Rights Are Reciprocal In Nature

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The conclusion that can be drawn from Lysander Spooner’s expositions on slavery and the injustice of the Civil War is that the rights are reciprocal.  Compulsory associate in the form of statehood is nothing more than slavery supported through the force of the U.S. Military. Kidnapping, false imprisonment, slavery, and other forms of coerced association violate the same underlying principle. All these forms of forced association restrict autonomous individuals. Who possess the implied right of unrestricted mobility. Suggesting they can travel or reside where they please as long they are not transgressing against the property rights of others. The right to self-ownership. Some may claim that this right inalienable and cannot be voluntarily transferred to another individual.  However, ownership implies that the owner can dispose of, consume, preserve, or transfer whatever they own. Even if that were to be the title to their own life. This could be feasibly transferred to another person via voluntary contracts.  The same can be said for individual rights being sold off or transferred even for temporary durations of time. When at work we are expected to abstain from making off-color or politically incorrect jokes while on the clock. In exchange for briefly and voluntarily suspending our right to free speech, we receive a conditional paycheck and continued employment.

Compulsory statehood not only violates the right to self-ownership by having the federal government assume control over the dissent citizens. It also transgresses a natural corollary of self-ownership, the right to free association.  If an individual owns themselves, they can choose who they associate with. Some may argue that you don’t choose your neighbors. Directly this observation is true. Indirectly it is false. Through purchasing a home in a specific neighborhood to consent to live near the people in the adjacent and parallel domiciles. This is quite qualitatively different then be forced to reside in a specific neighborhood by law or threat of military force. If the individuals residing in a certain geographic area all share similar sentiments and opt to become an autonomous region that is their prerogative. Yes, the Confederate South was guilty of the sin of slavery. Even considering this moral misstep, why should their right to free association be viewed as any less valid. Giving credence to the colloquialism “Two wrongs don’t make a right”. If were to examine the example of Catalonia, many Americans would be much more sympathetic to their separatist cause. In 2017, the Catalonian successionist movement presents a similar scenario.  A group of individuals self-identifying as Catalonian wanting to separate from Spain. Paralleling the Confederacy’s sense of southern identity driving them to want to become a sovereign governing body. Catalonia’s movement is easier to empathize with because it hasn’t been sullied and stained by any association with atrocities of the same magnitude as slavery.

The are other instances of the right of the free association being obscure by another issue. One of the most salient enemies of free association is political correctness. It is a lens that serves to only distort the general principle of having the right to choose whom you keep company with. Often, if you defend the right of state succession or the right not to associate with minority groups, you will be accused of bigotry. People believing that an unwavering defense of free association being tantamount to tacitly being racist demonstrates a lack of nuanced understanding. Not to mention this is nothing more than a superficial inference. It is possible to disagree with Jim Crow laws but also oppose the Civil Rights Act of 1964.  Both sets of laws infer our right to free association. Jim Crow laws are an example of forced exclusion. The state restricting who you can dine with, socialize with, and trade with through compulsory law. The Civil Rights Act of 1964 operates as a form of forced integration.  This phrase generally is utilized in the context of immigration it also applies within the context of the Civil Rights Act. Business owners are being forced by statutory law to ignore certain characteristics of job applicants in the hiring process. Even though the proprietor of the business does have legal title and liability for the enterprise he established and manages. There is even some debate as to whether private business owners have a right to discriminate against customers for nonessential goods and services. The Masterpiece Cakeshop LTD V. Colorado Civil Rights Commission case did appear to be a victory in the arena of free association. Many have erroneously labeled this situation as gay rights case.  This is incorrect. The larger principle behind this case is not whether a business is inclusive and accepts the transactions from everyone. Rather does the proprietor have the right to decline? The fact that the case involves a gay couple is unfortunate because it muddies the waters. Instead of commentators being focused on the principle of private property and individual liberty, they are all too fixated on the sexuality of the patrons who were denied service. If this had been a Neo-Nazi that had been denied service, who there has been any controversy? No. Making it reasonable to surmise that the social justice stance on discrimination is not only antithetical to our natural rights but is also hypocritical.  If we are truly committed to the principle of equality, then shouldn’t all businesses be forced to transact with every customer? Regardless if they are intoxicated and belligerent or white supremacy?  This frequently ignored question could lead someone to believe that the equality principle is one-sided.

It is utterly perplexing that most people fail to see the equivalence between various rights. For example, the right to gun ownership implies that an individual can abstain from owning a gun. The Second Amendment of the Constitution is predicated on the natural law principle of the right to defend one’s self and property.  The reciprocal nature of this right is somewhat self-evident.  This concept could easily be extrapolated to and to any of our other natural rights.  The ability to discriminate is at the very core of the principle of free association. Anytime we choose to patronize one restaurant over another we are actively engaging in a form of discrimination. The gay couple who were denied service by the Masterpiece Cakeshop could have easily utilized this principle to convey their dissatisfaction with the owners. Word of mouth can be the death knell for a small business, the couple could have easily told all their friends, family, co-workers, etc. about the incident. Urging of their close acquaintances to avoid this shop like the plague. Opting to discriminate against the shop. Is this an invalid form of protest? Not. It is equally as valid as a private company choosing to not do business with the couple.

This principle of voluntary discrimination makes state succession valid and any attempts to thwart these actions aggression. The south actively chose to discriminate between tolerating the overreach of the federal government or form their voluntary block of associated states. Through self-ownership and mutual consent among the citizens residing south of the Mason-Dixon line, this movement was valid. President Lincoln’s nationalistic initiative to force the south back into the Union was conspicuously transgressive.  


Spooner: Slavery and The Civil War= Morally Equal

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The concept of state secession has been viewed as being connected to support for slavery since the American Civil War. It seemed even in the modern era that if you advocate for the right of state secession you tacitly support slavery. Opportunistic pundits will not shay away from inferring that among many other contrived racists or Neo-Confederate proclivities. If we oppose slavery due to it being forced into involuntary servitude. A natural rights argument against slavery was first posited by John Locke in his work Second Treatise of Government. Suggesting that by a human being owning themselves due to their unalienable god-given rights slavery is illegitimate. Even though voluntary relinquishment, a man cannot transfer his title to self-ownership to another.

The extent to which this right to self-ownership is inalienable has come under question over the centuries. If we truly own ourselves, shouldn’t we be able to sell our freedom to pay a debt effectively transferring our title to self-ownership? In the past contractual arrangements have been made in the form of indentured servitude. Where the contracted party consents to work for no monetary compensation in exchange for other terms of payment. Operating as a form of barter. Generally, the terms of indentured servitude were temporary distinguishing it from slavery. Some economists even assert that voluntary slave arrangements are valid on the grounds of contractual consent. If compulsory slavery is invalid on grounds of self-ownership would not compulsory statehood also be illegitimate? The association of the original colonies was composed of an aggregate collective of individuals tired of being under the thumb of a distant mother country. In other words, this revolutionary coalition was formed under the conditions of voluntary association. If rights are reciprocal, for example, freedom of religion implies the right to abstain from religious observance, then various states have the right to withdraw consent and leave the union. Making Lincoln’s use of military force to thwart attempts of the south to secede be an abuse of power.

One unlikely defender of the right to state secession was the abolitionist and anarcho-political theorist Lysander Spooner. Spooner departed from his peers in the abolitionist movement by arguing that preventing the southern states from leaving the union was on par with the institution of slavery. Spooner in his essay No Treason #1 thoroughly expresses the illegitimate manner the Constitution was utilized to defend slavery:

“On the part of the North, the war was carried on, not to liberate the slaves, but by a government that had always perverted and violated the Constitution, to keep the slaves in bondage; and was still willing to do so, if the slaveholders could be thereby induced to stay in the Union.” (P.3).

Needless to say, Spooner was not a supporter of slavery. However, does this justify the aggressive actions on the part of the United States government? After all, is it not our duty to eradicate any form of injustice such as the vile institution of slavery by any means necessary? Even if that requires bloodshed? Even if it forces a large minority of people into a central government they do not desire to be a part of? Beyond the arguments of coercive force being used against the south, Lincoln’s motives were suspect. Per Thomas DiLorenzo’s book, The Real Lincoln, it is mentioned that Lincoln showed open disdain for the abolition movement. That he was even personally prejudiced against African-Americans. Lincoln enthusiastically advocating for sending all blacks out of the country to form a colony in Liberia.  As much as this development sounds like a conspiracy theory or the fabrication of a bored pulp fiction writer, it has been validated by several sources. Leading the inquisitive observe to wonder if the Civil War was more about consolidating power than anything else.

Spooner is quick to point out how it is perplexing that men who simply wish to no longer associate with the federal government soon become traitors:

“That men may rightfully be compelled to submit to, and support, a government that they do not want; and that resistance, on their part, makes them traitors and criminals.”

This brings into question how does not desire to be a part of the constitute treason? Spooner reasons that if the Constitution was founded on the principle of freedom, then statehood would be rested solely on consent. Invalidating any attempts to use military might to keep the loose confederation of states together. The implications of preserving the union for the sake of freedom exposes deeper hypocrisy than merely a disingenuous effort to free all those subjected to involuntary servitude in the tobacco plantations of the south.

“…. power of the government, is (as she thinks) forever expunged from the minds of the people. In short, the North exults beyond measure in the proof she has given, that a government, professedly resting on consent, will expend more life and treasure in crushing dissent, than any government, openly founded on force, has ever done. And she claims that she has done all this on behalf of liberty! On behalf of the free government! On behalf of the principle that government should rest on consent!..” (P.5-6).

Essentially the northeastern establishment undermined the principles of the founding to keep the south under the egis of the federal government. If the country was founded on the principle of voluntary association, such efforts directly violate this principle. The rhetoric of fighting the south to preserve a unified and free America is a falsehood. Nothing more than the empty and halfhearted lips service that we have grown to expect in modern politics. It does not matter if the actions of the state reflect an honest reverence towards the right of volunteer association. Some scholars surmise that this right is implicit in the First Amendment, others argue that this interpretation is a little murky. From a purely natural rights standpoint, it is a clear violation to force people to join clubs and other varieties of political and social affiliation.  To blithely not only violate this right but to claim that it was done so to preserve liberty is a grotesque fallacy. Parallels the empty sentiment behind the modern phenomenon of national building. The falsehoods behind and bloviating are used to justify a nearly two-decade war(s?) in the Middle East. The United States has become the exalted missionary of liberal democracy. Nearly two centuries prior the United States adorned the false mask of the exalted liberator of slaves. Even though most of the Europeans had already abolished slavery peacefully. Like our contrived moral imperatives for engaging in our middle eastern campaigns, the Civil War was commerce under similar fallacies. To suggest the Civil War was executed the preserving the freedom of the average citizen is a slap in the face. One only needs to look at his overextension of power during the conflict to truly understand his mentality. For example, his suspension of the Writ of Habeas Corpusalone demonstrates he was a far cry from a civil libertarian.

