‘Do Indians Rightfully Own America?’

Bryan Caplan at Econlog revisits an old libertarian chestnut about land ownership, and following the lead of Murray Rothbard analyzes it in a priori fashion with little attention to the devices that Anglo-American law long ago evolved to adjudicate claims of ancient title, such as statutes of limitations and repose, laches, and adverse possession. But in fact we don't need to consider these questions in a historical and empirical vacuum. Not only has Indian title been the subject of an extensive legal literature since the very start of the American experiment -- much of it written by scholars and reformers highly sympathetic toward Native Americans and their plight -- but Indian land claims resurged in the 1970s to become the subject of a substantial volume of litigation in American courts, casting into doubt (at least for a time) the rightful ownership of many millions of acres, until the past few years, when the U.S. Supreme Court finally brought down the curtain on most such claims.

The short answer to the question "Do Indians Rightfully Own America" is, "No, they don't." Last year I told a part of that story in Chapter 10 of my book Schools for Misrule, focusing on the modern litigation and its origins among advocates in law reviews, legal services groups and liberal foundations, while UCLA law professor Stuart Banner lays out a much richer and more comprehensive story, concentrating on events before the present day, in his excellent 2007 book How the Indians Lost Their Land.

I'm grateful to Richard Reinsch of Liberty Fund's Liberty Law Blog for crafting a response to Caplan that draws at some length on my arguments in Schools for Misrule. The history may surprise you: it helps explain, on the one hand, how Indian casinos came to dot the land, and, on the other, how land claims by American tribes have emerged as a flashpoint for the assertion of human-rights claims against the United States by United Nations agencies. You can read Reinsch's account here.