A recent article (2/12/23) from the Volokh Conspiracy made me think of this excellent video made by Enrique from Prior Probability. Back in November, Enrique referenced a blog post where he provided a written explanation of Pierson v Post (1805) in response to one of my blog entries.
However, after reading his blog entry, I searched for Pierson on YouTube; one of the top search results happened to be Enrique’s video.
Excellent work!!
Trust is one of the guiding principles of any business relationship. It is the proverbial glue that has spurred the interest in decentralized digital currency over the past decade. Most people lack the technical literacy to mine Bitcoin or navigate the complexities of blockchain transactions without a middleman, a cryptocurrency exchange. Hence the surge in the popularity of FTX, Crypto.com, Kraken, etc. One of the earliest entrances to the crypto exchange market, Coinbase, revealed in its first-quarter earnings report that it could hold on to user assets in the event of bankruptcy. Per Fortune:
Coinbase said in its earnings report Tuesday that it holds $256 billion in both fiat currencies and cryptocurrencies on behalf of its customers. Yet the exchange noted that in the event it ever declared bankruptcy, “the crypto assets we hold in custody on behalf of our customers could be subject to bankruptcy proceedings.” Coinbase users would become “general unsecured creditors,” meaning they have no right to claim any specific property from the exchange in proceedings. Their funds would become inaccessible.
https://fortune.com/2022/05/11/coinbase-bankruptcy-crypto-assets-safe-private-key-earnings-stock/
Only subverting the property rights of the investors utilizing the exchange, but it also sullies the image of one of the pioneers of this nascent investment market. In the absence of trust and reliability, there is no reason for patrons to continue doing business with Coinbase. With no guarantee that their investments are secure with the exchange, customers will seek alternative service providers. In effect, Coinbase’s own internal bankruptcy policy has created a Prisoner’s Dilemma. By implementing a policy that would not allow the user to claim their assets in the event of the firm’s financial demise, Coinbase is veering away from the interests of its customers. A foolish decision, but a defection. Patrons will reciprocate this defection by transferring their assets to either cold storage or other reputable crypto exchanges. The unfortunate consequence is that trust in the crypto community will be eroded. Cryptocurrency was founded on the principles of permissionless, immutable, and decentralized transactions and this culture will lose traction due to the infidelity of unscrupulous service providers. Especially considering the absence of trustworthy exchanges, the technical literacy required to participate in the crypto sphere is far too high for anyone without a programming or financial background. Effectively puts the whole claim of cryptocurrency being a path to financial inclusion into question.
Trial by combat, in the eyes of modern observers, is nothing more than a barbarous anachronism of the dark ages. In his paper, Trial By Battle (2011), Peter Leeson details the economic advantages of the judicial practice in medieval England. The two concluding paragraphs of Leeson make some profound observations regarding the societal pivot away from a violent form of legal auctions. One counteractive realization Leeson comes to suggests that we do not abandon trial by combat for moral reasons, but rather this was due to a reduction in the transaction costs of land disputes. No, we did not suddenly become enlightened.
“…Finally, trial by battle didn’t die because England became less barbaric. It died because England became a lower transaction cost economy. Just as trial by battle substituted for the Coase theorem in a world of sticky property rights, the Coase theorem substituted for trial by battle in a world with significantly more fluid property rights. In that world lower transaction costs of trade permitted markets to allocate land to higher-valuing users. It became less critical for the legal system to ensure that disputed rights’ initial allocation was efficient. Because of late twelfth-century legal reforms that unstuck land rights, the late twelfth century the judicial system could afford to move away from trial by battle and toward more ‘‘enlightened’’ trial methods, namely trial by jury. When judicial combat became an unnecessary cost, England abandoned it.
This has important implications for how we understand the process of legal systems’ evolution. It suggests that legal systems’ evolution is less about a process whose course follows the trajectory of enlightened thinking and more about a process whose course follows the trajectory of the transaction cost of trade. When this cost rises, the relative price of relying on ‘‘sophisticated’’ judicial institutions rises too. Legal institutions become more ‘‘primitive’’ in the sense that we tolerate more costly (and less seemly) judicial procedures for identifying and allocating property to higher-valuing users. When the transaction cost of trade falls, so does the relative price of relying on ‘‘sophisticated’’ judicial institutions. The reverse happens: legal institutions become less primitive. Society acts enlightened because it has become cheaper to do so….”
As Leeson demonstrates, how the system of feudalism complicated the allocation of land rights; therefore, the institution of public combat trials helped distribute the land to the higher-valuing users. Those who spend more on champions to represent them in the contest must value the parcel of land more. How many traditions and institutions do we now consider archaic and outmoded by more efficient alternatives? Historians claim that such practices stopped due to an enlightened shift in social norms. Prima facie does seem more likely that social progress has been generated more by economic efficiency than lofty and abstract moral ideals. Who is to say that trial by combat was even uncivilized? Under certain conditions, it could be a feasible form of private dispute resolution analogous to dueling.
In commemoration of Thanksgiving, I am re-blogging my entry addressing my thoughts on the classic FEE essay Our First Thanksgiving (1959).
I sincerely encourage all of my regular visitors to read this classic essay published by the Foundation for Economic Education. It was originally published back in 1959, detailing the socialistic tendencies of the inhabitants of the Massachusetts Bay Colony. The essay explains how once the puritans did away with their collective system for allocating resources conditions began to improve.
The essay is entitled Our First Thanks Giving and it provides a unique history lesson regarding the holiday that has become in the modern-era a feast centered around football, food, beer and light conversation. However, it is important to never forget the struggles of the Pilgrims. The same system of resource distribution that failed the Pilgrims in the nascent years of the Massachusetts Colony is being proposed today. These policies are merely being presented in different packaging. Our puritan forefathers believed they could bring…
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Most legally mandated suicide prevention measures fixate on its impact on society. An individual assuming an externalities defense of the involuntary hospitalization of those with suicidal tendencies falls prey to a fallacy that all prohibitions of vices are subject to operating as a preemptive measure. Prompting the question, what is the committed offense outside of the state statutory code? What most Libertarians would refer to as victimless crimes. Enforcement of victimless crimes does not remedy the loss of property or harm to any non-consenting third parties. Rather, such laws have the unfortunate propensity of conflating potential consequences with actual damage done. Most arguments for maintaining the federal ban on illicit drugs emphasize prospective ramifications versus actual outcomes. Even drunk driving laws fail to meet the criteria for a violation of our private property rights. Operating a motor vehicle while intoxicated only increases the odds of bodily harm and destruction of property, but it does not guarantee this consequence.
US civil law no longer recognizes personal suicide attempts as a criminal offense. However, the criminality of physician-assisted suicide varies radically by state. Suicide is no longer a crime. Suicide prevention laws are completely constructionist inventions. More importantly, it also fails to fulfill the criterion for violating another person’s natural rights. Arizona has an involuntary commitment law codified under Title 36 of Arizona Revised Statutes. If there is no crime committed, can detention be perceived as lawful?
Such fits the definition legally sanctioned form of kidnapping. The basis of the logic of the Fourth and Fourteenth Amendments provides fodder. If it were not for Title 36, it would be considered unlawful confinement. The only rational inference is that these mandates are the illegitimate byproduct of legal positivism. The standpoint drove by a “moral” concern for potential externalities. Codifying morality is never a justifiable reason for exercising the authority of governing institutions!
People have the unfortunate tendency of favoring reasoning that is favorable to their preferences. Once an individual encounters the same logic applied to a position they disagree with, the application is assumed to be invalid. The abortion debate is no different in this respect. Pro-Choice advocates basing their stance on the logic of bodily integrity must be willing to extrapolate this same principle to other situations. Anything else would merely be convenient cherry-picking.
For example, advocating for choice regarding bodily integrity also applies to several other controversial topics. Such subject areas include drug use, the right to commit suicide, and objections to vaccine mandates, to name a few. Despite any Pro-Choice advocate’s misgivings about permitting the listed rights above to be consistent, they must begrudgingly accept that these are rights that cannot be prohibited by law. Any counterargument or suggestion to criminalize the above positions is a deviation from the logic of bodily integrity. Permitting an activity does not mean you believe it is moral. Moreover, this argument is predicated on an externalities argument; in a rash attempt to weigh the societal costs.
However, many Pro-Choice proponents may then surmise that individuals defending the decision to use drugs, commit suicide, and decline immunizations must accept abortion as a permissible procedure. Reverse application is not quite so linear and has several complications. Indeed, abortion presents a predicament for exponents of a Lockean conception of self-ownership. In one sense, abortion violates the Lockean notion of self-ownership. As Locke asserts that we cannot “… nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other… or take away the life or property of another..”(p.43)[1].
If we define the fetus as a living being, there is a conflict between the mother and the unborn child. Drug abuse, refusing immunization, and suicide confines direct bodily harm to the individual making the decision, thereby comporting with the tenants of the Non-Aggression Principle. Although, even in a legal sense, living children do not have rights[2] as they are under the guardianship of their parents. Also, if we truly own ourselves, can’t we choose which procedures we can have performed on our bodies? There is no easy solution to this complex and taxing quandary.
Foot Notes:
1.) I omitted the portion of the quote regarding self-destruction. This portion of the doctrine is wholly illegitimate. If we own bodies, we have a right to dispose of ourselves; if God exists, he transferred our spirit to our corporal bodies. Through this transfer, God relinquishes ownership of our essence extending to us full possession of our bodies. Meaning we can maintain our physical bodies how we see fit, including but not limited to drug use and suicide.
2.) See Rothbard pages 97-113.
