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Indian Property Rights

David Lyons

• Cornell University

“The New Indian Claims and Original Rights to Land.” Social Theory and Practice 4 (1977): 249–272.

Current Indian tribal claims to their ancestral lands should not be based upon historical land entitlement principles, but rather upon what Robert Nozick has called end-state principles. The justification for this conclusion is to be found in Nozick's version of what he calls the Lockean proviso. By conceding with Locke that property rights ought to be limited in order to recognize the moral priority of human need, Nozick has introduced a competing principle of social justice. If this principle is consistently applied, it under-cuts the principles of justice both in acquisition and in transfer and, thereby, invalidates the whole entitlement basis of rights claims.

Nozick does not allow unlimited liberty in either the initial appropriation or the subsequent transfer of property, but qualifies both by specifying that initial appropriation must not worsen the situation of others. This limitation upon initial acquisition has implications for subsequent transfers. For, if a later acquisition worsens the conditions of some, it does so because of the previous acquisitions of others. Therefore, even current entitlements based upon past just appropriations must bend before Nozick's Lockean proviso. If present holdings are subject to involuntary transfers because of violations of Nozick's Lockean proviso, then inheritance (a type of transgenerational voluntary transfer) should be equally subject to regulation by that proviso. Hence, not entitlement but “need” ought to serve as the basis for current property claims flowing out of past injustices.

One may conclude that past injustices against Native Americans constitute the historical causes of, but not the moral sanction for, present Indian claims. These claims ought to be founded on the morally more significant principle embodied in the Lockean proviso. Finally, all property claims should be systematically regulated by a body of positive law whose foundation is that proviso instead of some set of Lockean natural rights.

In public policy terms, Indians deserve monetary compensation for past violations of the federal government's Indian Nonintercourse Act (1790), which promised security to Native Americans against fraudulent seizure of Indian land. Current Indian land claims should not invoke an original and inheritable right to the land. Rather Indians should claim to be rectifying current inequalities and lack of their fair share of American resources together with social and economic opportunities. Society at large owes the modern Indian tribes a collective debt but not necessarily in the form of land or restored “rights” to property. Property rights are not sacrosanct when they are invoked to defend unjust holdings. They must yield to the moral claims of the needs of humans in the spirit of Locke's proviso.

The article demonstrates the incompatibility of entitlement principles with the so-called Lockean proviso which is itself an end-state principle; hence the internal inconsistency of Nozickian libertarianism.