Canadian Journal of Philosophy
Locke's Theory of Original Appropriation and the Right of Settlement in Iroquois Territory
Author(s): John Douglas Bishop
Reviewed work(s):
Source: Canadian Journal of Philosophy, Vol. 27, No. 3 (Sep., 1997), pp. 311-337
Published by: Canadian Journal of Philosophy
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CANADIANJOURNALOFPHILOSOPHY
Volume27, Number3, September1997,pp. 311-337
311
Locke's
Theory
ofOriginal
andtheRightof
Appropriation
in Iroquois
Settlement
Territory
JOHNDOUGLASBISHOP
AdministrativeStudies Program
TrentUniversity
Peterborough,ON
Canada K9J7B8
I Introduction
JamesTully and othershave arguedrecentlythat the theoryof property
Lockedefends in the Second Treatisewas designed to justify European
settlementon the landsof NorthAmericanNatives.1Ifthis view becomes
generallyaccepted,and Tucksuggests it will be,2doubtsmay ariseabout
the impartialityof Lockeanproperty theories. Locke, as is well established and documentedagainby Tully,had huge vested interestsin the
Europeansettlementof North Americaand possibly in the enslavement
of Native Peoples.Doubts about Lockemay reflecton all rightstheories
of property and thus bring into question 'one of the major political
philosophies of the modern world' (Tully, 'RediscoveringAmerica/
165). Raising these doubts is part of Tully's declared intention (Tully,
'RediscoveringAmerica/ 166).His articletries to show that the Native
systems of property and government which Locke defines away as
1 Cf. JamesTully,'RediscoveringAmerica:TheTwoTreatisesandAboriginalRights/
in G.AJ. Rogers,ed., Locke'sPhilosophy:
Contentand Context(Oxford:Clarendon
Press1994);BarbaraArneil,Trade, Plantations,and Property:JohnLockeand the
EconomicDefenseof Colonialism/Journalof theHistoryof Ideas54 (1994)591-609.
2 RichardTuck,"ThreeGreatEmpires- and TheirDefenders:the DiverseConquer4860(1996)15
ors of the Americas/ TimesLiterary
Supplement
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312 JohnDouglas Bishop
illegitimateare in fact interestingand potentiallybeneficialalternatives
to Lockeanindividual rights theories.
In this paper I will accept Tully's scholarship on the purposes of
Locke'spropertyviews and Tully's claims about the benefits of consideringNative alternatives.Thereis, however,a philosophicalissue which
arises out of this which Tully does not systematicallyconsider.Neither
biased origins nor unpleasant consequencesproves a theory of rights
incorrect.The question is this: when 'Lockedefines propertyin such a
way that Amerindian customary land use is not a legitimate type of
property,'3does he have good argumentsto establishhis case?In other
words, given our improved understandingof Native systems of property,4it is time to reassess the philosophicalunderpinningsof Lockean
rightstheoryto see if Lockehas successfullyrefutedNative rightsclaims
to land ownership. If not, then Native propertyrights may not only be
an alternativeto Lockeanproperty theories;they may be justified by
Locke's own principles. Did Locke get his theory of property rights
wrong, and/or did he apply it incorrectlyto the Europeansettlementof
North America?Theremay be a need to adjustLockean-styleproperty
rightstheoryto eliminateEurocentricand unjustifiedassumptions.The
purpose of this paper is to look at this issue.
The aim, of course, is to identify unjustifiedassumptions;Eurocentrism is a good reason for suspicion but is not in itself grounds for
rejection.Thetechniqueused in this paperto assess the possibleLockean
basis of Native propertyclaims will be to ignore Locke'sviews on the
'proper' use of land and return to what Tully calls the 'background
premis[es]'of Locke'sargument(Tully,'RediscoveringAmerica,'173).
The result of this exercise will be to show that Native propertyclaims
can be justified on Lockeangrounds unless Eurocentricassumptions,
includingan assumptionin favorof certainfarmingtechniques,arebuilt
into the argumentas backgroundpremises.Theimplicationof this result
for currentrights theoriesof propertyare brieflyindicated.
Central to this reassessment will be, of course, Locke's theory of
originalappropriationand the 'rightof settlement'that derives fromit.5
In particular,this paper is an analysis of the issues that are raised if a
3 Tully,'RediscoveringAmerica/ 167;cf. also Arneil,609.
4 By 'our/ I mean Euro-Americanphilosophers;Native Americanshave not lost the
understandingthey always had.
5 Much of the debate between Europeanand Native propertyclaims depends on
othertheoriesof rightsand propertysuch as treatyrights,aboriginalrights,or the
rightof conquest;this paperdeals only with the Lockeantheoryof property.
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Locke'sTheoryof Original Appropriation 313
Lockeantheoryof originalappropriationis applied to the land claimsof
the first Europeanfarmerswho settled in the parts of North America
then inhabitedby the IroquoisConfederacyand other Iroquoianpeoples.6The nature of the Iroquoianeconomy, a mixture of farmingand
hunting,makes this a useful test case.
The next section of this paper sketches the theory of original appropriation and the Lockean proviso. Locke's own account in the Two
Treatisesof Governmentis used, especially, of course, the SecondTreatise,
Chapter 5.7 Emphasis will be placed on identifying the background
premises and how they are used in Locke'sargument.This section also
uses Locke'stheoryof originalappropriationbased on laborto define a
'rightof settlement'which might apply to homesteadingfarmersmoving into Iroquoianterritory.
SectionIIIof the paper discusses Iroquoianland used for agriculture
and how a Lockean-styletheory of property might view claims to
ownershipbased on a radicallydifferenttype of farmingthanthatwhich
Lockewas familiarwith. This attemptto apply Locke'stheory of property to a culture with a non-Europeaneconomy and legal system of
ownershipbringsinto sharpfocussome assumptionsthatLockeappears
not to have been awareof. Lockeassumed thatbeforethe establishment
of civil societyenclosurewas likely to be physical,thatpropertymust be
owned by individual people, and that effortinvested in land must aim
at permanentimprovement.The effect on Locke'sargumentof varying
each of these assumptionsis considered.
Section IV uses Locke'sproperty theory to compare the ownership
claims of the settlers and Iroquoiansto land the Iroquoiansused for
hunting ratherthan agriculture.This task will necessitatea carefullook
at the meaning of the Lockeanproviso and the assumptionsthat underlie it.
The last section re-examinesthe status of labor-basedoriginalappropriation theories assuming the lessons of the Iroquoian case can be
6 I will follow Trigger's usage in which 'Iroquoian' refers to the Hurons, the peoples
of the Five (later Six) Nation Confederacy, and other peoples speaking languages
of the same group. 'Iroquois' will refer only to the peoples of the Five (or Six) Nation
Confederacy. Trigger points out that the Iroquois and Hurons, despite their on-going warfare with each other, had similar economies in the immediate pre-contact
period (12). I am not aware of any differences in their economies which affect the
arguments of this paper. See Bruce Trigger, The Huron: Farmersof the North (Fort
Worth: Holt, Rinehart and Winston 1990).
7 The SecondTreatisewill be referred to as II followed by the paragraph number from
J.W. Gough's edition (Oxford: Basil Blackwell 1942).
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314 JohnDouglas Bishop
applied more generally.All large land masses on earthhave been occupied by indigenous people for many thousandsof years. Suppose, as is
assertedby AlasdairMaclntyre,8that as a matterof historicalfact there
was no labor-based original appropriationby the forbearersof the
currentowners of land anywhere;what are the implicationsof this for
Lockean theories of property rights? Original appropriationhas certainly been claimed as historicalfact for settlersin North Americaand
elsewhere; this was claimed by Locke,9and more recently by other
Butif these historicalclaimshave
philosophers,especiallylibertarians.10
no basis, is there some non-historicalinterpretationof original appropriation which is useful? The issues are somewhat similar to some
well-known aspects of the social contractdebate.