The Lockean conception of shelf-ownership does not work if we cannot alienate self-hood. In the context of involuntary slavery, our absolute right (p.10) to self-possession is relinquished through coercive force [1]. The notion of natural rights almost always implies that the individual owns. For instance, the right of free speech codified under the First Amendment of the Constitution implies self-ownership. Individuals embroiled in political debate must utilize the very bodies they own and utilize scarce resources (p.2)to engage in the passionate exchange[2]. There is one glaring flaw that most ethical theorists get dead wrong about natural rights. Our negative rights that are part-and-parcel with our personhood may be self-evident, but they are certainly not inalienable. The American Declaration of Independence echoes this sentiment and forever cements it in the public consciousness:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
The claim that these rights are unalienable does not connote ownership of these rights in any meaningful sense. By the inseparable nature of self-ownership and natural rights, we do not truly have unfettered possession of ourselves. The ability to alienate something is that can only be the consequence of ownership. True ownership implies that an individual can transfer, maintain, sell, deface, lease, destroy, etc. the article in question as they see fit. One of the strongest arguments for this radical interpretation of ownership comes from economist and Libertarian theorist Walter Block. Dr. Block writing “..No law should be enacted prohibiting or even limiting in any way people’s rights to alienate those things they own. This is “full monte” alienability, or commodification…” (p. 6) [3]. Block surmises that an unlimited condition of ownership naturally extends to the person, meaning that if an individual chooses to sell themselves into slavery this is legitimate. Unlike the trans-Atlantic slave trade, the individual being sold is consenting to the arrangement [4].
However, most, and moral theorists would suggest that natural rights, especially selfhood cannot be alienated or dispensed with. As our mind and body are typically inseparable; neither can be reallocated nor disposed of. This supposition suffers from an unfortunate fallacy because a person can voluntarily absolve their will and sentience. In the most extreme case, a person could give themselves a lobotomy effectively alienating their will and severing their mind from their corporal body (p.8) [5].
There are less extreme examples of people abstractly selling off natural rights in exchange for material gain. One only needs to look to employment contracts to see a ubiquitous example of this selective selling of rights. It is common for employers to include social media policies as a condition of employment. Effectively acting as a voluntarily acknowledged limit on free expression; a right codified under the First Amendment. Regardless of whether this restriction is a temporary sale of this right or permanent alienation it is a legitimate exchange. From the standpoint of Rothbardian contract law, this arrangement fulfills the criteria for an enforceable contract. Under this theory of contract law, the property must be exchanged for the contract to be binding, any other agreement is a mere promise (p.133-135). At the core of an employment contract or conditions of employment, the property is being exchanged. The employer is transferring compensation (monetary and additional benefits) to the employee. This exchange is contingent upon the employee following the company’s internal policies. Indirectly operating as a form of selling or “renting” natural rights in exchange for employment.
Selling property is merely one means of alienating property. Other more drastic measures can achieve this same outcome. The concept that an individual can condemn their property, mirroring the same privilege current held by various tiers of the U.S. government. The only difference is that when the state does it, they do so without the consent of the owner. Even when eminent domain is practiced within the parameters of the takings clause, however, the property owner generally does not have the right to refuse to surrender their property. Regardless of whether they are justly compensated for the relinquishment of their business, land, or home this arrangement is still inherently coercive. In stark contrast, if a property owner dedicates to transfer or otherwise condemn the land they own, this is legitimate. Effectively, suicide is an example of a person opting to condemn themselves. A person choosing to forever dispose of themselves permanently disables their ability to contribute to society; mimicking how governing institutions can decree that land or a build is no longer fit for occupation or commercial use. The state typically initiates such a directive in the context of habitation or use of the property would pose a “safety hazard”. However, a person contemplating “condemning” themselves does not need to fabricate such vague excuses. If they truly own their own body and mind, they do not have to provide any justification for performing such action. Unlike eminent domain, the individual can consent to the decision they have made.
Most people might argue that allowing others to commit suicide with no mandated intervention would squander human lives [6]. Further supporting this statement by repeating tired platitudes about how it is a permanent solution to a temporary problem. No doubt, suicide does come with a wide array of societal costs. The individual can never be replaced nor can their human capital because no two people have the same experiences. If we set aside the externalities of the act, there’s a deeper conflict at play. There’s a long tradition of property owners having the right to destroy what they own. The right to destroy one’s property has its roots in the doctrines of Roman and English Common law (p.8). Moreover, there is a long-standing tradition that arguably supersedes the concerns of modern environmentalists or other public interest initiatives. The concern for wasting resources was even voiced by John Locke back in the seventeenth century:
The same law of nature, which does by this means give us property, does also bound that property. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it to us? To enjoy. As much as anyone can make use of to any advantage of life before it spoils, so much he may by his Tabour fix a property in whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. (p.12).
While Locke provides us with prudent advice regarding resource management, it is nevertheless, a suggestion. A just legal system would defend the property owners’ right to dispose of their property how they choose, even if it is considered wasteful. A legal system that has penalties or restrictions impeding the right to destroy one’s property, provides a perverted form of justice. Much like anything else a person owns, they should be able to “destroy” themselves. In a sense, we legally permit other more protracted forms of incremental suicide. For instance, currently, no laws are prohibiting the sale or consumption of sugar-saturated and chemical ladened soft drinks. Although cigarettes are highly taxed and regulated, we still live in a society where smoking is still legally tolerated. Both soda and cigarettes slowly kill the person ingesting either product; despite this fact, these products should remain legal. Following this same logic, if the person should be able to choose what they put into their body, they can choose to also ultimately dispose of their body.
Footnotes
[1]. The account of Slavery in Locke’s Second Treatise of Government (1690).
[2]. An allusion to Hans-Hermann Hoppe’s theory of Argumentation Ethics.
[3]. In reference to Block’s postulations related to the possibility of voluntary Slavery.
[4]. How slavery was practiced in the United States was a reprehensible institution. The trans-Atlantic slave trade was incompatible with a property rights justification for self-ownership.
[5]. An example Walter Block borrowed from legal theorist Stephan Kinsella.
[6]. The idea of wasting human life can be applied in an economic sense. The decreasing fertility rates in the Western world present challenges to the labor force and the tax pool. Especially, after all the Baby-boomers die.
Here is a hypothetical situation that presents us with a challenging conundrum that would drive most legal scholars and moral philosophers mad. There is as a person in a vegetive state who is hooked up to a variety of life-sustaining medical equipment (feeding-tube, ventilator etc.). Let’s say that the individual is married, and their spouse has been their legal guardian since they have become clinically brain dead. Does the parents of the incapacitated person have a say over the end-of-life decision making for their child? Should this heavy burden be left to the spouse and rightful guardian? It should be noted that the moral analysis must be separated from the determination of legality. All because something is legal does not necessarily make it moral. For instance, abortion in the United States is sanctioned around quasi-arbitrary timeframes with little consideration for situational context or biological development of the fetus. The decree of legislative fiat does not automatically make a policy moral. There are many legal protections within American statutory law that prevent individuals from facing criminal penalty or ligation. If crimes against persons and property cannot be subjected to restorative justice then there is no point in calling a legal system just. In other words, we will be reviewing this situation from a philosophical standpoint, specifically from the perspective of individual property rights.
The above scenario is not quite so hypothetical but is a concise description of the Terri Schiavo case. However, one striking difference between the scenario presented above and the Schiavo case is that :
Terri Schiavo breathes on her own. She is not on a ventilator or respirator. Although she swallows, she is sustained through a gastric feeding tube. She is not in distress or imminent danger of death.(P.5).
Despite Schiavo’s lack of cognitive functionality for the most part she was able to “live” in the most basic sense of the term. It should also be note that prior to her cognitive impairment she made no will directing her “wishes” for medical treatment. Also including end-of-life decisions. Therefore, leaving the variable of individual consent obscured by Schiavo’s incapacitated state. There was a rift between Schiavo’s husband/ guardian wanted to remove her feeding tube while her parents staunchly disagreed with this decision. Ultimately, the courts sided with the husband and Terri ended up dying after having her feeding tube removed. This may have been the legally permitted course of events, but was it moral from the paradigm of individual property rights?
The economist and Libertarian Philosopher Walter Block provides a remedy to this quandary squarely from the standpoint of Lockean property rights. A grown adult who has lost their cognitive faculties is analogous to a child and exist in purgatorial grey area when it comes to the prospect of Lockean ownership (p.5).Block takes the Rothbardian approach to addressing a parents required commitment to child rearing, which in fact allows parents to relinquish this right (p. 6). Much like how Lockean homesteading does not preclude an economic agent from taking ownership of an abandoned patch of land, this analogy can be applied to raising children. If an adult within the community is willing to devout the resources to raising a child discarded in dumpster, this should count as a transfer of guardianship (p.7). Based upon the premise of Lockean homesteading the Supreme Court of Florida was morally wrong in assigning the right to end Terri Schiavo’s life to her husband. Through wanting to end her life with no prior record or request of her wanting such measures taken, he effectively relinquished his guardianship. Clearly he did not do so in the modern legal sense, but he did so within the context of Lockean property rights. If her parents were willing to assume guardianship of their daughter then the court’s decision is nothing more than perverse.
