef tallow, and intestines]; to the third, the ribs [tethi ti].”

Hunters marked their arrows distinctively, so after the hunt, the arrows in the dead buffalo indicated which hunters had been successful. Disputes over whose arrow killed the buffalo were settled by the hunt leader.

In sum, faced with the reality of scarcity, Indians understood the importance of incentives and built their societies around institutions that encouraged good human and natural resource stewardship. Ethics and spiritual values may have inculcated a respect for nature, but an elaborate set of social institutions that today would be considered private property rights rewarding stewardship.

And, hey, those of you who share my white DNA — myths are not a solution to modern environmental problems. Let’s look at what really worked with Indian society’s interaction with the environment. They devolved authority and responsibility to the local level because they understood that resource conservation is best done by the people who are there and who love their own land. Rather than shunning property rights and insisting that is what is wrong with modern society, we should embrace them, as did my mother’s people.

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