I conclude that, based on Lockeantype propertytheories,Iroquoian
peoples had a natural right to the land they occupied at the time of
contact.In showing this, I hope thatthe limits of propertytheoriesbased
on originalappropriationand the Lockeanproviso have been clarified.
The implicationsof this conclusion for Iroquoianland claims based on
othertheoriesof propertyare not considered.
II The Lockean Theory of Property
In the beginning, God gave all of nature to humankindin common (II,
25); all people had an equal right to gather naturalresourcesfor their
own use. Once gathered (or 'appropriated/II, 26), an item belonged to
the person who made the effort to gatherit, but natureitself remained
commonproperty.One owned the apples one picked (II,28),but not the
apple tree;the deer one hunted (II,30),but not the forest.Ownershipwas
conferredby the effortexpended to make an item availablefor personal
use; an objectbecamepersonalpropertywhen someone 'hathmixed his
labourwith' it (II,27). Once acquired,owners of objectswere entitledto
dispose of them in any fashion they chose except letting them spoil
unused.
8 Alasdair Maclntyre, After Virtue (Notre Dame, IN: University of Notre Dame Press
1984), 251
9 Cf. Richard Ashcraft, Locke'sTwo Treatisesof Government(London: Unwin Hyman
1987), 143-6.
10 For example, it was claimed by Jan Narveson at the 1994 Learneds in Calgary in
response to an explicit question.
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Locke'sTheoryof Original Appropriation 315
When applied to land, the theory holds that all land was originally
owned in common,but that anyone who chose could acquirea rightful
propertyclaim to a specific piece of land by laboring to make it more
productive.One could, and this example is appropriatefor the woodlands of North America,clear the forest,plough the soil, and cultivate
crops.11This would entitle a person to own not only the crops but also
the land that had been cleared.
The portionof the Lockeantheoryoutlined so farrefersto the original
appropriationof property- thatis, how a piece of land goes frombeing
partof the common propertyof all people to being the privateproperty
of a particularindividual. Once a piece of land is private property,the
owner,while alive,can choose to transferownershipto any otherperson
and, upon dying, can designate anyone as heir (subjectto the owner's
moral responsibilityto dependents). These new owners and all subsequentownersneed not invest theirlaborin the land;the laborrequirement applies only to originalappropriation.
This theory of appropriationhas an implied limit in that a person is
not entitled to acquiremore land that they can productively cultivate.
Locke also places two constraintson appropriationof land.12First, a
personcannotclaim so much land that it producesmore than the owner
can consume before the produce goes bad. The other constraintis the
famous Lockeanproviso;a person is only entitled to transferproperty
from common to private ownership if 'enough and as good is left for
others/ The interpretationof this proviso is much discussed,13and later
in this paper it will be discussed with referenceto the settlers on Iroquoian territory.Forvarious reasons which will not be gone into here,
Locke applies these constraintsonly to the original appropriationand
not to subsequentowners of land.14Thus neitherthe laborrequirement
nor the constraintsapply to subsequentowners.
11 That Locke had precisely this in mind is argued by Arneil, 602-3; and by James Tully ,
'Aboriginal Property and Western Theory: Rediscovery of a Middle Ground/ in
Ellen Frankel Paul, Fred D. Miller, and Jeffrey Paul, eds., Property Rights (Cambridge: Cambridge University Press 1994), 160. Locke's phrase is 'tills, plants,
improves, cultivates../ (II, 32).
12 Tully refers to these as the internal or spoilage limit, and the external or sufficiency
limit; see James Tully, 'Property, Self-Government and Consent/ CanadianJournal
of Political Science28 (1995), 120.
13 See, for example, Robert Nozick, Anarchy, State and Utopia (New York: Basic Books
1974); and Jan Narveson, 'Property Rights: Original Acquisition and Lockean
Provisos' (Unpublished manuscript, University of Waterloo 1995).
14 For a discussion of how Locke applies the constraints only to original acquisition,
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316 JohnDouglas Bishop
Interpretersof Locke have argued variously for labor, merit, efficiency,and desertas the basis of Locke'stheoryof originalappropriation
(cf. Shrader-Frechette,
201-19).However, underlyingany or all of these
is Locke'stheory of naturalrights and naturallaw. In a state of nature,
people can be aware of and are morally bound by the Law of Nature.
Ashcraftusefully distinguishesnaturallaw as the moral foundationof
Locke'stheoryfromempiricalclaimswhich Lockeuses to apply natural
law to specific historical situations, like seventeenth century North
America (Ashcraft,ch. 2, esp. 50-6). In these terms, what the present
paper is doing is returningto the moral or naturallaw foundationsof
original appropriationand reassessingthe applicationof this to North
Americausing recentempiricalinformationunavailableto Locke.15
The Law of Nature,among otherthings,imposes on all people a duty
to undertakeactions which tend to preserve the human species.16Because certainforms of laborincreasethe likelihood of preservation,we
have a duty to performthose kinds of labor.Sinceoriginalappropriation
of propertyencouragesand makespossible those kinds of labor,original
appropriationof private propertybecomes a right.17This is related to
efficiency in that more efficientuse of land also tends towards human
preservation.However, Lockenowhere arguesthat efficiencyoverrides
private propertyonce ownership is established;his theory is obviously
not a utilitariantheory in which land must always be reassignedto the
most efficientuse. Thus efficiencyis only relevantat the time of original
appropriationand only in so far as it helps Lockederive propertyrights
see Macpherson 203-20. Shrader-Frechette argues against Macpherson and others
on this point (206-19); I will take the view that Natural Law continues to apply after
original acquisition, but that the specific constraints do not apply unless they are
entailed by Natural Law in particular situations, which they are generally not for
Locke in commercial society. This position may be consistent with Shrader-Frechette's discussion. See C.B. Macpherson, The Political Theoryof PossessiveIndividualism (Oxford: Oxford University Press 1962); and Kristin Shrader-Frechette, 'Locke
and the Limits on Land Ownership/ Journalof the History of Ideas(1993).
15 Locke had in fact read extensively the writings about North American Natives that
were available in his day; cf. Tully, 'Rediscovering America/ 168. He obviously
considered empirical information relevant.
16 Tully, 'Property, Self-government and Consent/ 107; also Knud Haakonssen, Natural Law and Moral Philosophy:FromGrotius to the Scottish Enlightenment(Cambridge:
Cambridge University Press 1996), 55.
17 For a discussion of the debate surrounding this interpretation of Locke, see Tully,
'Property, Self-Government and Consent/ 113-8.
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Locke'sTheoryof Original Appropriation 317
from naturallaw. The duty to preservehumanity is the primarybackground premiseused in the currentpaper.
This sketch of original appropriation,when applied to the arrivalof
Europeansin North America,can define what might be called a rightof
settlement.On this theory,an individualEuropeanwould acquireownershipof a particularpiece of NorthAmericanland if all of the following
conditionswere met:
a) The Europeans invested their labor in making the land more
productive,we will assume by clearingand cultivatingit.
b) The land was common propertyprior to the Europeans'arrival
either because there were no indigenous people in the area or
because the indigenous people had never transferredthe land
fromcommonownershipto privateownershipby originalappropriation.
c) The Europeansettlers did not claim too much land, either by
claimingmore thanthey could cultivate,or by claimingland that
producedmore than they could consume.
d) The settlersleft 'enough and as good' for others.
If all these conditionswere met, the Lockeantheoryof originalappropriationwould justifythe rightthe settlementand the piece of land that
was cleared would be transferredfrom common to private property.
Once it became private property, ownership could be transferredto
other people by consent or inheritancebut the above conditionswould
not apply to subsequentowners.
