Review of Austrian Economics - The Ludwig von Mises Institute

Benson: Evolutionary Contractarian Primitive Law 63
settlement. 20 The consequences of such amendments can be seen even
today. The institutions of American Indian law that have developed
on reservations since the federal government began to loosen its
control over reservation Indians and their property rights in the early
to mid 1970s are dominated by the centralized authority of tribal
governments with their tribal councils, courts and tribal police.
Beyond that, many of the property rights on reservations are increasingly
designated as tribal or communal, under the control of the
centralized tribal governments. This is exemplified by a large increase
in tribal ownership of reservation lands (see Anderson and
Lueck 1989), but tribal governments are also making decisions regarding
the allocation of many other economic resources on reservations
for activities like large development projects. Cornell (1987, pp.
63-64) points out that many tribal councils cite a commitment to
preserving Indian culture and traditions as a primary justification
for not releasing control over tribal resources to individual Indians,
and for not decentralizing reservation institutions. If today's Indian
political leaders mean maintaining the traditions and culture inherited
from the very brief period of Indian history during which external
forces led to centralization and increasing emphasis on communal
rights, then for the most part, they are really speaking of a culture
which was already tremendously influenced by the coming of the
white man. If Indian leaders truly wish to preserve Indian tradition
as it was when Europeans began to influence Indian society, however,
then they should be reestablishing private property rights and decentralizing
the legal system.
20 One weakness in a customary social contract established under a unanimity
rule (see note 9 above) is an apparent inability to prevent amendments imposed by
powerful minorities when they become organized enough to exert their will. Of
course, it is not clear that any constitution can prevent such actions once groups
organize sufficiently to become powerful. Thus, an important feature of a social
contract, assuming the normative goal of preserving individual liberties, should be
the establishment of institutions and constraints which limit the incentives to
organize and centralize power. A customary social contract can be quite effective in
that regard, in the absence of external pressures such as military invasions by other
organized groups (Benson 1990).