Spooner also presents several arguments that the majority ruling over the minority was outside of the original context of the constitution.  Forcing the southern states to remain part of the United States fully exemplifies the concept of the tyranny of the majority. The Constitution stating “… we the people..” does not only include the majority, but also the minority (p.7). He also claims that if the founders intended for the majority to rule over the minority Americans would have never become an independent nation (p.8). The American revolutionaries were the minority during the revolution. When compared to the size and scope of the British Empire. Spooner also mentions that the intentions of majorities are no better or worse than those of minority groups. Both having similar wants, needs, and being predisposed to the same faults as humans make demonizing the opposition illogical (p.8). Certainly, this wisdom of not demonizing the opposition has been lost in the contemporary political climate. The majority opinion in society isn’t necessarily wise. Conventional wisdom is rife with ignorance, superstitions, and prejudice  (p. 8). It is irrational to claim a policy position, or another idea is valid due to it being popular. Such a justification can be reduced to nothing more than an example of the  Argumentum ad populum fallacy. Popularity does not automatically make an idea or an action correct.

Spooner goes on to mention how the tyranny of the majority creates a cost struggle between slave and master. Who the slave is and who the slave is varied depending upon which party is in power. Generating a competition for usurping control away from the opposing party.

The principle that the majority have a right to rule the minority, practically resolves all government into a mere contest between two bodies of men, as to which of them shall be masters, and which of them slaves; a contest, that-however bloody – can, as things, never be finally closed, so long as man refuses to be a slave …” (p.9).

The Civil War perfectly encapsulates the power struggle between various political factions. Echoing the concerns voiced by James Madison around the time of America’s founding. Vying political factions striving to achieve their objectives. The north’s desire to keep centralize and expand the power of the federal government. Leading to the use of military force. Preventing the south from separating from the United States. Effectively forcing the south to remain part of the country for political reasons. Parallels slavery. Slavery, kidnapping, false imprisonment, and forced association all violate our natural rights. The fact that the commonalities between forcing the south to remain part of the Union and slavery are awe-inspiring.

Privatizing Mail: Lysander Spooner V. U.S. Postal Service

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What was that power? It was, as has been shown, merely a power concurrent with that of the states and people, .. to establish post offices and post roads.” Only a concurrent power, then, having been delegated, and a like power not having been prohibited to the states or people, it necessarily follows, from the terms of the amendment itself, that a concurrent power to establish them is .. reserved” to the states respectively, or to the people-or to both.

Lysander Spooner (P.21 The Unconstitutionality of the Laws of Congress, prohibiting Private Mails. 1844)

Before the founding of private parcel carriers, such as UPS or FedEx, the United States Postal Service had a monopoly on the delivery of small packages. Until one man, Lysander Spooner decided to openly challenge the government’s industry dominance. Ultimately, the U.S. government won the battle. Spooner arguably won the war. His victory immortalized in the fact that he forced the hand of the U.S. Mail service to lower the costs of stamps through his valiant entrepreneurial efforts. Effectively driving the cost of stamps down to actual market rates. Earning the bold political philosopher the moniker “Father of the Three Cent Stamp”. Spooner observing the illegitimate manner in which the government monopolized this service, braving the risk of legal action, decided to create his private mail service. Servicing parcel and letter delivery from Boston through the mid-Atlantic. All the while undercutting the grossly inflated shipping rates set by the government.

Lysander Spooner was born on a rural farmhouse in Athol, Massachusetts on January 19th, 1809. He was one of nine children. It was speculated that Spooner’s fervently religious upbring influenced his later turn towards deism. Along with a commitment to religion, his family also were staunch supporters of the abolition movement. At the age of sixteen, he entered an agreement with his father to work on the farm until he was twenty-five. In exchange, Spooner was provided with food, room and board, and “educational advantages”. After fulfilling his obligation to his father, Spooner worked as a clerk for the Register of Deeds in Worcester, Massachusetts. In 1833, studied law under John Davis while working in his office. Spooner eventually went on to start his legal practice. Acting in defiance of the Massachusetts mandate that lawyers either have a college degree or study five years under a practicing lawyer. Spooner perceived this law as being discriminatory towards the “well-educated poor”. Drawing parallels to the artificial barriers to entry created through state occupational licensing requirements. Spooner even petitioned the Massachusetts General Court to challenge the veracity of this requirement in 1835.

In 1844, Spooner founded the American Letter Mail company. Audaciously announcing the incorporation of his enterprise to the U.S. Postmaster General. Reacting to the skyrocketing costs of postage in the 1840s. The cost of sending a letter from Maryland to Massachusetts was 18.75 cents. Approximately twenty-five percent of workers’ daily wages at the time. Two weeks after his grand announcement Spooner was delivering letters between Boston, New York, and Baltimore. Offering patrons this service for a mere 5 cents per stamp rate. A drastically more economical option than the exorbitantly priced stamps required to be delivered by the USPS. Doing something the Postal Service of the nineteenth century could not accomplish. Deliver mail quickly, efficiently, and all at a fair price. All benefits could not be achieved by the U.S. Mail due to the organization be rife with corruption and bureaucratic red tape. The U.S. Postal Service possessing a monopoly position in the market afforded the organization the ability to set prices.

Naturally, Spooner soon came under fire from the U.S. Post Office. Less than a week of being in business “… Congress introduced a resolution to investigate the establishment of private post offices..”. After only being in business for several months Spooner and a few of his employees were detained for transporting letters by train to Baltimore. After being incarcerated for nearly three months and grappling with other legal troubles Spooner was released from prison. The American public became accustomed to lower postage rates, meaning the U.S. post office had to lower the cost of their stamps. This resulted in many of the customers using private carriers returning to using USPS. This combined with the legal fees incurred through Spooner’s legal battles with the U.S. Government contributed to the bankruptcy of his business. After the failure of his business venture, Spooner went on to be an influential figure in the abolitionist movement.

Spooner was able to give the inefficient appendage of the federal government dedicated to delivering mail a run for its money. Through this market distribution despite the failure of Spooner’s business, he succeeded in lowering the price of postage in the United States. He did so through market forces. Directing the U.S Post Office to follow suit with providing comparable pricing to the public. This was achieved in the absence of legislation or other typical forms of political action. Truly living up to his reputation as an anarchist. Regulation suffers from the lethargy of political processes. Changes made to adjust to market conditions are much more instantaneous. Demonstrated how quickly postage rates dropped after Spooner started delivering letters.

In the spirit of Spooner and his contributions to anarchist political theory, it is interesting how there is a discrepancy between when the government engages in questionable conduct and when a private citizen does. Few questioned the government monopoly on mail delivery, but when a private citizen attempts to bring competition into the market he is ligated out of business. However, when private companies start to dominate specific industries at the end of the 19th century, there was then a moral imperative to break up this concentration of market power. The christening of this crusade was punctuated by the passage of the Sherman Antitrust Act in 1890. It would be fair to respond to this charge of hypocrisy, by stating that when Spooner waged war on the monopoly in letter carrier services there wasn’t any precedence for antitrust law in American jurisprudence at the time. Good point, but even in the light of the fully developed and sophisticated antitrust law we have today there are still state-dominated monopolies on the production of goods and services. The most salient example being defense. Some cling to the Samuelsonian public goods argument for keeping the government monopoly on defense. Keen scholars of political economy may even invoke Coase’s Theorem to justify state provision of defense services. For those who are skeptical of the legitimacy of state intervention, there still appears to be a double standard.

Lysander Spooner Week

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I officially declare the week of January 19th Lysander Spooner week. To commemorate the birthday of this legendary contributor to anarcho-political theory. I am proud to say I happen to share a birthday with this renowned theorist. Not to mention one that was heavily influential on the development of anarcho-capitalism (although arguably Spooner had some socialistic tendencies).  Next week, I will attempt to dedicate two essays to the life and work of Spooner. I will not allow this influential figure in Libertarian political theory to become a minuscule footnote!

Native Americans Did Believe in Property Rights- Part III: Recognition of Property Rights

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Part I

Part II

It is well established at this point that the notion of Native American tribes not observing property rights is a misconception on the part of European settlers. Various tribes throughout continental North America have recognized individual property rights in several diverse ways. Historically, American Tribes have acknowledged an informal version of Tort Law. Signifying that native tribal societies held property in high regard. If a culture did not value personal property, there would not be any (whether centralized or decentralized) institutions requiring restitution for damaged property or bodily harm. That alone dispels the conventional wisdom that all tribes rejected the prospect of material ownership. Reducing this enduring fallacy to nothing more than an erroneous interpretation of Native American History.

Depending on the tribal nation, some subsets of natives had surprisingly sophisticated laws protecting individual property rights. Ranging from mutually acknowledged hunting rights to even intellectual property. None of these protected rights would exist in societies that subscribed to the norms of all ownership being communal. Reinforcing the fact that the common perception that rights such as individual landownership being European invention is nothing more than a myth. A one-dimensional caricature of the true reality of the history and culture of the ingenious tribes of the United States.

Intellectual Property

Some of the tribes residing in the Pacific Northwest and California possessed ownership of intellectual property. This was generally observed among shamans practicing within the northwestern region of the United States. Intangible commodities such as “… songs, dances, stories, legends, and curing ritual…” were owned by individual shamans. Unless these trademarked forms of verbal communication were passed down to an apprentice they typically were no longer used once the shaman had passed away (Bobroff, 2001, P.1590)[9]. The preservation of a right to exclusive use of songs, stories, and performances minors of modern-day entertainers Not to trivialize the religious rites of the native peoples of the Pacific Northwest, but the copyright laws protecting songwriters and authors are probably the closets modern analog. One only needs to look back a few decades to the whole Napster controversy to see the parallels [10]. There have also been more recent intellectual property disputes, few as ubiquitous in the mind of the lay public than as the peer-to-peer file sharing fiasco of the late-1990s. Demonstrating precisely how advanced the nature of ownership in the tribes of the pacific northwest. These were societies that not only valued protecting the right to own physical property but also the right to own intangible property.

The intellectual property extended beyond communication-related to religious rights. Individual families possessed ownership of “… carvings, paintings, and crests..” related to their lineage (Bobroff, 2001, P.1590)[9]. Transgressing against these acknowledged property rights resulted in server consequences. Violating the “copyright” ownership of a family symbol was perceived as being equal to engaging in a violent act (Bobroff, 2001, P.1590)[9]. Making it unquestionably evident that preserving intellectual property was of high priority.

Hunting Rights/ Land Tenure

Another form of informal property rights that have been historically acknowledged by native tribes have been hunting rights. In some instances, private hunting grounds. Similar rules were formulated regarding fishing rights. The aim of these “customary rules” was oriented towards preventing resource depletion (Yandle, 1998, p.44) [11]. Decentralized arrangements to manage CPRs are compatible with traditions of strong property rights. However, instances of customs that support exclusive use of hunting grounds provide more substantial evidence of a robust system of property rights. Informal resource management can still be done under a quasi-communalistic basis.