Although Locke nowhere has a sustained discussion of the right of
settlement,he repeatedlyrefers to the natives of North America as an
exampleof people living eitherin a state of natureor under the 'youngest' forms of civil society (II, 49; II, 108).18Gatheringthese references
together, we can sketch Locke's image of Native Americans. In the
chapteron propertyit is clearthat Lockethought most of Americawas
still owned in common by mankind (II,26) - meaning all of mankind,
not justNative Americans.He also seemed to thinkthatmost of America
was vacant (II,36). Native Americanswandered whereverthey wanted
in a vast, empty continent;Locke seemed quite concerned that they
might get lost (II,36). He did not seem to thinkthatthey had identifiable
territories,cultivatedfarmland, or assignedhuntinggrounds.Economi-
18 See also James Tully, 'Rediscovering America/ 169.
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318 JohnDouglas Bishop
cally, they hunted and gathered; nowhere does Locke acknowledge
agricultureoutside the civilizationsof Meso and South America.
Trade,accordingto Locke,was in the form of barterand was limited
becauseNative Americanshad no money (II,49). Forthe most part,they
had not entered civil society because they had no regulargovernment
(II,108).19When necessary,decisions would be made by 'the people' or
their representativesin a council. Locke's image is of free and independentindividualsliving in the stateof naturecomingtogetherto make
decisionswith no individualclaimingpower or authorityover any other
(ibid.).Only when fighting a war would they elect as temporarycommanderthe bravestor strongestman present.
How accurateis this pictureas applied to the Iroquoianof the seventeenth and eighteenthcenturies?Not very.20The issue of mostly vacant
land held in commonwill be discussed laterin this paper.TheIroquoian
economy was based on agriculture,with hunting and gatheringimportant supplements to the three cultivated staples - corn (i.e. maize),
squash, and beans. Money of various sorts played some role in the
economy, more as a medium of exchange than as stored value; Locke
was rightin thinkingthatthe Iroquoiandid not have an insatiabledesire
to acquireendless amounts of gold or to accumulateunlimited possessions of any sort (Trigger,48, 95).TheIroquoiandid have extensivetrade
connections throughout North America before the Europeanarrival.
And long before attempts were made to settle the lands, the fur trade
with the French,Dutch,and Britishhad becomea significantpartof their
economy.
On government, Locke was completely wrong. The Iroquois had
formed the Five (laterSix) Nation Confederacyas a sophisticated,complex, and well-defined system of governance, and the Huron were a
confederacyof four peoples (Trigger,ch. 6). The Iroquoisconfederacy
had been formed in the fifteenth century (prior to Columbus);it was
functioningthroughoutLocke'slifetimeand throughoutthe eighteenth
century when settlers were moving onto Iroquoianlands. Indeed, the
confederacygovernancesystem still exists and partiallyfunctionsto this
19 Also Tully, 'Rediscovering America/ 169. In 'Aboriginal Property and Western
Theory' 164, Tully argues that Locke gave three reasons for not recognizing that
Native Americans had government. These are: the war chief could not 'declare war
or peace/ 'the councils often appointed ad hoc arbitrators of justice/ and there was
a 'lack of crime, property disputes, and litigation.'
20 Tully discusses the inaccuracy of Locke's views of the property and government
systems of Native Americans, including the Iroquois, in 'Aboriginal Property and
Western Theory/ 163.
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Locke'sTheoryof Original Appropriation 319
day;see, for example,the claimsmade to sovereignnationstatusduring
the 1990 Oka crisis (Tully, 'AboriginalPropertyand WesternTheory/
176-7).However,Iroquoiangovernmenthad neitherthe sortof authority
to enact laws nor the executive power and control that Europeangovernmentswere used to.21
Ill Right of Settlement and IroquoianAgriculture
Iroquoianagricultureof the seventeenth and eighteenth centurieswas
organizedin a very differentmannerthan that in Englandat the same
time. It was subsistent in the sense that crops were not normally produced for market and were not sold for money. Local exchange of
produce would, of course, be common, though not necessarily on a
system of item by item bartering.Reciprocalgift-giving, tradition,and
distributionrituals played more importantroles than barter (Trigger,
46-8).The Huron,for example,refusedto haggle when trading(Trigger,
47). Sharingwithin extended familiesand communitiesestablishedand
maintained a substantial degree of economic equality (Trigger, 141,
144-5).Foodstuffswere not partof the extendedtradingpatternsthough
the Huron traded agriculturalproducts for furs and meat with the
Algonkiansto the north (Trigger,1).
Women were responsible for planting, tending, and harvesting
crops.22Since crop tending was a communal activity based on clan
segments or extended families,land was not owned by individuals,but
by communities,and assignedby traditionto clan segments(Trigger,31;
Carlson,69). The absenceof draftanimalsmeant limited preparationof
the soil, and the absence of metal axes made clearing the forests very
difficult(Trigger,30, 34). A moralvalue system based on harmonywith
nature, ratherthan the belief Locke held that it was a moral duty to
subdue nature,may also have limited forest clearing.The fact that the
Iroquoiansdid not pasture animals (Trigger,39) had two implications:
land did not have to be physicallyenclosed in cow-prooffences;and the
lackof manuremeantcultivatedland would have to be abandonedafter
21 Jennifer Roback, 'Exchange, Sovereignty, and Indian-Anglo Relations/ in Terry
Anderson, ed., Property Rights and Indian Economics (Lanham, MD: Rowan and
Littleh'eld 1992) 13-16; Bruce Benson, 'Customary Indian Law: Two Case Studies' in
Anderson, ed., PropertyRights and Indian Economics,28; Trigger, 80-96
22 Trigger, 29-30; also Leonard Carlson, 'Learning to Farm: Indian Land Tenure and
Farming Before the Dawes Act/ in Terry Anderson, ed., PropertyRights and Indian
Economics(Lanham, MD: Rowan and Littlefield 1992), 69.
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320 JohnDouglas Bishop
ten to thirty plantings (Trigger,30). For these technical reasons, the
Iroquoiandid not accept the seventeenth-centuryEnglish idea that a
piece of farmlandcould be continuallyimproved and made more productive.
This brief sketch reveals that even for agriculture,Iroquoianland
usage violated several assumptions Locke made. The following issues
need to be discussed:
a) Must enclosurebe physical?
b) Can land be owned by groups of people, or can propertyonly be
owned by individuals?
c) Must the labor which confers original ownership be aimed at
permanentimprovementof the land, or is temporaryimprovement of the land sufficient?
a. Enclosure.
Lockeexplicitlyclaimsthatland in NorthAmericawas not enclosed,and
connects this with his claim that such land was still common property.
Forexample,he talks of 'the wild Indian,who knows no enclosure,and
is still a tenantin common' (II,26). Locke'simage of enclosureprobably
entailedphysicalbarrierssuch as fences,hedges, ha-has,or dykes;these
were normal in the England of his time. The need to containpastured
animals (sheep, horses, cows, etc.), and possibly the nature of English
trespass laws, made physical barriersa necessarypart of farming.Iroquoian farm land was generally not physically enclosed in this sense.
This physical difference may have contributedto Locke's and other
Europeans'failure to perceive Native land ownership systems;23however, its relevanceto Locke'sdiscussionof whetherland in NorthAmerica was still in common ownershipis less clear.Theproblemis thatonce
civil society is established,physical enclosureis clearlynot relevantfor
Locke.People consentto the formationor continuanceof governmentif
the governmentprovides effective recoursewhen their propertyrights
are violated; what is essential to enclosure is that the boundariesof a
23 Cf.,forexample,Flanagan'sdiscussion(591-2)of JohnWinthrop's'GeneralConsiderationsfor the Plantationin New-England'(1629).It is clear from the quotation
Flanagangives thatforWinthrop,it was the lackof physicalenclosure(andthe lack
of 'manurance')that meant Indianlands were unowned and availablefor settlement.ThomasFlanagan,'TheAgriculturalArgumentand OriginalAppropriation:
Indian Lands and PoliticalPhilosophy/ Canadianjournalof PoliticalScience22, 3
(1989)589-602.
