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Locke's Theory of Original Appropriation and the Right of Settlement in Iroquois Territory

Published online by Cambridge University Press:  01 January 2020

John Douglas Bishop
John Douglas Bishop*
Affiliation:
Administrative Studies Program, Trent University, Peterborough, ON, CanadaK9J 7B8
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Extract

James Tully and others have argued recently that the theory of property Locke defends in the Second Treatise was designed to justify European settlement on the lands of North American Natives. If this view becomes generally accepted, and Tuck suggests it will be, doubts may arise about the impartiality of Lockean property theories. Locke, as is well established and documented again by Tully, had huge vested interests in the European settlement of North America and possibly in the enslavement of Native Peoples. Doubts about Locke may reflect on all rights theories of property and thus bring into question ‘one of the major political philosophies of the modem world’ (Tully, ‘Rediscovering America,’ 165). Raising these doubts is part of Tully's declared intention (Tully, ‘Rediscovering America,’ 166). His article tries to show that the Native systems of property and government which Locke defines away as illegitimate are in fact interesting and potentially beneficial alternatives to Lockean individual rights theories.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 27 , Issue 3 , September 1997 , pp. 311 - 337
Copyright
Copyright © The Authors 1997

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References

1 Cf. Tully, James ‘Rediscovering America: The Two Treatises and Aboriginal Rights,’ in Rogers, G.A.J. ed., ,Locke's Philosophy: Content and Context (Oxford: Clarendon Press 1994)Google Scholar; Arneil, Barbara ‘Trade, Plantations, and Property: John Locke and the Economic Defense of Colonialism,’ Journal of the History of Ideas 54 (1994) 591–609CrossRefGoogle Scholar.

2 Tuck, Richard ‘Three Great Empires-and Their Defenders: the Diverse Conquerors of the Americas,’ Times Literary Supplement 4860 (1996) 15Google Scholar

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 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 Trigger, Bruce The Huron: Farmers of the North (Fort Worth: Holt, Rinehart and Winston 1990)Google Scholar.

7 The Second Treatise will be referred to as II followed by the paragraph number from Gough's, J.W. edition (Oxford: Basil Blackwell 1942)Google Scholar.

8 Macintyre, Alasdair After Virtue· (Notre Dame, IN: University of Notre Dame Press 1984), 251Google Scholar

9 Cf. Ashcraft, Richard Locke's Two TreatiSeS of Government (London: Unwin Hyman 1987), 143–6Google Scholar.

10 For example, it was claimed by Jan Narveson at the 1994 Leameds in Calgary in response to an explicit question.

11 That Locke had precisely this in mind is argued by Arneil, 602-3; and by Tully, James 'Aboriginal Property and Western Theory: Rediscovery of a Middle Ground,’ in Paul, Ellen Frankel Miller, Fred D. and Paul, Jeffrey eds., Property Rights (Cambridge: Cambridge University Press 1994), 160Google Scholar. Locke's phrase is ‘tills, plants, improves, cultivates …’ (II, 32).

12 Tully refers to these as the internal or spoilage limit, and the external or sufficiency limit; see ,Tully, James ‘Property, Self-Government and Consent,’ Canadian Journal of Political Science 28 (1995), 120CrossRefGoogle Scholar.

13 See, for example, ,Nozick, Robert Anarchy, State and Utopia (New York: Basic Books 1974)Google Scholar; and Jan Narveson, ‘Property Rights: Original Acquisition and Lockean Provisos’ (Unpublished manuscript, University of Waterloo 1995).

14 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 Macpherson, C. B. The Political Theory of Possessive lndividualism (Oxford: Oxford University Press 1962)Google Scholar; 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 Tully, ‘Property, Self-government and Consent,’ 107; also Haakonssen, Knud Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press 1996), 55CrossRefGoogle Scholar.

17 For a discussion of the debate surrounding this interpretation of Locke, see Tully, 'Property, Self-Government and Consent,’ 113-8.

