An article this past week on the Conservative government’s proposal to adopt legislation authorizing private ownership of property on First Nations reserves in Canada is a reminder that the collision between European and Native American property regimes is an ongoing struggle. Last December the Harper government voiced support for the First Nations Property Ownership Act as a way of spurring economic development on the reserves. Leaders of the Assembly of First Nations have already gone on record as opposing blanket private property rights in lieu of communal ownership though a handful of the more than 600 First Nation reserves are apparently willing to make the switch. One concern is that such a change would lead to ownership of reserve land by non-natives.
At the very heart of the conflicts between Native Americans and Europeans settlers was a profound difference in the way the two cultures viewed the relationship between humans and the land. It is not that Native Americans did not recognize property rights; they had developed a property regime that was based largely on communal forms of ownership. Europeans arrived just as the longstanding feudal system of property rights was coming to an end and were eager to use what they perceived as the blank slate of North America to implement a property regime based primarily on private property rights.
One of the great ironies of U.S. history is that a country that prides itself on being a bastion of property rights owes its very existence to displacing (often by force or fraud) a system of property rights that was in place before the country came into being. Both Canada and the United States have long struggled with the residual Native American enclaves (reserves in Canada and reservations in the United States). The Bureau of Indian Affairs management of Native American lands in the U.S. has been nothing short of a scandal. While Canada in recent years has gone to great lengths to recognize First Nations continuing sovereignty in meaningful ways (in its 1982 Constitution and by entering into self-government agreements with a number of reserves), this latest proposal makes clear the uneasy coexistence to these two very different property regimes.