And if they are, then whoever is at first control of her must maintain her; if he refuses, her guardianship reverts to the second closest party, her parents. If they will not homestead her, then perhaps her siblings. If not them, then anyone who wishes to take up this burden. Based on the number of protests at the callous way she is being treated ( Block, 2011, p.7)
The Fourth Amendment of the U.S. Constitution is central to our modern conception of property rights. Outside of contract law, few areas other than our right to privacy substantially address such civil libertarian concerns. The Fourth Amendment like so many other Constitution “rights” are not absolute and are subject to various exceptions and stipulations. Much how our right to free speech has limitations, the same can be said about our right to privacy. Even instances of warrantless searches of property and persons. Conceptually a warrantless search and seizure of property are condoned under a specific legal context. Effectively divorcing case law from the normative justifications for the drafting of the Fourth Amendment. The basis for the Fourth Amendment has its origins in the philosophical precepts of English Common Law. Immortalized in the words of the English jurist Sir Edward Coke “…That the house of everyone is to him as his Castle and Fortress..” implying that the home is a man’s ultimate refuge from public life. It is where he stores his personal effects and experiences the most intimate moments of his life. Arguably making securing one’s home the focal point of the property rights protected under the Fourth Amendment.
The Fourth Amendment concisely details the intended scope of security bestowed to American citizens under its protections.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Amendment IV, U.S. Constitution).
In a literal reading of the amendment, it is quite evident that its scope was enough for covering the property rights of citizens of the 18th century. With the advent of new technology, this list of protected areas of the property is wholly incomplete. Since the era of the founding, the various types of property ownership have greatly expanded to include automobiles, various forms of modern intellectual property rights, and even digitally stored information. This is likely why some jurists advocate for the prospect of a “..living Constitution..” that possesses the pliability to adapt to modern times. Despite the potential danger of illiberal innovations that may be utilized to invalidate crucial Constitutional rights. E.g.) An amendment that repeals the Second Amendment due to an increase in gun violence. Due to the stringent requirements to ratify such Amendments, the 4th Amendment has evolved primarily from case law. Primarily the rulings in Supreme Court cases, setting the tone for the modern interpretation of our right to privacy.
In certain contexts, our expectation of privacy varies. For instance, we do not have the same expectation of privacy walking down the street as we do in our bedroom. The verbatim text of the Fourth Amendment does explicitly guard Americans against warrantless searches of their home and person but leaves us in a murky situation when it comes to modern forms of ownership. Never mind cloud computing and other variants of modern data storage, but even automobiles are left out of the equation. This concern becomes particularly significant in the event of a traffic stop. However, factors relating to probable cause and the plain view doctrine need to be considered in justifying a warrantless search of a vehicle, there is another variable at play. Simply, we do not have the same expectation of privacy in our car that we do in our home. To many people, this may sound somewhat absurd and normatively there are some grounds for arguing against this point. However, from the stance of positive law, these assumptions hold.
The origin of the modern limits of the Fourth Amendment regarding vehicle searches dates back to Carroll V. United States (1925). In September 1921, Carroll met with an undercover agent to sell illegal whiskey. After Carroll left the location to obtain the whiskey his “potential” client had left. Then in early October Carroll’s vehicle was involved in a chase with a patrolling police car. Carroll was able to escape arrest. Then on December 15th of the same year, Carroll was pursued and stopped by police. During the traffic stop, the officers discovered 68 bottles of illicit whiskey tucked behind the upholstery of the car. The court held that the agents that apprehended Carroll had justifiable probable cause to search his vehicle. Since previous encounters with the suspect indicated a high likelihood that he owned alcoholic beverages.
It is easy to find such conclusions troubling. After all, we do own our cars. Shouldn’t searches of automobiles require a warrant barring exigent circumstances or the consent of the owner? Carroll happened to be the defining case that did indeed confirm that a man’s car is not his castle! It is easy to assume that the same rights that apply to a home could easily be extrapolated to a vehicle. Much like a home, a car can act as a vessel for holding personal effects. In some cases, for individuals that are homeless, a car is their house. Carroll singlehandedly defines the criteria under which an automobile differs from a stationary house regarding the expectation of privacy. The court ruled that the authorities having the suspicion that a car contains contraband is in itself justifiable for a warrantless search. Why? Since cars are mobile, they can easily leave the jurisdiction well before a warrant can be issued. This decision on the part of the court may seem overarching, however, it was not without limits. The court ruled that warrantless searches of parked automobiles would be considered unreasonable. That the search must be “…contemporaneous with the stop…” making it improper to move the vehicle offsite to search at the police officer’s “convenience ”. Subsequent cases even decades after the Carroll decision would further erode the notion that there is an expectation of privacy in one’s car. Noting that the very nature of a car being a conveyance strips away much of privacy privileged to our homes. Later cases even detailing that “…It travels public thoroughfares where both its occupants and its contents are in plain view…”.
The moral argument for a right to suicide is firmly grounded in property rights. To many readers the very notion that suicide and ownership of tangible objects are interconnected is farfetched. Upon a superficial assessment of the premise, it is easy to jump to this conclusion. Once we get to the philosophical taproot of the concept of ownership the overlap between the two concepts becomes much more apparent. Fastened to the pillar of natural rights, the right of ownership is crucial in establishing all other rights. The ability to retain, transfer, and exclude others from one’s property lays down the framework for all other negative rights we cherish. For example, if a dinner guest offends us with an off-color joke at our house, we have the right to ask them to leave. The right of excludability. If the dinner guest is aware, we are offended by specific kinds of jokes, they fully consent to the conditions of the dinner party by opting to attend. Due to this variety of informal rule creation, there is no need to implement laws prohibiting offensive speech. Individual property owners can decide what types of jokes or language will be tolerated in their household.
The basis for ownership of tangible items goes back to an even deeper principle of self-ownership. If we do not own ourselves how can we possibly possess physical property? Either in the title or tangible form. The philosopher who bridges the gap between self-ownership and ownership of objects, locations, and intellectual property is no other than the great John Locke. At the most rudimentary level, we must own ourselves before we can possess any additional property. The extent to which this self-ownership is applicable is debatable. We can legally own ourselves. We have autonomy over (in most cases) our corporeal vessel that holds our inner organs. An individual can also exert control over their mind. Where does the right of an individual to own one’s self arise from? This merely the abstract pontification of an out-of-touch philosopher? Most who have read Locke would staunchly disagree with the prior inference. Locke developed a concise explanation linking self-ownership to an unwavering natural right.
In Locke’s Second Treatise of Government (1689) he further expounds upon the natural basis for self-ownership. Arguably laying down the nascent substrate for the ethical arguments against slavery later on in the 19th century. The right to self-ownership is the result of divine providence. In Locke’s view, God gives us life and we are born free. For those who have more of a secular view of the world, it could state we are born free by our humanity. There is no grand authority that we must oblige by involuntarily transferring self-possession to as a result of cohesion.
“…Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his person: this nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. (p.11)..”
Locke establishes that no one person has the right to own another human being. The implications of the above quote go beyond the abstract conceptualization of self-ownership. Due to a person owning themselves they also possess the fruits of their labor. If you work and toil to harvest lobsters in the icy waters off the coast of Maine, whatever you catch is rightfully yours. Providing you are not capturing so many lobsters that you are preventing others from having a chance to obtain the seafood delicacy. Nor are you procuring so many they will go to waste (p.12-15). Through self-possession and possession of our labor and the results of our labor, the natural rights argument for property ownership is pithily conveyed.
John Locke was correct about all people being born free and having possession of overall commodities, lands, and intellectual property that they have rightfully obtained through their labor. Where he went astray was asserting that natural rights are inalienable. Regardless of whether we procure these rights from god or as a result of our personhood, you can alienate these rights. Whether or not it is ethically justifiable is completely contingent on the consent of the individual. We have a natural right to free speech for example. While at work we temporarily or indefinitely suspend (for the duration of our employment) our right to unfettered speech as a condition of employment. There is nothing illegitimate about this arrangement because it expresses a form of tacit consent. If you truly disagreed with the rules of the company you otherwise would not accept the job offer. Agreeing to conditions of employment can operate as a form of selling our natural rights. If we truly own ourselves and possess all of the natural rights we are guaranteed in the Constitution, why couldn’t we sell the title to our rights to other people? That is effectively what we do when after signing an employment agreement. Our natural rights cannot be transferred or relinquished unless we willingly agree to conditions or arrangements that nullify these rights.
One particularly controversial example of this concept was formulated by the Austrian economist and political theorist Walter Block. Dr. Block postulates that voluntary slavery is not incompatible with individual freedom. Such a position sounds antithetical to liberty, however, understanding the context is key. There is a difference between being forced at gunpoint into slavery and choosing to be a slave. Why would anyone choose to be a slave? They or a family member may owe an astronomical amount of money to a private individual and the only means of making restitution on their debts would be a lifetime of unpaid servitude. It highly unlikely that anyone in modern times would consent to such an arrangement. Being able to sell one’s self to another person demonstrates an unfettered view of self-ownership. The laws prohibiting voluntary slavery are essentially are equally as unjust as keeping involuntary slavery legal. We can’t say that we truly own ourselves if we cannot do as we please with our bodies. That includes opting to sell ourselves into slavery.
The question becomes how does the argument for voluntary slavery apply to suicide? Logically it is predicated on the very same principle of self-ownership. If you truly own yourself and no one else has possession of your body and mind, then you have a right to kill yourself. As jarring as this statement maybe it is nevertheless true. If we truly possess an object or an idea we can do as we please with it. We can sell the item or bit of intellectual property, or we can dispose of it. Nothing is stopping us from purchasing the latest iPhone at full retail price and then upon receiving the device, abruptly throwing it into a trashcan. While by the assessment of convention sensibilities such an action would irrational or foolish, no one has a right to prevent this behavior from occurring. Regardless of the perception of others, the notion of ownership prevents others from intervening. Some may criticize this example because it is comparing a replaceable item with the irreplaceable essence of human life. This critique is a fair one, however, that does not make this a false analogy. The operative condition is the concept of ownership not what the individual is choosing to dispose of. Regardless of the origin of where we obtain our natural rights from we do own ourselves. Much like anything else we own we have a right to dispose of ourselves. This is not making a moral judgment about the act of suicide in-of -itself. Nor is this a tacit endorsement of suicide. However, legality is no measure of morality. Nor is pressure to conform to societal norms. If we legalized heroin use and prostitution tomorrow, these activities would not necessarily be moral. But they would be legal. While these activities may be immoral, inferring an individual’s right to poison their body or engage in infidelity is also immoral. Immoral on a grander scale. When victimless crimes have codified sanctions, they are generally backed by the threat of incarnation, fines, or state violence.