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Locke'sTheoryof Original Appropriation 321
person's property be established in an agreed way, that trespass be
defined, and that the landowner has access to a recognized impartial
judge to enforce property claims.24None of this necessarily involves
physical enclosure;Lockeclaims that laws are the 'fences to properties
of all membersof the society'(II,222),and elsewheresays that'thepeople
hav[e] reservedto themselves the choice of their representativesas the
fenceto theirproperties'(II,108).Laws,however,canonly be fencesonce
governmentis established.Locke quite clearly saw North America as
being still in a state of nature (II, 49). In a state of nature land can be
privateproperty,but it is not fencedby laws and governmentsince these
do not exist. Enforcementof propertyclaims is by the owner or anyone
who sees a violation (Tully,'RediscoveringAmerica,'169).
I want to argue that in a society where land has been removed from
common ownership but governmentnot yet formed, what constitutes
enclosure is any system of recognizing land boundaries;government
enforcementis not the issue since governmentdoes not exist at this stage.
When Lockeclaims Indianshave no way of enforcingpropertyclaims,
this, on his own theory,only shows that Indiansare in a state of nature;
it does not show land is not enclosed as privateproperty.Fortheirland
to be enclosed,the Iroquoianpeoples need only have a system of recognizing, not necessarilyenforcing,property claims. The Iroquoianpeoples clearlydid recognize'enclosure'in this sense for both hunting and
farmedland, even though physical enclosuremay not have been usual.
Huntinggroundsand agriculturalland were assigned to particularclan
segments or families.These assignmentslasted over many generations
and hence became part of tradition;inheritancewas not an issue since
the land rights belonged to families not individuals.25Boundary and
trespass disputes, if minor, were handled by local chiefs. Disputes
between differentnations of the IroquoisConfederacywould be settled
throughcouncilmeetingscalledand supervisedby the Onondagachiefs.
Lockewas probablyrightin suggesting Native leadershad only limited
24 For an interesting discussion of the legal concept of lex loci as applied to Inuit lands,
see Peter J. Usher, 'Property as the Basis of Inuit Hunting Rights/ in Terry Anderson,
ed., PropertyRightsand Indian Economics(Lanham, MD: Rowan and Littlefield 1992)
46-9.
25 Tully, 181; also William Cronon, Changes in the Land: Indians, Colonists, and the
Ecologyof New England (New York: Hill and Wang 1983) 58-67, for a discussion of
how land assignment varied with use. Tully's and Cronon's discussions are in terms
of North-eastern Native peoples in general, as are most discussions of hunting
grounds. There appear to be only limited studies of the Iroquoian assignment of
hunting grounds, but see Trigger, 34-9.
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322 JohnDouglas Bishop
power to make laws concerningland ownership and limited powers of
enforcement.Butthese arenot needed;only a system of recognizingland
ownership is necessaryfor enclosurein a state of nature,and this they
clearlyhad. Locke'simage of North Americannatives running'wild' (II,
26) in a huge forest without boundaries reflects only his failure to
perceive non-physical enclosure;a non-Lockeandiscourse had recognized the nature of the Iroquoiangovernmentand propertysystem as
early at the seventeenthcentury.26
It can be concluded that, whatever Locke'simage of enclosuremay
have been, physical enclosureis not necessaryfor establishingproperty
rightson Locke'stheory.Further,it is clearthatIroquoianland,whether
used foragriculturalorhunting,was 'enclosed'in the requiredsense that
ownershipwas recognizedby defined social structures.
b. GroupOwnership.
Lockeneverquestionedthe assumptionof Englishculturethatproperty,
includingland, would be owned by individuals.In most culturesnative
to North America,agriculturalland was owned by the clan segment or
community (Roback,17; Trigger,32; Tully, 'AboriginalPropertyand
Western Theory/ 164-5).This difference has been analyzed from the
perspective of economic efficiency (and hence from a utilitarianmoral
perspective)with the conclusionthat 'propertyrights theory makes no
particularclaim that individual ownership is the only way or even the
least costly way of internalizing externalities....Resourses should be
privatized over the group size that can best internalize the relevant
externalities.'27Roback argues that ownership of land by (extended)
families and tribes was much more productive than the ownershipby
individuals which the Dawes Act forced onto Native Americansin the
United Statesin 1887.
However, in this paper I am not interestedin utilitarian(and hence
economic) approaches to property. The question here is whether a
Lockeanlaborjustificationof propertyrightsmust acceptthe individual
as the corrector only propertyowning unit or whether families,clans,
communities,or nations are possible.
26 Tully, 'Aboriginal Property and Western Theory/ 169-71; Tully, 'Property, SelfGovernment and Consent/ 127-8; also Robert A. Williams, The AmericanIndian in
WesternLegalThought:The Discoursesof Conquest(Oxford: Oxford 1990), 255-70.
27 Roback, 9; also see C. Leigh Anderson and E. Swimmer, 'Some Empirical Evidence
on Property Rights of First Peoples' (unpublished manuscript from School of
Administrative Studies, Carleton University, 1995).
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Locke'sTheoryof Original Appropriation 323
Both Locke (II, 35) and English law recognize that institutions and
groups of individuals in the form of partnershipsor companies could
own land;the institutionor companyis simply viewed as though it were
an individual. However, institutionalownership is subsequent to private ownership by individuals in that institutionalownership is governedby laws, and hence is subsequentto the formationof civil society
and is dependent on governments. Locke was trying to show that
individualownershipwas priorto and independentof the formationof
government;in the stateof naturetherecould be ownershipof property,
but Locke assumes it is individuals who are the owners. Group or
institutionalownership did not arise in the state of nature prior to the
contractsthat established government and positive property law. We
will return shortly to the question of whether it is possible to view
Iroquoianclan ownershipas independentof governmentand civil society in the Lockeansense.
In assuming that land can be owned by individuals prior to the
establishmentof government,Lockeis assuming(ortryingto show) that
the ownership of private propertyis consistentwith the moral obligations of naturallaw and thatit does not requirethe consentof any person
(II,25). If the consent of otherpeople is not requiredfor originalappropriation, then it does not require a contractas does the formationof
government.Since there is no contract,appropriationof propertyfrom
the commons does not createany moral or social obligationswhich do
not already exist in natural law. The problem that group ownership
presents is that the ownership of property by the group necessarily
entails social obligationsamong group members;dividing the required
laborand the resultingproducewould have to involve socialobligations.
Thus Locke would want to make group ownership of property subsequent to contracts;viewing group ownership as fundamentalis not
consistentwith Locke'sbelief that owning justly acquiredpropertyis a
right independent of and prior to social obligations other than those
entailedby the Law of Nature.
Locke does recognize that the Law of Nature imposes some moral
obligationsthat impinge on the rights of individuals who own land;he
thinks sons have at least a prima facie claim on inheritingtheir fathers'
land, and if a man forfeitsthroughaggressionhis right to his estate, the
claimsof his wife and dependentchildrenarepriorto any claimsagainst
him as an aggressor(II, 182).These are moral or rights claims and are
prior to the formationof government and the creationof laws; this is
clear from Locke'sdiscussion of these claims in the context of foreign
conquest in just wars. Locke, however, never seems to recognize the
implicationsof these claims for the ownership of property.They seem
to imply thatthe unit of ownershipshould be the family,not an individual. The problem,of course, is that Locke failed in this instance to see
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324 JohnDouglas Bishop
beyond the patriarchalassumptions of his culture;it is men who own
land, and wives and childrenwho are the dependents.Locke'sfailureto
recognize the equal claim of wives to property is curious because he
arguesat greatlength in the firstTreatisethatmothershave equal rights
with fathersto the respectand obedienceof theirchildren.Two hundred
years after Locke,this assumption of patriarchyhad disastrousresults
when the Dawes Act in the United States assigned land ownership to
men, leaving Native women and childrenlandless (Roback,23). Many
North AmericanNative culturesare traditionallymatrilinearand agriculture was often the responsibilityof women. However, it might be
possible to remove the patriarchalassumption from Locke'sproperty
theorywithout moving fromindividualto familyor communityownership. The question of individual ownershipneeds to be looked at separately.