Private hunting rights were best exemplified by the practices of the northern Algonquian tribe. These rights were held for individual families and were generally delineated by salient geographic landmarks. Such as specific thickets of woodlands or bodies of water (Bobroff, 2001, p.1575) [9]. The exclusivity of these territories was transferred by inheritance. Rules were promulgated to enforce punishment for trespassing or collection of furs by “non-owners” water (Bobroff, 2001, p.1575) [9]. Per anthropological research, tribal members would even transfer ownership of land as a gift (Bobroff, 2001, p.1576) [9]. For the coast Algonquian tribe members, their systems of land ownership only became more solidified after contact with European settlers. Due to the circumstances of the flourishing fur trade (Bobroff, 2001, p.1577) [9]. The existence of private hunting grounds gives us a perspective on the Algonquian tribe’s perspective on land tenure. The land is passed down through familial ties isn’t a foreign concept in European law. Paralleling the commonly held tradition in Europe of inheritance serving as a mechanism for transferring property.  

Adjudication of Property Rights

The Yurok tribe of California held property rights in high esteem. Even associated property ownership with social prestige (Benson, 1991, p.50) [7]. It can only be expected that the centers for decision-making within the tribe would strive to protect the property right of its tribal members. The tribe had a system of compensation for damaged property. Paralleling the English Common Law tradition of Tort law. For instance, if an individual used another person’s canoe and damaged it they would be held liable for compensating the owner for the damages (Benson, 1991, p.50) [7]. If a service provider fails to provide a promised service to a patron they were required to pay the customer restitution(Benson, 1991, p.50) [7]. The Yurok people did not settle property disputes with a centralized government but rather with a set of “sweathouses”. Groups of tribal members were tasked with settling disputes. Proceeding against the offender was arranged by the sweathouse and the victim. (Benson, 1991, p.52) [7].The victim did not have the right to seek extrajudicial forms of restitution outside of the group’s judgment. (Benson, 1991, p.52) [7]. The defendant would have the ability to obtain representation against the accuser in the cross-judgment (Benson, 199, p.52) [7].

If damages were due to the plaintiff the defendant was expected to pay back the sum indicated verdict of the proceedings. If the accused could not, they became the “wage-slave” of the accuser (Benson, 199, p.53) [7]. Per the economist Bruce L. Benson the Yurok  “model” for private-law held the below six characteristics:

“… These features are: (1) rules of conduct which emphasized a predominant concern for individual rights and private property; (2) the responsibility of law enforcement falling to the victim backed by reciprocal arrangements for protection and support when evolved to the level described above, but this homogeneity had to develop in conjunction with an evolving process of interaction and reciprocity facilitated by customary law. 15~egalsystems all over the world have, at one time or another, been characterizable in the same way that the Indian systems discussed above were characterized. Some anthropologists and legal scholars distinguish between “stages” of legal development, for instance, and would put such customary systems in one or more of the stages occurring before centralization of political power and formal institutions of government arise (e.g., Malinowski 1926; Diamond 1950). Also see note 14 above in this regard, as well as Benson (1988; 1989a). 56 The Review of Austrian Economics, Vol. 5, No. 1 a dispute arose; (3) standard adjudicative procedures established to avoid violent forms of dispute resolution; (4) offenses treated as torts punishable by economic payments in restitution; (5)strong incentives to yield to prescribed punishment when guilty of an offense due to the reciprocally established threat of social ostracism which led to physical retribution; and (6) legal change arising through an evolutionary process of developing customs and norms…”( Benson, 1991, p.54-55) [7].


  2. CARPENTER, KRISTEN A. & RILEY, ANGELA R.  Privatizing the Reservation? (2019). The UNIVERSITY OF COLORADO. Pages 13-16, 21.
  3. https://www.cato.org/publications/commentary/mystery-capitalRetrieved November 17th, 2020.
  4. CANBY JR., WILLIAM C. American Indian Law: In a Nutshell 2nd edition. (1989). WEST GROUP PUBLISHING. Pages 19-21.
  5. FERNANDES, EDESIO. The Influence of de Soto’s The Mystery of Capital. (2002). LINCOLN INSTITUTE OF LAND POLICY. Page 6.

6.  Anderson, Terry L. Conservation—Native American Style. PERC Policy Series Issue Number PS-6. (1996). PERC. P. 1-2.

7. Benson, Bruce L. An Evolutionary Contractarian View of Primitive Law: The Institutions and Incentives Arising Under Customary Indian Law. The Review of Austrian Economics. Vol. 5. No.1. (1991). Ludwig Von Mises Institute.

8. http://fee.org/article/our-first-thanksgiving/  retrieved 11/23/2020.

9. Bobroff, Kenneth H. Retelling Allotment: Indian Property Rights and the Myth of Common Ownership. Vanderbilt Law Review.         Vol 54. Issue 4. (2001).

10. https://www.wired.com/2009/12/1207riaa-sues-napster/. Retrieved 12/21/2020.

11. Yandle, Bruce. Antitrust and the Commons Cooperation or Collusion? The Independent Review. Independent Institute. (1998).

Sarti V.. Salt Creek- The Death of the Minder Standard- Food Poisoning

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The legal precedence of Franke’s, Inc V. Bennett has not been completely resolute over the years.  Minder v. Cielito Lindo reinforced the standard of dismissing inferential evidence in food poisoning cases.  One case in California reviewed in the Late-2000’s Sarti V.. Salt Creek challenges this standard. In most instances, the burden of proof has been on the plaintiff. Evidence-based upon inferences and circumstantial evidence has generally failed to find foodservice providers liable for damages. We cannot attribute culpability for foodborne illness without causation. This is not to diminish the physical, psychological, and monetary costs that food-related infections impose on victims. Rather, nullifying evidence based on inferences makes the delivery of justice more balanced. Many could point to such jurisprudence and claim that it skewed towards shielding businesses. This is not the case. If the law is tilted towards victims there is no incentive to start a restaurant. Even based upon scant evidence you may be responsible for thousands, if not millions of dollars’ worth of damages. Most detrimental of all is the blighted reputation within the community. For a family-owned eatery is the kiss-of-death.

It is important to remember that most restaurants in America are small businesses. They cannot whether bad publicity or multi-million-dollar lawsuits. If an eatery was responsible for causing illness, it fair that they endure these costs. If not, it simply a miscarriage of justice. Especially when the illness could have been attributed to another source. Slanting the Scales-of-Justice is simply the opposite of a system that is biased towards business interest. Unfortunately, due to a significant amount of anti-market sentiment, many people would prefer a legal system that is stacked in favor of the victim. Justice requires balance. Molding the application of the law to the prejudices of the people is nothing more than judicial mob rule. Making the notion of justice something of a misnomer. Paralleling the flawed reasoning behind reverse-discrimination. It is still discrimination that is skewed towards the favor of a minority group.  Interpreting law in a manner that favors the victim over the business owner is injustice. Despite conventional wisdom.

The Sarti Case dates back to April 2005.  Alexis Sarti and a friend dined at the Salt Creek Grill. They split an appetizer that contained raw ahi tuna. Sarti developed nausea and chills the next day. Then for the next ten days suffered persistent chills, fever, and diarrhea. Twelve days later she could not move her legs and was taken into the intensive care unit. Where she was diagnosed with Guillain-Barre syndrome. After being tested it was confirmed that she was suffering from a Campylobacter infection. Campylobacter is a pathogen that is not associated with consuming raw tuna, making it likely that the appetizer Sarti ate was cross-contaminated with raw chicken. Sarti had a long recovery. Using a walker for eight-months after the incident. Only regaining forty percent of her previous stamina.

Sarti was awarded  $725,000 in economic damages and $2.5 million for her suffering by the jury’s verdict.  Less than a month after Sarti’s meal the Orange County Department of Health identified several practices by the eatery that could lead to cross-contamination. Despite the evidence implicating the restaurant, there was plenty of exculpatory factors that shed doubt upon Sarti’s illness originating from Salt Creek.

“…substantial evidence on which the jury could have found the restaurant not liable:  Sarti’s friend who split the appetizer did not get sick. The Salt Creek Grille takes great pains to separate its raw tuna from its raw chicken, including defrosting it in a different place in the walk-in freezer than where the chicken is stored, having the chef use a newly cleaned cutting board for the tuna, and preparing the tuna at the opposite end of the cook’s line from where the chicken is cooked.   Chicken is prepared in its separate room.   Different colored cutting boards are used for tuna and chicken, and the same chef does not prepare both items.   And Sarti herself worked as a supermarket checker the day she became ill, and could, at least in theory, have picked up campylobacter from a leaking bag of raw chicken she might have scanned.”

The judge found that there was enough evidence to avoid a JNOV. Meaning the judge found all of the evidence substantial enough to award damages. It’s important to note that this goes against past precedence. There is enough compelling evidence to doubt that source of the foodborne infection was not Salt Creek, but another possible source. Based upon the Minder ruling much of Satri’s case would be inadmissible. Yes, it is fair to award damages due to the severity of Satri’s illness. However, did the court direct liability to the correct party? If the depart of health did find Campylobacter bacterium on any of the surfaces of the Salt Creek kitchen, there wouldn’t be as much doubt. It’s the shadow of doubt cast on this case that makes it difficult to fully condone the court’s decision. It would be fair to argue that this a salient failure in Tort jurisprudence. The Minder/ Franke’s standard at least has a bulwark against the misapplication of liability. Stray from this variant of adjudication incentivizes the dishonest to engage in litigation for the intend of rent-extraction. For the honest, to attribute blame to the wrong culprit. This has the power to ruin lives. Something rarely considered in today’s litigious landscape.

Minder v. Cielito Lindo Restaurant and The Burden of Proof- Food Poisoning

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After the Franke’s, Inc V. Bennett ruling in the early 1940s, it became a prominently cited standard in food poisoning ligation. Even decades after the ruling it has still served as standard case precedence for the requirement of proof from plaintiffs seeking damages. The decision made by the California court of appeals in Minder v. Cielito Lindo Restaurant remains faithful to the standard of proof set in Franke’s.  The ruling in Minder is far from a solid acquittal of the Cielito Lindo Restaurant of any potential negligence. The accusers’ did have strong circumstantial evidence against the owners of Cielito Lindo. Making it reasonable to question the wholesomeness of the food served at the eatery. Despite ample correlating evidence of unsanitary conditions at the restaurant, Minder still failed to satisfactorily attribute the cause of illness to food served and prepared at Cielito Lindo.

Pat and Dean Minder arrived at the Cielito Lindo Mexican restaurant on the afternoon of Sunday, December 17th, 1972. The couple ordered different combination plates with various assortments of Mexican cuisine.  Neither ate any other articles of food for the remainder of the day. Later on that evening Dean did experience some mild discomfort in his stomach, but no other symptoms. However, on December 20th, Dean experiencing persistent symptoms he left work early. Subsequently was hospitalized on December 26th. Dean’s wife Pat exhibited similar symptoms and was admitted to the hospital on the same day as her husband. The Minders were discharged from the hospital on January 2nd,1973.