The decision to commit suicide is a deeply personal decision that should not be felt in the hands of doctors, psychologists, and especially nor legislators. Attempts to intervene in suicide attempts are naturally transgressive against the individual’s property rights. If indeed, we truly possess self-ownership.
The act of suicide is an action unconscionable to most people. Committing suicide violates one of the most basic tenants of human biology, the innate drive for self-preservation. Human beings are wired to avoid death at all costs. This proclivity towards instinctively evading peril is physiologically manifested in our internal fight-or-flight response. If our biologically ingrained will-to-live isn’t compelling enough to make the prospect of suicide perplexing, there are also normative reasons for finding the practice baffling. Some of these cultural norms have developed out of divine prescriptions. In the Abrahamic religions, for example, there are textual prohibitions against suicide. This divine restriction is even extended to instances of medically assisted suicide for the terminally ill. However, the philosophic obligation to live is not limited to a purely religious context. There are philosophical; traditions that shun suicide as an abdication of duty. One of the most salient examples of this is presented in the corpus of Immanuel Kant’s work. It can be argued that we have a duty to our family, friends, co-workers, and community to not kill ourselves. Some people love us deeply and count on us. How could we be so egotistical to not consider the radius of the fallout from such an act? The externalities of one person committing suicide stretch well beyond the victim.
Then again, this reason could be easily inverted. Who has the authority to mandate that suicide is a selfish act? God? Perhaps. Does divine prescription or other moral conventions give us a moral duty to intervene in suicide attempts? A resounding majority of people would unequivocally say, “yes”. Many would go so far as to advocate for codifying measures in formal statutes and ordinances to safeguard those with suicidal inclinations from harming themselves. This is substantiated by the fact that most states have laws that require mandatory involuntary hospitalization for suicide attempts. However, much of the conventional wisdom that surrounds the subject of suicide is quite perverse. Beyond the stigma that is attached to it, societally we have the wrong perspective on it. If people can subjectively determine the value of goods that they choose to buy daily, why can’t they do the same with their quality of life? Couldn’t we also extrapolate the same concept of marginalism to an assessment of individual wellbeing? Even the parameters set in place in jurisdictions where medically assisted euthanasia is permitted are too restrictive. The doctor tasked with ascertaining whether a terminal cancer patient should be able to end their own life is draconian. Involuntarily transferring this right to an authority figure by a matter of jurisdictional law. Who would be a better judge of the patient’s quality of life, than the patient? The judgment of the physician at best a partial informed inference. Lacking the all if qualitative sensations of anguish characterizing most terminal illnesses.
While medical-assisted suicide may be legalized in some regions for those at the end stages of palliative care, it remains taboo to permit suicide for those suffering from psychological distress. This discrepancy in logic is quite puzzling. In recent years there has been a plethora of campaigns to have mental illness be publicly recognized as an illness. Generally done so in a top-down and highly pedological manner (naturally the experts curing the ignorance of the commoners). Generating a myriad of various pithy slogans so succinct they could fit on a bumper sticker. There is some glaring hypocrisy in these initiatives. While yes, I agree that mental illness is an illness. In most cases, there is even a biochemical basis for the mental illness. For example, serotonin deficiencies resulting in depression. If there can be a terminal stage of physical illness, why wouldn’t there be a terminal stage of mental illness? Who would determine this arbitrary line in the sand? This unpleasant and inconvenient fact is conspicuously absent from the mental illness is an illness movement. That is unfortunate because the tendency of sugarcoating serious issues does little to solve significant problems. Trivializing this mental health movement to caricature of what it could be. Reducing it to a mere humanistic feel-good movement. Nevertheless, if as a society we aim to treat mental illness on an even field with physical illness, it is only reasonable we allow those with mental illness to commit suicide if they see it fit. This may sound callous or even cruel. The same could be said for forcing someone to live who does not want to.
Since the introduction of the concept of an “unconfined” application of the Public Trust Doctrine the legal construct has been utilized in a diverse number of ways. Typically in a manner that is divorced from its original purpose of preventing public resources from being occupied by private use. For example, preventing a private owner of an interior river from blocking off passage to anyone headed down. This becomes problematic because the operator of the boat is effectively stuck with no means of arriving at his destination. While there are several ways to resolve the issue of the unreasonable blockade, for example treating the river as a club good, at least the original intentions of the construct were limited to a clear concern for the public good. In the years since the Just case, the public interest justification has become more opaque. The overall lack of clarity and formal limitations on the doctrine has led to an appalling erosion of private property rights. Arguably has created a two-tiered system of public interest. On one hand, the doctrine has served to undermine public interest by destroying confidence in the state’s protection of personal property. The Just case is not a dead ringer for being the Public Trust equivalent of Kelo V. New London. However, both are horrifying demonstrations of how the Eminent Domain and the Public Trust Doctrine can be used in a manner that side-steps the Fifth Amendment.
The ruling on the Kelo case was unacceptable. No proponent of private property rights would argue otherwise. At least this illegitimate transfer of property was purportedly done for economic development. While this approach may have been morally and economically flawed, it still had pragmatic intentions. Whereas the Just case aimed to benefit the public interest in a more circuitous manner. Many of the goals of environmental preservation tend to reflect abstract objectives and ecological metrics that are far removed from the concerns of the average person. This does not mean that is not harm imposed by pollution or other ecologically destructive actions are not problematic. Such actions are loaded with externalities and adverse consequences. It is nearly impossible to separate the pragmatic concerns of the conservation movement from its ideological agenda. In reality, conservation should be about voluntary resource management, rather than forcibly separating American citizens from their property. Much of this conflation between political goals and practical environmental concerns is evident in the Green New Deal proposal.
The aftermath of the “liberated” Public Trust Doctrine is evident in the subsequent ruling giving a difference to this uncodified legal norm. It is difficult to conclusively say that using this construct to hold public property is inherently in the interest of the public. Public interest infers that all individual citizens benefit from the policy. In actuality, it operates more as an averaged aggregate of well-being, “… following utilitarian standards…” (p.159). The individual who is forced to surrender their property for the sake of environmental objectives without compensation is worse off. The matter is only compounded by the fact that the decision to transfer private property for public use is made by a third party with no rights to that property (p.159). This third party is the judges interpreting the law on the behalf of the state. Having the conditions under which this amorphous construct can be applied in case law does little to inspire that individual property rights will be considered. Especially because the metrics and even definition of public welfare are as unclear as to the constraints of the Public Trust Doctrine.
National Audubon Society v. Superior Court (1983)
The National Audubon case colloquially knows as the Lake Mono case does not directly address the issue of the conflict between Public Trust and private property. As the dispute was focused on the interests of the municipal government of Los Angeles and environmentalism goals. But it demonstrates another graduation in the flexibility of the interpretation of the doctrine. The city of Los Angeles was diverting from tributaries to Lake mono, as prescribed under state law (p. 196). However, the National Audubon Society decide to challenge the validity of these water withdrawals from various tributaries. Why? As water levels began to fall it started to have adverse consequences for the wildlife native to the ecosystems surrounding these bodies of water (p.196). Justifying questioning these redistributions of water and suggesting that the state was neglecting its Public Trust responsibilities.
What makes this case significant to expanding the scope of the doctrine is that it was no longer being limited to navigable bodies of water. There may have been some hints of this departure from this unspoken restraint in Just. But the “Lake Mono” case formally cements this shift in jurisprudence in case law. The California court ruled :
“ The purpose of the trust; the scope of the trust, particularly as it applies to non-navigable tributaries of a navigable lake; and the powers and duties of the state as trustee of the public trust (33 Cal. 3d at 434).. (p.197)”
The above statement alone arguably is a departure from the traditional interpretation of public trust. In terms of managing navigable waters ways, the management of tributaries is an adjacent concern. Such an expansion appears to be a mild form of judicial mission creep. This 1983 ruling went further in its claims of further broadening the doctrine. Suggesting that the doctrine isn’t locked into merely sticking to the “traditional triad” of navigation, fishing, and commerce (p.197). The doctrine needs to be made amendable to the growing and ever-changing concerns of public welfare (p.197). Opening up the doctrine to more progressive and looser applications in the broad sphere of public interest. Without a precise definition or sound metrics to assess whether these open applications are benefiting the public, at best advocacy of the doctrine’s expansion is audaciously careless. Making any absolute claims of benefits spurious. Particularly when the outcomes of the unconstrained doctrine only benefit a select few.
The Expansion into Recreation:
If it wasn’t concerning enough that the doctrine was being applied to opaque conservation goals, the foray into recreational justifications only serves to push the doctrine one step closer to being a fixture of arbitrary law. In Montana Coalition for Stream Access v. Curran, it was decided that the public has the right to have access to any body of water in the state for recreational purposes (p.197). This serves to go beyond the original Common Law and Roman Law precepts of the doctrine. However, it does not go so far as to invalidate the navigability requirements of the submerged lands covered under the doctrine (p.197). In the years since this 1984 decision, the recreational justification for invoking the doctrine has continued to be used. However, over two decades later in 2008 test of navigability requirement comes under scrutiny. In a disturbing twist, in Bitterroot river protection Ass’n V. Bitterroot river Conservation Dist., which expanded public right to recreational use of water for non-navigable and private water sources. Citing the Steam Access Law “… enacted in response to Curran…” for justifying this expansion into privately owned bodies of water (p.198). This byproduct of an expanded Public Trust Doctrine defies even the most conventional Samuelsonian definitions of public goods. A privately owned body of water that is non-navigable is most certainly excludable. Would it be appropriate to allow strangers to use the Koi pond in your backyard for “recreational” purposes? I believe that most people would oppose such an encroachment on private property rights. Reading the Bitterroot River decision without any context and could lead to such obtuse conclusions.
