Turtle Talk

Here. Good read. H/T PropertyProf Blog.

An excerpt:

One last thing to consider—which further complicates the story of the Manhattan deal—is the ideological difference between the Europeans and the Native Americans regarding the sale of land. The sale may seem particularly lopsided, even aside from the small price tag, because of the popular conception that the Native Americans didn’t think of the land as property or something that could be traded, and had no idea what they were getting into. But that’s not accurate. “European settlers and early Americans misunderstood tribal economies and property rights,” says Robert J. Miller, a specialist in American Indian law at the Lewis & Clark Law School, in the Oregon Law Review. “Even today, there seems to be an almost universal misunderstanding that the American Indian culture had and still have no appreciation or understanding of private property ownership and private, free market, capitalist economic activities. This mistaken idea could not be further from the truth.”

In reality, Miller says, American Indians were continuously involved in free market trade situations before and after European contact and, while most of the land that Indians lived on was considered tribal land owned by the tribe or by all the tribe’s members in common, almost all the tribes recognized various forms of permanent or semi-permanent private rights to land. Individual tribe members could, and did, acquire and exercise use rights over specific pieces of land (tribal and not), homes, and valuable plants like berry patches and fruit and nut trees, both through inheritable rights and by buying and selling.

In Law in American History: Volume 1, law professor G. Edward White interprets the Manhattan “sale” from the Indians’ point of view as “not relinquishing the island, but simply welcoming the Dutch as additional occupants,” in the context of a property rights system that was different from the Europeans’, but not nonexistent. He thinks they “allowed the Dutch to exercise what they thought of as hunting or use rights on the island” and assumed continuing rights of their own, in which case the deal seems much better for the Indians than legend would have us believe.