Locke'sargumentsforpropertyarebased on consumption(II,28) and
labor (II, 27). The consumption argument is that the bounty that was
given to humanity in common does no person any good until someone
appropriatesa specific portion and makes it theirs by using it to the
exclusionof others.Theexampleis apples and acorns,which areliterally
consumed when eaten and become partof a person,and hence theirs,in
a physical sense. Thereare severe problemswith this argument,and it
may only be meant to establisha general right to propertyratherthan
support specific property claims. In any case it is not applicable to
specific land claims. Land is not consumed by use, nor does it become
part of the user in any physical sense. An apple (or at least a specificbit
of it) cannot be profitablyused by more than one person, but bounty
from the land can be made usable by a group of people and, in fact,
generallyis. The argumentfor propertyfrom consumption,if it can be
applied to land at all, would work as well or betterif groups of people
are recognizedas owner.
The labor theory of propertyappropriationequally does not require
the unit of ownershipto be the individual.Laborcanbe a spousal,family,
or communityactivity.Forthe Iroquoians,farmingwas generallya clan
effortof the women, althoughindividualplots were permitted(Trigger,
30-4). In fact, Europeansettlement was also almost always based on
spousal or family effort;clearingthe forestand cultivatingthe land was
simply too large a task for a single individual. Locke'sentire argument
about the naturalright of people to ensure theirown preservation,and
the naturalrightto own the productof theirlaborwhich he derivesfrom
it, actuallyworks betterwith the family as the unit of ownershiprather
than the individual, at least for the ownership of agriculturalland.
Farmingis usually a joint effort.
Locke did not explicitly argue for the individual as the proper land
owning unit, and it does not seem entailed in his arguments.Could he
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Locke'sTheoryof Original Appropriation 325
have accepted spousal or clan ownership as basic forms of private
propertyin land? It is useful in this context to review what Lockewas
arguing against;what role did his theory of propertyplay in his wider
politicalphilosophy?
ChapterV of the second Treatiseis partof Locke'srefutationof Filmer
and others who were trying to argue that claims to propertyrights are
dependent on government,in particular,on kings. Filmerhad argued
that the earthhad not been given to humanityin common,but to Adam
and his heirs to the exclusion of all others. Kings, therefore,who were
supposedly Adam's heirs, owned their kingdoms, and their subjects'
privateownershipof land was dependent on the King establishingand
recognizing a system of private property.Locke wanted to show that
governmentwas dependent on the subjectsconsenting to a social contract,and that privatepropertywas not dependent on that contract.He
wanted to show that propertywas prior to all social contracts,prior to
governmentand kings,and thatland could be legitimatelyappropriated
without the agreementor consent of otherpeople.
If Locke wants to show that property is prior to the social contract
which forms government,then clan ownership of land could be consistent with his argument.Native governmentstended to have no or weak
legislative powers (Roback,13-16;Trigger,ch. 6; Benson, 28), and it is
unlikely any level of Iroquoiangovernmenthad the authorityor power
to changeland tenuresystems.Clanownershipof land was in this sense
not dependent on government,and hence not derived from the social
contractthat formedgovernment.
However, Lockemight also be takenas arguingthat propertyis prior
to all contractedsocial commitments,not just to those which formed
government.We have alreadyseen thathe did not thinkpropertyrights
prior to some non-contractedmoral commitments, such as those of
parentstowardstheirchildren.Clanownershipentailedcommitmentto
sharinglaborand producewithin the clan;did these commitmentshave
a contractualor moralnature?
Modern economists have tried to view such commitments as the
exchangeof goods and servicesby rationalindividualswithin an on-going, long-termrelationship(e.g. Roback);this would make the commitments contractualin the Lockeansense that they are based on consent
given in the hope of mutualbenefit.However, it is also possible to view
these commitmentswithin the clan as having a moral basis in natural
law independentof any consent or contractin the same way that Locke
recognized parents' duty to dependent children as prior to all social
contracts.Locke thought the duty to look after dependent children
derived from the naturalduty of humans to preserve the human race
combinedwith the empiricalfact that human childrenrequiresupport
throughouta prolonged childhood. The Iroquoiancould equally have
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326 JohnDouglas Bishop
argued that communallaborand sharing,and hence clan ownershipof
land, was essentialto theirpreservation,given the empiricalfactsabout
the level of technology and the resources available. Evidence from
contemporarynative communities about the way members of clans
come to feel clancommitmentsseems to indicatethatwords likeconsent,
Clan
exchange, and rational self-interestare entirely inappropriate.28
members recognize moral commitments in a way not analyzable in
terms of contract.
The implicationsof this are thatclan ownershipseems entirelyconsistent with Locke'sargumentsthat privatepropertyis priorto any social
contractsand not dependenton consentor on government.If this is true,
we can conclude that on Locke's own theory, group ownership of
propertyis as legitimateas privatepropertyownershipby individuals.29
c. LandImprovement.
Locke'sEnglandwas in the middle of an agriculturalrevolutionwhich
would continueinto the next centuryand which allowed Locketo claim
that an English day laborerwas far better off than an Indian 'King'(II,
41).30English agriculturalimprovementswere financed and contrived
by land owners, and Lockedrew the conclusionthat privateownership
of land made the land vastly more productive.This increasedproductivity plays a role in his argument for the original appropriationof
propertybased on labor.31
No doubt English farming was more productive per acre than Iroquoian;Englishaccess to draftanimalsand manureensured that.32But
this, on Locke's property theory, would be irrelevantto the right of
28 Cf. Rubert Ross, Dancing with a Ghost: Exploring Indian Reality (Toronto: Octopus
1992).
29 Simmons reaches a similar conclusion: 'Joint property is certainly possible on
Lockean view' (181-2). He also discusses the impact of group ownership on rectification of injustices (179). See A. John Simmons, 'Historical Rights and Fair Shares/
Law and Philosophy14 (1995) 149-84.
30 Locke could not decide whether land in England was a hundred times (II, 41) or a
thousand times (II, 43) more productive than land in America.
31 Shrader-Frechette (204) refers to this as the 'efficiency argument.'
32 John Winthrop, in 1629, had used enclosure, probably meaning physical enclosure,
and manuring as criteria for land ownership; cf. Flanagan, 591-2. Winthrop explicitly applied these criteria to North American Natives, claiming that since they did
neither, their land could be appropriated by Europeans.
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Locke'sTheoryof Original Appropriation 327
settlementif Iroquoianland had alreadybeen removed from the commons by the Iroquoians.Locke'stheory was not a utilitariantheory in
which propertyrights are always assigned and re-assignedto the most
productive use; utilitarianismwas the basis of neither original appropriationnor of the continuingprivateownership of land. If a utilitarian
theorywas used to justifythe periodicreassignmentof propertyto those
who would use it mostproductively,this mightpossiblyentailre-assigning Iroquoianlandsto settlerswith moreproductivefarmingtechniques.
However, this obviously is not consistentwith Locke'stheory of property, which is a rights,not a utilitariantheory.33For Locke,the issue of
productivityonly arises at the time of originalappropriation,and even
then the issue is not which use is the most productive,but ratherwho is
the firstto improve a piece of land.
For Locke,land is removed from common ownership and becomes
privatepropertywhen an individualinvests theirlaborin improvingthe
productivityof the land. People have a naturalright to do this (subject
to the constraintsmentionedearlier)becausethey have a rightand a duty
to preservehumanity,and improvedproductivitycontributesto preservation. This is a rights, not a utilitarianargument;nevertheless, the
conceptof improvinga piece of land is pivotal and needs comment.