Introduction:
The initial shift towards an unconstrained Public Trust Doctrine may have begun with the Illinois Central case. The emergence of a truly fluid Public Trust jurisprudence did appear until the early 1970s. The cultural revolution of the 1960s permeated an activistic ethos that eventually made its way to the legal system. It was first noted by legal scholar Joseph Sax, an environmental lawyer who was a strong advocate of the conservation movement. Professor Sax was the first legal theorists to suggest the Public Trust Doctrine was not being used to its full potential. Sax believed that a more liberal application of the doctrine could be utilized to benefit the objectives of the environmental movement. Implicitly arguing that the preservation of natural resources is within the scope of the legal construct. Due to the fact that nature itself is a commons, that we all benefit from clean water, air, and a modest reserve of nonrenewable resources.
However, over the years the Public Trust Doctrine has been extended far beyond the original intentions of the concept. The doctrine was initially applied to manage public waterways, fishing, and commercial purposes. Since its inception in the United States has been stretched to be utilized in the interests of recreation and political objectives. The most disturbing aspect of this evolution to an unchained doctrine has been the blatant erosion of private property rights. In most applications of land seized by the government in the name of public trust, the takings clause under the fifth amendment. Meaning that equivalent property value compensation is not required for land commandeered for the “public good”. The lack of adequate compensation for land taken operates as nothing more than a redistribution of property. Whether this transfer is for the moral good of clean water, recreation, or free passage through a navigable body of water, it is the same result. As the doctrine becomes more malleable, less justifiable these coercive acquisitions become. The hapless side effect of the courts showing less discipline in their application of this construct starts to become arbitrary.
An Unchained Doctrine:
As previously mentioned, in the 1970s the doctrine began to radically drift away from its Common Law roots. These ties were severed by the “prima facie rule that extends state title to submerged lands, rather than as evidentiary presumption of the title” (p.195). Several courts have ever ruled that the alienation of any public lands is a clear violation of the state’s Public Trust obligations. Despite the fact that these opinions run counter decisions made by the Supreme Court (p.195). The 1970s being the formative years of the environmentalism movement, legal scholars started to turn to the doctrine as a means of reaching lofty political goals. Those sympathetic to the conservation movement calling for “..effective judicial intervention..” (p.195). Posing as the haunting battle cry of the ambitious legal scholar Joseph Sax. Sax called for a liberating doctrine. Fully proclaim the need shift in the doctrine’s utilization in his seminal paper: The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention (p.196)
Even a decade later Sax is just as fervent as he was back in the 1970s of being a proponent of loosely applied Public Trust Doctrine. In his paper, Liberating the Public Trust Doctrine from Its Historical Shackles, Sax surmises that the concept has been constrained by historical precedence. He succinctly distills the general idea of the doctrine to the single function of generating stable expectations of common resources (p.4). He suggests is the purpose of all property rights is to create and maintaining expectations. Keeping within the obligations of the trustee (the government) must utilize mechanisms to preserve the stability of these expectations. Identify areas of destabilization that can benefit from a creative application of the construct (p.9). From the standpoint of judicial consistency, the advocacy of a “use-it-where-it-fits” approach is quite a trouble. If advocates of the doctrine want to expand the scope of its use, they could at the very least formulate unwavering parameters for its application. In the event, the situation does not meet the test, the doctrine cannot be used. However, this would require the Public Trust Doctrine to transition from a semi-unwritten rule to a codified legal convention. While there are many troubling aspects regarding making the doctrine into statutory law, at least there would be some institutional pressure to constrain frivolous or inappropriate application.
Sax goes so far as to suggest that the doctrine can and should be applied with no regard for previous case precedence. In other words, no need to cite previous cases because that will only limit the doctrine from achieving its ends. Staying within the context of historical uses of Public Trust only serves to continue to hold it back from serving its purpose (p.10). Past case precedence is the ultimate safeguard against arbitrary adjudication of law. To exposit the idea that this is unnecessary in the discretionary deliberations surrounding the doctrine is wrong on so many levels. With no institutional constraints or reliance on past adjudicatory history, the doctrine becomes formless. No rules limiting it, allowing it to become amorphous and be applied at the pleasure of the judge. Making it subject to the biases and whims of the judge(s) ruling on the case.
The First Victim of The Freed Public Trust Doctrine:
One of the first cases to feature Sax’s brand of jurisprudence was in the Just case, decided in 1972 two years after his paper has been published (p.196). In 1961, the Just family purchased approximately thirty-six acres of land “along the south shore of Lake Noquebay”. The area in which they had purchased this land was designated as marsh/swampland. However, Marinette county’s shoreland zoning ordinance number 24, went into effect in October 1967 requiring permits for any alterations impacting wetland habits. In the months of February and March 1968, Mr. Just filled in an area of his property that was technically considered wetlands with sand. The litigant did so without procuring a permit. It should be noted that it has also been claimed that he was denied the ability to obtain a permit by the county. Operating as a circuitous form of unconstitutional “takings”(p.196). After all, he did own the portion of the shore in which he did fill in with sand. But it was ruled by the court that the police power of the state can extend to the enforcement of zoning laws. Declaring it within the scope of the state’s Public Trust duties to preserve the natural condition of the wetlands for navigation, fishing, recreation, and “scenic beauty” (p.196). Mr. Just was denied this right to alter his property in the absence of any degree of just compensation.
Regardless of the intention or objectives of denying the alteration of the wetlands two concerns arise. The first concern being would couldn’t have Just have been grandfathered out of having to acquire a permit? He did purchase the land years prior to the implementation of the new zoning ordinances. If we go by the laws governing water use rights (a different but adjacent area of law) in certain parts of the country there is a first-come, first-served policy. This is known as an appropriative system of water rights. Generally under this type of system whoever has the oldest prior use date of harvesting the water to beneficial use has the primacy to water usage. Keeping this logic in mind, could the same apply to other laws as well. Hence, why excluding the litigant from the permit requirement makes sense. He bought the land prior to the implementation of the zoning requirements, he gets grandfathered in.
The second and more profound concern is what does this court decision say about the state of property rights? There wasn’t any direct evidence that Mr. Just’s actions engendered any genuine harm to the environment. Per the courts’, ruling it appears there was a strong emphasis on keeping the wetlands intact. Versus cited or proving ecological harm caused by filling in that patch of wetlands with sand, the court justified the uncompensated takings with a blanket explanation defending their position. Of the core reasons, recreation and “scenic beauty” were cited as being reasonable justifications for invoking police power of the state. Both seem awfully frivolous reasons to violates some property rights. Also, how does the court ascertain the objective of maintaining “scenic beauty”. Isn’t that an extremely subjective criterion? One man’s eyesore is another man’s oasis.
The Public Trust Doctrine has over the years been subjected to judicial innovation. Typically, this advancement of the scope and application of the law has traditionally been done to achieve environmental objectives. However, in some instances has veered into the areas of accommodating recreation and even private businesses. By some legal experts, this broad application of the doctrine is a clear overextension. Especially when there are a plethora of private alternatives that can be used instead to achieve successful conservation efforts (p.44-45). What makes the extension of the Public Trust Doctrine so alarming is how it has been utilized to undermine private property rights. Demonstrating how flexibility can also be as detrimental as being completely static. As the scope of application increases, the rules applying to its administration become more elastic. Veering into the unfortunate territory of arbitrary use of the legal construct could open the possibility of doctrinal abuse by interest groups.
The roots of the Public Trust Doctrine date back to ancient Roman law and continued to live on in the vestiges of English Common Law. Its adjudicatory influence was not truly exported to the United States until the nineteenth century. It was in that century the modern concept of the legal construct was formed. By the end of the twentieth century, the doctrine had evolved to such a degree it barely resembled its legal heritage. Shifting into a near amorphous instrument for activism and indisputable property transfers. A far cry from its original intent of managing public waterways to avoid private stakeholders from impeding boat traffic through blockades. Shifting it from a judicial tool to prevent monopolization of waterways to a highly malleable workaround.
Arnold v. Mundy,6 N.J.L. 1 (N.J. 1821):
The early 1820s brought the Public Trust Doctrine to U.S. shores, both figurative and literally. Involving a case where the New Jersey supreme court ruled against the private right to harvest oysters in tidal flats (p.191). This case presents a classic example of the issues that can arise due to unclear property rights. However, per the plaintiff, their rights to exclusivity were quite solidly pronounced and legally binding. Arnold claimed that the private right to the oyster bed dates back to the conveyances of king Charles II from the seventh century (p.7-8). As the privilege had been granted “… to his brother, the duke of York..” (p.8). Keeping in alignment with the purported purpose of the doctrine of holding navigable waters in trust for the intended usages of commerce, navigation, and fisheries the court ruled against the accusing party (p.4). Justice Kirkpatrick perceiving the common law precedence a little differently than the plaintiff. Reasoning that under the authority of the crown “… was obligated to hold such lands as a trustee to support the title for the common use…” (p.8). Because the crown never possessed the authority to transfer title to “submerged lands”. Per legal scholar James R. Rasband: “ In dicta, Kirkpatrick added that New Jersey was under the same obligation as the crown: to hold land under navigable water in trust for the people..” (p.8). Meaning that the ruling justice saw that the state of New Jersey was under the same fiduciary responsibilities as the crown. Therefore, muddy tidal lands along the shore could not be alienated from the ownership of one party. Meaning Mundy had not engaged in any form of theft by cultivating oysters planted on the coastal lands Arnold purportedly laid claim to.
