Vol. 17 No. 1 (January, 2007) pp.56-60
SELF-DETERMINATION: THE OTHER PATH FOR NATIVE AMERICANS, by Terry L. Anderson, Bruce Benson, and Thomas Flanagan (eds). Stanford, CA: Stanford University Press, 2006. 352pp. Cloth. $35.00. ISBN: 0804754411.
Reviewed by Mark Andrews, Associate Counsel, Tanana Chiefs Conference, Fairbanks, Alaska. Email: markandrews [at] ak.net.
How could a book conclude that tribal intervention in the economy creates uncertainty, and thus poverty, and yet ignore the historical seizure of Indian land? How could a book about property rights in American Indian law never mention Felix Cohen? How could a book that analyzes Indian private enterprise fail to analyze the Native corporations established under the Alaska Native Claims Settlement Act?
The primary thesis of SELF-DETERMINATION is that among the indigenous cultures of North America, the institution of private property was widespread, and it was important to the economic life of the tribes. The indigenous cultures were never so communal as current observers believe, nor were the tribes the careful environmental stewards that many people think.
The seventeen authors of SELF-DETERMINATION display the enormous amount of research that supports their conclusions. The book offers and analyzes economic success stories. Yet, the book has its problems.
Two chapters describe the limits of Indian tribal sovereignty. Sovereignty is the legal quality that makes a tribe a nation, something similar to an American state, a “domestic dependent nation,” in the words of Justice John Marshall (cite to CHEROKEE NATION v. GEORGIA, at 2).
From the economist’s point of view, here is the critical aspect of sovereignty: the Tribes hold the power to alter economic relationships, even after two people have begun trading with each other. Exercising this tribal power comes at a cost. The two traders suddenly learn that dealing within the tribal reservation carries uncertainties for which they had not bargained. Sometimes the uncertainty rises so high that economic development is heavily discouraged, and the people on the reservation remain poor.
This argument is presented well in “The Wealth of Indian Nations: Economic Performance and Institutions on Reservations” by Terry Anderson and Dominic Parker, and in “Sovereignty Can be a Liability: How Tribes Can Mitigate the Sovereign’s Paradox,” by David Haddock and Robert Miller. What I took from these articles, however, was a more general point. The problem is not that there is some characteristic of Native American politics that makes it dangerous to economic activity, but that any system that permits third-party intervention at arbitrary moments will discourage the creation of wealth. [*57]
The book would have been substantially strengthened by the recognition that the historical source of much of the uncertainty was the persistent refusal of European immigrants to recognize any property rights of the original inhabitants. When the European settlers wanted Cherokee lands in southeast United States, the Cherokee were forcibly removed. The Cherokee were removed even after they won their case before the United States Supreme Court (WORCESTER v. GEORGIA, (1832)). When American gold seekers wanted the gold of the Black Hills in South Dakota, the miners simply entered the area, notwithstanding the fact that there had been a treaty granting the area to the Sioux.
These and numerous other examples carry the message that interests in real estate are not created by peaceful bargaining. Instead, this history instructs that a person owns real estate when he identifies land, physically occupies it over the objections of the first owner, and then defends it with violence. SELF-DETERMINATION contains not a hint that this history might affect tribal economic attitudes today.
The book contains examples of arms-length bargaining between the indigenous peoples and European settlers. However, these examples occurred primarily in the early era of European settlement, in the 1600s and 1700s, when European and local power were about equal, and European arrivals had no real choice except to bargain peacefully.
Felix Cohen’s book, HANDBOOK OF FEDERAL INDIAN LAW, has been the standard text on the subject since its appearance in 1941. Cohen is frequently cited by the United States Supreme Court.
HANDBOOK OF FEDERAL INDIAN LAW has chapters on hunting, fishing, and gathering rights; tribal property; water rights; individual property; and taxation. There are numerous references throughout SELF-DETERMINATION to such rights, their function and dysfunction. References to the Cohen text would have helped to explain why Indian rights are what they are today.
SELF-DETERMINATION references about 400 books and articles. The references include Cohen’s 1982 edition, but this reviewer did not see the HANDBOOK cited anywhere in the 10 chapters. If Cohen’s influence was felt, it was not acknowledged.
Cohen wrote not only HANDBOOK OF FEDERAL INDIAN LAW, but also a later article (1954) where he attempted to find what principles were universal in property ownership. Cohen could see similarities between the laws of Montana and the Hindu Laws of Manu (1954, at 366. Animal ownership was Cohen’s example). His willingness to see across time and culture is precisely the skill that SELF-DETERMINATION called for, and yet Cohen’s work is ignored.
Of 17 contributors to this book, only 8 show some direct experience with Indian tribes, whether as researchers or law professors. Of the other 9, three of the [*58] biographies list an interest in “ethnic economies” or similar phrases.
The practical effect of this lack of depth in Indian law is most clear in the essay of D. Bruce Johnsen, a professor of law at George Mason University. His biography lists no direct experience with Indian tribes, nor with Indian law.
Johnsen’s chapter is “A Culturally Correct Proposal to Privatize the British Columbia Salmon Fishery.” The basic economic problem is simple to describe. The Indians’ traditional method of allocating salmon was a system of private property; a tribe or clan would own exclusive access to a stream, and thus the rights to the salmon run. However, this indigenous property system has been lost to European settlement, to the large harvest by offshore fisheries, and to the ineffectiveness of government regulation. What is to be done?
