Bootleggers & Baptists: XXXVIII- Prop. 5 (California, 1998)- Tribal Gaming

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Proposition 5 (1998):

Most legislative proposals seeking to permit or expand state gambling have generated controversy. Proposition 5 (1998) delivered on creating a notable amount of contention in California. The referendum aimed to allow tribes to form gaming compacts with the state, allowing them to provide Class III gaming (casino-style) services to their patrons. Per the provisions laid out in the  Indian Gaming Regulatory Act (1988) (IGRA) under Sec. 2710 of the act. The more granular objectives of the proposition included:

  1. Allow tribal casinos to install or keep video-style slot machines, operate lotteries, and run card games.

2. Require the governor to approve such gambling arrangements with any tribe requesting them.

3. Require tribes with gambling operations to contribute a small percentage of their earnings to a fund benefiting statewide emergency medical care programs, communities near tribal casinos, or tribes without gaming.

4. Turn over to the tribes’ primary responsibility for overseeing the casinos. State regulation would be limited, but tribes would reimburse the state for the cost of state oversight.

https://www.sfgate.com/politics/article/STATE-PROPOSITIONS-Proposition-5-2983468.php.

The tribes had a lot to gain through the passage of Proposition 5, but in contrast, non-tribal gaming venues and adjacent industries had the potential to be big losers. This tension resulted in the Prop. 5 campaign engendering record-setting election spending in California. Per an October 1998 report, surpassing the spending on insurance reform bills in 1988, amassing a gargantuan $84 million in campaign expenditures. The rivalrous campaigning of tribal and non-tribal interest groups lays down the substrate for Bootlegger and Baptists’ (1983) coalition dynamics. The union of business and moralistic factions are most salient on the side that opposed the referendum. Since gambling is associated with crime and moral decay, attracting Baptists to act as moralizing agents is like shooting-fish-in-a-barrel. Once a curious individual dives deeper into it, the invested interests of the opposition become a web of predictable and unlikely Bootleggers begins to emerge.

The Baptists:

The most conspicuous moralistic voice in the anti-Prop 5 campaign was Stand Up for California, a grassroots political action organization with conservative leanings. Since 1996, the organization has been a vocal opponent of expanding tribal gaming. The organization even acted as a consortium of moral anti-Prop 5 arguments, publishing articles ranging from trade associations, law enforcement organizations, and even the California Council on Alcohol Problems expounding upon the ills of tribal gaming. It is even suggested (on the California voter Information Guide not by Stand Up) that environmental protection issues; resulting from tribal gaming establishments being exempt from California environmental regulations (p.23). The implication is that environmentalists would object to the measure. The 1998 Voter Guide indicates a diverse array of moralistic arguments against Prop. 5. Including but not limited to the potential for crime, violation of state labor laws, the lack of bargaining power on the part of local citizens/governments, the lack of taxation, and even arguing that the revenue gained from gambling proceeds only helps a minority of tribally affiliated Indians (p.21-23).

The Bootleggers:

The organization Stand Up reduced its political activity during this campaign to avoid cooperating with “…Nevada gambling interests…”.; demonstrating the organization’s commitment to moralistic communitarian causes. Regardless of whether they wanted an alliance with gaming interests, simply by taking a passionate position on the issue, they formed a tacit coalition. However, the relationships between the various varieties of Bootleggers are far more intricate than the networks of Baptists. It is open to debate whether some of these actors are BootleggersBaptistsDual-Role Actors, or even if they are Covert Bootlegger (p.190).

The Bootleggers with the most linear relationship to the anti-referendum campaign are those with overt ties to the gaming industry. Several in-state interest groups donated money to shutdown Prop. 5. The involvement of gaming interests in the appurtenant state of Arizona and nearby Nevada is attention-grabbing. It is easy to surmise that many of these firms feared a loss in revenue from California residents having more local casinos. One notable gaming firm that contributed to the campaign was Aztar, the now-defunct gaming and hospitality management firm previously headquartered in Phoenix, Arizona (p.3-4). The list of luminaries included donors such as Caesars Las Vegas, the Rio, and Hilton Hotels (p.4). A careful observer may find it puzzling that a construction company based out of Framingham, Massachusetts (p.4) donated to the Prop. 5 counter-campaign. That is because the Perini Building Company built many of the famous casinos in Las Vegas, including Luxor and the northern expansion of Caesars Palace (p.5).

