"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."
From John Locke to John Wayne: Doctrines of injustice
Indian Country Today
June 16, 2006
http://www.indiancountry.com/content.cfm?id=1096413149
by: Editors Report
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.
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