First Nations Were No Strangers to Property Rights
Published in February, 2019
They also put economic development ahead of the environment.
By Terry Anderson
“The spiritual connection attributed to Native Americans frequently does not mesh with the history of Indian resource use.”
“Unfortunately, the white man's law usurped these secure Indian rights and replaced them with a system that encourages the tragedy of the commons.”
“Spiritual values may have inculcated a respect for nature, but an elaborate set of social institutions that today would be considered private property rights rewarded stewardship.”
Over the past several decades, the environmental movement has promoted a view of American Indians as the "original conservationists." References to this image abound:
"The Indians were, in truth, the pioneer ecologists of this country," former U.S. secretary of the interior Stewart Udall once said.
"For many thousands of years, most of the indigenous nations on this continent practiced a philosophy of protection (first) and use (second) of the forest," says Herb Hammond in the Sierra Club book Clearcut. "In scientific terms, we recognize that their use of the forest was ecologically responsible—meaning that it kept all the parts."
Appealing as this image of a Native American environmental ethic is, it is not accurate. The spiritual connection attributed to Native Americans frequently does not mesh with the history of Indian resource use. By missing this history of Indian institutions—by which I mean the traditions, rules, laws and habits that guided Indian societies—many environmentalists' interpretations deprive Indians and non-Indians alike of a full understanding of how we can conserve our natural heritage.
A vision imposed on Chief Seattle
The impression that American Indians were guided by a unique environmental ethic is often attributed to Chief Seattle. "All things are connected like the blood which unites one family," former U.S. senator John H. Chafee quoted him as saying. "Whatever befalls the Earth, befalls the sons of Earth."
Yet the words in the oft-quoted speech are not actually those of Chief Seattle. They 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 good deal more, particularly modern ecological imagery," according to one historian. Perry, not Chief Seattle, wrote that "every part of the Earth is sacred to my people."
The romantic image evoked by the speech obscures the fact, fully acknowledged by historians, that American Indians transformed the North American landscape. Sometimes these changes were beneficial, at other times harmful. But they were a rational response to abundance or scarcity in the context of institutions that governed resource use.
Like people everywhere, American Indians responded to incentives. For example, where land was abundant, it made sense to farm extensively and move on.
It was common for Indians such as the Choctaw, Iroquois and Pawnee to clear land for farming by cutting and burning forests. Once cleared, fields were farmed extensively until soil fertility was depleted; then they cleared new lands and started the process again.
Wherever Indian populations were dense and farming was intense, deforestation was common. Indeed, the mysterious departure of the Anasazi from the canyons of southeastern Utah in the 13th century may have been due to depletion of wood supplies used for fuel.
Similarly, where wild game was plentiful, Indians used only the choicest cuts and left the rest. When buffalo were herded over cliffs, tons of meat were left to rot or to be eaten by scavengers.
Indians also manipulated the land to improve hunting. Upland wooded areas from east to west were burned to remove the undergrowth and increase forage for deer, elk and bison. Indeed, because of this burning, there may have been fewer "old growth" forests in the Pacific Northwest when the first Europeans arrived than there are today.
The demand for meat, hides and furs by relatively small, dispersed populations of Indians put little pressure on wildlife. But in some cases, game depletion resulted in the "tragedy of the commons." This term, coined by biologist Garrett Hardin, describes what happens when no one has ownership of a resource and anyone has access to it.
Wild animals represented a "commons." They belonged to no one until they were killed. If anyone left an animal, in the hope that it would be there later, someone else was likely to kill it. Without ownership, no one had an incentive to protect the animals. Anthropologist Paul Martin believes that the extinction of the mammoth, mastodon, ground sloth and sabre-toothed cat were directly or indirectly due to "prehistoric overkill" by exceptionally competent hunters.
Louis S. Warren drives the final nail in the coffin of the "living in harmony with nature" myth: "to claim that Indians lived without affecting nature is akin to saying that they lived without touching anything, that they were a people without history. Indians often manipulated their local environments, and while they usually had far less impact on their environments than European colonists would, the idea of "preserving" land in some kind of wilderness state would have struck them as impractical and absurd. More often than not, Indians profoundly shaped the ecosystems around them…."
Getting the incentives right
While there were exceptions that led to the "tragedy of the commons," most American Indians 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. These rights strictly defined who could use resources and rewarded good stewardship.
It is sometimes difficult to fit the pre-Columbian Indian institutions into the modern context of law, government and property rights. The lack of familiar modern institutions, however, by no means implies that Indians lacked rules, customary or formal. Pre- and post-Columbian Indian history is replete with examples of how property rights conditioned the human interface with the natural environment. Consider the following:
Land and water rights, both communal and private
Indian land tenure systems varied considerably, "ranging from completely or almost completely communal systems to systems hardly less individualistic than our own with its core of fee simple tenure," according to one historian. The degree of private ownership reflected the scarcity of land and the difficulty or ease of defining and enforcing rights. Julian H. Steward concludes that "Truly communal property was scant" among American Indians.
Because agriculture required investments, and because boundaries could be easily marked, agricultural land was often privately owned. However, unlike most private land today, Indian property was usually held by families or clans rather than individuals.
For example, families among the Mahican Indians in the Northeast United States 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. As one historian put it, "no one would consider laying out a garden in the rocky hinterlands."
In the Southeastern United States, 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."
Private garden plots were common in the Eastern United States, as were large community fields with plots assigned to individual families. Harvesting on each plot was done by the owning family, with the bounty stored in the family's own storehouse.
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 Western United States, says one historian. 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.
Avoiding the "tragedy of the commons"
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 that 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, says Keith H. Basso, "had its own hunting grounds and, except when pressed by starvation, was reluctant to encroach upon those of a neighbour…. Each local group had exclusive rights to certain farm sites and hunting localities, and each was headed by a chief who directed collective enterprises…."
Customs and norms regulated the harvest. There was a district headman who determined where and when to hunt based on his knowledge from the past.
Well-Defined Fishing Rights
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 channelled.
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 indemnify the owning group or potentially face violent consequences. The yitsati, an 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 encourages the tragedy of the commons. It was "economically inferior to the property system originally established by the tribes," one scholar concludes.
Additional Positive Incentives
Even where activities were communal, positive incentives, including incentives quite similar to ownership, made success possible.
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." 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 rewarded stewardship.
Non-Indians also will do well to stop promulgating myths as a solution to modern environmental problems. Especially in a multicultural society where worldviews vary widely, devolution of authority and responsibility offers the best hope for resource conservation. Rather than shunning property rights solutions, we should embrace them, as did our predecessors on this continent.
Terry L. Anderson is a senior fellow at the Property and Environment Research Center (PERC, a non-profit, free-market environmental research institute in Bozeman, Montana and a senior fellow at Stanford University's Hoover Institution. His books include Unlocking the Wealth of Indian Nations (Lexington, 2016) and Free Market Environmentalism for the Next Generation (Palgrave, 2015).
Published in PIPELINE OBSERVER WINTER 2016