However, this is not to say that the ruling in this 1821 case has never been subjected to any scrutiny. Legal scholar James L. Huffman provides some formidable critiques of Justice Kirkpatrick’s decision. Huffman went so far as to state that Kirkpatrick suggesting that the crown could not convey submerged lands has “no basis in English law” (p.191). Even more pertinent to the 1821 ruling was that it contradicted recently implemented state laws. In the previous year, the legislature enacted 1820 N.J. Laws 162 recognizing that people owning “lands adjacent to the waters” had the “exclusive right to plant and harvesting (p.191). In the United State’s first entry into the interpretation of the Public Trust Doctrine, there is already a lack of respect for general property rights. How could the doctrine be valid if a recent state law suggested that submerged coastal lands could be alienated for private oyster harvesting? This precise the type of discrepancy that makes the doctrine worthy of incredulity. Demonstrates how it has had a long history of justifying circumvention of private property rights.
Martin v. Waddell, 41 U.S. 367 (1842)
Two decades after the Arnold case the Public Trust Doctrine was invoked once again. Once again there was another dispute over the right to privately harvest and plant oysters in the “public” shores of New Jersey. Particularly relating to the tidal lands of “ Raritan Bay, in the Township of Perth Amboy” in New Jersey. Justice Taney rejected the plaintiff’s claims on the basis that if the crown held such waters in trust for the use of his subjects, it could not be alienated for private use (p.192). However, this conveniently side-steps the fact that the accusing party was rising the complaint about 1824. statue (p.192). This law did detail the private right to harvest oysters. This distinction did not have much influence on the 1842 ruling.
Per Huffman the Arnold and Martin cases are often seen as the “cornerstone” of the modern application of the Public Trust Doctrine, that does not mean their influence was consistently applied in adjudication (p.192). Nearly a decade later the court ruled against invoking Public Trust on a similar case, Gough V. Bell (1850) (p.50). Effectively overruling the decision in Arnold by reasoning that such an application of the doctrine violated several existing state laws and was antithetical to the intentions of preserving public property (p.192). To anyone concern with the erosion of private property rights, such a legal rationale may sound like a welcomed relief. It fair to note there is a profound degree of inconsistency in the application of this doctrine. Possessing a checkered past even in its nascent history in American law is quite alarming. Gives us down the clear analytical path to how it became an instrument of judicial activism. Being constructional there are not any firm legal tests or normative constraints, the doctrine can be applied in a sundry array of various applications. With little in the way of logical consistency. Leading us into the perilous territory of arbitrary law.
Illinois Central R. Co. v. Illinois, 146 U.S. 387(1892)
The seminal case that laid the foundation for the modern judicial interpretation of the Public Trust Doctrine was Illinois Central Railroad Company V. Illinois (1892). Huffman among many other commentators has referred to this case as the “lodestar” of modern Public Trust law (p.192). The railroad company’s complaint is centered around the city of Chicago reneging on an agreement made back in 1851. The agreement is that the railroad is allowed to construct tracks on the lakefront under the condition that they also constructed a breakwater to protect the harbor. In 1869, the legislator granted 1,000 acres of shoreline to the railroad company to undertake their project (p.193). Four years later the grant was revoked. The Supreme court ruled that the 1869 grant violated the state’s Public trust obligations (p.193). Holding that due to the 1873 revocation of the Lakefront Act was valid since common property cannot be excluded for private use (p.193). Therefore, these actions did not constitute a breach of contract, because the agreement was invalid from the start.
It is reasonable to question the court on the veracity of this decision. Why? Upon closer examination of the court’s decision, it becomes evident that the ruling lacked the nuisance and subtlety requisite to justly adjudicate on the Public Trust concerns. In other words, the law did not prevent submerged lands from being alienated for private use (p.193). However, the state did possess the power to stop private interests from seizing control of public waterways (p.193). As Huffman explains the court decision ends up operating as a double-edged sword. Yes, it does combat the expansive creep of private interests from veer towards commandeering control of navigable waterways. Simultaneously, extending the state’s authority to the submerged shorelines could be economically detrimental.
“As professors, Kearney and Merrill have demonstrated in their in-depth explanation of the history of Illinois Central, the court had good reason to fear that the public’s rights might be compromised due to political expediency and private rent-seeking. At the same time, the court clearly understood that the alienation of submerged lands was essential to the economic future of the state and city (p.194)”
These are some excellent points, however, there is a much more troubling question lurking in the background that Huffman does not thoroughly address. After the Illinois Central can the Public Trust doctrine uses a mechanism for nullifying agreements. It is well established that the interests of private industry are intertwined with the government is the recipe for an unholy union. However, could this breed of jurisprudence be utilized to excuse disrupting agreements between private parties? Did the legislature revoke the grant promised in the 1869 Lakefront Act fall within the fiduciary duties of the state? This action on the behalf of the late 1800’s Illinois legislature was a knee jerk reaction. A preemptive strike against an institution that already suffered from a poor public image. Making exercising the might of the Public Trust Doctrine all the more politically convenient.
The conclusion that can be drawn from Lysander Spooner’s expositions on slavery and the injustice of the Civil War is that the rights are reciprocal. Compulsory associate in the form of statehood is nothing more than slavery supported through the force of the U.S. Military. Kidnapping, false imprisonment, slavery, and other forms of coerced association violate the same underlying principle. All these forms of forced association restrict autonomous individuals. Who possess the implied right of unrestricted mobility. Suggesting they can travel or reside where they please as long they are not transgressing against the property rights of others. The right to self-ownership. Some may claim that this right inalienable and cannot be voluntarily transferred to another individual. However, ownership implies that the owner can dispose of, consume, preserve, or transfer whatever they own. Even if that were to be the title to their own life. This could be feasibly transferred to another person via voluntary contracts. The same can be said for individual rights being sold off or transferred even for temporary durations of time. When at work we are expected to abstain from making off-color or politically incorrect jokes while on the clock. In exchange for briefly and voluntarily suspending our right to free speech, we receive a conditional paycheck and continued employment.
Compulsory statehood not only violates the right to self-ownership by having the federal government assume control over the dissent citizens. It also transgresses a natural corollary of self-ownership, the right to free association. If an individual owns themselves, they can choose who they associate with. Some may argue that you don’t choose your neighbors. Directly this observation is true. Indirectly it is false. Through purchasing a home in a specific neighborhood to consent to live near the people in the adjacent and parallel domiciles. This is quite qualitatively different then be forced to reside in a specific neighborhood by law or threat of military force. If the individuals residing in a certain geographic area all share similar sentiments and opt to become an autonomous region that is their prerogative. Yes, the Confederate South was guilty of the sin of slavery. Even considering this moral misstep, why should their right to free association be viewed as any less valid. Giving credence to the colloquialism “Two wrongs don’t make a right”. If were to examine the example of Catalonia, many Americans would be much more sympathetic to their separatist cause. In 2017, the Catalonian successionist movement presents a similar scenario. A group of individuals self-identifying as Catalonian wanting to separate from Spain. Paralleling the Confederacy’s sense of southern identity driving them to want to become a sovereign governing body. Catalonia’s movement is easier to empathize with because it hasn’t been sullied and stained by any association with atrocities of the same magnitude as slavery.
The are other instances of the right of the free association being obscure by another issue. One of the most salient enemies of free association is political correctness. It is a lens that serves to only distort the general principle of having the right to choose whom you keep company with. Often, if you defend the right of state succession or the right not to associate with minority groups, you will be accused of bigotry. People believing that an unwavering defense of free association being tantamount to tacitly being racist demonstrates a lack of nuanced understanding. Not to mention this is nothing more than a superficial inference. It is possible to disagree with Jim Crow laws but also oppose the Civil Rights Act of 1964. Both sets of laws infer our right to free association. Jim Crow laws are an example of forced exclusion. The state restricting who you can dine with, socialize with, and trade with through compulsory law. The Civil Rights Act of 1964 operates as a form of forced integration. This phrase generally is utilized in the context of immigration it also applies within the context of the Civil Rights Act. Business owners are being forced by statutory law to ignore certain characteristics of job applicants in the hiring process. Even though the proprietor of the business does have legal title and liability for the enterprise he established and manages. There is even some debate as to whether private business owners have a right to discriminate against customers for nonessential goods and services. The Masterpiece Cakeshop LTD V. Colorado Civil Rights Commission case did appear to be a victory in the arena of free association. Many have erroneously labeled this situation as gay rights case. This is incorrect. The larger principle behind this case is not whether a business is inclusive and accepts the transactions from everyone. Rather does the proprietor have the right to decline? The fact that the case involves a gay couple is unfortunate because it muddies the waters. Instead of commentators being focused on the principle of private property and individual liberty, they are all too fixated on the sexuality of the patrons who were denied service. If this had been a Neo-Nazi that had been denied service, who there has been any controversy? No. Making it reasonable to surmise that the social justice stance on discrimination is not only antithetical to our natural rights but is also hypocritical. If we are truly committed to the principle of equality, then shouldn’t all businesses be forced to transact with every customer? Regardless if they are intoxicated and belligerent or white supremacy? This frequently ignored question could lead someone to believe that the equality principle is one-sided.