Another group backing the opposition was the labor unions. Many readers may question what organized labor would have to gain through blocking tribal gaming? The unions had two main objectives in the opposition campaign. First, the unions operated under the political action organization COPE (Los Angeles County Council on Public Education) since “…Indian casinos are not required to apply the National Labor Relations Act guidelines as other private employers are..” (p.24). The second reason why the tribes created such a powerful enemy was by the fact that “… many tribes refused to bargain with unions…” (p.24). Keeping in mind the doctrine of tribal sovereignty, they were well within their rights to refuse such negotiations; but they engendered a Prisoner’s Dilemma. Through working against the unions, the tribes incentivized organized labor to defect by working against their interest in an uncharacteristic (p.24) amount of activism devoted to defeating a tribal gaming bill.

Conclusion:

Despite the best effects of the opposition campaign, Prop. 5 still passed in November 1998. The measure achieved victory by winning 62.38% of the vote, leaving the opposition at 37.62%. This demonstrates that even calculated and strategic counter-campaigns cannot assure success in the political arena. It also should be noted that the tribes did overall spend more on Prop. 5 advocacy than their opponents did refute it. While it is shrewd to avoid any social justice justifications for permitting tribal gaming, but for many tribes, it is crucial for their economic development. Native Americans, as of 2020, have the highest rates of poverty among any ethnic group living within the United States. Loosening regulations constraining tribal gaming is a tenable solution to help improve the economic circumstances of native peoples. Versus relying on handouts or ill-fate government programs that could only exacerbate their current economic struggles, we are allowing indigenous people to help themselves by getting out of their way. It is also worth noting that tribal casinos are not “for-profit” in the traditional sense. They might not overtly operate as charities. The casinos are “state-owned” since the establishments are owned by the tribal government. The proceeds function like tax revenue, funding infrastructure, programs, and other tribal initiatives (p.2).

Bootleggers & Baptists: XVI: Terrorism and Prediction Markets

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The program was derided by Democrats and Republicans in Congress, some of whom called it “bizarre,” “unbelievably stupid” and “offensive.” Rumsfeld himself said he canceled the program “an hour after I read about it.” ( Wired ,July 2003)

Commonly, government programs engender partisanship and opportunism. Political actors are more successful to capitalize on such initiatives are controversial. This effect is only magnified when the program is headed by a polarizing figure. One prevalent example of this was DARPA (Defense Advanced Research Projects Agency) used Prediction Markets to gather intelligence on future geopolitical events. Once more contentious questions such as terrorist attacks and assassination attempts ended up being addressed, the program began to be publicly criticized.

 PAM (Policy Analysis Market) implemented by the Information Awareness Office, a counter-terrorism project ran by DARPA. PAM operated like a future exchanges market for predicting the likelihood of geopolitical events. Including but not limited to terrorist attacks. At various phases of the program, participants (consultation firms, colleges, think tanks) were provided a sum of money to “wager” on the likelihood of certain political events happening (p.77). Those with accurate answers were awarded a larger sum of money.

Figure 1

E.g.) Phase I: Participants were provided $100,000 by the IAO to wager and awarded $750,000 for accurate predictions (p.77).

Mirroring the model used in both past and future prediction markets. Dating back to Robin Hanson first pioneering prediction markets while consulting on project Xanadu in the late-1980s, these markets have always been an incentive-driven phenomenon. It is one thing to claim certainty, but it is another to be willing to die on that hill. Especially when money is on the line. Effectively aligning incentives towards accuracy and rigorous research versus armchair speculation. The objective being the firm, organization, or government department hosting the market with aggregate a large cache of quality information (p.76).In the field of counter-terrorism having averaging consensus from a variety of sources is crucial to avoid engaging the wrong target. Such mistakes will incur costs much greater than monetary losses.

As groundbreaking and innovative as PAM was invariably the program garnered some criticism that eventually devolved into outright censure. Academics and bureaucrats “betting” on the aptitude of terrorist activities and political revolts transpiring may be unsettling from a prima facie standpoint. Particularly if taken at face value with no further analysis. Arguably the criticism of PAM intensified due to the IAO’s controversial director, John Poindexter. Poindexter rose to infamy from his involvement in the Iran-Contra scandal of the Regan administration. Even though all of the insiders of the project acknowledged that Poindexter had little involvement in PAM (P. 6, footnote 7), most of the backlash was directed at him. The fury of pundits, media outlets, and the general public caused Poindexter to resign in the summer of 2003. Leaving the PAM project permanently defunct.

