Lockean Property and American Law: Philosophical Origins, Legislative Expression, and Indigenous Sovereignty

B.M. Scott

20 August 2025

Lockean Property and American Law: Philosophical Origins, Legislative Expression, and Indigenous Sovereignty

The concept of private ownership in the United States is fundamentally tied to philosophical foundations established during the Enlightenment, particularly John Locke’s Second Treatise of Government. Locke argued that natural rights—life, liberty, and property—formed the basis of legitimate government, influencing countless thinkers and statesmen in the emerging American republic. His theory stipulated that individual property claims arose from the productive application of labor to the land, and he asserted government’s central role as the guarantor of these rights for all citizens. As American leaders drafted founding statutes, Locke’s insistence on property as both economic and moral good was reflected in the ambitions of key legislation, including the Land Ordinance of 1785 and the Northwest Ordinance of 1787. These acts set precedents for orderly westward expansion but also exposed the tension between ideals of consent and the realities of settler-colonial expansion.

Thomas Jefferson, recognized as the chief architect behind the Land Ordinance of 1785, saw the surveying and distribution of public land as critical in supporting an independent and virtuous citizenry. The Ordinance, ultimately enacted through committee leadership, formalized the grid system for territorial division, allocating sections for public schooling and civic infrastructure. This design facilitated not only legal clarity and stable property ownership but also the cultivation of democratic participation and mobility across expansive frontier lands. The subsequent Northwest Ordinance of 1787, drafted principally by Rufus King and Nathan Dane, established essential provisions for territorial governance, outlining a pathway for districts to achieve statehood and safeguarding a Bill of Rights for settlers. By encouraging popular sovereignty and legislative autonomy, these ordinances realized Locke’s theories in concrete terms, though they did so amidst pressing challenges and profound contradictions. While these legislative frameworks advanced many Lockean principles, their selective application meant that indigenous peoples were systemically excluded from meaningful participation. The grid and survey systems introduced by the ordinances did little to recognize communal forms of land stewardship, privileging individual acquisition and Western cultivation over established native practices. The policies facilitated the rapid expansion of settler society, while simultaneously legitimizing dispossession and coerced removal of tribal nations. As land claims spread, bureaucratic and legal measures were employed to cement settler rights often through treaties and agreements crafted with scant regard for indigenous sovereignty or self-determination.

The Homestead Act of 1862 stands as perhaps the most ambitious legislative realization of Lockean ideals, providing 160 acres of free land to any adult willing to reside upon and improve it over a period five years. Formally inclusive, the statute opened new avenues for citizenship and property ownership to freed slaves, immigrant populations, and—in principle—Native Americans willing to adopt Western models of agriculture. The act reflected Locke’s assertion that labor transformed nature into personal property and promised social mobility for thousands of families. However, cultural and legal barriers meant that broad participation remained uneven. For Native Americans, land management traditions based on communal use and seasonal cycles were ill-suited to the private ownership regime. The act thus functioned as an additional mechanism of assimilation, incentivizing the abandonment of tribal systems and furthering the erosion of cultural identities. By 1887, the Dawes Act represented a decisive shift away from Locke’s theory of consensual governance and communal autonomy. By mandating the division of collective tribal lands into individual parcels, the Dawes Act sought to accelerate assimilation, supplanting indigenous modes of stewardship with private property norms. Surplus land from these allotments was routinely sold to non-Native settlers, deepening the loss experienced by tribal communities - thereby further weakening patterns of kinship and cultural continuity. Rather than extending Lockean protections, the Dawes Act functioned as a form of regulation and dispossession - viz., amplifying state intervention and advancing policies of control and acculturation. The cumulative result was profound social and economic dislocation; with indigenous groups experiencing the destabilizing effects of forced integration and the persistent undermining of tribal sovereignty.

Locke’s critique of conquest remains particularly relevant in assessing the legitimacy of American territorial expansion. He maintained that the right to rule could not be justified by force alone, emphasizing instead the necessity of popular consent and the continued recognition of fundamental rights for all peoples. In practice, however, American expansion was rationalized through doctrines like manifest destiny and terra nullius—concepts which quickly took root and overlooked or actively suppressed indigenous claims. Legislative and military interventions consolidated settler interests, often at the expense of earlier inhabitants whose consent was not sought. The Northwest Ordinance, while notable for articulating certain protections and processes of self-governance, facilitated legal encroachment and set precedents for the subsequent displacement of tribal populations through judicial rulings and executive action. The broader history of land law in America thus reveals a remarkable - albeit complex - trajectory from Enlightenment ideals to practical policies shaped by ambition, exclusion, and adaptation. The evolution from the Neo-Lockean ideology of Jefferson - viz., limited government, local autonomy, property rights, expansive federal oversight, and eminent domain - marked a shift in the role and character of the American state. Congressional acts, Supreme Court precedents, and presidential policies continually redefined the boundaries of liberty, equality, and civic engagement - adapting Lockean language to suit evolving priorities. The implications for justice, reparations, and contemporary policy are acute, pointing to the persistent need for careful historical reckoning and ongoing philosophical debate.

