In 1810, the Cherokees could have rightfully claimed that the United States had stolen the five million acres ceded in 1805, and the US still owed the Cherokees an estimated amount of $43.5 million.
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In a recent lecture on her new book, Redressing Historical Injustice: Self-Ownership, Property Rights and Economic Equality, Wanjiru Njoya challenged current calls among some indigenous groups for “land justice” to redress the alleged historical injustices of European colonization. Drawing from Murray N. Rothbard’s book The Ethics of Liberty, Njoya outlined a set of guideposts for determining the actual justice of such claims with reference to South Africa. As general principles, these guideposts are useful in other historical contexts as well. Here, for example, I apply these natural law principles to the specific case of the Cherokee Indians to answer the question, did Anglo colonizers steal Cherokee land?
As Rothbardians know, there are three ways to acquire private property under natural law: improvement through labor, voluntary exchange, and gift or inheritance. Property acquired by any other means would be stolen property and must be returned to its rightful owner. Njoya explained that to establish rightful ownership, two conditions must be reasonably met: the facts of possession and the intent to possess. Absent these conditions, individuals can appropriate property “with impunity.” In cases where theft can be established, the property must be returned, provided that the property still exists and rightful heirs can be identified.
By these standards, the Cherokees were in fact the rightful owners of their lands. Before contact with Europeans, Cherokees recognized individual private property, clearly demonstrating both the facts of possession and intention to possess. The earliest visitors to the Cherokee towns—James Adair (1730s), Henry Timberlake (1750s), John Haywood (1760s), and William Bartram (1770s)—all testified to the facts of possession and the clear animus possidendi that established the Cherokees’ undeniable, individual claims to ownership of their lands under natural law.
Between 1721 and 1770, the Cherokees gifted the British approximately twelve million acres of land. In a 1772 contract with Virginia, the Cherokees exchanged half a million acres for around $6,000. Despite any backwoods shenanigans, these exchanges were voluntary. Involuntary land cessions began in 1775 with the seventeen million acres taken in the notorious Henderson Purchase, which the Cherokees contested militarily until they were finally defeated in 1784. This land along with an additional ten million acres taken in 1785 were acquired by conquest and, therefore, not exchanged voluntarily. Although the common law affirms that conquest does confer legitimate title to land, under natural law, because the Cherokees did not cede them voluntarily, the confiscated lands would have been an unjust taking.
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However, beginning in 1791, all Cherokee land cessions were voluntary exchanges enshrined in legally binding contracts that transferred title to private property for a specified monetary consideration. Shortly thereafter in 1808, the Cherokee leadership instituted a bona fide liberal, fiscal-monetary state so that the new Cherokee “government” could enforce these contracts with the US. Therefore, it is possible to determine not only how much the US owed for these land cessions but also how much the US actually paid on that legal debt to the Cherokees. From an examination of the codified law and the annual treasury reports of the Cherokee Nation, generated between 1872 and 1902, it cannot be claimed that the US stole Cherokee lands, nor would the current Cherokee government even make that claim.
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Unfortunately until recently acquisition by conquest was recognized by International Law. Interestingly neither the CCP nor Pooties lets that stand in their way.
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