The Indian tribesman’s claim to his ancient stomping grounds can’t be reduced to a title search at the deeds office. That’s the stuff of the positive law. And this was the point I took away from a conversation, circa 2000, with Mr. Property Rights himself, Hans-Hermann Hoppe.
Dr. Hoppe argued unassailably – does he argue any other way? – that if Amerindians had repeatedly traversed, for their livelihood, the same hunting, fishing and foraging grounds, they would have, in effect, homesteaded these, making them their own. Another apodictic profundity deduced from that conversation: The strict Lockean stipulation, whereby to make property one’s own, one must transform it to Western standards, is not convincing.
In an article marking Columbus Day – the day Conservatism Inc. beats up on what remains of America’s First People – Ryan McMaken debunked Ayn Rand’s specious claim that aboriginal Americans “did not have the concept of property or property rights.” This was Rand’s ruse for justifying Europeans’ disregard for the homesteading rights of the First Nations. “[T]he Indian tribes had no right to the land they lived on because” they were primitive and nomadic.
Hoppean Homesteading Cultural supremacy is no argument for the dispossession of a Lesser Other. To libertarians, Lockean – or, rather Hoppean – homesteading is sacrosanct. He who believes he has a right to another man’s property ought to produce proof that he is its rightful owner. ‘As the old legal adage goes, ‘Possession is nine-tenths of the law,’ as it is the best evidence of legitimate title. The burden of proof rests squarely with the person attempting to relieve another of present property titles.’ (Into The Cannibal’s Pot: Lessons for America from Post-Apartheid South Africa, p. 276.)
This post was published at Ludwig von Mises Institute on Oct 10, 2017.