Invitation for Reflection

The foregoing analysis invites readers to consider not only the philosophical ideals that shaped American property law and westward expansion, but also the historical contradictions and legacies of exclusion that persist in contemporary debates. Reflecting on these complexities may provide new perspectives on the meaning of liberty, sovereignty, and justice in the United States. You are invited to reflect on the following:

- How did the translation of Lockean philosophy into American legislation advance both democratic participation and patterns of exclusion or dispossession?

- In what ways did the ambitions and practical outcomes of the Land Ordinance of 1785 and the Northwest Ordinance of 1787 diverge from the original ideals of consent and equality?

- What social and cultural transformations accompanied the implementation of the Homestead Act and the Dawes Act, particularly for indigenous communities?

- How does Locke’s critique of conquest challenge prevailing narratives about territorial expansion and the legitimacy of American governance?

- Can foundational principles such as property rights, consent, and popular sovereignty be reinterpreted to support greater justice and inclusion today?

- What responsibilities do contemporary scholars and policymakers bear in addressing the historical legacies of territorial law and sovereignty?

Further Reading

Ablavsky, Gregory. "Administrative Constitutionalism and the Northwest Ordinance." 

University of Pennsylvania Law Review, vol. 167, no. 7, 2019, pp. 1631–67.

Anderson, Hannah L. "That Settles It: The Debate and Consequences of the Homestead Act of 1862." 

The History Teacher, vol. 45, no. 1, 2011, pp. 117–37.

Bragaw, Stephen G. "Thomas Jefferson and the American Indian Nations: Native American Sovereignty and the Marshall Court." 

Journal of Supreme Court History, vol. 31, no. 2, 2006, pp. 155–80.

Libecap, Gary D. "Indians, Bureaucrats, and The Land: The Dawes Act and The Decline of Indian Farming." 

The Journal of Economic History, vol. 41, no. 4, 1981, pp. 939–40.

Katz, Stanley N. "Thomas Jefferson and the Right to Property in Revolutionary America." Journal of Law and Economics,

vol. 19, no. 3, 1976, pp. 467–88.

King, Rufus. Northwest Ordinance of 1787. Great Neck Publishing, 1787.

Krall, Lisi. "Thomas Jefferson’s Agrarian Vision and the Changing Nature of Property." 

Journal of Economic Issues, vol. 36, no. 1, 2002, pp. 131–50.

Layman, Daniel M. "Sufficiency and Freedom in Locke’s Theory of Property." 

European Journal of Political Theory, vol. 17, no. 2, 2018, pp. 152–73.

Locke, John. Second Treatise of Government. 2005.

Miller, David. "Property and Territory: Locke, Kant, and Steiner." The Journal of Political Philosophy,

vol. 19, no. 1, 2011, pp. 90–109.

Olsthoorn, Johan. "Self-Ownership and Despotism: Locke on Property in the Person, Divine Dominium of Human Life,

and Rights-Forfeiture." Social Philosophy & Policy, vol. 36, no. 2, 2019, pp. 242–63.

Ostler, Jeffrey. "'Just and Lawful War' as Genocidal War in the (United States) Northwest Ordinance and Northwest Territory,

1787–1832." Journal of Genocide Research, vol. 18, no. 1, 2016, pp. 1–20.

Parrillo, Nicholas R. "Federal Ground: Governing Property and Violence in the First U.S. Territories." American Journal of Legal History,

vol. 61, no. 3, 2021, pp. 338–40.

Pulsipher, Jenny. "Properties of Empire: Indians, Colonists, and Land Speculators on the Frontier." 

The American Historical Review, vol. 127, no. 3, 2022, pp. 1544–46.

Reno, B. Jeffrey. "Private Property and the Law of Nature in Locke’s Two Treatises." The American Journal of Economics and Sociology,

vol. 68, no. 3, 2009, pp. 639–63.