Land Ownership 101

When the Europeans arrived in Northern Virginia in 1608, there were propery/ownership conflicts.

How do we know? How else do you explain the investment made by people with just stone/bone tools to cut down trees and build a palisade around the Native American town at what we now call Potomac Creek, in modern-day Stafford County? Whatever group controlled the site had excellent access to fish and other protein in the Potomac River, as well as bottomland for agricultural crops. It's not unreasonable to assume that people fought over control of such valuable resources, even if we have little documented evidence of the battles.

See any property boundaries on John Smith's map?

Still, it is not much of a stretch to assume the people living at the confluences of creeks and the Potomac River sought exclusive control over nearby woodland for gathering food or hunting deer, turkey, bear, and other wild game. What we can't document clearly is how the Native Americans asserted those rights. I bet there were many more "conversations" than battles, to resolve conflicting claims to territory without physical fights, but no one took written notes at these pre-European contact meetings.

It is dangerous to take our childhood memories of Disney movies, or cowboy-and-Indian games, and extrapolate that we understand a culture that left us no written records, no podcasts, no You-Tube videos. We're not certain the Moyumpse (Dogue) were an Algonqian-speaking tribe, for example. Evidently the English spoke to them using Algonquian words, but the tribe's normal speech may have been Siouan or Iroquoian. Perhaps the Moyumpse (Dogue) spoke in the Algonquian tongue to the English only because that was a common "foreign" language shared by the two cultures.

Even our understanding of tribal names should be re-examined. European explorers asked groups "Who lives upstream? Who lives across the mountains?" The response was occasionally "Those old so-and-so's live there." The names given for the neighbors were not always compliments.

For example, the Kootenai tribe now living in Montana did not call themselves "Flatheads." That name was first provided to Europeans by an adjacent rival tribe. The Tohono O'odham tribe in Arizona has made clear that they are not to be called Papago ("bean eaters"). Since John Smith met the Tauxenent in person, that word (pronounced so it resembled "Dogue") may have been the name used by the tribe to describe itself, but more likely it was a pejorative term .

We know very little about the thought processes, especially the real estate concepts, of those Native Americans in 1608. We can write whatever we want on that blank slate, and make all sorts of claims about how those early residents viewed property rights. In the absence of detailed evidence, we can end up making statements that are hard to challenge... but equally hard to justify.

Perhaps you have read the eloquent words of Chief Seattle, supposedly given in 1855 in response to a US Government proposal to purchase territory occupied by the Duwamish tribe:¹

How can you buy or sell the sky, the warmth of the land? The idea is strange to us.

If we do not own the freshness of the air and the sparkle of the water, how can you buy them?

Every part of this earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man.

The white man's dead forget the country of their birth when they go to walk among the stars. Our dead never forget this beautiful earth, for it is the mother of the red man. We are part of the earth and it is part of us. The perfumed flowers are our sisters; the deer, the horse, the great eagle, these are our brothers. The rocky crests, the juices in the meadows, the body heat of the pony, and man --- all belong to the same family.

So, when the Great Chief in Washington sends word that he wishes to buy our land, he asks much of us. The Great Chief sends word he will reserve us a place so that we can live comfortably to ourselves. He will be our father and we will be his children.

So, we will consider your offer to buy our land. But it will not be easy. For this land is sacred to us. This shining water that moves in the streams and rivers is not just water but the blood of our ancestors. If we sell you the land, you must remember that it is sacred, and you must teach your children that it is sacred and that each ghostly reflection in the clear water of the lakes tells of events and memories in the life of my people. The water's murmur is the voice of my father's father.

The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and feed our children. If we sell you our land, you must remember, and teach your children, that the rivers are our brothers and yours, and you must henceforth give the rivers the kindness you would give any brother.

We know that the white man does not understand our ways. One portion of land is the same to him as the next, for he is a stranger who comes in the night and takes from the land whatever he needs. The earth is not his brother, but his enemy, and when he has conquered it, he moves on. He leaves his father's grave behind, and he does not care. He kidnaps the earth from his children, and he does not care. His father's grave, and his children's birthright are forgotten. He treats his mother, the earth, and his brother, the sky, as things to be bought, plundered, sold like sheep or bright beads. His appetite will devour the earth and leave behind only a desert.

