Native Land: The Expropriation Continues

The land remaining to America’s First Nations, after centuries of robbery and genocide, currently stands at the roughly 2% of U.S. territory enclosed within reservations. Now Trump’s incoming crew wants to “privatize” (loot) it (Valerie Volvovici, “Trump Advisors Want to Privatize Oil-Rich Indian Reservations,” Reuters). The fact that this two percent of the land may contain around a fifth of U.S. oil reserves is a total coincidence, I’m sure.

The land is legally owned, not by the Native tribes themselves, but by the Bureau of Indian Affairs. In theory, the Bureau more or less stands in for the tribes as collective owner of the land, and allows the members to allocate possession of the land among themselves through the internal governance authorities. Sort of like how a Creative Commons license is supposed to use copyright to replicate the state of affairs that would exist if copyright law didn’t exist at all. Sort of. I guess.

But if Trump and his partners in crime get their way, they’ll be acting as the real owners of the land and disposing of it entirely without the consent of those for whom the government is theoretically holding it in trust.

The proposed privatization move would transform the current communal tribal rights to the land, exercised (unsatisfactorily, to say the least) through the BIA’s highly untrustworthy stewardship, into individual commodity property and thus make it easier for oil and gas interests to cut deals with the new private owners.

This is, completely and without qualification, morally repellent. The BIA has no legitimate moral standing to make such a conversion of property rights. The only rightful owners of this land are the Natives themselves, to whom it was guaranteed by treaty. And their rightful ownership takes the form of whatever customary rules governed the ownership and transfer of land before the conquest, plus whatever changes they’ve agreed to since through their own autonomous governance. The United States government and the BIA have absolutely no place in determining those rules. If the land is to be transformed from communal ownership with conditional individual possession to commodity ownership in fee simple, the decision is to be made by nobody but the people of the relevant Nations themselves, through their own internal governance practices.

What Trump & Co. aim at is just the latest instance among thousands, throughout history, of states nullifying customary land titles and ownership rules and imposing fee simple private land ownership — or forced collectivization — in their place. From the neolithic area on, some variation on the open field system was well nigh universal among agricultural populations. And among nomadic and semi-nomadic populations, similarly, collective rights to customarily delineated hunting grounds prevailed. Individual, alienable, fee simple ownership that prevails in capitalist societies has seldom existed except where it was imposed by states in place of peoples’ own previous arrangements.

In 17th century England, the Restoration Parliament transformed feudal land-ownership, which was heavily limited by customary restraints and by the possessory rights of the peasantry, into private property in the modern sense — with all the attendant rights to raise rents and evict peasants, who were now regarded as tenants at-will. In Bengal, Hastings’s Permanent Settlement (in theory a land survey for taxation purposes), worked a similar transformation on communal native property rules.

In Russia first Stolypin under the tsarist regime, and then the Bolsheviks, destroyed — in a one-two punch — the village Mir’s customary right to allocate communal lands among families. Stolypin encouraged the carving out of individual family holdings, permanently separated from the village’s communal lands and transformed into an alienable commodity. For any “libertarians” who are cheering at this point, the closest comparison is the government authorizing a corporate shareholder to simply walk onto corporate property and carry off machinery equal in value to her stock, without the permission of the corporation’s internal governance authorities. For legal purposes a corporation’s physical assets are the property of the company as a collective entitity, and not of one, a few, or even a majority of shareholders. So for individuals to unilaterally and permanently withdraw some share of physical assets from the common, without permission from the governance bodies of the collective, is a property rights violation. The Bolsheviks in their turn ignored the villages’ internal governance over remaining communal land and amalgamated them into state or collective farms under state managers, with the peasants as de facto rural wage workers.

Everywhere such “privatization” has taken place, it has been for the purpose of transforming the land from a universal source of sustenance to which all have defined rights of access, to the private possession of a few who collect tribute from everyone else. And it’s usually been motivated by Billy Jack bullcrap, like the Rio Tinto mining interests who wanted access to Apache sacred land, or the oil interests that want to run roughshod over Sioux burial grounds and drinking water.

Almost 400 years ago, a band of peasants calling themselves the Diggers tore down landlords’ enclosures and began to cultivate the land in common. In response the authorities were brought in to “tear down their cottages, burn all their corn,” as the song goes. Today, four hundred years later, we see this reenacted at Standing Rock

Whatever its ostensible justification, the state’s nature is robbery. We must fight it.