The physician treating the Minders, Dr. McNamara, testified that he initially treated the couple for Influenza. After receiving confirmed lab results that the couple suffered from an infection engendered by Shigella Flexneri, Group B. Dr. McNamara concluded that the source of the bacterium was contaminated food. Upon cross-examination, the treating physician verified that contained food was not the only vehicle for transmitting Shigella. Surfaces touched by infected people and toilet seats also are potential sources of spreading Shigella. McNamara also admitted that he could not confirm whether Dean and Pat contracted the infection at the same time.

While Dr. McNamara’s testimony was far from airtight, there was a significant amount of circumstantial evidence against the restaurant.  Rodney Hiemstra of the Ventura County Environmental Health Department took the stand. Hiemstra stated that he inspected Cielito Lindo on October 27th, 1972. Detailed that the following was observed at the eatery:

“…dirt, grease, and food particles in the corners of the floor and behind the stove, which was in his opinion unsanitary and unhygienic. He testified to other unsanitary conditions that he observed and code violations, including an ice machine that was without a side panel, thus making the ice subject to contamination from dust and possibly flies. Further, the food storage area did not comply with the code in that the food was stored directly on the floor and not six inches above it.”

 Hiemstra revisited the establishment several times after the October 1972 inspection. He claimed to see improvements in the sanitation practices of the restaurant staff and owners. Hiemstra also collected stool samples from the employees of Cielito Lindo on January 26th, 1973. The lab results confirmed that none of the staff members working at the restaurant were infected with Shigella bacterium.

The plaintiffs were not the only individuals to become ill from dining at Cielito Lindo on December 17th, 1972. Etta Howell who was dining with the Minders also became sick. At the time Howell was pregnant and was experiencing diarrhea for approximately two weeks. Her doctor could not pinpoint the cause of her stomach ailment. Howell’s husband who also was dining with the Minder’s experienced no ill effects. Witnesses testifying on behalf of the restaurant claimed that the facilities were clean and no other people became sick from dining at Cielito. The owner even testified that there was only one other “inconclusive” complaint since the restaurant opened its doors in 1953.

The court’s decision was in favor of Cielito due to the lack of direct evidence implicating the eatery in the transmission of the Minder’s illness.  Past case precedence dictates that there needs to be direct evidence implicating the restaurant in the transmission of food-borne pathogens. Citing Williams v. Coca-Cola Bottling Company established that harm caused by merely ingesting contaminated food or beverages is not substantial enough to attribute liability to the producer. The accusing party needs to be able to prove causation. E.g.) the burrito that was prepared at Jimmy-Jo’s Taco Shack caused their illness. Anything else is “conjecture” based upon the Williams standard. The litigant and the witness confirming their account have not crossed the chasm between correlation and causation. Leaving room for a potential third-variable to be the cause of the victim’s condition. Per Williams, if there isn’t any outward evidence of the food being tainted, the victim must go a step further to verify causation.

The standard set forth by Williams is nothing more than a corollary of the adjudicatory assumptions implied in the decision in Franke’s, Inc V. Bennett. Illness alone is shallow evidence for attributing liability in food poisoning ligation.  Other cases have echoed this same sentiment. For example, Beaupre v. Nave. An incident dating back to the 1960s, where several regular patrons contract hepatitis from a California restaurant  (presumably hepatitis A per the symptoms described). In Minder, the court did not find the testimony of two health inspectors and the treating physician to be enough to prove liability on the part of the restaurant. Now, if the plaintiffs had taken home leftovers and had the remaining food tested for Shigella microbes. They might have a had solid case.

The courts must hold the standard of causation consistently when ruling on foodborne illness cases.  Without protection from frivolous lawsuits would be restaurant proprietors may choose to operate in a different industry. Diminishing the vibrant and diverse culinary landscape in America. Demanding that an eatery pay damages to every patron who develops stomach after eating there would be perverse incentives structure. Enticing customers to engage in litigious rent-extraction even when it is grossly inappropriate to do so. However, there is one Achilles heel in the standard of substantiating claims of food being deleterious that could use some adjustment. If a patron notices unhygienic food handling practices and still chooses to eat at the restaurant, they should not be awarded damages. Passively choosing to accept derelict care on the part of food handlers is a form of consent. Something as salient as a cockroach scurrying across the counter is a red flag. If a customer chooses to ignore this, regardless of food safety regulations, they have already surrendered their right to compensation. If a litigant was able to state that they notice that the silverware hadn’t been washed and still elected to eat at the establishment, they have already forfeited the right to seek damages.  Analogous to someone who in 2020 choosing to start smoking and already being aware of the health risks attempting to sue Philip Morris.

Food Poisoning Ligation: Franke’s, Inc V. Bennett

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Tort law cases involving instances of food poisoning are particularly complex. It can be difficult to pinpoint the specific source of exposure.  Especially as our supply-chain for food distribution has become global and more intricate. In the absence of a standard that requires substantial proof on the behalf of the plaintiffs could very well receive damages from the incorrect party. No less of an injustice than the injured party does not receive adequate compensation. Unfortunately, this leaves the litigant with the burden of proof.  This standard was solidified in the 1941 court decision Franke’s Inc V. Bennett The burden of proof can be an onerous obstacle in retrieve compensation for illness engendered by a restaurateur’s negligence. However, this helps avoid frivolous lawsuits and also ensures that the true offender is the one to compensate the victim.

The seminal case in question to an incident in 1940.  On January 15, 1940, a deputy city clerk for Hot Springs, Arkansas dined at the appellant’s cafeteria for lunch.  The accuser consumed several food items including scallops. The litigant had never eaten scallops before and could not verify if they had an odd flavor. After return to her office at city hall, she became violently ill and was sent home. Upon returning home her illness persisted and she had to be hospitalized. The appellee was treated for her illness and returned to work the following Monday. The physician that examined Bennett diagnosed her condition based upon a list of food items she had consumed in the past several days. Leading to a diagnosis of “ … acute poisoning due to seafood…”.  However, this inference was not based upon a careful analysis of the contents of the plaintiff’s stomach.  As a result of this inconclusive and somewhat rudimentary inference on the part of the doctor,  Bennett decided to pursue $3,000.00 in damages to offset the costs of medical treatment.

Bennett’s claim of consuming deleterious scallops at Franke’s Cafeteria was far from an airtight case. In the absence of precise analysis, how can the source of illness be attributed to the scallops served at the cafeteria?  The plaintiff also ingested a salad, cornbread, carrots, and a slice of cake.  Without definitive proof that the scallops were tainted or unwholesome, how can the treating physician be so sure that his patient’s ailment wasn’t caused by another food or beverage? The veracity of this claim can only be further scrutinized by the fact that Bennet was the only patron to complain of any sickness. The scallops were served to thirty-six people on  January 15th. Failing to rule out the potential of an allergy or other food sensitivity to scallops.  Upon further inspection of the cafeteria’s facilities, no violations could be found. The cafeteria followed all food handling and refrigeration requirements mandated by law.  Demonstrating that even making a circumstantial argument against the establishment based upon unsanitary conditions infeasible. Leading the court to rule:


“ We do not think that the mere fact that a person eats food in a restaurant, hotel, cafeteria and therefore becomes ill of itself sufficient to establish liability on the owner, but proof must go further and show that some particular article of food was unwholesome and unfit for human consumption. Otherwise, such a business would be fraught with hazard..”

This is a valid point. Each time someone develops a stomach ache after eating at a restaurant should they be able to sue the owner for damages? If so the potential for innocent eateries being finically liable for damages that were not caused by their establishment is somewhat perverse. Often we are concerned with the rights of victims in instances of Tort Law, what about the right of those being accused? Theoretically, we wouldn’t condemn a man to death row on scant evidence. It stands to reason that we wouldn’t do the same in cases requiring compensation for damages. Any proper form of jurisprudence recognizes the precarious balance of just adjudication in such cases. If we cannot determine if the connection between dining at a restaurant and subsequent illness being anything other than coincidence, then expecting the restaurateur to pay for the plaintiff’s medical bills is tantamount to ruling in favor of frivolous lawsuits. It effectively operates as an implicit form of theft. Being forced to pay restitution for the harm we did not inflict is an injustice. It is arguably equally as unjust as denying a compensation claim when rightfully owed to a victim. If the law does not express this level of reciprocal protection a disservice has been done to all entrepreneurs in the foodservice industry. If the rule of law has been weaponized to function as a wealth extraction mechanism, what incentive is there to open up a restaurant or deli? Especially if any person can claim without ample evidence they contracted food poisoning from your establishment and then expect you to compensate them for their medical expenses.  

Idaho V. United States

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Water rights among Native Americans is still a highly contested area of law. Even in modern history, the more granular details are still being debated. Matters are only compounded by the federal government’s guardianship over tribal lands. The blurry line of jurisdiction over Indian lands has not been clarified by this paternal arrangement. This fact is demonstrated in the 2001 case Idaho V. United States. The case details the confusion of whether the federal or state government held title lands for the Coeur d’Alene Tribe. Despite congress having the authority to transfer guardianship duties to the states. However, the function of land allocation has remained mostly with the Department of the Interior. 

Idaho V. United States was the byproduct of the federal government suing Idaho over claims of “submerged lands” within the boundaries of the reservation. Since 1873, the tribe has had a claim to part of the St. Joe River and most of Lake Coeur d’Alene. The tribe’s water usage rights being secured at the time of incorporation of the reservation. Congress in 1891, ratified the agreement, the tribe relinquished claims of all lands not included in the 1873 Executive Order. The Coeur d’Alene be compensated for the northern portion of lands ceded by the tribe. Per Oyez:

            “The District Court quieted title in the United States as trustee, and the Tribe as beneficiary, to the bed and banks of the lake and the river within the reservation. The Court of Appeals affirmed.”

It is reasonable to question whether the Federal government “holds, title in trust” for the reservation lands that encompass the St. Joe River and Lake Coeur d’Alene? The majority opinion of the Supreme Court sustained the previous findings by the lower courts. Citing that the original Executive Order specified that portions of St. Joe River and Lake Coeur d’Alene be held for the tribe by the National government. That any attempts by the state to obtain or transfer title to the specified bodies of water should be legally obstructed. Per the legal structure under which the reservation was incorporated, this is a valid ruling. The reserved right to water usage is also implied in the establishment of a reservation. See California V. Arizona (1963).

The trust relationship may have initially been implemented to protect the Indian lands from being acquired by the states. However, do the tribes truly own these lands? One of the downsides of the United States holding Indian lands in trust is that the tribes have restrictions on how they can utilize the land. This has led to some controversy regarding the ability to sell and lease water to non-Indians. If an individual owns the property they have the right to do as they please with it. That includes selling their property. The tribes may have their lands protected, but at what cost?

