Locke's theory of original appropriation and the right of settlement in iroquois territory

Canadian Journal of Philosophy

Volumn 27, Issue 3, 1997, Pages 311-337

  Bishop, John Douglas ^a  

^a TRENT UNIVERSITY   (Canada)

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EID: 0012269573     PISSN: 00455091     EISSN: 19110820     Source Type: Journal    
DOI: 10.1080/00455091.1997.10715954     Document Type: Article

References (48)

1. Tully, James. 1994. “ ‘Rediscovering America: The Two Treatises and Aboriginal Rights,’ in ”. In Locke's Philosophy: Content and Context Edited by: Rogers, G. A.J., 591–609. Oxford: Clarendon Press. Cf.; Barbara Arneil, ‘Trade, Plantations, and Property: John Locke and the Economic Defense of Colonialism,’ Journal of the History of Ideas54 (1994)
2. Tuck, Richard. 1996. ‘Three Great Empires—and Their Defenders: the Diverse Conquerors of the Americas,’. Times Literary Supplement, 4860: 15
3. Tully, ‘Rediscovering America,’ 167; cf. also Arneil, 609.
4. By ‘our,’ I mean Euro-American philosophers; Native Americans have not lost the understanding they always had.
5. Much of the debate between European and Native property claims depends on other theories of rights and property such as treaty rights, aboriginal rights, or the right of conquest; this paper deals only with the Lockean theory of property.
6. 1990. The Huron: Farmers of the North Fort Worth: Holt, Rinehart and Winston. I will follow Trigger's usage in which ‘Iroquoian’ refers to the Hurons, the peoples of the Five (later Six) Nation Confederacy, and other peoples speaking languages of the same group. ‘Iroquois’ will refer only to the peoples of the Five (or Six) Nation Confederacy. Trigger points out that the Iroquois and Hurons, despite their on-going warfare with each other, had similar economies in the immediate pre-contact period (12). I am not aware of any differences in their economies which affect the arguments of this paper. See Bruce Trigger,.
7. 1942. Second Treatise Oxford: Basil Blackwell. The will be referred to as II followed by the paragraph number from J.W. Cough's edition.
8. MacIntyre, Alasdair. 1984. After Virtue 251Notre Dame: IN: University of Notre Dame Press.
9. Ashcraft, Richard. 1987. Locke's Two Treatises of Government 143–6. London: Unwin Hyman. Cf.
10. 1994. For example, it was claimed by Jan Narveson at the Learneds in Calgary in response to an explicit question.
11. Tully, James. 1994. “ ‘Aboriginal Property and Western Theory: Rediscovery of a Middle Ground,’ ”. In Property Rights Edited by: Frankel Paul, Ellen, Miller, Fred D., and Paul, Jeffrey. Cambridge: Cambridge University Press. That Locke had precisely this in mind is argued by Arneil, 602–3; and by in 160. Locke's phrase is ‘tills, plants, improves, cultivates.’ (II, 32).
12. 1995. Canadian journal of Political Science, 28 Tully refers to these as the internal or spoilage limit, and the external or sufficiency limit; see James Tully, ‘Property, Self-Government and Consent,’ 120.
13. 1974. Anarchy, State and Utopia New York: Basic Books. See, for example, Robert Nozick,; and Jan Narveson, ‘Property Rights: Original Acquisition and Lockean Provisos’ (Unpublished manuscript, University of Waterloo 1995).
14. 1962. The Political Theory of Possessive Individualism Oxford: Oxford University Press. For a discussion of how Locke applies the constraints only to original acquisition, see Macpherson 203–20. Shrader-Frechette argues against Macpherson and others on this point (206–19); I will take the view that Natural Law continues to apply after original acquisition, but that the specific constraints do not apply unless they are entailed by Natural Law in particular situations, which they are generally not for Locke in commercial society. This position may be consistent with Shrader-Frechette's discussion. See C.B. Macpherson,; and Kristin Shrader-Frechette, ‘Locke and the Limits on Land Ownership,’ journal of the History of Ideas (1993).
15. Locke had in fact read extensively the writings about North American Natives that were available in his day; cf. Tully, ‘Rediscovering America,’ 168. He obviously considered empirical information relevant.
16. 1996. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment Cambridge: Cambridge University Press. Tully, ‘Property, Self-government and Consent,’ 107; also Knud Haakonssen, 55.
