"[T]reaties were always written in Western languages employing Western legal vocabularies, grounded in the term property."

Doctrines of Discovery
Eric Cheyfitz

Part I | II | III | IV

II. Land and Property

United States federal Indian law is grounded in the history of Western imperialism in the Americas, and in what were and remain the central issues in the conflict between Indian communities and European powers: land and sovereignty. It is not only that the Euro-Americas are built on stolen Indian land but also that the traditional Native relationship to land was radically opposed to early modern Europe's increasingly capitalist relationship to it.

Traditionally, land was and is the absolute resource of the Native community. In Native America land mediates all relationships on a plane where the distinction between the sacred and the secular made by the West does not exist. Native land is not what the West understands as property, a decidedly secular institution. As a traditional value, land is the antithesis of property. Land, in this view, is the inalienable ground of the communal, defined exclusively in terms of extended kinship relations. I use traditional in this context not to denote unchanging cultural practices, the notion of which is in any case a fiction, but rather to signify an ongoing and adaptive force marshaled from the historical moment of the Columbian invasion of the Americas (1492) against the European exploitation of Native land. Such resistance is exemplified in the present by the continued refusal of the Sioux Nation to accept a monetary settlement, now with accumulated interest worth an estimated 350 million dollars, granted them in 1974 by the Indian Claims Commission for a wrongful taking in 1877 of the Black Hills, land central to their identity as a people. For the Sioux, the Black Hills are not fungible.

Whether in such different cultures as the Pueblos in what would become the southwestern U.S. (or the pueblos in Mexico), the Iroquois Confederacy in the territory that is now the northeastern U.S. and Canada, the Creek or Cherokee towns in what became the southeastern U.S., or the tiospaye of the Oceti Sakowin (Sioux) on the great plains of North America, the traditional Native community can be described as an extended family or system of interlocking extended families working in concert for mutual sustenance. But we should be careful not to conflate the Western nuclear family paradigm with the Native paradigm of family, or, as I prefer, kinship. The relational terms of the Western family (father, mother, brother, sister, aunt, uncle, cousin, etc.) do not translate into the terms of Native kinship. In comparison to the class and gender hierarchies of Western nation-states, Native communities were marked by egalitarian social and political structures, where group action was based on group consensus, precisely because (if one wants to take an economic perspective) the labor of all, female and male, was equally valuable for the sustenance of the group. Native kinship terms extend as well into that part of the world that the West has increasingly alienated, subordinated, and exploited as "nature." Such extended kinship by folding nature into the Native community sets conservative limits to the use of natural resources.

In theory and practice, the indigenous conception of community does not exclude conflict either within or between communities, as indigenous oral traditions clearly attest. However, in societies where there were no class divisions, where every person's contribution was valuable to the sustenance of the group, and where there were no systems of incarceration, solutions to intragroup conflict were conceived primarily in terms of restoring balance to social relations rather than, as in Western societies, isolating transgressors from these relations. So, for example, the killing of the member of one group (family or clan) by the member of another might be balanced by a single counter-killing or, alternatively, a payment of some kind, either of which, it was agreed by the aggrieved party, would close the circuit of violence. Interclan conflicts within the Hopi villages have been resolved historically by the formation of new villages, which nevertheless remain within the Hopi fold through clan ties that link village to village on the three mesas in northeastern Arizona. The last resort in maintaining balance in indigenous social systems was exile, for psychic and social survival outside the kinship community was precarious at best. As for intercommunity conflict, what the West terms war, it is enough to say here that whatever its function (ritual, territorial, raiding) it cannot be understood in terms of modern Western warfare, which is based in an imperial/colonial paradigm: the clash of nation-states over issues of property. Once capitalist economies disrupted Native economies, of course, Native kinship relations to land were disrupted by property relations, and were forced to come to terms with property relations, but have also managed to mount a continuing, if often divided, resistance to these relations. That is, the Western imperial invasions of Native America have brought with them the kinds of collaboration that such invasions bring, the kind, for example, instanced by the BIA at the present moment.

In Native kinship economies, land was not fungible, that is, marketable, or alienable by an individual, or group acting as an individual within the community. Thus, the treaty, signed by "chiefs" or other designated leaders, in which, centrally, the Indian "tribe" or "nation" alienated a portion of its land in exchange for payment of various kinds, is always, quite literally, the sign of the imposition of Western terms on indigenous communities: treaties were always written in Western languages employing Western legal vocabularies, grounded in the term property.

Property is the foundation of Western capitalist democracies; and land is in the history of these democracies the fundamental form of property. These democracies both as nations (ideas, or ideals, or ideologies) and states (political systems that mediate, or express, the nation) are particular articulations of property, which is not simply a material relation but implies in the very history of the word property a moral and social one (what is proper) and a metaphysical one as well: the particular properties that define what the West has come to understand as an individual. When the United States was founded, for example, only property-holding white males by and large had the franchise, were, that is, considered individuals in the political realm. Even today, not to hold some form of property in the West is to have one's individuality bracketed, to find one's recognition as a person seriously compromised. It has been the overriding thrust of U.S. federal Indian law from its constitutional inception to the present to translate Indian land into property, not for the purpose of entitling Indians to their land but for the purpose of legally entitling the federal government to it and thereby compromising the sovereignty of Indian communities.