Native Americans And Eminent Domain?


by Timothy Sandefur


People have a right to their property. In some cases, it is all they have to show for. In other cases, it is the only thing they know. It would be safe to say that many people look back on what was done to the Native Americans and say, "That was wrong.” Their land was encroached upon, the U.S Government made treaties and made them feel safe (much like granting someone ownership of property in today's standards), then they forced them to continue to get up and leave as it fit their needs. The treatment of the Native Americans, at least when it comes to land, is similar to what is happening today: land is being seized against people’s wills, without just compensation, and without proper reasoning. It was irresponsible then; and it irresponsible now.

Quite right. In fact, as I write in Cornerstone of Liberty,

there were at least two glaring instances in which the young American nation betrayed the principles of private property on which it was based: the treatment of Indians, and slavery. Contrary to the popular romantic myth, American Indian tribes had sophisticated social systems including strong notions of private property.

The Cherokees, for example, were not primitive savages; they embraced many social and technical innovations, including newspapers published in their own language, a public education system, and a written constitution. But as nineteenth-century American farmers encroached more and more on Cherokee-owned land in Georgia and Tennessee, conflict between natives and settlers reached crisis levels. When the state of Georgia pressed its policy of confiscating Cherokee land, the tribe responded, not by going to war, but by filing a lawsuit in the United States Supreme Court. Chief Justice John Marshall ruled that the Cherokees were the “the undisputed possessors of the soil” and that state interference with that right was unconstitutional. President Jackson, however, refused to enforce the ruling.   

With the law thus ignored, state and federal authorities rounded up the Cherokees and deported them to the west, on what came to be known as “The Trail of Tears.” Far from demonstrating the injustice of the American Constitution, the Cherokee experience testifies to the importance of property rights and the awful consequences of ignoring the Constitution’s protections.