Laborwhich merely uses land is not sufficientto establisha property
right.If a person picks an apple they own the apple, not the tree or the
piece of land the tree is on. Clearingor drainingthe land and planting
an apple treewould seem to establishownershipof the land. However,
the exact natureof the criterionof improvementis not clear and needs
to be distinguishedfrom mere use.
Iroquoiantechnology limited the ability of farmersto improve constantly the output of particularpieces of land. Without metal axes,
clearingforestswas difficult;it took severalyears to clearnew land well
enough to sow crops on mounds between the stumps. Without draft
animals and metal ploughs, deep ploughing was not possible; and
without manure,soil fertilitytended to decline rapidly. As a result of
this technicalsituation, instead of seeking constant improvement of a
single piece of land like an Englishfarmer,Iroquoianfarmersabandoned
exhausted fields (at least for agriculturalpurposes) after ten to thirty
years. No attempt was made to return to land that had been farmed
before (Trigger,30-2).Does this use of land transferland from common
to private property under Locke's theory of original appropriation?
33 Cf. Jeremy Waldron, The Right to Private Property(Oxford: Clarendon Press 1988)
5-19.
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328 JohnDouglas Bishop
Labor was invested to improve the land, but the improvement was
temporaryand the land later abandoned,at least for agriculturalpurposes.34
Locke'snotion of subduingnatureseems to imply permanentclearing
of the forest,and Englishsettlersintended this resultwhen they cleared
the land. But the requirementof improvingthe land applies only to the
removal of land from common ownership; it does not apply to subsequent owners. By this criterion,Iroquoianland became privateproperty when cleared and remained private property even when
agriculturaluse of it ceased. To see that this conclusion is correct,
considerthe reasonsbased in naturallaw requiringinvestmentof labor
for original appropriation.Locke argues that such labor improves the
chances of humanity's survival (II,32) and that such labor will not be
undertakenunless the laboreracquirestitle to the land she is working
on (II, 35). Since both these points obviously apply to Iroquoianfarm
land, it seems clearthat their clearingand farmingthe land constituted
originalappropriation.The purposes of Locke'soverall theoryof propertyalso show thatthis landdid not revertto the commonswhen allowed
to revertto forest.If privateownershipwas lost in such a case, it would
imply thatthe requirementon owners to improveland is permanentand
appliesto all subsequentowners,not only the originalacquirer.Nor does
Locke argue anywhere that subsequent owners have to maintain the
productivityof land;Lockeplaces few if any requirementsor constraints
on subsequent owners. Since a requirementon subsequent owners to
improve or maintain productivity would represent a fundamental
change in Locke's view of property rights, it follows that temporary
improvementof land is sufficientforpermanentremovalfromcommon
ownership.35
Locke's theory of original appropriationseems, therefore,to clearly
recognize Iroquoianagriculturalland as the private property of Iroquoianclans or communities.Thisis truedespite communalownership,
the lack of physical fences, and the non-permanentnatureof improvements which removed the land from common ownership.
34 Thisquestionis brieflyraisedby Flanagan,600-1.
35 On actual abandonmentof property,see Simmons, 'HistoricalRights and Fair
Shares/ 171.
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Locke'sTheoryof Original Appropriation 329
IV Hunting Grounds
Iroquoianhunting grounds were, of course,much more extensive than
their agriculturallands, and it was primarilythe hunting grounds that
Europeanssaw as the wilderness that they had a right of settling. As
Williamspoints out: 'Locke'sdiscourse... legitimatedthe appropriation
of the Americanwildernessas a right,and even as an imperative,under
naturallaw' (Williams,248). That this discourse referredprimarilyto
hunting groundshas long been recognized;as RichardTucksays:
the English...claimedtheirterritoryby whatone mightcalltherightof farmersover
hunters,presumablyone of the oldest justificationsfor the occupationof territory
in human history.Again and again, the colonistsand theirsupporters,including
most strikinglyJohn Locke (somethingJames Tully has recently emphasized),
insisted that hunting was not a legitimateuse of land where it could be used for
agriculture,and thathunterswho deniedfarmerswere guiltyof a breachof the laws
of nature.(Tuck,15)
Does Locke'stheory of original appropriationreally justify settlement
on Iroquoianhunting grounds?
Traditionally,huntingwas a necessarypartof the Iroquoianeconomy;
it provided protein year round and was a sustaining source of food at
certaintimes of year. Hunting parties were formed of small groups of
men, usually with a kinship relation to each other, who hunted in
assigned territories.Hunting territorieswere associatedwith particular
clans and assigned to families within the clan by tradition.Therewere
recognizedproceduresfor solving disputes within bands and nations;
inter-bandtrespassingon hunting territoriescould result in war, except
within the Five (laterSix)Nation Confederacyand theirclientbands;the
Confederacywould become involved in settling disputes if the Onondaga chiefs were convinced it was serious enough. Thus we see there
were clearlydefined concepts of hunting rights to particularterritories
based on tradition,with recognizedmethods of dealing with violations
and resolvingdisputes.
Within assigned territories,families would hunt certain species in
certainareas some years and times of years. Other years and times of
years, they would refrainfrom hunting. The purpose of these hunting
The patternswere set by a combinationof
patternswas conservation.36
36 The extent to which the Iroquoiansand other Native peoples practisedcare of
hunting grounds by restraintis greatly debated;see Claudia Notzke, Aboriginal
Peoplesand NaturalResourcesin Canada(Toronto:Captus 1994), 145-9,for recent
commentson andreferencesto thisdebate.Forpurposesof my argument,theextent
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330 JohnDouglas Bishop
traditionand close observationof the fluctuationsof animal numbers
and theirmigrationpatterns.Decisions were based on the principlesof
respect for traditionand respect for nature and living things. Religion
instilleda belief in the sanctityof people living in spiritualharmonywith
the restof nature(Tully,'RediscoveringAmerica/ 190),but the economics of familysurvivallay behind caringforhunted speciesby sometimes
refrainingfrom hunting at certaintimes and places. When the English
and Frenchfur tradersstarted to provide the Iroquoianwith access to
insatiableEuropeanmarketsand to Europeanmade goods, the economics of survival changed. Both the ethic of respectinghunting rights in
specific areasand the ethic of carewere sorely stressed;bearand beaver
(especiallybeaver)stocks declined rapidlyin the eighteenthcentury.
On a Lockeantheoryof property,the ownershipof Iroquoianhunting
groundsis not clear.Iroquoianhuntershad never invested theirlaborin
improving the output of the land; they had not clearedor cultivatedit,
nor had they attempted to subdue nature. Those claiming a right of
settlementcould and did claim that this failureto subdue naturemeant
that property rights had not been established in the land and that,
therefore,the land was still the common propertyof mankind.37
A proponentof a Lockeantheoryof propertycould hold variousviews
regardingIroquoianhunting lands and the right of settlement.It could
be argued that the Iroquoianshad establishedan ownershipclaim and
hence settlers intruded on private property;or that the hunting lands
were still commons but the Lockean proviso disallowed the right of
settlement.Only if it is shown both that the lands were still commons
and that the proviso was not violated can it be claimed that the rightof
settlementwas legitimate from a Lockeanpoint of view. Let us look at
each of these claims in turn.
Althoughthe Iroquoianscould not claima laborinvestmentin subduing the land, they could claim 'enclosure'of theirhunting grounds.This
was not, of course, physical enclosure, which would not have been
consistentwith land use since the animalsthey hunted need to wander.
Butwe have establishedabove thatLockewas not committedto physical
enclosure, only to a social procedure for recognizing ownership. Iro-
of care is irrelevant;any level of care would satisfy Locke'sargument.Also, the
collapse of the care ethic under pressureof the fur trade with Europeans(as is
discussedby Notzke, 147)is also irrelevant,sincethis would havebeen subsequent
to the originalappropriationof the huntinggrounds.
37 For examples of such claims from the sixteenth, seventeenth, eighteenth, and
twentiethcenturies,see Flanagan.
