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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).
64 The Review of Austrian Economics, Vol. 5, No. 1 References Anderson, Terry, and P. J. Hill. 1979. "An American Experiment in Anarcho-Capitalism: The Not So Wild, Wild West." Journal of Libertarian Studies 3. Anderson, Terry L., and Dean Lueck. 1989. "The Value of Alternative Land Tenure Systems: Evidence From Indian Country." Paper presented at the Political Economy Research Center's conference on "Property Rights, Constitutions, and Indian Economics." Baden, John, Richard Stroup, and Walter Thurman. 1981. "Myths, Admonitions and Reality: The American Indian as a Resource Manager. Economic Inquiry 19 (Jan.): 399-427. Barton, R. F. 1967. "Procedure Among the Ifugao." In Law and Warfare. Paul Bohannan, ed. Garden City, N.Y.: The Natural History Press. Berman, Harold J. 1983. Law and Revolution: The Formation of Western Legal Tradition. Cambridge, Mass.: Harvard University Press. Benson, Bruce L. 1988. "Legal Evolution in Primitive Societies." Journal of Institutional and Theoretical Economics 144 (Dec): 772-88. . 1989a. "Enforcement of Private Property Rights in Primitive Societies: Law Without Government." Journal of Libertarian Studies 9 (Winter): 1-26. . 1989b. "The Spontaneous Evolution of Commercial Law." Southern Economic Journal 55 (Jan.): 644-61. . 1989c. "Reciprocal Exchange as the Basis for Recognition of Law: Examples from American History." Florida State University Working Paper. . 1990. The Enterprise of Law: Justice Without the State. San Francisco: Pacific Research Institute for Public Policy. Forthcoming. Buchanan, James M. 1972a. "Before Public Choice." In Explorations in the Theory of Anarchy. Gordon Tullock, ed. Blacksburg, Va.: Center for the Study of Public Choice. . 1972b. Freedom in Constitutional Contract. College Station, Texas: Texas A & M University Press. . 1989. Explorations into Constitutional Economics. College Station, Texas: Texas A & M University Press. Demsetz, Harold. 1967. "Toward a Theory of Property Rights." American Economic Review 57 (May): 347-59. Cornell, Stephen. 1987. "American Indians, American Dreams, and the Meaning of Success." American Indian Culture and Research Journal 11. Diamond, A. S. 1950. Primitive Law. 2nd ed. London: Watts. Epstein, Richard A. 1980. "The Static Concept of the Common Law." The Journal of Legal Studies 9 (March). Friedman, David. 1979. "Private Creation and Enforcement of Law: A Historical Case." Journal of Legal Studies 8 (March). Friedman, Wolfgang G. 1951. Law and Social Change in Contemporary Britain. London: Stevens.
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