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 ad hoc arbitrators of justice,’ and there was a ‘lack 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 ‘Exchange, Sovereignty, and Indian-Anglo Relations,’ in Anderson, Terry ed., Property Rights and Indian Economics (Lanham, MD: Rowan and Littlefield 1992) 13–16Google Scholar; Benson, Bruce ‘Customary Indian Law: Two Case Studies’ in Anderson, ed., Property Rights and Indian Economics, 28; Trigger, 80–96Google Scholar

22 Trigger, 29-30; also Carlson, Leonard ‘Learning to Farm: Indian Land Tenure and Farming Before the Dawes Act,’ in Anderson, Terry ed., Property Rights and Indian Economics (Lanham, MD: Rowan and Littlefield 1992), 69Google Scholar.

23 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. Flanagan, Thomas The Agricultural Argument and Original Appropriation: Indian Lands and Political Philosophy,’ Canadian journal of Political Science 22, 3 ( 1989) 589–602CrossRefGoogle Scholar.

24 For an interesting discussion of the legal concept of lex loci as applied to Inuit lands, see Usher, Peter J. ‘Property as the Basis of Inuit Hunting Rights,’ in Anderson, Terry ed., Property Rights and Indian Economics (Lanham, MD: Rowan and Littlefield 1992) 46–9Google Scholar.

25 Tully, 181; also Cronon, William Changes in the Land: Indians, Colonists, and the Ecology of New England (New York: Hill and Wang 1983) 58–67Google Scholar, 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, 34-9.

26 Tully, ‘Aboriginal Property and Western Theory,’ 169-71; Tully, ‘Property, Self Government and Consent,’ 127-8; also Williams, Robert A. Tile Amaican Indian in Western Legal Thought: The Discourses of Conquest (Oxford: Oxford 1990), 255–70Google Scholar.

27 Roback, 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, 1995).

28 Cf. Ross, Rubert Dancing with a Ghost: Exploring Indian Reality (Toronto: Octopus 1992)Google Scholar.

29 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 Simmons, A. John ‘Historical Rights and Fair Shares,' Law and Philosophy 14 (1995) 149–84CrossRefGoogle Scholar.

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 John Winthrop, 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 Cf. Waldron, Jeremy The Right to Private Property (Oxford: Clarendon Press 1988) 5–19Google Scholar.

34 This question is briefly raised by Flanagan, 600-1.

35 On actual abandonment of property, see Simmons, ‘Historical Rights and Fair Shares,’ 171.

36 The extent to which the Iroquoians and other Native peoples practised care of hunting grounds by restraint is greatly debated; see Notzke, Claudia Aboriginal Peoples and Natural Resources in Canada (Toronto: Captus 1994), 145–9Google Scholar, 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 Besides scholarship on Locke such as Tully's, this question has provoked philosophical debate; cf. McDonald, Michael ‘Aboriginal Rights,’ in Shea, William and King-Farlow, J. eds., Contemporary Issues in Political Philosophy (New York: Science History Publications 1976)Google Scholar; Gauthier, David untitled review of William Shea and King-Farlow, J. eds., Contemporary Issues in Political Plrilosophy, Dialogue 18 (1979) 432–40Google Scholar; Griffin, Nichola’ Aboriginal Rights: Gauthier's Arguments for Despoliation,' Dialogue 20 (1981) 690–6CrossRefGoogle Scholar; Flanagan, Thomas ‘The Agricultural Argument and Original Appropriation: Indian Lands and Political Philosophy; Canadian joumal of Political Science 22,3 (1989) 589–602CrossRefGoogle Scholar; Griffin, Nichola ‘Reply to Professor Flanagan,' Canadian Journal of Political Science 22, 3 (1989) 603–6CrossRefGoogle Scholar; and Flanagan, Thomas ‘Reply to Professor Griffin,’ Canadian journal of Political Science 22, 3 (1989) 607Google Scholar. 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 See Ashcraft, 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 Stolen Continents: The ‘NeW World’ through Indian Eyes (Toronto: Penguin 1993)Google Scholar 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 Cf. Ashcraft, 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. ‘Property,’ in Becker, Lawrence C. ed., Encyclopedia of Ethics (New York: Garland 1992), 1023Google Scholar

48 Waldron, Jeremy ‘John Locke: Social Contract versus Political Anthropology,’ in Boucher, David and Kelly, P. eds., The Social Contract from Hobbes to Rawls (London: Routledge 1994)Google Scholar