It is utterly perplexing that most people fail to see the equivalence between various rights. For example, the right to gun ownership implies that an individual can abstain from owning a gun. The Second Amendment of the Constitution is predicated on the natural law principle of the right to defend one’s self and property. The reciprocal nature of this right is somewhat self-evident. This concept could easily be extrapolated to and to any of our other natural rights. The ability to discriminate is at the very core of the principle of free association. Anytime we choose to patronize one restaurant over another we are actively engaging in a form of discrimination. The gay couple who were denied service by the Masterpiece Cakeshop could have easily utilized this principle to convey their dissatisfaction with the owners. Word of mouth can be the death knell for a small business, the couple could have easily told all their friends, family, co-workers, etc. about the incident. Urging of their close acquaintances to avoid this shop like the plague. Opting to discriminate against the shop. Is this an invalid form of protest? Not. It is equally as valid as a private company choosing to not do business with the couple.
This principle of voluntary discrimination makes state succession valid and any attempts to thwart these actions aggression. The south actively chose to discriminate between tolerating the overreach of the federal government or form their voluntary block of associated states. Through self-ownership and mutual consent among the citizens residing south of the Mason-Dixon line, this movement was valid. President Lincoln’s nationalistic initiative to force the south back into the Union was conspicuously transgressive.
It is well established at this point that the notion of Native American tribes not observing property rights is a misconception on the part of European settlers. Various tribes throughout continental North America have recognized individual property rights in several diverse ways. Historically, American Tribes have acknowledged an informal version of Tort Law. Signifying that native tribal societies held property in high regard. If a culture did not value personal property, there would not be any (whether centralized or decentralized) institutions requiring restitution for damaged property or bodily harm. That alone dispels the conventional wisdom that all tribes rejected the prospect of material ownership. Reducing this enduring fallacy to nothing more than an erroneous interpretation of Native American History.
Depending on the tribal nation, some subsets of natives had surprisingly sophisticated laws protecting individual property rights. Ranging from mutually acknowledged hunting rights to even intellectual property. None of these protected rights would exist in societies that subscribed to the norms of all ownership being communal. Reinforcing the fact that the common perception that rights such as individual landownership being European invention is nothing more than a myth. A one-dimensional caricature of the true reality of the history and culture of the ingenious tribes of the United States.
Intellectual Property
Some of the tribes residing in the Pacific Northwest and California possessed ownership of intellectual property. This was generally observed among shamans practicing within the northwestern region of the United States. Intangible commodities such as “… songs, dances, stories, legends, and curing ritual…” were owned by individual shamans. Unless these trademarked forms of verbal communication were passed down to an apprentice they typically were no longer used once the shaman had passed away (Bobroff, 2001, P.1590)[9]. The preservation of a right to exclusive use of songs, stories, and performances minors of modern-day entertainers Not to trivialize the religious rites of the native peoples of the Pacific Northwest, but the copyright laws protecting songwriters and authors are probably the closets modern analog. One only needs to look back a few decades to the whole Napster controversy to see the parallels [10]. There have also been more recent intellectual property disputes, few as ubiquitous in the mind of the lay public than as the peer-to-peer file sharing fiasco of the late-1990s. Demonstrating precisely how advanced the nature of ownership in the tribes of the pacific northwest. These were societies that not only valued protecting the right to own physical property but also the right to own intangible property.
The intellectual property extended beyond communication-related to religious rights. Individual families possessed ownership of “… carvings, paintings, and crests..” related to their lineage (Bobroff, 2001, P.1590)[9]. Transgressing against these acknowledged property rights resulted in server consequences. Violating the “copyright” ownership of a family symbol was perceived as being equal to engaging in a violent act (Bobroff, 2001, P.1590)[9]. Making it unquestionably evident that preserving intellectual property was of high priority.
Hunting Rights/ Land Tenure
Another form of informal property rights that have been historically acknowledged by native tribes have been hunting rights. In some instances, private hunting grounds. Similar rules were formulated regarding fishing rights. The aim of these “customary rules” was oriented towards preventing resource depletion (Yandle, 1998, p.44) [11]. Decentralized arrangements to manage CPRs are compatible with traditions of strong property rights. However, instances of customs that support exclusive use of hunting grounds provide more substantial evidence of a robust system of property rights. Informal resource management can still be done under a quasi-communalistic basis.
Private hunting rights were best exemplified by the practices of the northern Algonquian tribe. These rights were held for individual families and were generally delineated by salient geographic landmarks. Such as specific thickets of woodlands or bodies of water (Bobroff, 2001, p.1575) [9]. The exclusivity of these territories was transferred by inheritance. Rules were promulgated to enforce punishment for trespassing or collection of furs by “non-owners” water (Bobroff, 2001, p.1575) [9]. Per anthropological research, tribal members would even transfer ownership of land as a gift (Bobroff, 2001, p.1576) [9]. For the coast Algonquian tribe members, their systems of land ownership only became more solidified after contact with European settlers. Due to the circumstances of the flourishing fur trade (Bobroff, 2001, p.1577) [9]. The existence of private hunting grounds gives us a perspective on the Algonquian tribe’s perspective on land tenure. The land is passed down through familial ties isn’t a foreign concept in European law. Paralleling the commonly held tradition in Europe of inheritance serving as a mechanism for transferring property.
Adjudication of Property Rights
The Yurok tribe of California held property rights in high esteem. Even associated property ownership with social prestige (Benson, 1991, p.50) [7]. It can only be expected that the centers for decision-making within the tribe would strive to protect the property right of its tribal members. The tribe had a system of compensation for damaged property. Paralleling the English Common Law tradition of Tort law. For instance, if an individual used another person’s canoe and damaged it they would be held liable for compensating the owner for the damages (Benson, 1991, p.50) [7]. If a service provider fails to provide a promised service to a patron they were required to pay the customer restitution(Benson, 1991, p.50) [7]. The Yurok people did not settle property disputes with a centralized government but rather with a set of “sweathouses”. Groups of tribal members were tasked with settling disputes. Proceeding against the offender was arranged by the sweathouse and the victim. (Benson, 1991, p.52) [7].The victim did not have the right to seek extrajudicial forms of restitution outside of the group’s judgment. (Benson, 1991, p.52) [7]. The defendant would have the ability to obtain representation against the accuser in the cross-judgment (Benson, 199, p.52) [7].
If damages were due to the plaintiff the defendant was expected to pay back the sum indicated verdict of the proceedings. If the accused could not, they became the “wage-slave” of the accuser (Benson, 199, p.53) [7]. Per the economist Bruce L. Benson the Yurok “model” for private-law held the below six characteristics:
“… These features are: (1) rules of conduct which emphasized a predominant concern for individual rights and private property; (2) the responsibility of law enforcement falling to the victim backed by reciprocal arrangements for protection and support when evolved to the level described above, but this homogeneity had to develop in conjunction with an evolving process of interaction and reciprocity facilitated by customary law. 15~egalsystems all over the world have, at one time or another, been characterizable in the same way that the Indian systems discussed above were characterized. Some anthropologists and legal scholars distinguish between “stages” of legal development, for instance, and would put such customary systems in one or more of the stages occurring before centralization of political power and formal institutions of government arise (e.g., Malinowski 1926; Diamond 1950). Also see note 14 above in this regard, as well as Benson (1988; 1989a). 56 The Review of Austrian Economics, Vol. 5, No. 1 a dispute arose; (3) standard adjudicative procedures established to avoid violent forms of dispute resolution; (4) offenses treated as torts punishable by economic payments in restitution; (5)strong incentives to yield to prescribed punishment when guilty of an offense due to the reciprocally established threat of social ostracism which led to physical retribution; and (6) legal change arising through an evolutionary process of developing customs and norms…”( Benson, 1991, p.54-55) [7].
Citations
6. Anderson, Terry L. Conservation—Native American Style. PERC Policy Series Issue Number PS-6. (1996). PERC. P. 1-2.
7. Benson, Bruce L. An Evolutionary Contractarian View of Primitive Law: The Institutions and Incentives Arising Under Customary Indian Law. The Review of Austrian Economics. Vol. 5. No.1. (1991). Ludwig Von Mises Institute.
8. http://fee.org/article/our-first-thanksgiving/ retrieved 11/23/2020.
9. Bobroff, Kenneth H. Retelling Allotment: Indian Property Rights and the Myth of Common Ownership. Vanderbilt Law Review. Vol 54. Issue 4. (2001).
10. https://www.wired.com/2009/12/1207riaa-sues-napster/. Retrieved 12/21/2020.
11. Yandle, Bruce. Antitrust and the Commons Cooperation or Collusion? The Independent Review. Independent Institute. (1998).
Water rights among Native Americans is still a highly contested area of law. Even in modern history, the more granular details are still being debated. Matters are only compounded by the federal government’s guardianship over tribal lands. The blurry line of jurisdiction over Indian lands has not been clarified by this paternal arrangement. This fact is demonstrated in the 2001 case Idaho V. United States. The case details the confusion of whether the federal or state government held title lands for the Coeur d’Alene Tribe. Despite congress having the authority to transfer guardianship duties to the states. However, the function of land allocation has remained mostly with the Department of the Interior.
Idaho V. United States was the byproduct of the federal government suing Idaho over claims of “submerged lands” within the boundaries of the reservation. Since 1873, the tribe has had a claim to part of the St. Joe River and most of Lake Coeur d’Alene. The tribe’s water usage rights being secured at the time of incorporation of the reservation. Congress in 1891, ratified the agreement, the tribe relinquished claims of all lands not included in the 1873 Executive Order. The Coeur d’Alene be compensated for the northern portion of lands ceded by the tribe. Per Oyez:
“The District Court quieted title in the United States as trustee, and the Tribe as beneficiary, to the bed and banks of the lake and the river within the reservation. The Court of Appeals affirmed.”