The advocacy and opposition to the implementation of PAM as a means of aggregating intelligence on sensitive matters is no doubt a complex maze of ethical and pragmatic arguments. The use of prediction markets for gathering information for defense planning is just like another government policy, the impact is not neutral. Meaning that keeping or eliminating the program will create disparate consequences. Typically favoring one subset of economic agents over another. Individuals will bear the “expected costs (p.38) imposed by the impact of the policy. For example, a government program may create jobs for individuals that are politically connected. However, this is generally at the expense of the taxpayer. Vice versa, abolishing a program will eliminate jobs for the clerks and managers operating the department. The impact of policy always affects some individuals positively and others negatively. All political policies involve the transfer of benefits from one party to another.

Considering the non-neutral nature of policy, it would be justifiable to apply Bruce Yandle’s concept of Bootleggers and Baptists to the political pressure to abandon the PAM program. Yes, there were some ethical concerns regarding the prospect of having people “wager” on terrorist attacks. It would be naïve to believe that all the opprobrium was motivated by morality. Much how skilled consultants can profit from participating in a Prediction Market, many actors can also do so by dismantling such a program. Beneficiaries ranging from media outlets to opportunistic politicians. The political opportunism was multilayered including enemies of the Bush administration, the Republican Party, and even direct adversaries of John Poindexter. Proving an opportunity for democrats to temporarily shed their anti-patriotic veneer, to admonish these “conservatives” for making light of national security threats. Yet, the credulous public seldomly questions this moral browbeating. On the surface, these criticisms sound valid. Since when have politicians previously disinterested in national security matters are suddenly deeply invested in the integrity of defense intelligence? As Machiavelli pointed out in The Prince appearances are more important than actual principles in politics (p.42).

The Baptists

It is exceedingly difficult to designate one side of the coalition as a pure Baptist in the public outrage campaign surrounding PAM. The self-interest of the media, politicians, resident experts within the government is glaringly obvious. The potential for Dual-Role Actors (economic agents that benefit materially, but simultaneously sincerely believe the moral argument) in this coalition dynamic exists. However, is muddied by the perverse incentives to use strawman, ad hominem, and other logical fallacies to denigrate the program. The adversaries of PAM had a lot to gain through defaming the program. Not a whole lot of utility to extract from testing the validity of the results. Since the average constituent is not going to care too much about the granular details of the program. Rather be fixated on their visceral reaction to the ethical considerations of “betting” terrorist attacks.

Regardless, of whether moral advocacy is misguided or ill-informed, nevertheless, it is still a normative position. The average citizen happens to be the proverbial Baptist in this coalition dynamic. Any expression of disgust or moral indignation was sincere with little to no observable benefit from ending the program (dispersed costs, concentrated benefits). Even if the public’s concern was stoked by the slanted framing of the program, it still does not lessen make their concerns any less earnest. In the absence of further context, a group of contractors and academics participating in a gambling pool predicting terrorist attacks does sound grotesque. Since gambling is considered a form of entertainment appears to trivialize the severity of contentious situations that could result in the loss of lives. For the honest concern for these moral considerations, the average voter is our Baptist.

One great irony was that one of the academics deeply involved in the project narrowed down the reasonable ethical concerns in a peer-reviewed paper years after PAM had been dismantled. It was none other than prediction markets pioneer Robin Hanson. Hanson citing the following as prevalent concerns of the program:

  • “…The first concern expressed—that of replacing professionals with amateurs..” (p.82)
  • “…The second fear expressed was that bad guys would be willing to make losing

trades to mislead us..” (p.82).

  • “..The third main fear expressed was that bad guys might be rewarded for doing bad things..” (p.83). E.g.) Al-Qaeda’s meddling with airline stocks in the 9/11 attacks.

Hanson tactfully addresses all these concerns explaining how much of these concerns are the result of misconception. Like how the media coverage of the program generated several misconceptions regarding the function and purpose of PAM.