Yakus V. United States: Price Controls and Wartime Socialism

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Conventional wisdom holds that many of our economic freedoms come second to the interests of the nation in times of national crisis. During World War II, there was unprecedented growth of government intervention in the national economy. Inflationary monetary policy to fund the war effort without revealing the true costs through direct taxation. Price controls to camouflage the nominal rise in prices spurred by inflation. Rationing and quota systems utilized to divert goods from the consumer markets to U.S. Military. The federal government even seized factories primarily used for the production of consumer goods for wartime production. The American people saw similar measures during World War I. However, not to the same scale nor with the same level of Universal acceptance by American citizens. 

From the standpoint of the popular interpretation of history, all these socialistic policies were justified. After all, World War II was an all-out-war. The moral imperative of defeating the Third-Reich required dispensing with individual freedoms and free-market policies. It is debatable whether these policy prescriptions aided the United States in their victory in World War II. One thing that is for certain that these policies led to the further erosion of individual liberty and property rights. Due to most academics and laypeople believing that these were minor sacrifices when compared to the result of defeating a bloodthirsty fascist dictator. The true irony is how much the United States mimicked the economic policies of the fascist or socialistic regime. Per a cursory definition of socialism, it is an economic system in which the state controls the means of production. Displayed in the actions of pricing-fixing, consumption limits, and even re-directing production towards military equipment under threat of legal sanctions. This may have stifled the maniacal aspirations of a madman, this was all done at the expense of free-market enterprise and has to lead the way to the continuous growth in the size of government.

War Time Socialism:

In his classical book, Crisis and Leviathan, Robert Higgs equates the historical wartime policies of to Higgs refers to such a state of total war as being either “wartime socialism” or “wartime fascism” (about price and wage controls during World War II). Depending on one’s “linguistic tastes” (p.211). To a certain extent, Dr. Higgs has a point. Fascism is nothing more than right-wing socialism. The brand of socialism practiced by the Soviet Union was nothing more than left-wing socialism.  In Ludwig von Mises’s magnum opus Human Action, the thin line between fascism and Marxism is divided by the variety of polylogism an individual subscribes to. Polylogism is the phenomenon where it is assumed “…logical structure of mind is different with…” groups of people. How these delineations are made depends on whether a person operates on class-based or racial/national polylogism (p.75-76). Marxism asserts that the intentions of all tycoons, entrepreneurs, and investors are inherently exploitative making it a superb example of a class-based polylogism. Fascists such as Nazis believe in the supremacy of their own race and nation-state. Assume that all other ethnicities and nationalities are inferior. Utilizing the state principles to guide the governance and economic activity of the state.

The unfortunate truth is that many of these invasive and destructive policies were nearly unanimously supported by the supreme court during the Second World War. The supreme court ill-fatedly acted as a mechanism of institutional validation for economic overreach of the government.  As detailed in Crisis and Leviathan:

“ The justices,  almost without exception, had formed themselves as cheering section for expansive legislative and executive actions of the bellicose times. None of the government’s exceptional exercises of power, not even one, was disapproved by the Supreme Court.” (Higgs, 1987,p.220)

One of the most prominent checks on executive authority did little to curb the aspirations of FDR’s administration.  In the context of the dire stakes of matching to victory in the European and Asian theaters of combat, social pressure made it difficult to articulate dissent. The ideological sway of “defeating fascism” with economic policies that mirrored some of the decrees of nationalistic dictatorships (Higgs, 1987, P.241). The Supreme Court haplessly codified this collectivist ideology by disregarding the principles of free enterprise and individual liberty. The United States won the war and even saw a few decades of prosperity after the 1940s. One can only be in awe of what was dispensed with to make it happen. These command-and-control measured were passed and validated with greater ease than those the legislation passed to remedy World War I and the Great Depression. This longstanding legacy of extension of war powers has permanently weakened the restraints against executive overreach.

Yakus V. United States – Background

One area that did receive a significant review from the Supreme Court during this era was price control laws. Most of these cases focused on whether the implementation and enforcement were procedurally constitutional (Higgs, 1987, p.221). The defining case was Yakus V. United States. The case was decided on March 27, 1944.  The Emergency Price Control Act of 1942 was implemented to prevent nominal prices from being impacted by wartime inflation. Two defendants were convicted by the district court for violating this law by selling beef at wholesale prices. The district court also invalidated any concerns of whether the Fifth Amendment rights (Due process) had been transgressed by the act. The defendants then decided to bring their case up to the U.S. Supreme Court.

Concerns of Constitutionality:

Per Oyez, there were two main points of concern regarding the Constitutionality of the Emergency Price Control Act. The first concern was regarding how congress transferred legislative authority. Making it reasonable to question the legality of conferring vast decision-making powers to the administrator of the act.  The second concern was whether the defendants had their Fifth Amendment rights under the Due Process clause breached by enforcement of this legislation.

The Decision:

The majority opinion held that the terms of the law were legally sound from a Constitutional standard. The court found that the way congress bestowed the administrator of the act decision-making authority was done so sparingly. Done so to achieve important objectives. That the Constitution enables Congress to perform its legislative function with some degree of flexibility. Regarding the concerns of whether the legislation respects Due process, again the court did not find the law to be transgressive. Citing that the standards are precise enough to guarantee that it is fulfilling its Constitutional intend, therefore it is constitutional ( operating as a narrow tautology, circuitously stating it is Constitutional because it is Constitutional).  

That doesn’t mean there wasn’t any dissent from the Justices on this case. For instance, Justice Roberts cited that providing such digressional authority to a bureaucratic administrator makes it impossible for Congress to have proper oversight. Also, pointed out that the act relied too heavily on the assumption that the administrator would be impartial. Justice Rutledge also chimed in with his criticisms of this case. Reasoning that the court should not enforce laws without allowing the court to consider their Constitutional validity. Per Higgs, Rutledge referred to enforcement of the law as “asymmetrical” from a criminal prosecution and defense standpoint. This is since a defendant could be tried in federal and state courts, but could not challenge in these same courts. The defendant was required to petition the Emergency Court of Appeals within 60 days of the prospective concern (Higgs, 1987, p. 222).


Few people are willing to challenge legal and economic decisions made during World War II. Most people would assume that these “temporary” violations of our liberties were for the greater good. Most of these invasive policies have served as the scaffolding to greater contraventions of our civil liberties and economic freedom.  We certainly want to avoid falling prey to the slippery slope fallacy. However, the historical evidence is overwhelming that it has been a steady progression of various policies that have worked slowly eroded our freedoms. Credulously acquiescing these laws and prescriptions as being for the greater good, is nothing more than a fallacy. It is well documented that price controls are awful economic policies. They distort one of the few mechanisms that both consumers and vendors have for bridging the gap between the information asymmetries of commerce. The way this atrocious policy was enforced through the Emergency Price Control Act endowed a bureaucratic apparatus with far too much authority.  The true tragedy being then the Supreme Court then proceeded to validated this horrendous policy. A tragedy indeed!

Native Americans Did Believe in Property Rights- Part II: Origins of The Myth

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The Origins of the Myth

We as humans have the unfortunate propensity for interpreting evidence that in a manner that is congenial to comport with our own beliefs. This problem is particularly rampant in the soft sciences.  In the absence of disciplined restraint and sound methodology, qualitative research is subject to be sullied by our own biases. This serving only to hamper the whole enterprise of conducting an impartial observational analysis. The fields of anthropology and history have not remained immune from the reach of the researcher’s flawed perception. Upon this realization, it becomes woefully evident that our historical perception of Native American culture is inaccurate. Our misconceptions held together with gross misinterpretations of traditional stances on private property and law held by various indigenous tribes.

Often our ideological motives and philosophical ethos skews our understanding of the historical truths of American tribal cultures. One corollary of the erroneous assumption of Native American collectivism has been designating tribal peoples as the “original conservationists” (Anderson, 1996,p. 1) [6]. Typically for political reasons, the pragmatic rationale for many of these historical conservation measures has been understated. Researcher Terry L. Anderson points out the underlying how our skewed image of Native Americans has become politicized. Citation the example of a famous speech given by the Chief of Seattle. In which he stated, “All things are connected like the blood which unites one family”. The speech was not written by the Seattle Chief, but by a script written named Ted Perry. Displaying much of the romanticized imagery that environmentalists wanted to hear (Anderson, 1996, p. 2) [6]. From Anderson’s view, such presentations of Native American culture only served to trivialize “… their rich institutional heritage which encouraged resource conservation..” (Anderson, 1996, p.1) [6].

The myths of highly collectivist property arrangements among Native tribes predates the nascent era of the modern environmentalist movement (late-1960’s/early 1970s). These myths were first promulgated based upon the narrow observations of settlers. Which dates back to the settlers of the great-plain-states who were looking for land that was suitable for agriculture. They extrapolated from their interactions with a few nomadic tribes that all Natives had little regard for property rights due to their lack of interest in “land assets” (GALBRAITH  et al. 2006, p.20) [1]. Generating the fallacy that property rights were a European invention. Completely side-stepping the reciprocal, customary, and informal means of property rights enforcement used by pre-colonial Indians (Benson, 1991, P.45) [7].

The true irony of the mythic image of the collectivistic tribes is that this assumption ignores the communal tendencies of the European settlers in the United States. Pre-colonial American tribes had strongly developed property rights and any communal tendencies were a result of economic necessity (Galbraith et al. 2006, p. 7) [1]. The Plymouth colony of the 1620s experienced declines in productivity brought on by their communal allocation of resources. This free-rider problem was resolved once the colonists began to mimic the “property rights model” of the local natives (Galbraith et al. 2006, p 7) [1im The economic folly of the Massachusetts Bay Colony is seldomly taught in Traditional American history courses. However, this all too often glossed-over the economic reality of colonial Massachusetts was immortalized in the 1959 essay Our First Thanksgiving.

“Our first Thanksgiving should, therefore, be interpreted as an ex­pression of gratitude to God, not so much for the great harvest it­self, as for granting the grateful Pilgrims the perception to grasp and apply the great universal prin­ciple that produced that great har­vest: Each individual is entitled to the fruits of his labor. Prop­erty rights are, therefore, insepa­rable from human rights.” [8].

It is difficult to ascertain whether this obscured fact of history was the result of misinterpretation or ideological motives. It is prudent to not delve too deep into such matters. Nevertheless, it is absurd that property rights are erroneously perceived as a European invention. The utopian ideals of the Puritans did not include the enforcement of property rights. Their quixotic attempt to collectively distribute resources serves as nothing more than a failed forerunner of Communism. Had it not been for the property-oriented values of the indigenous tribes, the pilgrims would not have had much to celebrate.

