Property is both “freedom” and “theft.”1 Takings jurisprudence in the United States evokes both these paradigms, sometimes justifying and sometimes condemning the exercise of eminent domain. For example, in the now-infamous 2005 case of Kelo v. City of New London, a divided Supreme Court barely upheld a government taking of a home to promote economic development. Twenty years prior, a unanimous Supreme Court easily upheld a government taking of Hawai’ian land for economic purposes in Hawaii Housing Authority v. Midkiff. Interestingly, although widespread public outrage in response to the taking of Suzette Kelo’s “little pink house” has raged since 2005, the taking upheld in Midkiff continues to be shrugged off as economically justified. Why the difference?
Professor Ezra Rosser’s forthcoming article, Progress and the Taking of Indigenous Land, reframes the United States Supreme Court 1984 holding in Midkiff to better explore the property tensions in takings law by placing the case in its broader context. Although the Courts opinion speaks in terms of market competition, the taking at issue pertained to land (‘āina) held by and for the benefit of native Hawai’ians. Rosser’s reconsideration of Midkiff importantly re-situates the case—and takings law in general—within the long and troubling history of indigenous property dispossession in the United States.
Rosser cuts through Midkiff’s rhetoric and exposes its reality. The Midkiff opinion, authored by Justice O’Connor (who, ironically, later authored the strongly worded dissent in Kelo), characterized the contested Hawai’ian eminent domain plan as an attempt to rectify market inefficiencies caused by a housing “oligopoly.” The Hawai’ian Land Reform Act compelled landowners to convey title to their tenants, and Justice O’Connor framed this law as a justifiable way to increase homeownership in the state.
The Midkiff opinion avoided focusing on or even discussing the identity of the plaintiff and the context in which it held title. The case was brought by the Bishop Trust—the largest and most important non-governmental landowner in Hawai’i that was disproportionately impacted by the takings scheme at issue.
The Bishop Trust, a non-profit foundation that had been entrusted with title to royal lands for the benefit of native Hawai’ians, had been created and given property in order to preserve native ownership of Hawai’ian ‘āina. And the Bishop Trust used revenues from renting the land to fund a school for native Hawai’ian children. The Midkiff taking, therefore, did more than break up large land holdings, it sanctioned native homeland deprivation in Hawai’i.
Rosser’s thesis is that the history and fate of the Bishop Trust provide a twentieth century example of how indigenous people’s property rights continue to be “routinely sacrificed to accomplish progressive property goals” (P. 7). The treatment of Trust lands mirrors other instances in which native lands have been “taken and transformed into the raw material necessary for creation of public space and democratization of land holdings” (P. 7). The truth behind Midkiff is thus a recent version of a familiar story.
In the 1823 United States Supreme Court decision, Johnson v. M’Intosh, Justice Marshall held that “Indians” had no legal right to own land because they were “fierce savages.” Marshall explained that allowing indigenous people to remain on their homelands would impede progress and development of the country. Marshall’s refusal to recognize “Indian occupancy” as ownership lay the groundwork for multiple subsequent instances of legally blessed government seizure of native lands and resources without compensation or consent.2
Rosser points out that taking property from indigenous peoples is so normalized that the “Court is comfortable saying the quiet part out loud: the nation’s progress and development depend on limiting Indian rights.” (P. 50). Versions of this same willingness to dispossess indigenous populations of property rights continue today—for example, in disputes regarding water rights to the Colorado River, use of native lands for solar energy projects, and the construction of oil pipelines.
Our legal system continues to generally ignore and diminish indigenous claims to land. Rosser observes that insufficient contextualization of the Midkiff decision obscures its part in this continuing pattern of colonialization. As in other cases of indigenous dispossession, the forced indigenous ownership transfers in Midkiff tended to primarily benefit wealthy entrepreneurial interests.
Rosser explains that the eminent domain program upheld in Midkiff “worked as it was designed to work, disproportionately taking residential leasehold property from the Bishop Estate—and from the Native Hawaiian children who were the beneficiaries of the trust—and turning it over to the relatively wealthy tenants living on leased land.” (P. 30).
For the past four decades, the Supreme Court’s contemporaneous “framing of the case as an anti-oligarchy case has largely claimed the day,” says Rosser (P. 57). But it is essential to finally pull back the curtain and recognize the substance behind the Midkiff spin.
The injury to indigenous peoples caused by loss of their homeland goes beyond economic loss. Most native cultures and identities deeply connect with their natural environment.
For Hawai’ians, ‘āina is an emotional and sacred concept, essential to well-being and identity. Even the western legal tradition recognizes that real property is unique and should generally be protected by “property remedies” (e.g., specific performance and injunctions).
If there can be no liberty without property, the United States cannot claim to be the land of the free while continuing to ignore native people’s rights to their land.
- F.A. Hayek called “the system of private property” the “most important guarantee of freedom, not only for those who own property, but scarcely less for those who do not.” F. A. Hayek, The Road to Serfdom 108 (1944). This sentiment has been echoed by US economists, philosophers and presidents as well. For example, Calvin Coolidge opined that, “property rights and personal rights are the same thing. The one cannot be preserved if the other be violated.” In the context of property law being used to hoard wealth and power, however, property has been called “theft.” E.g,. Pierre-Joseph Proudhon, What is Property (1840).
- See Sioux Tribe v. United States, 316 U.S. 317, 331 (1942), and Tee-Hit-Ton Indians v. United States, 384 U.S. 272, 281 (1955).