Johnsen capably analyzes the history of the British Columbia salmon fishery and its problems. Then his solution reads like science fiction. The government holds an auction where the Indian tribes and the owners of the ocean-going fishing vessels bid against each other for all the rights to all the salmon. “[T]he winner pays the loser an amount equal to the loser’s bid” (p.123).
This solution is said to be culturally correct because it reflects the traditional rivalry potlatch where competing chiefs would ritually put up property in an attempt to show who had the most, and thus the higher status. The Johnsen solution is for the Indians to raise capital for the auction by organizing a First Nations Corporation, issuing stock, and borrowing from the government. The plan does not sound feasible.
The essay does not estimate a current dollar value of the salmon harvest, a serious lapse. The annual value of the harvest, projected into future years, becomes an income stream. This income stream has a present value. The present value of the salmon run is the minimum bid for the harvest rights. The estimated amount of the minimum bid would shed some light on the feasibility of Johnsen’s proposal, but this information is missing.
Johnsen gives away his point of view as he describes the relations of the bidders. The auction “would require the Crown to recognize those with vested interests in the mobile ocean fishery as an ‘incumbent’ class of claimants and British Columbia’s tribes as a ‘rival’ class” (p.123). The Indians, who were there first, are the rivals, versus those who arrived later, who are known as the incumbents.
The Johnsen chapter contrasts sharply with the next, “Customary Land Rights on Canadian Indian Reserves,” by Thomas Flanagan and Christopher Alcantara. The biographies of both Flanagan and Alcantara show previous experience with researching topics in Indian law and customs, and the experience shows immediately in the tone of voice and realism of the solutions they propose. Among other things, they write, “we do not believe it is fruitful to try to impose institutions [*59] upon people from the outside” (p.155).
Harold Demsetz provides the major intellectual framework of SELF-DETERMINATION. Five of the ten chapters cite Demsetz’s work, notably his 1967 article, which includes a discussion of Native American property rights in Canada in the early 1600s. His influence can be seen throughout the book. SELF-DETERMINATION would have been more accessible to the general reader if it had included more discussion of Demsetz’s work.
The ALASKA NATIVE CLAIMS SETTLEMENT ACT offers exactly the laboratory that SELF-DETERMINATION wants, and yet it is ignored. The Act created 12 regional corporations, divided along the lines of Indian tribal affiliation in Alaska. A 13th corporation was created for Natives living outside Alaska.
The corporations are private, for-profit enterprises. Shares of stock are owned by individuals, and there are numerous local village corporations. The Act imposes an identical system of private stock ownership on differing local cultures, thus offering a test of how this form of private property does or does not produce economic success when it is created among Native American peoples.
Anecdotally, your reviewer understands that the most successful Native corporations were in southeast Alaska, where the aboriginal culture had a private property system. The Native corporations were least successful in the more communal Eskimo cultures of western and northern Alaska. I am not saying that these impressions are correct. But I am saying that this collection of 17 authors had the credentials and background to study this ready-made set of data but for unexplained reasons did not do so.
These flaws in the book unfortunately detract from the able work of many of the authors. When the authors did the scutwork and fact-finding and understood what they were observing, the result was effective and convincing.
Two such examples examine current, real-world Indian economic activity. Ronald Johnson’s, “Indian Casinos: Another Tragedy of the Commons,” examines where and why Indian gaming in the United States has been successful. Jacquelyn Thayer Scott’s “‘Doing Business with the Devil’: Land, Sovereignty, and Corporate Partnerships in Membertou, Inc.” examines the success of the Mi’kmaq tribe in Nova Scotia. Neither author lists experience in Native American economies and culture, but both were able to write effectively by close examination of the facts.
In a book with an abundance of footnotes and citations, one deficiency stood out. SELF-DETERMINATION cites about 400 articles and 70 court cases. Throughout the book the authors cite statutes from the United States and Canada, an important point because statutes play an important role in understanding relations between the indigenous peoples and their respective federal governments. [*60]
But the great majority of statutes are unreferenced. The authors provide citations to the INDIAN GAMING REGULATORY ACT, but otherwise leave the reader mostly guessing. Readers will have to do the research themselves if they want to know details about the CANADIAN FIRST NATIONS LAND MANAGEMENT ACT, or the United States Public Law 280.
SELF-DETERMINATION represents a creditable attempt at the re-interpretation of North American Indian law using the framework of private property rules. Individual articles are valuable, but overall the book suffers from too many omissions.
Cohen, Felix. 1954. “Dialogue on Private Property.” 9 RUTGERS LAW REVIEW 357-387.
Cohen, Felix. 1941/2005. HANDBOOK OF FEDERAL INDIAN LAW. Charlottesville, VA: Michie.
Demsetz, Harold. 1967. “Towards a Theory of Property Rights.” 57 THE AMERICAN ECONOMIC REVIEW 347-359.
CHEROKEE NATION v GEORGIA, 30 U.S. 1 (1830).
WORCESTER v. GEORGIA, 31 U.S. 515 (1832).
© Copyright 2007 by the author, Mark Andrews.