Property Rights Among Native Americans

Chief Seattle, a nineteenth-century Native American leader, is often quoted as saying, “All things are connected like the blood which unites one family. Whatever befalls the earth, befalls the sons of earth.”

Those who invoke these words are usually attempting to convey the impression that Native Americans were guided by a unique environmental ethic. Yet the words in the oft-quoted speech are not actually those of Chief Seattle. And the message of the speech does not ring true, either. For Native Americans, traditions and customs—including property rights—were more important in encouraging careful use of resources than was an environmental ethic, however important that ethic may have been.

It turns out that the words supposedly spoken by Chief Seattle were written by Ted Perry, a scriptwriter. In a movie about pollution, he paraphrased a translation of the speech that had been made by William Arrowsmith (a professor of classics). Perry’s version added a lot.^[1] Perry, not Chief Seattle, wrote that every part of the Earth is sacred to my people. (Perry, by the way, has tried unsuccessfully to get the truth out.)

The speech reflects what many environmentalists want to hear, not what Chief Seattle said. The romantic image evoked by the speech obscures the fact that, while there were exceptions that led to the tragedy of the commons, generally American Indians understood the importance of incentives. Property rights, supplemented by customs and traditions where appropriate, often produced the incentives that were needed to husband resources in what was frequently a hostile environment.

Personal ethics and spiritual values were important, as they are in any society, but those ethics and values worked along with private and communal property rights, which strictly defined who could use resources and rewarded good stewardship.

Indian land tenure systems were varied. While some ownership was completely or almost completely communal, other ownership was more like today’s fee simple.^[2] The degree of private ownership reflected the scarcity of land and the difficulty or ease of defining and enforcing rights.

Because agricultural land required investments and because boundaries could be easily marked, crop land was often privately owned, usually by families or clans rather than individuals. For example, families among the Mahican Indians in the Northeast possessed hereditary rights to use well-defined tracts of garden land along the rivers. Europeans recognized this ownership, and deeds of white settlers indicate that they usually approached lineage leaders to purchase this land. Prior to European contact, other Indian tribes recognized Mahican ownership of these lands by not trespassing.^[3]

Farther from the rivers, however, where the value of land for crops was low, it was not worth establishing ownership. As one historian put it, no one would consider laying out a garden in the rocky hinterlands.^[4]

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.^[5]

Hunting, Trapping, and Fishing

Customary rights governed hunting, trapping, and fishing. These rights were often expressed in terms of religion and spirituality rather than of science as we understand it today, writes Peter Usher. Nonetheless, the rules conserved the resource base and harmony within the band.^[6]

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 when it became an important trade item.^[7] Similar hunting groups and rules existed in other regions. In New Brunswick, report anthropologists Frank G. Speck and Wendell S. Hadlock,^[8] 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.

The Algonkian Indians from the Atlantic to the Great Lakes carried on their hunting in restricted, family hunting territories descending from generation to generation in the male line, says Speck.^[9] It was in these family tracts that the supply of game animals was maintained by deliberate systems of rotation in hunting and gathering, and defended by the family groups as a heritage from some remote time when the country had been given to their ancestors by the Creator.

Among Plains Indians, who depended on the buffalo, property rights and rules about who had precedence provided the incentives for successful hunts. The successful hunter was entitled to keep the skin and some choice portion of the meat for his family, writes one historian.^[10] The hunters marked their arrows distinctively, so after the hunt, the arrows in the dead buffalo indicated which hunters had been successful.^[11] Disputes over whose arrow killed the buffalo were settled by the hunt leader. Poorer families followed the hunt and depended on the charity of the hunters for meat.^[12]

It took strong, well-disciplined horses to run into a stampeding buffalo herd and keep up with the stronger buffalo. If an owner decided to lend his horse for a chase, payment was expected. The chase was dangerous and a loaned horse might be injured. Generally, the responsible borrower who had taken reasonable precautions to prevent injury did not have to pay damages, but the irresponsible borrower was forced to replace the lost horse.

As with hunting, Native Americans often specified fishing territories. In the Pacific Northwest, Indians had well-defined salmon 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.^[13] 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. Economist 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.^[14] In many cases the fishing sites were bequeathed from father to son.

Personal items were nearly always privately owned. Clothes, weapons, utensils, and housing were often owned by women, for whom they provided a way to accumulate personal wealth. For the Plains Indians, the tepee offers an example of private ownership. Women collected enough hides (usually between eight and 20), tanned and scraped them, and prepared a great feast where the hides were sewn together by the participants.

These are just a few examples showing that Indians, like people everywhere, often relied on property rights to encourage the efficient and careful use of resources. An environmental ethic, however strong, was not enough.

1. Paul S. Wilson, What Chief Seattle Said, Environmental Law 22 (1992), pp. 1451-1468, at 1457.

2. John M. Copper, Indian Land Tenure Systems, in Indians of the United States, 1949 (Contributions by Members of the Delegation, and by Advisers to the Policy Board of the National Indian Institute, for the Second Inter-American Conference on Indian Life, Cuzco, Peru.)

3. Ted J. Brasser, Riding on the Frontier’s Crest: Mahican Indian Culture and Culture Change. Paper No. 13 (Ottawa: National Museum of Canada, Ethnology Division, 1974), p. 14.

4. Brasser, p. 7.

5. Angie Debo, A History of the Indians of the United States (Norman, Okla.: University of Oklahoma Press, 1970), pp. 13-14.

6. Peter J. Usher, Property as the Basis of Inuit Hunting Rights, in Property Rights and Indian Economies, ed. by Terry L. Anderson (Lanham, Md.: Rowman & Littlefield, 1992), p. 50.

7. Edward S. Rogers and J. Garth Taylor, Northern Ojibwa, in Handbook of North American Indians-Subarctic, Vol. 6 (Washington, D.C.: Smithsonian Institution, 1981), p. 181.

8. Frank G. Speck and Wendell S. Hadlock, A Report on Tribal Boundaries and Hunting Areas of the Malecite Indians of New Brunswick, American Anthropologist, Vol. 48, No. 3 (1946), p. 362.

9. Frank G. Speck, Aboriginal Conservators, Bird Lore, Vol. 40 (1939), pp. 258-259.

10. Julian H. Steward, Basin-Plateau Aboriginal Sociopolitical Groups, Smithsonian Institution, Bureau of American Ethnology, Bulletin 120 (Washington, D.C.: GPO, 1938), p. 253.

11. John C. Ewers, The Horse in Blackfoot Indian Culture (Washington, D.C.: Smithsonian Institution Press, 1969), p. 160.

12. Ewers, p. 162.

13. Anthony Netboy, Salmon of the Pacific Northwest: Fish vs. Dams (Portland, Ore.: Binfords & Mort, 1958), p. 11.

14. Robert Higgs, Legally Induced Technical Regress in the Washington Salmon Fishery, Research in Economic History, Vol. 7 (1982), pp. 55-86, at 59.