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Locke'sTheoryof Original Appropriation 331
quoianhunting territorieswere clearly'enclosed'in this sense (Trigger,
86-9).It was also argued above that group ownership satisfied Locke's
argumentjust as well as individual ownership;thus clan or community
ownershipof huntinglands would not preventthem frombeing private
propertyon a Lockeantheory.
Whatis crucialabout hunting grounds is that laborwas not invested
in improving the land, even temporarily;labor was only invested in
capturing the animals. However, I want to argue that the care the
Iroquoianstook of theirhunting lands by restraininghunting in certain
seasons or years actually satisfies Locke's argument in the same way
laboringto improve the land does.
ForLocke,investinglaborin improvingcommonland conveys private
ownershipof the landbecauseof a combinationof two factors:first,such
laborimprovesproductivityand hencepeople's chancesof survival;and
second, it would not be undertakenunless private ownership of the
resulting benefits, which requires private ownership of the land, is
assured. Careby restraintfulfills both these requirementsevery bit as
well as land improvement;restraintwould not be undertakenunless
those who restrainedtheir hunting reaped the benefit, and given the
technicallevel of Iroquoiansociety, restraintthat prevented over-hunting of particularspecies in particular areas at certain times would
increasethe chancesof human survival.
Thisargumentcanbe rephrasedin moremoderntermsby considering
the 'tragedy of the commons.' Ownership of hunting grounds, even
ownership by a community or group, would permit self-interest to
motivate restraintwhen low species numberswarranted.Both Locke's
argument for original appropriationand the modern arguments that
show the failureof the 'commons'work as well for care by restraintas
for improvementby investing labor. We can conclude, therefore,that
careby restraintconfersownership of land accordingto Locke'stheory
of originalappropriation.
The extent to which this changes the labor theory of appropriation
needs to be noted. If this conclusion is correct,labor does not allow
appropriationbecause the activitysomehow 'mixes'somethingof mine
with the land,but becauselaborin some situationsis requiredby natural
law. Naturallaw in othersituationsmay requireothertypes of behavior,
such as restraint.Any behaviorrequiredby naturallaw confersproperty
38 This argument could, I think, be restated in terms of any of the other three basis for
Lockean appropriation identified by Shrader-Frechette; to wit, need, efficiency, or
merit.
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332 JohnDouglas Bishop
rights in a fashion similar to labor if the property rights permit or
encouragethe behaviorrequired.39
Since this conclusionrests on historicalclaims about Iroquoianhunting practices which might be disputed, I want to look at the second
possible Lockeanapproachto hunting grounds.
The second approachwould be to insist that these lands were still the
commonpropertyof humanityat the time of contactand thattherewas,
therefore,a right of settlement for anyone who wanted to subdue the
forestand improve productivity.Butin this case, the rightof settlement
would be subjectto the Lockeanproviso;eachsettlermust leave 'enough
and as good' for others. There have been many interpretationsof the
Lockean proviso;40the two that need to be examined in the current
contextare:(a)thatthe Iroquoianwere left as well off as they werebefore
the settlement;or (b) that there was suitable land left for the Iroquoian
to settle on and farmin the same way as Europeansettlers.
If the first of these interpretationsis assigned to the proviso, then the
proviso was clearly violated by the settlement of Iroquoianhunting
grounds. That the Iroquoianhunterswere less well off aftersettlement
is clear from their bitter complaints throughout the eighteenth and
nineteenth centuries that settlers were interferingwith hunting (Williams, 235). The effect of settlement on hunting is clearer when it is
realizedthat any particularsettlementwould be in the huntingterritory
of a particularclan or community,and thus the burden would fall not
imperceptiblyon the Iroquoianpeople as a whole, but very perceptibly
on specific groups of individuals. Notwithstandingthat, the Iroquoian
were often tolerant of some settlement because they viewed limited
settlement as consistent with hunting. Such limited settlement would
have to stop when interferencewith huntingbegan to make the hunters
worse off. Presumablyonly the hunters would have the information
about when this happened. Such a situation could not be a right of
settlement,but only settlementby permissionof those affected.Historically, such permissionwas often grantedor sold for tradingreasons.
39 This conclusionresemblesbut is more constrainedthanSimmons'contentionthat
'propertycanbe acquiredby incorporationintoourpurposiveactivities'('Historical
Rightsand FairShares/ 183,162).Theconclusionof thepresentpaperis constrained
to activitiesrequiredby naturallaw. Tully discussesSimmons'view of purposive
activity in 'AboriginalPropertyand WesternThought/ 116-17;he points out the
implication(arguedfor in the presentpaper)thatNative Americansowned North
Americaat the time of contact(118).
40 Fora survey of interpretationsof the proviso,see Narveson,'PropertyRights.'
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Locke'sTheoryof Original Appropriation 333
The other interpretationof the phrase 'enough and as good' would
imply that therewas as much land left for each Iroquoianas each settler
had acquired,and that the Iroquoianportioncould be made as productive as the settlers'lands. In otherwords, therewas enough land left to
allow the Iroquoianto give up hunting and become European-style
farmers.Acceptingthis argumentimplies thatfarmerseverywherehave
a naturalright to forcehuntersto become farmerssince the farmersare
entitledto settle on huntinggroundsuntil the huntershave only enough
A couple of thingsneed to be said
land left to live if they adopt farming.41
about this version of the proviso. First,if the settlers are within their
rights to enforce their right of settlement,this version of the theory of
originalappropriationcollapses into a right of conquest whenever the
hunters object to giving up their hunting grounds. And the Iroquois
plainly did object.Lockewas keen to establishthat originalappropriation does not requirethe permissionof the rest of humanity,and in the
event of interferencein 'justified'appropriationhe thoughta stateof war
would be justified(Tully,'RediscoveringAmerica,'170-1).However, he
did not view his theoryof originalappropriationas a justificationof war,
and did not give serious thought to the possibility that as a matter of
actual fact that might be the normal result.42Locke repeatedly uses
phrasessuch as 'therecould be littleroomfor quarrelsor contentions'(II,
31);therewas not 'any prejudiceto any otherman' (II,33);or the 'restof
41 Besides scholarshipon Lockesuch as Tully's, this questionhas provoked philosophicaldebate;cf. MichaelMcDonald,'AboriginalRights/ in WilliamSheaand J.
King-Farlow, eds., ContemporaryIssues in Political Philosophy (New York: Science
HistoryPublications1976);David Gauthier,untitledreview of WilliamSheaand J.
King-Farlow, eds., ContemporaryIssues in Political Philosophy, Dialogue 18 (1979)
432-40;NicholaGriffin,'AboriginalRights:Gauthier'sArgumentsforDespoliation/
Dialogue20 (1981)690-6;ThomasFlanagan,"TheAgriculturalArgumentand Original Appropriation:Indian Lands and Political Philosophy/ CanadianJournalof
PoliticalScience22, 3 (1989)589-602;NicholaGriffin,'Replyto ProfessorFlanagan/
Canadian
Journalof PoliticalScience22, 3 (1989)603-6;and ThomasFlanagan,'Reply
to ProfessorGriffin/ CanadianJournalof PoliticalScience22, 3 (1989) 607. The
discussionin the currentpaperis morerestricted,dealingonly with the issue in the
contextof Locke'stheory.If thesepapersaredebatingabouta Lockeantype proviso
(andit is not clearthatthis is the contextof all of the debate)then they presuppose
thatIndianhuntinggroundsarecommonpropertyand canbe appropriatedsubject
to the proviso. It might be more appropriate,as Griffin points out ('Reply to
ProfessorFlanagan/604),to view this debateas aboutexpropriation.
42 See Ashcraft,ch. 8, for Locke'sviews on a stateof war (whichwas not the same as
the stateof natureas it was forHobbes);see Williams,ch. 5, 6, and 7, for the history
of the idea thatEuropeanshad a rightto wage war againstNativesif the Nativesin
the slightestway interferedwith settlement.