17. 113–8. For a discussion of the debate surrounding this interpretation of Locke, see Tully, ‘Property, Self-Government and Consent,’
18. See also James Tully, ‘Rediscovering America,’ 169.
19. Also Tully, ‘Rediscovering America,’ 169. In ‘Aboriginal Property and Western Theory’ 164, Tully argues that Locke gave three reasons for not recognizing that Native Americans had government. These are: the war chief could not ‘declare war or peace,’ ‘the councils often appointed cid hoc arbitrators of justice,’ and there was a Tack of crime, property disputes, and litigation.
20. Tully discusses the inaccuracy of Locke's views of the property and government systems of Native Americans, including the Iroquois, in ‘Aboriginal Property and Western Theory,’ 163.
21. Roback, Jennifer. 1992. “ ‘Exchange, Sovereignty, and Indian-Anglo Relations,’ in ”. In Property Rights and Indian Economics Edited by: Anderson, Terry. 80–96. Lanham, MD: Rowan and Littlefield. 13–16; Bruce Benson, ‘Customary Indian Law: Two Case Studies’ in Anderson, ed., Property Rights and Indian Economics, 28; Trigger
22. Anderson, Terry, ed. 1992. Property Rights and Indian Economics Lanham, MD: Rowan and Littlefield. Trigger, 29–30; also Leonard Carlson, ‘Learning to Farm: Indian Land Tenure and Farming Before the Dawes Act,’ in 69.
23. 1989. Canadian Journal of Political Science, 22: 589–602. Cf., for example, Flanagan's discussion (591–2) of John Winthrop's ‘General Considerations for the Plantation in New-England’ (1629). It is clear from the quotation Flanagan gives that for Winthrop, it was the lack of physical enclosure (and the lack of ‘manurance’) that meant Indian lands were unowned and available for settlement. Thomas Flanagan, ‘The Agricultural Argument and Original Appropriation: Indian Lands and Political Philosophy,’ 3
24. Anderson, Terry, ed. 1992. Property Rights and Indian Economics 46–9. Lanham, MD: Rowan and Littlefield. For an interesting discussion of the legal concept of lex loci as applied to Inuit lands, see Peter J. Usher, ‘Property as the Basis of Inuit Hunting Rights,’ in
25. 1983. Changes in the Land: Indians, Colonists, and the Ecology of New England 34–9. New York: Hill and Wang. Tully, 181; also William Cronon, 58–67, for a discussion of how land assignment varied with use. Tully's and Cronon's discussions are in terms of North-eastern Native peoples in general, as are most discussions of hunting grounds. There appear to be only limited studies of the Iroquoian assignment of hunting grounds, but see Trigger
26. 1990. The American Indian in Western Legal Thought: The Discourses of Conquest 255–70. Oxford: Oxford. Tully, ‘Aboriginal Property and Western Theory,’ 169–71; Tully, ‘Property, Self-Government and Consent,’ 127–8; also Robert A. Williams
27. Roback. 1995. 9; also see C. Leigh Anderson and E. Swimmer, ‘Some Empirical Evidence on Property Rights of First Peoples’ (unpublished manuscript from School of Administrative Studies, Carleton University,.
28. Ross, Rubert. 1992. Dancing with a Ghost: Exploring Indian Reality Toronto: Octopus. Cf.
29. 1995. Law and Philosophy, 14: 149–84. Simmons reaches a similar conclusion: ‘Joint property is certainly possible on Lockean view’ (181–2). He also discusses the impact of group ownership on rectification of injustices (179). See A. John Simmons, ‘Historical Rights and Fair Shares,’
30. Locke could not decide whether land in England was a hundred times (II, 41) or a thousand times (II, 43) more productive than land in America.
31. Shrader-Frechette (204) refers to this as the ‘efficiency argument.’
32. Winthrop, John. in 1629, had used enclosure, probably meaning physical enclosure, and manuring as criteria for land ownership; cf. Flanagan, 591–2. Winthrop explicitly applied these criteria to North American Natives, claiming that since they did neither, their land could be appropriated by Europeans.
33. Waldron, Jeremy. 1988. The Right to Private Property 5–19. Oxford: Clarendon Press. Cf.
34. 600–1. This question is briefly raised by Flanagan
35. On actual abandonment of property, see Simmons, ‘Historical Rights and Fair Shares,’ 171.
