Good thinking, phil, but not quite the right concept. The more apt concept is adverse possession. In adverse possession, you may actually take ownership of another’s property by simply taking and making use of it for a prescribed number of years (the number of years varies from state to state).
In New York state, one may take title to another’s property if one holds the property for a ten-year period, where the possession is hostile and under claim of right (it’s my land, not yours), actual (I’m on this piece of land and using it, not just claiming it), open and notorious (no sneaky stuff - the actual owner must have a real opportunity to know you are on his land), exclusive & continuous.
Another element is that you actually use the land - you cultivate it, build on it, or otherwise improve it.
The relevance of all this is that the theory behind adverse possession is that it is better if land is used, rather than lying fallow. If, in a ten-year period, the actual owner doesn’t do anything with the land, or care enough to throw the interloper off, they don’t deserve the land anymore.
Obviously, this is not directly analogous to nomadic Indian tribes - they came back each year and used the land - but the concept of “I’m putting this land to better use than you” is one that does have some validity in law.
Thanks to those who explained my point from the other thread, which I’m afraid EVEN SVEN didn’t get. To restate:
What I was saying in the thread about Native Americans is that the Indian concept of “stewardship” and the European concept of “ownership” were not the same, and were not compatible. To the Indians, no one could own the land; you only got to live on it and use it. To the Anglos, any land without an owner of record was free for the taking. It was clearly the early European-American mindset that if the land you purported to claim wasn’t put to use – if you only camped on it in the summer, for example, and didn’t make any permanent changes to it – then you didn’t “own” it. This concept obviously cannot be imported to the modern Palestinian-Israeli conflict, where both sides have the same general concept of what it means to “own” land. Indeed, as a concept it has little modern relevance at all.
PLD –
I think the question of eminent domain is an interesting one in this historical context. The government’s power to exercise eminent domain is grounded in its ability to assert dominion over any land within the country’s territory for the greater good of the public. In the historical context, if the land in question was not yet within the country’s territory, and if the end result was not the greater good of the public (as, say, a new road would be), but rather the greater good of individuals (those who get the land), then how can we say that what is done is an exercise of “eminent domain”? It seems like, definitionally, it isn’t. In any case, my general understanding of Western expansion is not that the government seized the lands and then turned around and sold them/gave them to settlers, but rather that the settlers just kind of took them, and the government (and its troops) then defended that taking. This leads us right back to the original question: What right did the Indians have to the land? They didn’t use it – at least not in any way whites would recognize, much less respect. To the early white American mind, land should be put to use, preferably through farming. The thinking was: If I want to have a farm here year-round, contribute to the economy, and own the land for my kids, and you want to chase buffalo three months out of the year, not contribute to the economy as I understand it, not hold the land as I understand it (ie, through ownership), why should you get the land instead of me? “My people have been here thousands of years” was not a good enough answer for land-hungry whites, who did not understand or respect the Indian way of life.
While I think your general analysis and points are valid, I think stating that the Indians “just didn’t use the land in a way which early white settlers would recognize or respect” – to paraphrase-- is quite accurate.
Even nomadic uses, if one stepped back in the historical context, were not so terribly different from many forms of free range ranching.
I’m afraid the issue comes down to pure power and no small degree of racism. No matter the usage any given Indian tribe/group/nation had, it was in that time period ipso facto not valid to the relevant “whites.” Of course, all caveats apply to specific instances but I think as a general matter one has to admit that the function is less important than the ideology (White Anglo use = Right; Indian, Indio-Mexicano, Mexicano-Spanish uses = Not Valid.).
To the extent that some aspects of the Palestine-Israel conflict revolve around mutual ideologically driven refusal to recognize land claims I guess there is a weak analogy. Weak but there.
The good use/bad use (or more appropriately no use) argument was perfectly reasonable to many of the early European settlers in North America. However, much we disagree with the premise now, European settlers in the 1600’s, 1700’s, and 1800’s pretty much universally carried with them the Lockean ideal of land as property.
God commanded and circumstances demanded that man labor in order to survive.
God commanded man neither to destroy nor to spoil/waste.
(All of John Locke’s basic premises are found in Chapter 5 of The Second Treatise of Government.)