It is reasonable to question whether the Federal government “holds, title in trust” for the reservation lands that encompass the St. Joe River and Lake Coeur d’Alene? The majority opinion of the Supreme Court sustained the previous findings by the lower courts. Citing that the original Executive Order specified that portions of St. Joe River and Lake Coeur d’Alene be held for the tribe by the National government. That any attempts by the state to obtain or transfer title to the specified bodies of water should be legally obstructed. Per the legal structure under which the reservation was incorporated, this is a valid ruling. The reserved right to water usage is also implied in the establishment of a reservation. See California V. Arizona (1963).
The trust relationship may have initially been implemented to protect the Indian lands from being acquired by the states. However, do the tribes truly own these lands? One of the downsides of the United States holding Indian lands in trust is that the tribes have restrictions on how they can utilize the land. This has led to some controversy regarding the ability to sell and lease water to non-Indians. If an individual owns the property they have the right to do as they please with it. That includes selling their property. The tribes may have their lands protected, but at what cost?
The Origins of the Myth
We as humans have the unfortunate propensity for interpreting evidence that in a manner that is congenial to comport with our own beliefs. This problem is particularly rampant in the soft sciences. In the absence of disciplined restraint and sound methodology, qualitative research is subject to be sullied by our own biases. This serving only to hamper the whole enterprise of conducting an impartial observational analysis. The fields of anthropology and history have not remained immune from the reach of the researcher’s flawed perception. Upon this realization, it becomes woefully evident that our historical perception of Native American culture is inaccurate. Our misconceptions held together with gross misinterpretations of traditional stances on private property and law held by various indigenous tribes.
Often our ideological motives and philosophical ethos skews our understanding of the historical truths of American tribal cultures. One corollary of the erroneous assumption of Native American collectivism has been designating tribal peoples as the “original conservationists” (Anderson, 1996,p. 1) [6]. Typically for political reasons, the pragmatic rationale for many of these historical conservation measures has been understated. Researcher Terry L. Anderson points out the underlying how our skewed image of Native Americans has become politicized. Citation the example of a famous speech given by the Chief of Seattle. In which he stated, “All things are connected like the blood which unites one family”. The speech was not written by the Seattle Chief, but by a script written named Ted Perry. Displaying much of the romanticized imagery that environmentalists wanted to hear (Anderson, 1996, p. 2) [6]. From Anderson’s view, such presentations of Native American culture only served to trivialize “… their rich institutional heritage which encouraged resource conservation..” (Anderson, 1996, p.1) [6].
The myths of highly collectivist property arrangements among Native tribes predates the nascent era of the modern environmentalist movement (late-1960’s/early 1970s). These myths were first promulgated based upon the narrow observations of settlers. Which dates back to the settlers of the great-plain-states who were looking for land that was suitable for agriculture. They extrapolated from their interactions with a few nomadic tribes that all Natives had little regard for property rights due to their lack of interest in “land assets” (GALBRAITH et al. 2006, p.20) [1]. Generating the fallacy that property rights were a European invention. Completely side-stepping the reciprocal, customary, and informal means of property rights enforcement used by pre-colonial Indians (Benson, 1991, P.45) [7].
The true irony of the mythic image of the collectivistic tribes is that this assumption ignores the communal tendencies of the European settlers in the United States. Pre-colonial American tribes had strongly developed property rights and any communal tendencies were a result of economic necessity (Galbraith et al. 2006, p. 7) [1]. The Plymouth colony of the 1620s experienced declines in productivity brought on by their communal allocation of resources. This free-rider problem was resolved once the colonists began to mimic the “property rights model” of the local natives (Galbraith et al. 2006, p 7) [1im The economic folly of the Massachusetts Bay Colony is seldomly taught in Traditional American history courses. However, this all too often glossed-over the economic reality of colonial Massachusetts was immortalized in the 1959 essay Our First Thanksgiving.
“Our first Thanksgiving should, therefore, be interpreted as an expression of gratitude to God, not so much for the great harvest itself, as for granting the grateful Pilgrims the perception to grasp and apply the great universal principle that produced that great harvest: Each individual is entitled to the fruits of his labor. Property rights are, therefore, inseparable from human rights.” [8].
It is difficult to ascertain whether this obscured fact of history was the result of misinterpretation or ideological motives. It is prudent to not delve too deep into such matters. Nevertheless, it is absurd that property rights are erroneously perceived as a European invention. The utopian ideals of the Puritans did not include the enforcement of property rights. Their quixotic attempt to collectively distribute resources serves as nothing more than a failed forerunner of Communism. Had it not been for the property-oriented values of the indigenous tribes, the pilgrims would not have had much to celebrate.
The popular interpretation of history seems to flat out ignore the communal propensities of the Massachusetts colonists. This inaccurate depiction of historical fact has provided the substrate for proliferating this fallacy. A fallacy that is deeply embedded in the conventional wisdom of the American psyche. The collectivist propensities of non-Indian settlers were not limited to the pilgrims. For instance, the Spanish Catholic missionaries occupied the southwestern region of the United States in the eighteenth century. These missions were established by the Dominican and Franciscan orders. The missions implement communal economies with an emphasis on “communal behavior and support” (GALBRAITH et al. 2006, p.7) [1]. The system imposed by the various Catholic mission was at odds with the natives’ property and land ownership rights. The mission system eventually dissolved in the American southwest. After the governor of California decreed in 1834 secularized the mission system, distribution the former mission lands as a private property to the tribes. ” (GALBRAITH et al. 2006, p.7) [1].
It can be partially assumed that the informal recognition of property rights and law by American tribes has contributed to the false notion of a historical lack of concern for property rights. In most cases, indigenous tribes operated on customary law. Informal law functions on reciprocity and recognition of social norms within the tribe (Benson, 1991, P.44) [7]. Centricity being placed on the focus of compensation for loss of property versus criminal sanctions. Making it more in step with the common law conception of Tort law. Many of these rules were unwritten but acknowledged by tribal members (Benson, 1991, P.45) [7]. Other tactics such as ostracism and banishment of transgressive tribal members also served as informal means of punishment (Benson, 1991, P.50) [7]. More explicitly relevant to the subject of property rights, the informal means under which tribal members historically acquired property is notable. In the absence of formal deeds and title transfer documents, homesteading. This was practiced by agrarian tribes in southern California. An individual takes claim to land through the process of developing it for habitation or production (GALBRAITH et al. 2006, p.8).
Citations
6. Anderson, Terry L. Conservation—Native American Style. PERC Policy Series Issue Number PS-6. (1996). PERC. P. 1-2.
7. Benson, Bruce L. An Evolutionary Contractarian View of Primitive Law: The Institutions and Incentives Arising Under Customary Indian Law. The Review of Austrian Economics. Vol. 5. No.1. (1991). Ludwig Von Mises Institute.
8. http://fee.org/article/our-first-thanksgiving/ retrieved 11/23/2020.
Introduction:
Native American tribes have long been perceived as being historically highly collectivistic and disinterested in the preservation of private property. Few people ever question whether these characterizations of the tribes are even accurate. These perceptions are only perpetuated when North American tribal leaders discuss economic matters at “tribal conferences and congressional hearings” (GALBRAITH et al. 2006, p.19)[1]. However, after a more rigorous assessment of the historical facts, it becomes clear that the image of the communal Indians was nothing more than a myth. Not only did many tribe members possess private property rights, but they also had an informal legal system that secured these claims. Making many of the previous claims of collectivism nothing more than a misconception.
The curious reader may question why the veracity of our understanding of the economic history of American indigenous tribes is so important? After all, the poverty that afflicts most of the reservations in the United States is a contemporary problem. How is reflecting upon the past going to be useful in solving the economic woes of the tribes? The problem becomes that many scholars and policy analysts utilize tribal tradition and customs for governing economic policy on the reservations. One particularly salient example is in the controversy surrounding the privatization of tribal lands. Per Carpenter and Riley (2019) the privatization of tribal lands ignores the historical and cultural perspective of tribal members (p.13) [2]. Following us, a policy prescription would impose an economic course of action few tribes have any interest in (p.16)[2]. Would only serve to destroy the communal tendencies that are common among American tribes (p.21) [2]. Both authors also suggest that privatization would invite the purchase of native lands by nontribal members (p.15). Only operating to exacerbate the present and past economic struggles of American Indians that resulted from the transfer of lands to non-Indians (p.14)[2]. Demonstrating that from the perspective of Carpenter and Riley a policy that deviates from historical collective arrangements will only serve to do more harm than good.
This paper seeks to dispel the myths and fallacies concerning the historical views of Native American property rights. Justifying government intervention in the economic affairs of the tribes based on faulty claims of historical collectivism hold little merit. Beyond the historical accuracy of such claims, there are also profoundly detrimental economic consequences of accepting this false economic history. If we subscribe to Hernando de Soto’s Dead Capital Theory [3] it becomes evident that the situation facing Native tribes is very similar to that of developing nations. The land in Indian country is not being utilized to its fullest capacity. The determination of the best use of such economic assets is constrained by the guardianship relationship between the tribes and the United States government. The genesis of this land trust dynamic being born out of the Dawes Act of 1887, when the federal government first intervened in the distribution of tribal lands (Canby, 1989, p.19-21) [4]. The waters of Indian land allocation has only become more muddied by subsequent amendments and legislation. Placing restrictions on assets that are already at the disposal of the tribes, creating barriers to extracting “surplus value” from what they should rightfully possess (FERNANDES, 2002, p.6) [5].
Citations
Inverted logic 