The Bootleggers

Several various individuals and groups stand to benefit from a sensationalized portrayal of the PAM program. One of the more salient examples would be the media. Media outlets are a business much like another, the incentive is to maximize profits. Logically this premise is cogent to anyone with even a small amount of exposure to economics. This controversy emerged in the primordial era of social media (Myspace being founded in 2003). The internet did exist but did not present any true competition to televised and print news media. For media outlets to have a story as jarring as the government funding a macabre gambling bracket trivializing serious events, instant goldmine. That is the type of story that sells publications. It has all the elements of a good conspiratorial techno-thriller. One only needs to consider the success of Tom Clancy to know how stories of geopolitical/government intrigue are lucrative. It could be argued that the media is merely the messenger, if they happen to profit from the event, it is a natural consequence of the event. How the information is presented and sways public opinion. If news reports are worded in a manner that is hostile towards the program, this will influence public opinion. Creating a feedback loop, inciting the ire of the Baptists while concurrently profiting. This would be an excellent example of the Bootleggers tacitly inciting the indignation of the Baptists.

Another subset of Bootleggers would be the politicians who spoke out against PAM. A book could be written about the political motives guiding the strategy condemnation of the program by various politicians. As previously mentioned, the layers of political opposition operate on a continuum of scale. Varying from individual grudges, contention between political factions, and even opposition to the sitting president at the time (George W. Bush). Despite the complexities of various political considerations, speaking out publicly about a controversial government program fosters a positive public image. Especially for politicians who were affiliated with the Democratic party. During the Bush administration, Democrats were perceived as being soft on terrorism. At a time where terrorism was a hot-button issue, speaking out against counter-terrorism measures was tantamount to political suicide. The whole PAM debacle presented an opportunity for a clean slate. An opportunity to capitalize on a misstep made by the Bush administration and to feed into the fears of the public. Paralleling the Bootlegger –Baptist feedback mechanism generated by the media. See below for a shining example of such sanctimonious posturing:

For instance,” Mr. Wyden said, ”you may think early on that Prime Minister X is going to be assassinated. So you buy the futures contracts for 5 cents each. As more people begin to think the person’s going to be assassinated, the cost of the contract could go up, to 50 cents.

‘The payoff, if he’s assassinated, is $1 per future. So if it comes to pass, and those who bought at 5 cents make 95 cents. Those who bought at 50 cents make 50 cents.’ (Senator Ron Wyden (D), NYT July 2003).

Voluntary Violence

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The non-aggression principle has been considered the pillar of the philosophical underpinnings of libertarianism.  In a nutshell, the non-aggression principle forbids us from imposing undue harm upon another. Whether it be through violent action or misappropriation of their property. However, under these philosophical precepts, violent action is only justified if it is for self-defense. The non-aggression principle does not mention anything overtly about voluntary violence. If two adults of sound mind get into a fistfight, clearly articulate the terms of the skirmish, and do not withdraw consent at any point how could this be illegitimate? Both parties agree to these terms and neither choose to abruptly end the confrontation. If we rigidly apply the NAP would a consensual fight violate its terms?  In a narrow sense, we already have voluntary violence in American society. Anyone who willingly participates in combat sports such as mixed-martial arts engages in consensual acts of violence. To a lesser and more oblique manner, anyone who has participated in sadomasochistic sexual acts has also consented to engage in violent acts.  If consent is the operative contingency that separates charity from theft and intercourse from rape, then why couldn’t it be applied in more novel applications?

For example, why does law enforcement need to be immediately notified of a brawl in the parking lot of a bar? Often, bystanders not affiliated with the bar nor patron will automatically resort to calling the police. Even though they are merely witnessing the fight from across the street. If the bar owner and the two patrons fighting are all okay with the arrangement, then it would be transgressive to call the police. While a bare-knuckles brawl in a bar parking lot is tantamount to how Neanderthal would solve a dispute, if it isn’t harming anyone else then it isn’t a problem. Unless a bystander happens to get hit by accident. Then the prospect of ligation rears its ugly head. Although both quarreling patrons may consent to the fight, they may still sue the bar owner in the event of sustaining serious injuries. This can be remedied by having the customers wishing to fight on the premise to sign a waiver absolving the bar owner of any responsibility for personal injuries sustained. This perspective may be unorthodox as conventional wisdom suggests we should alert the authorities regardless of whether the two men consent to the conditions of the fight or not.