So, to those many settlers who embraced Locke’s ideas of property, which I’d suggest was a good percentage, the native peoples had not labored the land and thus had no fruits to show for their labor. The final insult of course is that while God may have given native peoples the land, the Europeans very much believed that the natives were wasting it. As a result, this land was “free” for the taking so long as one intended to make use of it.
I’m less suspicious of any racist motives behind justifying a land grab. No doubt there was some of that, but I suspect that European settlers, and the government(s) for that matter, simply found a useful legal/social tradition that would lend legitimacy to taking anyone’s land be they white, purple, brown, or yellow.
Obviously, Locke’s premises are debateable (which throws into question all sorts of notions of property/ownership), but that isn’t the question. As an excuse to “take” another’s land, the Lockean view of property offered a somewhat reasonable and sturdy argument at the time.
I guess I’m not familiar with multiple forms of free-range ranching. My understanding of free-range ranching (growing up in an area where it is very common) is that one may range one’s cattle over one’s own land, over leased lands where one has the right to graze, and over public lands open to grazing. The “free” in “free-range” means “no fences,” not “no ownership.” A cattleman who runs free-range cattle has no right to graze his cattle on another’s land without that other’s permission. This is very different than historical nomadism, which did not (AFAIK) include the concept of individual ownership of land. The conflict is between a system that only respects “ownership” as the sole legitimate way of controlling land as a resource, and a system that doesn’t even understand the concept of “owning” land, land being something that (in early Native American thinking) definitionally no one person can own.
I absolutely agree. I think the question of “ownership” is only relevant when one asks what rationales whites used to get what they wanted – what means they cited to justify their ends. However, it was also proven again and again that even if no moral or legal justification could be made for the subjugation of the Indians, they would be subjugated anyway – Jackson’s actions being probably the chief example of that.
PS – I have no idea why my first question can be read as snotty, but I see upon re-reading that it can be. It was not meant to be. COLLOUNSBURY’s quote seems to imply “you’re generally right, but . . .,” except that the “but” seems to be missing.
<Slight hijack> Might I point out that the American verses the Indians tactics were taught to them by Europeans who just walked in and slaughtered natives of any land indescriminately for a few centuries. Like the Spanish and the Mayans, for a nice little example or the English and India for another. <End Hijack>
Britain: We claim India for Great Britain
India: Hey, we’ve lived here for centuries. There are 200 million of us. You can’t just claim our land.
Britain: Do you have a flag?
The Europeans saw the New World as just that – an untainted place where they could spread out and make their fortunes. The natives had little to do with anything; they weren’t using the land, they could move somewhere else, they would be much happier if we converted them and set them to work on our plantations as our sla-er, workers. If they refuse, hey, those Africans can do manual labor, it’s all they’re good for anyways. All that mattered was the Europeans, basically.
With all due respect, while Lockian thinking is certainly of great interest to understanding the intellectual super-structure, I don’t see it as that explanatory for what happened on the frontiers per se. As for the issue of racism, well I rather disagree. By the 19th century racialist thinking and scientific racism had profound effects, and penetration, which I understand you to be underrating.
Well, if we’re stating that the settlers seized upon whatever ideas would justify their actions, be it some unholy amalgam of Lockian property theory and scientific and unscientific racism, I agree entirely.
Otherwise, Jodi, yes you read the paragraph right. My typing skills and proofreading (or lack thereof) have appeared to deteriorate greatly recently. Case of reading what I thought I wrote. Ah, who needs those little words anyway. And of course I am not so thin-skinned as some here so no offence taken.
Q: “Do people have a right to take resources that others are not useing wisely?”
A: Of course not. In fact, the entire human race should simultaneously commit suicide for grave atrocities committed in the rationalized name of evolution.
A[sub]2[/sub]: Of course not. The UN said so.
A[sub]3[/sub]: Of course not. Those are your sister’s toys and I said put them back.
A[sub]4[/sub]: Possibly; depends on who you ask, and what you mean by “take.”