The popular interpretation of history seems to flat out ignore the communal propensities of the  Massachusetts colonists. This inaccurate depiction of historical fact has provided the substrate for proliferating this fallacy. A fallacy that is deeply embedded in the conventional wisdom of the American psyche. The collectivist propensities of non-Indian settlers were not limited to the pilgrims. For instance, the Spanish Catholic missionaries occupied the southwestern region of the United States in the eighteenth century. These missions were established by the Dominican and Franciscan orders. The missions implement communal economies with an emphasis on “communal behavior and support” (GALBRAITH  et al. 2006, p.7) [1]. The system imposed by the various Catholic mission was at odds with the natives’ property and land ownership rights. The mission system eventually dissolved in the American southwest. After the governor of California decreed in 1834 secularized the mission system, distribution the former mission lands as a private property to the tribes. ” (GALBRAITH  et al. 2006, p.7) [1].

It can be partially assumed that the informal recognition of property rights and law by American tribes has contributed to the false notion of a historical lack of concern for property rights. In most cases, indigenous tribes operated on customary law. Informal law functions on reciprocity and recognition of social norms within the tribe (Benson, 1991, P.44) [7]. Centricity being placed on the focus of compensation for loss of property versus criminal sanctions. Making it more in step with the common law conception of Tort law. Many of these rules were unwritten but acknowledged by tribal members (Benson, 1991, P.45) [7]. Other tactics such as ostracism and banishment of transgressive tribal members also served as informal means of punishment (Benson, 1991, P.50) [7]. More explicitly relevant to the subject of property rights, the informal means under which tribal members historically acquired property is notable. In the absence of formal deeds and title transfer documents, homesteading. This was practiced by agrarian tribes in southern California. An individual takes claim to land through the process of developing it for habitation or production (GALBRAITH  et al. 2006, p.8).


  2. CARPENTER, KRISTEN A. & RILEY, ANGELA R.  Privatizing the Reservation? (2019). The UNIVERSITY OF COLORADO. Pages 13-16, 21.
  3. https://www.cato.org/publications/commentary/mystery-capitalRetrieved November 17th, 2020.
  4. CANBY JR., WILLIAM C. American Indian Law: In a Nutshell 2nd edition. (1989). WEST GROUP PUBLISHING. Pages 19-21.
  5. FERNANDES, EDESIO. The Influence of de Soto’s The Mystery of Capital. (2002). LINCOLN INSTITUTE OF LAND POLICY. Page 6.

6.  Anderson, Terry L. Conservation—Native American Style. PERC Policy Series Issue Number PS-6. (1996). PERC. P. 1-2.

7. Benson, Bruce L. An Evolutionary Contractarian View of Primitive Law: The Institutions and Incentives Arising Under Customary Indian Law. The Review of Austrian Economics. Vol. 5. No.1. (1991). Ludwig Von Mises Institute.

8. http://fee.org/article/our-first-thanksgiving/  retrieved 11/23/2020.

Native Americans Did Believe in Property Rights- Part I: Introduction

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Native American tribes have long been perceived as being historically highly collectivistic and disinterested in the preservation of private property. Few people ever question whether these characterizations of the tribes are even accurate. These perceptions are only perpetuated when North American tribal leaders discuss economic matters at “tribal conferences and congressional hearings” (GALBRAITH et al. 2006, p.19)[1]. However, after a more rigorous assessment of the historical facts, it becomes clear that the image of the communal Indians was nothing more than a myth. Not only did many tribe members possess private property rights, but they also had an informal legal system that secured these claims. Making many of the previous claims of collectivism nothing more than a misconception.

The curious reader may question why the veracity of our understanding of the economic history of American indigenous tribes is so important? After all, the poverty that afflicts most of the reservations in the United States is a contemporary problem. How is reflecting upon the past going to be useful in solving the economic woes of the tribes? The problem becomes that many scholars and policy analysts utilize tribal tradition and customs for governing economic policy on the reservations. One particularly salient example is in the controversy surrounding the privatization of tribal lands. Per Carpenter and Riley (2019) the privatization of tribal lands ignores the historical and cultural perspective of tribal members (p.13) [2]. Following us, a policy prescription would impose an economic course of action few tribes have any interest in (p.16)[2]. Would only serve to destroy the communal tendencies that are common among American tribes (p.21) [2]. Both authors also suggest that privatization would invite the purchase of native lands by nontribal members (p.15). Only operating to exacerbate the present and past economic struggles of American Indians that resulted from the transfer of lands to non-Indians (p.14)[2]. Demonstrating that from the perspective of Carpenter and Riley a policy that deviates from historical collective arrangements will only serve to do more harm than good.

This paper seeks to dispel the myths and fallacies concerning the historical views of Native American property rights. Justifying government intervention in the economic affairs of the tribes based on faulty claims of historical collectivism hold little merit. Beyond the historical accuracy of such claims, there are also profoundly detrimental economic consequences of accepting this false economic history. If we subscribe to Hernando de Soto’s Dead Capital Theory [3] it becomes evident that the situation facing Native tribes is very similar to that of developing nations. The land in Indian country is not being utilized to its fullest capacity. The determination of the best use of such economic assets is constrained by the guardianship relationship between the tribes and the United States government. The genesis of this land trust dynamic being born out of the Dawes Act of 1887, when the federal government first intervened in the distribution of tribal lands (Canby, 1989, p.19-21) [4]. The waters of Indian land allocation has only become more muddied by subsequent amendments and legislation. Placing restrictions on assets that are already at the disposal of the tribes, creating barriers to extracting “surplus value” from what they should rightfully possess (FERNANDES, 2002, p.6) [5].


  2. CARPENTER, KRISTEN A. & RILEY, ANGELA R.  Privatizing the Reservation? (2019). UNIVERSITY OF COLORADO. Pages 13-16, 21.
  3. https://www.cato.org/publications/commentary/mystery-capital. Retrieved November 17th, 2020.
  4. CANBY JR., WILLIAM C. American Indian Law: In a Nutshell 2nd edition. (1989). WEST GROUP PUBLISHING. Pages 19-21.
  5. FERNANDES, EDESIO. The Influence of de Soto’s The Mystery of Capital. (2002). LINCOLN INSTITUTE OF LAND POLICY. Page 6.

Do We Need Laws to Force Us to Wear Masks?

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Ever since the number of COVID-19 cases began to grow in the United States the debate over whether to mandate wearing masks in public has raged on. Frequently devolving into a debate over political ideology rather than a discourse based on hard science. Naturally, those who believe mask-wearing to be an effective precaution against spreading the virus favor compulsory laws enforcing this practice in public. However, could it be possible that people still opt to take precautionary measures even in the absence of fine or other penalties? Better yet, couldn’t owners of private institutions such as stores, restaurants, and entertainment venues implement their preventive measures as conditions of patronizing their establishment? After all, the incentives are present to want to avoid any unnecessary risks and to keep their customers healthy to ensure a steady stream of business in these uncertain times.

In the state of Arizona, the issue of mask-wearing mandates has been left up to the local governments.  Most municipalities have opted to require masks while occupying indoor venues at the risk of facing a hefty fine. Back in June the city of Phoenix purposed a $250.00 for individuals repeatedly refusing to wear a mask. The suburb of Chandler, Arizona imposes a fine of $100.00 or 30 days in jail for mask-related infractions. Residents and visitors in the towns and cities located in Pinal County are not subject to mask requirements but are strongly encouraged to wear masks. One would assume that in these communities that are immune from such restrictions that the image of bare-faced shoppers must be a ubiquitous scene in the local grocery store. Such an assumption would be incorrect.

Even in the absence of formal constraints, most stores require that all customers wear masks. Generally, posting a sign on the front door forewarning prospective patrons of this precondition. Not only are the stores and eateries of the communities of towns such as Maricopa, Casa Grande, and so on filled with mask-wearing customers, but many establishments are taking measures not required by any municipality in the state. Employees are constantly cleaning. The local grocery store has never looked more pristine. Frankly, many of these changes in the cleaning and sanitizing schedules of the local business are long overdue. These shrewd business owners are proactively responding to the potential concerns of their clients. Anticipating that customers may avoid doing business if masks are at their brick-and-mortar location they have elected to require masks. In addition to urging patrons to wear masks, they also are making concentrated efforts to increase sanitation efforts. Even placing markers indicating the presence of six-foot gaps to maintain social distancing. The smell of bleach and other disinfectant products fill the entryway of the grocery stores. The local Walmart is even wiping down and sanitizing the carts! A sight that few would have ever predicted a year ago. All these preventive steps are taken without any laws, penalties, or ordinances. Completely implemented through apolitical channels.  

This micro-level self-governance on the part of local business propitiators and franchisees demonstrates the power of profit and loss mechanisms. Due to the business owners having a stake in the company they own and operate it is in their best interest to put the customers first. If the customers are comfortable, happy, and healthy it will be mutually beneficial for both parties. The customer will continue to obtain the goods and services they need and want. Simultaneously, the stores and restaurants will continue to receive business which will keep them afloat. Establishments that are insensitive to the needs of their customers will invariably see a dip in sales. This would hold even if we were not amid a pandemic. The entrepreneur must adapt to the present climate. That may mean investing in more cleaning supplies and sanctioning mask-wearing requirements for their establishment. Business proprietors who do not respond to customer concerns about the virus will be effectively punished by market forces. Through a sullied reputation, lackluster sales, and even insolvency. While constrained by federal, state, and local laws business owners by their possession of the enterprise still retain an immense amount of authority to create the rules governing their store. Having the ability to formulate the policies that govern the direction of the business enables them to better serve their customers. Displaying how to profit loss mechanisms can direct precautionary measures even in the absence of laws.

Business proprietors responding to these market pressures is an example of polycentric decision-making.  A system where multiple “decision-making units” with some degree of independent action subscribing to the same set of rules. Filtering the development of safety measures through the government attempts to use a one-size-fits-all approach to the pandemic. Whereas, individual shop owners can tailor their precautions to the specific concerns of their regular customers. Versus obtusely applying rules that may not even be effective or pertinent to how COVID-19 is impacting the region. Direct customer input about the absurdity of funneling customer traffic through two entries instead of three, can be an example of ground-level adjustments that can be made through business owner governed safety procedures when compared to those that are government-sanctioned. Avoiding the red tape and lethargic process of passing legislation or town ordinances provides fluidity that is necessary in dynamic times. A fluidity that is lost in the typical overarching and top-down approaches that are generally favored in regulations.  

Those cynical of the arguments that favor market pressure over formal regulation underestimates the power of the invisible hand. In jurisdictions where there are no regulations in forcing mask-wearing store owners not only require masks but are going the extra mile to ensure sanitary conditions for their customers. Most skeptical of the market being able to push such strives towards private solutions to the COVID-19 outbreak tend to cite avarice on the part of business owners. Without formal regulations, most will skimp on investing in extra precautionary measures due to the additional cost of enacting such changes. The willingness to make such changes is what separates a prudent businessperson from a fool.  The long-run profits from investing more in meeting alleviating the concerns of your customers will quickly outpace the minor cost.  Making a refusal to independently adjust to these changes shortsighted.

