In a recent lecture on her new book, Redressing Historical Injustice: Self-Ownership, Property Rights and Economic Equality, Wanjiru Njoya challenged current calls among some indigenous groups for “land justice” to redress the alleged historical injustices of European colonization. Drawing from Murray N. Rothbard’s book The Ethics of Liberty, Njoya outlined a set of guideposts for determining the actual justice of such claims with reference to South Africa. As general principles, these guideposts are useful in other historical contexts as well. Here, for example, I apply these natural law principles to the specific case of the Cherokee Indians to answer the question, did Anglo colonizers steal Cherokee land?
As Rothbardians know, there are three ways to acquire private property under natural law: improvement through labor, voluntary exchange, and gift or inheritance. Property acquired by any other means would be stolen property and must be returned to its rightful owner. Njoya explained that to establish rightful ownership, two conditions must be reasonably met: the facts of possession and the intent to possess. Absent these conditions, individuals can appropriate property “with impunity.” In cases where theft can be established, the property must be returned, provided that the property still exists and rightful heirs can be identified.
By these standards, the Cherokees were in fact the rightful owners of their lands. Before contact with Europeans, Cherokees recognized individual private property, clearly demonstrating both the facts of possession and intention to possess. The earliest visitors to the Cherokee towns—James Adair (1730s), Henry Timberlake (1750s), John Haywood (1760s), and William Bartram (1770s)—all testified to the facts of possession and the clear animus possidendi that established the Cherokees’ undeniable, individual claims to ownership of their lands under natural law.
Between 1721 and 1770, the Cherokees gifted the British approximately twelve million acres of land. In a 1772 contract with Virginia, the Cherokees exchanged half a million acres for around $6,000. Despite any backwoods shenanigans, these exchanges were voluntary. Involuntary land cessions began in 1775 with the seventeen million acres taken in the notorious Henderson Purchase, which the Cherokees contested militarily until they were finally defeated in 1784. This land along with an additional ten million acres taken in 1785 were acquired by conquest and, therefore, not exchanged voluntarily. Although the common law affirms that conquest does confer legitimate title to land, under natural law, because the Cherokees did not cede them voluntarily, the confiscated lands would have been an unjust taking.
However, beginning in 1791, all Cherokee land cessions were voluntary exchanges enshrined in legally binding contracts that transferred title to private property for a specified monetary consideration. Shortly thereafter in 1808, the Cherokee leadership instituted a bona fide liberal, fiscal-monetary state so that the new Cherokee “government” could enforce these contracts with the US. Therefore, it is possible to determine not only how much the US owed for these land cessions but also how much the US actually paid on that legal debt to the Cherokees. From an examination of the codified law and the annual treasury reports of the Cherokee Nation, generated between 1872 and 1902, it cannot be claimed that the US stole Cherokee lands, nor would the current Cherokee government even make that claim.
In 1810, the Cherokees could have claimed, quite rightly, that the US had stolen the five million acres ceded in 1805 because the US, at that point, was in breach of contract, having not paid even one dime of the agreed upon sums. After 1820, under persistent legal pressure from the Cherokee “government,” the US began regular payments to the Cherokees on these debts. However, these payments never covered the total interest due each year, amounting to only one-third to one-half of the sums actually due. With the purchase of the Cherokee Outlet in 1891, those payments dropped to around ten percent of the annual interest due and finally stopped all together after the passage of the Curtis Act in 1898. In 1902, when the Cherokee Allotment Act liquidated all Cherokee assets, the US still owed the Cherokees approximately $43.5 million.
However, as legally binding contracts, the Cherokee Nation prosecuted these nineteenth-century claims well into the twentieth century, winning substantial awards in US courts: $5 million in 1906 and $14 million in 1961. As the neocolonial era of self-determination dawned in the early 1980s, the US debt would have stood at around $24 million. Furthermore, like any other state or county government, the Cherokees have since received unknown sums in federal subsidies that must also be deducted from this long-standing debt. Thus, for the lands ceded after 1791, the conclusion must be that, within the ethereal realm of the government, the US has mostly compensated the Cherokees, according to the original, contractual agreements for the transfer of title to those lands.
But what about the Cherokee lands seized by force as the spoils of war between 1775 and 1784, the largest cession in Cherokee history? Must the coercive force of government be deployed against current property owners to fulfill some ambiguous vision of “land justice?”
Under natural law, if the land still exists and the original owners can be identified, then the land should be returned. As anyone traveling the Appalachian Trail can attest, the lands do still exist. The problem is not simply that the original owners cannot be identified. The real lesson here is in understanding why those owners cannot be identified. In short, under natural law, “governments” can neither own nor confer title to private property. As Rothbard explained in The Ethics of Liberty, “in natural fact” land can only be owned if it has been settled and transformed. Therefore, a government cannot, “in any proper sense, ‘own’ its territorial area.” Consequently, “any agreements that it concludes do not confer titles to property.” Although both artificial and fictional, coercive governments wield real power in the world to impose their routine violations of natural law.
Both Cherokee and Colonial “governments” colluded to redistribute Indian lands, effectively obliterating any memorial of previous ownership and making any later identification of the original owners impossible. To now allow those same forces to just as arbitrarily dispossess current property owners and redistribute that property once again only serves to absolve and reward the thieves for their bad behavior. Individuals negotiating for property rights on a free market did not dispossess the Cherokees of their lands between 1775 and 1784. Illegitimate governments, buttressed by a monopoly on violence, perpetrated these crimes. To now hold accountable random individuals who never consented to these illegal actions “does not really solve the problem.”
Although documenting the culpability of the federal government in pitting Indians against Americans as “deadliest,” Thomas Biolsi refused to let “white people off the hook” with their “no-fault understanding” of colonial injustice, rooted in natural law. Biolsi insisted that “white people” perpetuated an “institutionalized,” “collective bad faith . . . toward Native Americans” and therefore had “a national positive obligation for the welfare of others independent of any demonstrable fault.” Although allowing the government to arbitrarily confiscate private property at will, independent of any demonstrable fault, would certainly be Kafkaesque, it would hardly be just.