He also said, supposedly:²

Your dead cease to love you and the land of their nativity as soon as they pass the portals of the tomb and wander away beyond the stars. They are soon forgotten and never return. Our dead never forget this beautiful world that gave them being. They still love its verdant valleys, its murmuring rivers, its magnificent mountains, sequestered vales and verdant lined lakes and bays, and ever yearn in tender fond affection over the lonely hearted living, and often return from the happy hunting ground to visit, guide, console, and comfort them.

According to that speech, use of the land did not end with death. Places remained sacred because spirits would visit after death.

If you share this perspective, then your willingness to transform the "look" of a place would be affected. Removing minerals from the earth, replacing a forest with a subdivision, or even altering the scenic view with construction of a nearby highway might damage the value of the place for many previous generations, in addition to the impacts on future generations. (Even segments of society that do not share the perspective that land will be used by spirits after death may be reluctant to disturb graveyards...)

Source: NASA

Re-examining the myths of pre-European property ownership can clarify our current understanding of property rights. Maybe Chief Seattle was so eloquent in a foreign language, or maybe not... but do those words have an impact on your thinking anyway? Do you assume that "everyone lived in harmony" prior to European contact, or do you think conflict over real estate pre-dates 1608 and 1492?

Today, do you think your home is your castle, and no one should tell you what to do with your land? Do you agree with the philosopher John Locke thata key role of government is to protect private property? He wrote in his Second Treatise, when comparing the State of Nature vs. State of Society, ""The great and chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government is the Preservation of their Property." ³

it may be just a starter townhome, but it too is a castle...

The Constitution of Virginia is explicit in its protection of private property rights. Section I says "That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.' (emphasis added) Also, note how the state constitution differs from the later version of the First Amendment in the US Constitution, which replaces the reference to property with language about the pursuit of happiness.

In Northern Virginia, Native American tribes probably held ownership to land as a group, not as individuals. Locke would argue that the Native Americans lived in a State of Nature, without the benefit of a clear set of laws, judges to apply those laws, and government powers to enforce those laws. Native American families/individuals could locate their house on a spot, farm a particular plot, and perhaps exercise special hunting/gathering privileges in certain areas - but the right of temporary use did not lead to permanent ownership of a particular piece of land.

One legal word for describing such ownership is "usufruct," where exclusive use of communal property is just temporary - and the user is not permitted to damage the property in some long-term way. Not surprisingly, the supposed Chief Seattle speech reflects such a concept, shaped to stimulate modern society to re-assess its unsustainable use of natural resources.

Such an approach is described in a story told by the Constitutional Law Foundation:⁴

Once upon a time, there was a small, neighborhood playground. The playground contained only one swing. The local children feuded continually over access to the swing until some parents finally stepped in and created a sign-up list. The list was kept by a local grandmother who liked to spend her afternoons on the sunny bench in front of the swing.

One day, a boy named Jimmy, who had signed up for the swing, became bored with swinging. Jimmy decided to stand up in the swing instead, and to jump up and down. Through his vigorous efforts, Jimmy made a great deal of noise, and he seemed to be greatly pleased with himself. But after a few minutes of this game, the swing set began to shake violently. The structure could not endure Jimmy's abuse much longer.

The grandmother rose from her bench. She asked Jimmy to stop jumping on the swing. Jimmy refused, protesting, "I can do whatever I want! I signed up! It's my swing right now! That's the rule!"

The grandmother shook her head. She explained to Jimmy, kindly but firmly, "No. That is not the rule. It is never your swing -- or anyone else's; it is only your turn on the swing. Other children have a right to play on the swing after you are done. So even though you are free to play on the swing, . . . you are not free to break it."

Much of the frustration expressed during land use conflicts in Northern Virginia reflects the different perspectives on property rights. During rezoning battles, it is common to hear landowners and developers state that they purchased the land, and now have the right to develop it as they see fit in order to maximize the return on their investment. Farmers in a suburbanizing area, such as western Loudoun or Prince William counties now, may say "My family has lived here for three generations. We don't get 401k's or pensions as a farmer. We've always counted on the increased land value of our property, selling it for our retirement nest egg. It's not fair for the neighbors/government/environmentalists to block our plans for a large development."

On the other side, people state that the right of landowners to develop their private property are not unlimited. Society has a legitimate reason to shape where factories, nuclear power plants, gas stations, or even low-density housing developments may be located. In addition, the landopwners are not entitled to compensation if government agencies impose reasonable limits on development potential.

What's your perspective?

References