Pueblo Lands

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Just a fun fact regarding the Pueblo tribe that originally resided in the U.S. Southwest. This tidbit of information is specific to the Pueblos domiciled in New Mexico. The “… lands were acquired under fee under Spanish rule…”. Once the territory of New Mexico was annexed by the United States under the Treaty of Guadalupe Hidalgo (1848) in the aftermath of the Mexican War (p.272). This transferred right to the lands to the tribe versus the United States government holding the legal title.

Unfortunately, the technical aspects of the land own by New Mexican Pueblos are now minimal. As the tribe is presently in a trust relationship with the U.S. Government. See United States V. Sandoval (1913) (p.273). The tribe cannot “alienate their lands without the consent of the United States per United States V. Candelaria (1926) (p.273). Water rights for Pueblo lands are as applied by Winters Rights and are not different ( New Mexico V. Aamodt) from those of any other tribe (p.273).

Side Note: 

I may not be a trained lawyer. However, I am a Classic Liberal. That means I hold individual rights and property ownership in high regard. After all, I am following in the tradition of John Locke, and so on. If we strip away all the social justice rhetoric surrounding the government’s treatment of the tribes, there are a lot of violations of natural property rights. This opinion may not be based on past case precedence, but rather on unified philosophical principles. By the Treaty of Guadalupe, the tribe has legally transferred the right to their lands. While subsequent legislation may subordinate the strength of this previous agreement, did the tribe ever consent to the trust relationship with the United State’s government? From a purely a priori combined with some of the rhetoric surrounding past and present tribal/U.S. relations it would be fair to surmise no.

The legitimacy of the present guardianship dynamic between the New Mexican Pueblo tribe and the United States is suspect at best. Effectively, this arrangement transfers Pueblo lands to the federal government for relocation to the tribe. Many who are not as privy to the philosophical implication of property rights may find this alteration to landownership to be inconsequential or even a mere technicality. Taking such a superficial stance on this issue undermines property rights. Rightfully attained property should not be transferred to another party including the government without consent. This issue somewhat mirrors the overextension of civil asset forfeiture in cases of narcotic sales or instances of eminent domain. There may be laws on the books that provided legal justification for such actions. However, it is morally or philosophically justifiable? Could these laws be legitimate due to the fact they are unjust? Depending on your disposition towards property rights the answer can be a resounding no. Through this tacit acceptance of law equating moral correctness, we accept many unjust laws as being legitimate. This in turn transforms the Bureau of Indian Affairs into an institution that is more of an imposition than a facilitator of tribal rights. Inverting property rights, thereby shifting it from a negative right to a positive right. The BIA had the potential to operate in a manner that served to legitimately uphold tribal property rights. Like more bureaucratic departments within the government, it managed to make a bad situation worse. Instead of taking on the role of a property rights arbitrator between Indians and non-Indians, it became a property rights dispensary. Creating a perverse dynamic in which there is an inference that the Pueblos no longer own the land. When it was historically transferred to them by treaty. If this is true then the government has no business managing the land at all. Unless their property rights are being infringed upon. For example, non-Indians encroaching upon their water rights. There is a profound categorical confusion in attempting to protect property rights by first violating them. Making it appear as if it more of the pretext for circumventing Native property rights than defending them.

How to Quantify Indian Water Entitlements: A Lesson From the Ak-Chin Tribe

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One controversy that continues to afflict Indian water rights is that the Winters Doctrine does not provide clear quantifiable limits of water usage entitled to Native tribes.  Typically, legally define water usage limitations by survey and legal recognition is an extremely costly route to take for the tribes (p.286).  The most economical route tends to be through negotiations, administrative action, or legislation (p.286). One such example of this was the Ak-Chin tribe located approximately an hour south of Phoenix, Arizona. Ultimately, resulting in the development of the Public Law 95-328 (1978).

This law was spurred by the drastic decrease in the water table for the Ak-Chin reservation. This being something a substantial blow to the community as at the time they were primarily an agricultural-based economy. It was found that this decline in the water table was the result of the federal government failing to “prevent the mining of groundwater”. Due to this abdication of duty on the part of the U.S. Government, it was held liable to build a spring well and delivery apparatus from federal lands to meet the required amount of water entitled to the tribe through Winters Rights. The law set in motion that an interim supply of water is provided by 1984. That a permanent supply is allocated by no later than 2003 (p.6). The provision of water would be supplied through the Central Arizona Project Aqueduct (p.6). This has resulted in the Ak-Chin tribe expanding their” irrigated agriculture by 10,000 acres” resulting in an improvement in economic conditions on the reservation by 1991 (p.13). Because of the 1978 act and 1984 amendment. By 1993, the tribe had next to no unemployment and no social services expenditures (p.3).

The 1984 amendment provided more than just the interim supply of water needed for cultivation purposes. $15 million was provided for purposes of obtaining usable water. $ 28.7 million was also transferred to the tribe for economic development. The date for the permanent supply of water shifted to 1988 (p. 7).  The amendment expanded water consumption entitlement to “75,000 and 85,000 acre-feet, depending on precipitation levels each year (p.8). This amendment was deemed controversial at the time because it reallocated unused water from the Gila River Project to tribe versus “other state appropriators ” (p.8).

Then came the 1992 amendment to the water activities for the Ak-Chin Tribe. This amendment allowed off-reservation leasing of the Ak-Chin water supply. Considering the ever-evolving nature of American Indian Law there was then the 2000 amendment. Designed to provide great clarity on leasing requirements for Ak-Chin water. Manifesting itself in S. 1913- Ak-Chin Water Use Amendment Act of 1999.


    (a) Short Title.–This section may be cited as the “Ak-Chin Water

Use Amendments Act of 1999”.

    (b) Authorization of Use of Water.–Section 2(j) of the Act of

October 19, 1984 (Public Law 98-530; 98 Stat. 2698) is amended to read

as follows:

    “(j)(1) The Ak-Chin Indian Community (hereafter in this subsection

referred to as the `Community’) shall have the right to devote the

permanent water supply provided for by this Act to any use, including

agricultural, municipal, industrial, commercial, mining, recreational,

or other beneficial use, in the areas initially designated as the

Pinal, Phoenix, and Tucson Active Management Areas pursuant to the

Arizona Groundwater Management Act of 1980, laws 1980, fourth special

session, chapter 1. The Community is authorized to lease or enter into

options to lease, to renew options to lease, to extend the initial

terms of leases for the same or a lesser term as the initial term of

the lease, to renew leases for the same or a lesser term as the initial

term of the lease, to exchange or temporarily dispose of water to which

it is entitled for the beneficial use in the areas initially designated

as the Pinal, Phoenix, and Tucson Active Management Areas pursuant to

the Arizona Groundwater Management Act of 1980, laws 1980, fourth

special session, chapter 1.

    “(2) Notwithstanding paragraph (1), the initial term of any lease

entered into under this subsection shall not exceed 100 years and the

Community may not permanently alienate any water right. In the event

the Community leases, enters into an option to lease, renews an option

to lease, extends a lease, renews a lease, or exchanges or temporarily

disposes of water, such action shall only be valid pursuant to a

contract that has been accepted and ratified by a resolution of the Ak-

Chin Indian Community Council and approved and executed by the


    (c) Approval of Lease and Amendment of Lease.–The option and lease

agreement among the Ak-Chin Indian Community, the United States, and

Del Webb Corporation, dated as of December 14, 1996, and the Amendment

Number One thereto among the Ak-Chin Indian Community, the United

States, and Del Webb Corporation, dated as of January 7, 1999, are

hereby ratified and approved. The Secretary of the Interior is hereby

authorized and directed to execute Amendment Number One, and the

restated agreement as provided for in Amendment Number One, not later

than 60 days after the date of the enactment of this Act.


Indian Water Rights

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Depending on climate water can be as valuable as gold. Under certain conditions, it can be even more so valuable. Water is essential to life and crucial for regular consumption, bathing, irrigation of crops; it is truly the lifeblood of civilization.  If it was for the fertile banks of the Nile river or the rich and saturated soils of the fertile crescent (Tigris and Euphrates) rise of Egyptian and Mesopotamian empires would have never been possible. Water rights for Native Americans have in recent decades become a crucial touchpoint in the federal guardianship dynamics between the tribes and the U.S. government. While rights to water source appropriation generally fall under either riparian or appropriative conditions, how this is applied to Indian Tribes is slightly more complicated. A running motif that is common throughout American Indian Law. Despite the immense amount of complexity facing Indian water rights, considering it is a life-sustaining resource such matters must be sorted out.

Standard Water Rights For Non-Indians:

As mentioned above, water rights traditionally have fallen into one of two legally recognized categories. This includes riparian and appropriative rights to non-navigable bodies of water for consumption purposes. Riparian water rights tend to be applied in the “water abundant” regions of the United States. Particularly the Eastern seaboard of the United States.  Under riparian water rights, owning land or property that borders on a lake or a stream enables the right of the owner to “reasonable use” (p.277). The right to use is directly connected to land ownership. During times of drought the quotas for consumption among the entitled appropriators are reduced proportionately (p.227). Under the conditions of appropriative water rights, the entitlement to water utilization is not tied to ownership of surrounding lands. It is connected to whoever first can put the water to beneficial use. First come, first serve to harvest dynamic. This variety of water rights determination evolved in the western United States back when most of the land was federally owned. Mines were generally constructed far away from usable water sources meaning that transportation of potable water was costly (p.278). Resulting in the development of a first use policy to ascertain the primacy of water rights.  Meaning that “… water rights are not appurtenant to the land…” (P.278). Making precise dates of water appropriation extremely important. Older appropriators possess a greater deal of certainty in the right to utilize water from a specific source (p.278).

Law governing water rights tend to be formulated by the federal government and shaped by “local custom” (P. 279). Congress adapts legislation so that it conforms to the customs and historical practices of the region. This tends to be reflected in laws such as the Desert land  Entries Act (1877) and  43 U.S.C.A Sec. 321-25 (p.279). Appropriative have been applied to the non-navigable bodies of water in CA, OR, WA, NV, AZ, NM, ND, SD. While the framework for these laws has been formed in federal law it is generally governed by state law.  An example being California Oregon Power Co. V. Beaver Portland Cement (1935) (p. 279). How the states handle water rights varies dramatically state by state. Colorado is a 100 % appropriative system. California and Oregon are mixed systems.  The priority of use and “periods of non-use resulting in forfeiture…” of rights varies by states (p. 179).

Development of the  Winters Doctrine

The basis for tribal water rights evolved out of two cases which have resulted in the contextual rules that are now known as the Winters Doctrine. The first case that provided the foundation of this legal doctrine was Winters V. United States (1908). The Fort Belknap Reservation in Montana was created based upon an agreement. In the middle of the geographical territory of the reservation ran the Milk River.  When the land was set aside for the reservation nothing was detailed regarding water rights.  Then non-Indian settlers began building dams with was disrupting water usage on the reservation.  The Supreme Court ended up ruling that the water rights for the reservation were held by the 1888 agreement allotting to the tribe. Treating the right to water usage part and parcel with having the reservation established near a natural body of water (p. 280).