Was your average settler up to date on his political philosophy or did he simply grab whatever wasn’t nailed down? (and pried up everything that was)
Also, as far as the OP and the “right” to take something away because of this or that notion of private and public property, that seems pretty thin… I had always thought the native american notion of property was somewhat communist, a sort of “it’s all public property” type thing… but then again I’m sure an indian or two got his scalp removed for invading the wrong territory at some point or other. But if the notion was that nobody owned this piece of land, than the claim that somebody else could take it from them and own it is like saying “I claim all your air, since you didn’t claim it first”… “B…b.but I didn’t know I had to claim it… it’s just…<gasp>…there…<passes out>”
I hate to sound like an apologist for Lockean philosophy and European settlement of North America and Manifest Destiny and all the other baggage associated with these things. I’m a left-wing, agnostic pacifist for goshsakes! Nonetheless, I would tend to downplay the racist explanation for most of the time period during the “settlement” of North America. Point taken that by the 1800’s explicit and implicit racist policies were well in evidence. I’d simply counter that prior to this time period, I’d put the largely European-view of land as property as more explanatory.
And to respond to Kaje’s question,
No, I didn’t mean to suggest that your average settler toted around his/her copy of The Second Treatise of Government and displayed it like some rule book.
Native American: “Hey, you can’t just come in here and take this land and call it your own.”
Settler: “Oh why yes I can, you see if I turn here to pages 16 and 17 you can see it clearly outlines…”
Rather, I think this perspective of what land was and what it should be used for (in the general sense) was a hot ticket item in the late 1600’s and the 1700’s. After centuries of all land belonging to the king/regent, European’s found great promise in the suggestion that I too can own land if I just put some effort into it.
Land was meant to be used by humans. Aside from kicking native people’s off of their land, early settlers felt a duty to make land productive (in the agricultural sense) to the extent that forests were routinely cut down down or burned to make space for more valuable farm land. Roderick Nash’s book Wilderness and the American Mind gives a much more thorough treatment of this.
Once again, I’m not at all proposing that racist sentiment didn’t give rise to another “justification” for taking land. My take is that the better explanation (in terms of greater influence) rests upon Lockean notions of land + toil = property. And that this perspective may not have been fully fleshed out in terms of the average settler being able to rattle off Locke’s four premises, yet the basic idea was well-known.
I think a more simple explanation is that they simply did not have anywhere else to go.
Well, of course they DID i.e. back home etc but that’s not the point. If you are a settler and you are trying to settle in a big, and I mean, WAY bigger than you are used to, and to them I imagine a lot of it would have seemed quite hostile. If, and you were in their shoes, you saw some land that looked fertile, protectable and peaceful, wouldn’t you immediately stop there and set up camp?
This philosophy is generally only invoked to salvage the morality of a land taking which cannot be justified in any other way.
I don’t see how this position can be defended while at the same time retaining any notion of private property. Private property necessarily carries with it a presumptive right to continue possessing it; a requirement that property has to be continually “used wisely” is contrary to that presumptive right. Especially if a taking for “unwise use” can be justified after the fact (that is, you can take first and explain why later) instead of before the fact (you have to get the king/chief/council to say “you can have it” before you can take it).
Eminent domain does show that real estate is not, strictly speaking, considered to be held without feud. That is, you do not own the land so much as the right to use it. I see eminent domain and anti-trust laws to be operating on similar thinking: society has the right to protect itself from gross abuses of the free market system. If the government gives the owner what the property normally would be worth, but the owner wants what it is now worth now that the government has announced some new project, there is a certain logic that the owner is no entitled to the extra value created by the government. The issue is not that the owner isn’t taking good care of the property, but that the owner is interfering with a compelling interest (presumably).
Anyone else remember the Heinlein story in which you could choose how much your property was valued for property taxes, but anyone could buy it for that much?
Why not? You give me bucketfuls of cash, I give you my rights and claims to the land. Just because I don’t give you a dump truck full of dirt doesn’t make it any less of a transaction.
Nonetheless, I would tend to downplay the racist explanation for most of the time period during the “settlement” of North America. Point taken that by the 1800’s explicit and implicit racist policies were well in evidence. I’d simply counter that prior to this time period, I’d put the largely European-view of land as property as more explanatory.