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334 ]ohn Douglas Bishop
mankind' would have no 'reason to complain or think themselves injured'(II,36).Theproblemwith this second interpretationof the proviso
is thathuntersclearlydid see themselvesas injured,and saw themselves
as thinking they had good grounds for thinking so. It was empirically
not true that therewas 'no room for quarrel'(II,38).
Second, this interpretationof the proviso does not deal with the
historicfact that North AmericanNatives (such as the Cherokee43)
who
cleared land for Europeanstyle farming simply made the land more
attractiveto Europeansand lost it anyway. Thismay have played a role
in the reductionof the Six Nation Reserveat GrandRiverto its current
size. And it must be rememberedthat the argument applies only to
Iroquoianhunting grounds, not to the land they used for agriculture.44
The impact of this second interpretationof the proviso is that no value
at all is placed on lifestyles that use the commons as commons, even if
those lifestyles (having avoided the tragedyof the commonssomehow)
But it seems that this is the only interpretahave existed for centuries.45
tion of originalappropriationand the provisowhich canjustifythe right
of settlementon Iroquoishunting grounds. The justice of this interpretationin the contextof aboriginalrightshasbeen exploredelsewhere(see
note 41, above).
We can conclude that the right of settlement on Iroquoianhunting
lands canbe upheld only if specificinterpretationsare put on the theory
of original appropriationand the Lockeanproviso; it must be shown
both that the hunting groundswere still owned in common and that the
proviso was not violated. To establish that the hunting grounds were
still the commonpropertyof all humanity,it needs to be assumed either
that enclosure must be physical (a poor assumption) or that invested
labormust 'improve'the land by 'subduing'nature.Careof the land by
restraintmust not count. Further,the proviso must be interpretedin a
specific fashion; 'enough and as good' must be judged based on the
assumptionthat the Iroquoianshould give up hunting and theirway of
43 Ronald Wright, Stolen Continents: The 'New World' through Indian Eyes (Toronto:
Penguin1993)ch. 9; also see Flanagan,601.
44 It is now recognizedthatthe extentof Native agriculturewas fargreaterat the time
of Europeancontactthan was realizedat the time. The discourseof the right of
settlementmay explain why Europeans,includingLockewho nowhere acknowledges Native agriculturein NorthAmerica,did not see this.
45 As Tullyexpressesa somewhatsimilarconclusion:'Thisis the flaw in almostall the
purportedsolutionsto appropriationwithoutconsent:they presupposeagreement
on the values and goods of the commercialsystem' ('Property,Self-Government
and Consent/ 127).
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Locke'sTheoryof Original Appropriation 335
life and adopt Europeanfarming techniques and social structure.To
acceptthis is to acceptthat Locke'stheoryof originalappropriationhas
built into it assumptionsabout the proper usage of land; it is to accept
that farmershave a rightto theirfarmland but huntershave no right to
theirhuntinggrounds.Thisinterpretationof the provisonot only confers
value (in the fromof rights)on certaintypes of land usage, it also judges
the accompanyingways of life. It assumes that people have the right to
be farmersand that farmershave the right to stop people from being
hunters.Tully argues forciblythat this attitudeis unjust (Tully,'RediscoveringAmerica/ esp. 188-96).
V Conclusion
The application of Locke's labor theory of original appropriationto
Iroquoianland at the time of contactmakesclearthatLocke'sconceptof
propertyrightswas morenarrowand Eurocentricthanhis own premises
and argumentsallow. AcceptingLocke'sbackgroundpremises,we can
concludethe following:
(a) Enclosureneed not be physical,but can be legal even priorto the
establishmentof government.
(b) Privatepropertyownership need not be by individuals. Family
or group ownershipshould be recognized.
(c) Investmentof laborfor improvementneed not mean permanent
improvement.
(d) Careof the land and its resourcesby restraintestablishesprivate
propertyin the same fashionas laborfor improvement.
Accepting these conclusions would change the nature of property
rightsthatareestablishedby Lockeanstyle argumentsof originalappropriation.Thereis, however, a furthermajorimplicationfor contemporary uses of original appropriationarguments such as Nozick's or
Narveson's.By resortingto Locke'sbackgroundpremises,we have been
able to concludethatthe Iroquoianat the time of contactalreadyowned
both the land they used for agricultureand their hunting grounds. To
overturn this conclusion, it would have to be argued both that these
lands were still the common property of humanity (i.e. that the Iroquoians had not establishedprivate propertyrights by originalappropriation)and that the Lockeanproviso was not violated by European
settlement.To do the latter,the proviso must be interpretedin such a
way as to establishthat farminghas rights over hunting.
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336 JohnDouglas Bishop
It has not been shown in this paper that similar argumentsapply to
other indigenous peoples and their claims to owning territory,but it is
worth examiningthe status of originalappropriationargumentsbased
on this assumption. Since humans have occupied all significant land
areas of the planet earth for at least the last ten thousand years, if the
propertyclaims of indigenous peoples are recognizedas having a Lockean basis,it follows thattherehas been no significantoriginalappropriation formany thousandsof years.Europeanideas of settlingvast 'empty'
and 'wasted' continentswas based on a failureto see, or a dismissal of,
the land uses of indigenous peoples. Original appropriationin not a
historicalfact.
Whatthen is it?The onus clearlyis on those who use it to explain;here
I will only indicatethreepossibilitiescompatiblewith the conclusionsof
this paper.
First,originalappropriationmight be a hypotheticalcase elucidating
certainlogical aspectsof the natureof propertyrights.Locke'suse of the
argumenthas been interpretedin this fashion.46Locke,on this interpretation,was tryingto show thatpropertyrightsarepriorto, and not based
on, the contractsthatcreatedcivil society and government.A hypothetical theory of original appropriationwould show that such a view of
propertywas coherent;this would help establishthis theoryof property,
even if the hypotheticalnature of original appropriationwould mean
that no specific propertyclaim could be based on it.
Second,even if originalappropriationhas no historicalbasis, it could
be used to clarify or help define property rights. It is generally recognized47that propertyrights are actuallya clusterof rightswhich can be
defined in various ways. A non-historicaltheory of originalappropriation couldbe viewed as an attemptto show thatany acceptabledefinition
of the right to propertymust recognize a certainrelationshipbetween
laboringto improvea piece of land and owning it. On this interpretation,
actual historic processes are irrelevant;the theory only says that we
ought to treat current property owners as though they acquired the
property in a line of succession from people who settled the land by
investing theirlaborin improvingit.
Finally,we can transferto originalappropriationWaldron'stheory48
of the social contractas a templatethatallows normativejudgmentto be
46 Cf. Ashcraft,97-8,forargumentsagainstthis as an interpretationof Locke.His note
1 on page 98 lists authorswho have defendedthis interpretation.
47 LawrenceC. Becker,'Property/in LawrenceC. Becker,ed., Encyclopedia
of Ethics
(New York:Garland1992),1023
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Locke'sTheoryof Original Appropriation 337
passed on actual historical processes. On this interpretation,original
appropriationestablishes a normative relationshipbetween labor and
land ownership which can be used to judge the actual treatment of
propertyin specific historicalsituations.This would allow us to judge,
for example,the Europeansettlementof North America,and pass normativejudgmenton the processby judginghow farthe processdeparted
fromthe ideal version of originalappropriation.
How a non-historicaltheory of original appropriationis interpreted
would have to depend on the use it is put to. But any use needs to be
consistentwith the failureof Lockeanargumentsto establisha right of
settlementby Europeanfarmerson lands used by Native Peoples at the
time of contact.
Received:July, 1996
Revised:March, 1997
48 JeremyWaldron,'JohnLocke:Social Contractversus PoliticalAnthropology/ in
David Boucherand P. Kelly,eds., TheSocialContract
fromHobbesto Rawls(London:
Routledge1994)
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