The second case further developing the scope and parameters of the Winters Doctrine came decades later in 1963. This came in the ruling of Arizona V. California (1963). The issue became the U.S. government attempted to establish water rights for tribes residing near the lower Colorado river by executive order. The court held that at the time of the establishment of these settlements water rights were established. Complaints among non-Indian settlers came about the quantity of water allotted to the natives. Citing a sparse Indian population in the “foreseeable future” (p.281). This was rejected on grounds by the SCOTUS that the reservation was “entitled to enough water to practicably irrigate every acre of the reservation” (p.281).

Conclusions of the Winters Doctrine (Winters Rights) (p.282)

“ 1.  Winters’ rights are creatures of federal law, which defines the extent.

2. Establishment of reservation by treaty, statute, or executive order implies reservation of water rights within the boundaries of tribal land.

3. The water rights are reserved as the date of creation of the applicable portion of the reservation. Competing users with prior appropriation dates under state law take precedence over the Indian rights, but those with later dates are subordinate.

4.  The quantity of water reserved for Indian use is that amount sufficient to irrigate all the practicably irrigatable acreage of the reservation.

5. Winters’ rights are not lost by non-use”.

Public Law 280- Only Making Matters Worse

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Navigating through the complex web that is American Indian Law one is bound to come across Public Law 280.  Passed in 1953 by congress, it seeks to grant state authority for matters involving Indian litigants. Effectively reducing federal involvement in such matters. However, will this was a radical shift it was not a complete relinquishment of federal intervention in tribal affairs. As it did not end empower the states with complete jurisdiction. It did not end the land trust relationship between the federal government and the tribes (p.176). The tribes also continued to retain sovereign immunity (p.176).  See California V. Quechan Tribe  (p.176). This shift in jurisdictional authority was not openly welcomed by the states. Congress granted law enforcement to the states without any appropriations to fund such efforts (p.177). The tribes were irked by the fact that state jurisdiction was extended over tribal affairs without their consent (p.177). Unquestionably making federal authorities the bootleggers of this legislative arrangement.

It is important to note that the extent to which a state possesses authority over tribal affairs has varied. The varying levels of state responsibilities have been spelled out in subsequent revisions to the law. Six states were even allotted authority over specific crimes committed by Indians on tribal land.

18 U.S.C.A  Section: 1162a: (P. 178-179).

Alaska- Criminal and civil Jurisdiction over all natives except for those belonging to the Metlakatla tribe

California- The state has been provided criminal and civil jurisdiction over all Indians.

Minnesota- Jurisdiction has been extended to the state except for members residing on the Red Lake Reservation

Nebraska-  The state has been provided criminal and civil jurisdiction over all Indians.

Oregon- Jurisdiction has been extended to the state except for members residing on the Warm Springs Reservation.

Wisconsin-  The state has been provided criminal and civil jurisdiction over all Indians.

In effect enabling the states to have the same authority to enforce the law insider the reservation as they do off of Indian land (p.179).  To prevent any legislative inconstancies Chapter VI, Sec D, Supra; of Public Law 280 includes the verbiage “.. by or against Indians..” (p.179). Handing over full law enforcement authority to the six listed states, minus any noted exceptions. Despite the overreach of state authority over tribal matters, this amendment does not clearly distinguish the role of tribal law enforcement. It is assumed that the tribes can only formulate laws that “…complement state..” (p.180). However, in regulatory areas that are not specified in Public Law 280 such as hunting/fishing rights, tribal regulations, and taxation “… the state lacks general powers…” (p.180). It is slightly reassuring to see that in the context of tribal jurisdiction that “taxation without representation” is being adhered to.

As previously mentioned, Public Law 280 also extends fully civil jurisdiction to the six states listed above.  In other words, the states have been empowered to rule on disputes involving Indians that transpire on Indian soil. This power vested in  28 U.S.C.A. Section 1360a. This amendment side-stepping the ruling in  Williams v. Lee (1959) which resulted in a ruling that the states do not hold adjudicatory power over civil matter arising in Indian country (p.181). However, under section 1360b prohibits the states from making judgments regarding Indian trust lands (p.181). Providing a relatively minor check on state power over tribal affairs.

Odds are congress could not foresee many of the challenges presented by Public Law 280 and its subsequent amendments. Providing the astute observe with a shining example of legislative hubris. One of these noteworthy and burdensome controversies is whether city or county ordinances as civil laws of the state. Questioning whether such municipal laws apply to Indian lands that fall within the town’s geographic boundaries (p.182). The ruling in Rincon Band of Mission Indians V. County of San Diego that “general applicability” extends to state laws and not local ordinances (p. 182). Only adding fuel to the fire, the Ninth Circuit Court expressed that congress “… imposing detailed local regulations upon Indians..” hinders their ability to self-govern (p.182). The Supreme Court has not directly ruled that applying local laws to the tribes is outside of the scope of Public Law 280. However, the SCOTUS has “expressed doubt” that the law enables local towns and counties to do so (p.183).

The second major conundrum conjured up by this superior piece of legislation  (sarcasm) is if the states have the right to enforce the law why wouldn’t they have the power to legislate laws applicable to the tribes? Per the language of  Public Law 280, the states have the power to decide cases, but not explicitly granted the power of legislation (p. 183). There is a portion of the law in which it could be interpreted as granting legislative power to the states.  Stating that “ … the state shall have the same force and effect within… Indian Country as it does elsewhere within the state” (p.183). The SCOTUS ended the intense debate in the ruling of Bryan v. Itasca County (1976). In this scenario, Minnesota County attempted to assess taxes on personal property that was owned by Indians on Indian soil (p. 183). It was argued that since the property being taxed was not trust lands, it was with n the power of the state to collect such taxes. However, the SCOTUS ruled the intention of the civil provisions under Public Law 280 was to enable the states to resolve disputes. However, extending this power to taxation veers outside of the intended scope of the law (p.184-185).

Public Law 280 managed to further complicate the matter of jurisdiction in Indian affairs. The law is inherently unjust, due to the lack of consent on the part of tribal and state governments.  For the applicable tribes in the six referenced states, they have lost more autonomy over governance within Indian territories. The states ended up inheriting higher law enforcement expenditures and more headaches. The matter of jurisdiction was already complex before 280 passing. It only serves to compound an already convoluted situation.  By adding additional intricacies, merely to relieve the federal government from duties that have been traditional held under its jurisdiction. Typically, federalism does appear to an attractive solution to most legal conflicts. Not so much under these circumstances.  The feds are only passing the buck on a mess they created.

If Were to Murder A Non-Indian on Tribal Land….

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Let’s say hypothetically, I am a drug dealer selling fentanyl pills. One of my customers owes me an exorbitant amount of money. I conclude that I need to make an example of this individual. I cannot perpetuate the image of being a pushover and get very far selling opioids on the black market. Beyond that, there isn’t any legal recourse for recouping my money. I don’t believe there is a claims court in the United States that would back me on this one. I need to kill my customer over this nonpayment issue. I plan to meet this gentleman, let’s call him Bob, by a desolate farm located on the Ak-Chin Reservation, just outside of Maricopa, Arizona. Bob is under the impression that we are meeting to discuss a “peaceful” resolution to our dispute over the pills. When we meet, Bob extends his right hand for a handshake. I clasp onto Bob’s right hand while concealing a switchblade in my left hand. As Bob pulls me towards him for a “pound-hug” I stab him five-times in the abdomen before he can even say “What’s up”. I then quickly vacate the scene of the crime. Leaving Bob to die. Then days later I am apprehended by the authorities.

Does the question become which law enforcement agency took me into custody? After all, the astute observer would notice this crime transpired on tribal land. As a legal matter when it comes to crimes committed in “Indian Country” the situation becomes quite convoluted. The core complexity of American Indian Law (law about the relationship between the federal government and the sovereign tribes) is the dispute over jurisdiction. However, depending on the location, the nature of the crime, and the tribal status of the persons involved will sway the needle on which law enforcement agency needs to intervene.

Determining jurisdiction for crimes committed in “Indian Country” used to be a simple matter. During the colonial period, the tribe had authority over any crimes committed within a tribal territory (p. 103). After the end of the Revolutionary War, the federal government assumed jurisdiction over crimes by non-Indians perpetrated against Indians on tribal lands. As a means of creating a “buffer” between the competing interests of the two populations (P.104). The federal authority of crimes committed in “Indian Country” was formally extended to the U.S. government through the Federal Enclaves Act. Over the years have undergone various statutory revisions (P.104). Per William C. Canby Jr. the ruling on Ex parte Crow (1881) set the precedent pattern for federal authority being extended in cases of Non-Indian on Indian crime being addressed by the U.S. government. Indian on Indian crime being handled by tribal governments (P.104). The Supreme court initiated this pattern of judicial decision making through ruling that the Enclaves Act excludes federal intervention in Indian on Indian crime.  In the Crow case, the involved parties were both of tribal affiliation and the shooting transpired on the Great Sioux Reservation. Placing jurisdiction squarely on tribal authorities.

In reaction to this ruling, congress then went on to pass the Major Crimes Act. Which extended federal authority to seven crimes even if they were committed on Indian soil (p. 105). Chief Justice Marshall’s ruling on  Worcester v Georgia set the tone for tribal jurisdiction for the next fifty years (p.108). In this case, George residents were living within the bounds of tribal land without proper permission.  Marshall struck down any action on the part of the state government noting it was outside of their legal authority. Stating on Cherokee land “… the laws of Georgia can have no force…” (p.109). This decision was held until fifty years later when the criminal jurisdiction question become muddied. While the matter of jurisdiction more clearly defined for Non-Indian on Indian crime and vice versa on tribal land, what about Non-Indian on Non-Indian crime on tribal land? Would the tribal authorities have the jurisdiction to punish the offenders?

This leads us to the 1881 case of United States V. McBratney. A case where a Non-Indian man killed another individual who did not have any tribal affiliations on the Ute Reservation in Colorado.  Surely the tribe would have authority over this crime? If not the tribe, a division of federal law enforcement due to the federal government’s guardianship of the tribal nations? The Supreme Court saw the situation in a different light. Departing from the previously established judicial conventional wisdom.  The high court ruled that federal authority could only exercise legal jurisdiction “over places where they have exclusive jurisdiction” (p.110). This unorthodox ruling was based upon the premise that Colorado was to be admitted to the Union on “… equal footing with the original states…”. Meaning that on Non-Indian on Non-Indian crime, Colorado’s laws extended throughout the boundaries of the state. This also includes the Ute Reservation (p.110). Needless to say, detractors criticized this decision because it conflicts with the precedence established in Worcester V. Georgia (p.110).

After I killed Bob, I was arrested and tried in court by the state of Arizona. Since neither Bob nor I were a member of any recognized tribes. If I was under the impression that committing the crime on the reservation would save me from state persecution, that was a foolish assumption.  However, considering the rural terrain of the reservation ,it was the prime location to dispose of a body.