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On Bryan Caplan’s Inquiry “Do Indians Rightfully Own America?”

At Econ Log, Brian Caplan asks “Do Indians Rightfully Own America?” Caplan’s post wades into the thicket of libertarian property rights arguments as the method of adjudicating justice. I’ll refrain from engaging the rights scenarios given by high libertarians Robert Nozick and  John Locke that are mentioned in Caplan’s piece, and instead draw from the first Liberty Law Talk podcast I did, which was with Walter Olson on his recent book, Schools for Misrule. Olson spends significant time in the book on the Indian land reclamation suits launched in the 1970s by various tribes, in conjunction with activist lawyers, accusing mostly middle class and, in some cases, wealthy homeowners of unjustly possessing the land their homes rest on. One suit even wanted to repossess the land that Syracuse University occupies and the current homes on Cape Cod. Chicago, somewhat humorously, was also in their sights.

Can you believe that it all started with a law review article in the Maine Law Review of 1971? The theory was that the federal government under the Non-Intercourse Act of 1790 was the only entity by law that could negotiate for the tribes, yet many of the tribes had acted unilaterally in dealing with settlers or private associations over a century ago and executed land agreements without approval or oversight from the federal government. Thus, the theory went that the land was ill-gotten, swindled from the tribes by unscrupulous agents, and either taxpayers should payout at massive levels with compound interest, of course, and/or turn the land over and vacate. And thus began the Indian casino/hotel movement to pay off many of the tribes allegedly unjustly deprived of their tribal lands.

The effort found early success when a federal judge in Maine in 1975 allowed a suit to go forward for alleged tribal lands in the state, prompting a crisis in state government, which finally ended when the Carter administration offered $81.5 million in federal money to the litigant tribes as well as additional acreage.  Much mischief  soon began. The Supreme Court’s 1981 decision in Oneida II affirmed the nation’s “unique obligation” toward Indians and refused to apply any notion of a statute of limitations type restriction to past land transactions involving tribal claims. Indian land claims, as Olson notes, would purportedly be “open more or less forever.” In attempting to enact “cosmic justice” the Court created the conditions for injustice because it removed settled expectations in property rights. Of course, none of the suits were valid under common law principles applicable to land ownership disputes, and the Supreme Court during the Bush II Administration finally threw them out in City of Sherrill v. Oneida Indian Nation. Here, the Court recovered the common law doctrine of laches and asserted that the original merit of the claims over tribal lands would not disturb present-day owners because of the time that had lapsed. Enough was enough. Of course, none of those now holding the land could be accused of having acted on the knowledge of the fraudulent or illegal transactions (assuming these transactions were executed under duress or were illegal) and receiving a benefit from them. If the solution to this type of a problem is an abstract Nozickian-libertarian claim, as Caplan argues, entailing that those who hold the land in present-day must turn it over because of a perceived past injustice and an identifiable heir of the victim, then give me the common law tradition any day of the week.

The real price was born, as usual, by the middle class in parts of upstate New York, Maine, Massachusetts, and Indiana. Their title insurance and ability to get mortgages was called into question owing to these suits because of the ambiguity of actual land title created by the suits and obliging courts. Many were unable to sell their homes. They, ultimately, were the ones imperiled. Olson quotes a New Yorker story from Mashpee, Massachusetts, that documented the trouble its residents had after suit was filed. “After the Indians filed suit, banks refused to grant mortgage and loans, land development halted, construction came to a standstill, and people found it difficult, if not impossible, to sell their homes.” In the suit for lands claimed in upstate New York, the market for real estate recovered, but the decades-long litigation served to depress prices, many believe, in this section of the Northeast.

Frequently seen as underdogs, the tribes had great lawyers and lobbyists because of the cash waiting on the other side from the legislatures in payouts and from future casino opportunities that might be granted. Olson points to wealthy investors who paid the tab for the litigation “in exchange for a share of the casino rights” that would likely follow and frequently did. Congress could have intervened and foreclosed the suits’ potential for payouts by enacting a statute of limitations to the claims but never did. Casinos, largely unregulated, had become a source of campaign cash and influence. Some of the tribes had the best lobbyist money could buy. Here, Jack Abramoff makes more than a brief cameo, specializing, as he did, in the representation of tribal casino interests. The homeowners were largely outgunned by the tribes’ lawyers, lobbyists, and an obliging congress and executive branch. Final resolution only came in the 2005 Oneida Indian Nation decision and the subsequent dismissals of other claims in 2006 for acreage in the Hamptons and in eastern Pennsylvania. As Olson notes, if you count the casino earnings, the Indian suits had redistributed many tens of billions of dollars, making it easily the most successful reparations movement in America.

Olson adds a final coda to the suits with a brief “Where are they now” review. Apparently, the Western Shoshone tribe upset that it wasn’t given payment much larger than the $150 million it received from Indian Claims Commission for much of the land in the state of Nevada and parts of California, Idaho, and Utah went to the UN seeking redress through CERD or the UN Committee for the Elimination of Racial Discrimination. CERD ruled in their favor and directed the U.S. government to negotiate a new settlement. I’m shocked, shocked that CERD would side with the tribe against the American government in what was a purely meaningless result. I am sure that the Western Shoshone had great lawyers.

Finally, on the land swap deals that were brokered in the nineteenth century, and were the source of these reclamation suits, Olson is also a voice of sanity. He points to historians who shockingly have looked to the historical record to learn if guilt and shame must be our lot in regard to America’s tribal dealings. As he notes, “Underlying it all is the historical premise that Indian land was by and large stolen by the white man.” However, what was more typical in these transactions: arms length deals or deals negotiated under duress or fraud? Olson looks to Felix Cohen, a New Deal legal authority on Indian law claims and Stuart Banner’s much more recent book, How the Indians Lost Their Land to think about this question. The record according to Cohen, who lived in an America not besotted with victim and group rights’ claims, is a mixed one, and relative to most western countries who confronted aboriginal populations, one that stands up rather well. Similarly, Banner’s book also argues that theft of Indian lands wasn’t the norm, and in any event, much of the policies pursued in this regard enjoyed significant support from many of the Indians involved in the transactions.