36. 1994. Aboriginal Peoples and Natural Resources in Canada Toronto: Captus. The extent to which the Iroquoians and other Native peoples practised care of hunting grounds by restraint is greatly debated; see Claudia Notzke, 145–9, for recent comments on and references to this debate. For purposes of my argument, the extent of care is irrelevant; any level of care would satisfy Locke's argument. Also, the collapse of the care ethic under pressure of the fur trade with Europeans (as is discussed by Notzke, 147) is also irrelevant, since this would have been subsequent to the original appropriation of the hunting grounds.
37. For examples of such claims from the sixteenth, seventeenth, eighteenth, and twentieth centuries, see Flanagan.
38. This argument could, I think, be restated in terms of any of the other three basis for Lockean appropriation identified by Shrader-Frechette; to wit, need, efficiency, or merit.
39. This conclusion resembles but is more constrained than Simmons' contention that ‘property can be acquired by incorporation into our purposive activities’ (‘Historical Rights and Fair Shares,’ 183,162). The conclusion of the present paper is constrained to activities required by natural law. Tully discusses Simmons' view of purposive activity in ‘Aboriginal Property and Western Thought,’ 116–17; he points out the implication (argued for in the present paper) that Native Americans owned North America at the time of contact (118).
40. For a survey of interpretations of the proviso, see Narveson, ‘Property Rights.’
41. Shea, William, King-Farlow, J., and King-Farlow, J., eds. 1976. Contemporary Issues in Political Philosophy New York: Science History Publications. Besides scholarship on Locke such as Tully's, this question has provoked philosophical debate; cf. Michael McDonald, ‘Aboriginal Rights,’ in eds., Contemporary Issues in Political Philosophy, Dialogue18 (1979) 432–40; Nichola Griffin, ‘Aboriginal Rights: Gauthier's Arguments for Despoliation,’ Dialogue20 (1981) 690–6; Thomas Flanagan, ‘The Agricultural Argument and Original Appropriation: Indian Lands and Political Philosophy,’ Canadian Journal of Political Science22, 3 (1989) 589–602; Nichola Griffin, ‘Reply to Professor Flanagan,’ Canadian Journal of Political Science22 3 (1989) 603–6; and Thomas Flanagan, ‘Reply to Professor Griffin,’ Canadian Journal of Political Science22, 3 (1989) 607. The discussion in the current paper is more restricted, dealing only with the issue in the context of Locke's theory. If these papers are debating about a Lockean type proviso (and it is not clear that this is the context of all of the debate) then they presuppose that Indian hunting grounds are common property and can be appropriated subject to the proviso. It might be more appropriate, as Griffin points out (‘Reply to Professor Flanagan,’ 604), to view this debate as about expropriation.
42. Ashcraft. See ch. 8, for Locke's views on a state of war (which was not the same as the state of nature as it was for Hobbes); see Williams, ch. 5, 6, and 7, for the history of the idea that Europeans had a right to wage war against Natives if the Natives in the slightest way interfered with settlement.
43. Wright, Ronald. 1993. Stolen Continents: The ‘New World’ through Indian Eyes Toronto: Penguin. ch. 9; also see Flanagan, 601.
44. It is now recognized that the extent of Native agriculture was far greater at the time of European contact than was realized at the time. The discourse of the right of settlement may explain why Europeans, including Locke who nowhere acknowledges Native agriculture in North America, did not see this.
45. As Tully expresses a somewhat similar conclusion: ‘This is the flaw in almost all the purported solutions to appropriation without consent: they presuppose agreement on the values and goods of the commercial system’ (‘Property, Self-Government and Consent,’ 127).
46. Ashcraft. Cf. 97–8, for arguments against this as an interpretation of Locke. His note 1 on page 98 lists authors who have defended this interpretation.
47. Becker, Lawrence C., 1992. “ ‘Property,’ in ”. In Encyclopedia of Ethics Edited by: Becker, Lawrence C., 1023New York: Garland.
48. Waldron, Jeremy. 1994. “ ‘John Locke: Social Contract versus Political Anthropology,’ in ”. In The Social Contract from Hobbes to Rawls Edited by: Boucher, David, and Kelly, P., London: Routledge.