If cultivation and enclosure are deemed to be the hallmarks
of establishing occupancy and use, then that large portion of the Indian claimed
land which was never "homesteaded" must be viewed as actually ownerless (and
thus open to settlement by the actual first user).
Claiming that the American Indians, by virtue of being the first users and
occupiers of the continent, were its rightful owners, Rosalie Nichols maintains that
"use" is decided upon according to the condition and natural resources of the land,
the level and particular type of technology of the occupants, and the desires of
the owner.43 Undoubtedly, the Indians rightfully owned the land that they cultivated
and upon which they erected their wigwams and shelters. The main question to
settle is whether they righrfuily owned the land upon which they regularly or
sporadically hunted.
Lysander Spooner in the mid-nineteenth century asserted that those lands which
the Indians merely roamed over in search of game, could not be said to have been
rightfully owned by them." Rightful ownership of unoccupied lands is established
by either actually living upon the land, or improving it, or bestowing other useful
labor upon it. "Nothing short of this actual possession can give any one a rightful
ownership of wilderness lands, or justify him in withholding it from those who
wish to occupy it." He based his assertions on the principle that occupation and
use meant more than standing upon a portion of the North American continent
and claiming possession of it. To establish ownership a person must bestow some
valuable labor upon the land. In these cases he holds the land in order to hold the
labor which he had put into it.45 Similarly, Rothbard has written that the buUc of
Indian claimed land was not settled and transformed by the Indians, and that the
new European settlers were justified in ignoring the Indians' vague abstract claims
because they knew they were the first to actually cultivate and enclose the lands
upon which they settled.46
