‘Do Indians Rightfully Own America?’:
By Walter Olson
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.
Throughout history, force has been the method of establishing the laws of the land, whether good or ill. The white Europeans and their descendants, often though force, displaced the native populations of the Americas. Incidents like the Trail of Tears show what depths of evil were conducted against the Native Americans in order to take their lands. This resulted in a near-genocide of the Cherokees. These are dark periods in American history.
I do not however, believe that the descendants of those indians who were wronged have a right to the land that their ancestors possessed. This is an especially painful conclusion considering that I claim Cherokee ancestry. In my mind, the Native Americans have no more claim over the lands lost to them than the Welsh and Cornish have for the lands their ancestors lost in the Anglo-Saxon invasion. Too much time has passed to return the land to what might be considered its rightful owners. Whether it is moral or not, might most often makes right, and both indigenous groups lost due to the overwhelming might of the invaders.
There is a happy story to tell of one group of Native Americans who were able to game the system in their favor. After the removal of the Cherokee from their native lands, some of them were able to hide out in the Great Smoky Mountains and evade the fate that waited them. Their story can be found elsewhere, so I’ll not diminish it by retelling it here. For me the best part of the story is how, through the ingenuity of chief William Holland Thomas (the ‘adopted’ white son of Yonaguska), they were able to buy the land that would become the Qualla Boundary, and thus securing the homeland of the Eastern Band of Cherokees. While other tribes were fighting to maintain land they held under precarious treaties, the Eastern Cherokees owned their land outright, and generations before their western counterparts, they were U.S. citizens entitled to the same rights and privileges as their white neighbors.
My point in all of this is that we cannot undo the past. We can’t depend on courts to make things right, either. We have to, like the Eastern Cherokee, work within whatever system system we find ourselves bound to be able to create the future we desire.
 Not always through force, though. The dilemma of individuals selling lands that were held to be tribal possessions was such an issue that the Cherokee Nation enacted a blood law, where those found selling lands within the Cherokee Nation were sentenced to death.
 I suppose my claim to Cherokee heritage can be seen as similar to Elizabeth Warren’s (see here, here, here, and here), but I do not claim to be Cherokee. I am “American by birth, and Southern by the grace of God“. Also, I am not a proponent of white people playing indian. I wore “regalia” while volunteering at the Native American pavilion of the Panoply Arts Festival several years ago, and it was one of the most awkward experiences of my life. I’m just too pale to pull it off, and I don’t have an emotional connection to a Cherokee heritage that (if genuine) has been lost to my family for generations.
(You can read more on the topic of wannabees/undocumented Cherokees here. Note the link to the statement by Cherokee Nation Chief Chad Smith is broken. A good link for it is here. See also a paper published by the Cherokee Nation titled Stealing Sovereignty. The three federally recognized Cherokee tribes seem to treat Cherokee-ness as a brand that they have exclusive rights to. Maybe they do, but state departments like the Alabama Indian Affairs Commission would conclude otherwise.)
 I have Welsh ancestors as well, but it doesn’t draw the ire of the Cymry when I claim that heritage.
 An argument could be made that the same culture (Anglo-Saxon/English) decimated both the Native Americans and the native Britons, but I’ll not poke that hornet’s nest here.
 If you ever have the opportunity to visit Cherokee, NC, I recommend seeing Unto these Hills, the Museum of the Cherokee Indian, the Oconaluftee Indian Village , and buying something from the Qualla Arts and Crafts Mutual.
 He may have been the only chief that did not have any Cherokee blood, but he was by no means the only chief of the Cherokee or the rest of the Five Civilized Tribes that had more european than native blood coursing through his veins. See also John Ross(Guwisguwi), William McIntosh(Tunstunuggee Hutkee), and William Weatherford(Lamochattee).