Another form of voluntary violence that has become viewed as a barbaric anachronism is the old institution of “trial by combat”. This may seem antithetical to our modern convention of evidence-based innocence. In the honor-based culture of medieval Europe, such as test was viewed as being completely valid. Why not? We sentence murders to death in our current legal system, so what if we were to have an accused murder fight for their life? The suspect, the court, and the family of the victim would all have to agree to this arrangement. They would also have to be unanimous agreement also in the parameters of the trial. The weapons that could be used, what are the rules of engagement, the conditions under which the suspect would be exonerated in the event of a victory. If the suspect is guilty and an inept fighter then it is analogous to being executed.  But if the suspect is innocent but is killed in the trial, then it would be something of an injustice. However, it would be an injustice he fully consented to. The private law court in which he provided this option as a form of the trial made him sign a document. This document detailed all the potential hazards of this form of legal trial and required him to acknowledge the risks. Once he signed on the dotted line he transferred his right to an evidence-based trial (the common form of trials in liberal democracies) away to the court.  

The other old-fashioned form of voluntary violence is the practice of dueling. Considering we as a society have “evolved” beyond handling disputes in such a manner (why would you when you can launch a tactical drone strike) this method of conflict resolution seems primitive. Again, if the participants provide mutual consent and do not at any point withdraw that consent. Part of that consent requires agreement on the parameters of this engagement.  What kind of weapons should be used, how many paces before commencing the attack, will the victor be responsible for the medical bills of the loser (providing he survives), is this a fight to the death or merely the first contact? All of this rule formulation is a crucial component of establishing consent. Violating any of these informal rules would be equal to transgressing against the other party involved in the duel. Making the rules transparent and to adhere to them is paramount in establishing the legitimacy of the duel. Another part of keeping this arrangement legitimate would be to manage it in such a manner that would limit spillover effects. A prime example of this would be a spectator or bystander getting hit by a stray bullet. If this were to happen the duelers would be held liable for damages.  Such externalities could be limited by the choice of weaponry or even tapping off a safe perimeter in the surrounding areas where the duel is planned to take place.  Another alternative would be to allow spectators to observe the duel near the action. The audience members would in turn relinquish their right to not be subjected to violence. Essentially selling this right for up-close and personal entertainment. They relinquish this right by signing a waiver saying they acknowledge the risks and will not sue for damage if on the off-chance they are injured.

Privatizing The Police Could Help The Poor

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Among the common arguments against privatizing policing services, one common repudiation is that it would leave the poor under-protected. A security and protection service based on direct billing or a subscription service would exclude individuals of meager means. Raising concerns that a two-tiered system of justice would arise (Benson,1990, p.309)[1]. Under a publicly funded criminal justice system, a “two-tiered” system already exists. Historically, poor neighborhoods have been either under policed or provide an inferior quality of policing services. After years of receiving a low-quality service, the natural consequence is that the residents of these lower-income communities will grow to distrust the police. Justifying the provision of state policing services does not stand up to closer scrutiny. If anything suffers from many of the market failures that critics theoretically attribute to a privatized system.

Many of the over warmed arguments that a for-profit system only stands to skew incentives. The assumption being that firms will desire to keep the costs of production down to increase profits. This notion conjures images of the inadequately trained, middle-aged, and overweight mall security guards making just over minimum wage(Benson, 1990, p.301) [2]. However, few people realize that in light of the growth of the private security industry over the years specialization has created a diverse continuum of security services. Even over thirty years ago there was a vast range of salaries in the field of private security. Some agents even earning $100,000 annual at managerial positions (Benson, 1990, p. 303) [3]. Different types of security would require various levels of credentials and training. Meaning that to a certain degree that a private security detail with armed guards and the security agent at the local mall provides two distinctly different services. Hence, the differential in compensation. It would also be overkill to put the highly trained and combat seasoned armed guard in the security detail for a mall. As the mall has invested in a multi-million dollar security system and cameras (Benson, 1990, p.302) [4]. Reducing the need for such high caliber human capital. If anything does not demonstrate underinvestment in security services, but a high degree of investment in technology. Having a state-of-the-art security system and an experienced arm guard would be enough more than a misallocation of resources. In other words, the firm would be wasting money. Especially when the aptitude of an armed robbery is much lower in a strip mall when compared to a bank.

State-funded policing services are insensitive to the profit-loss mechanism, misaligning the incentives of operations away from efficiency. From a public choice standpoint, the institutional incentives for policing services have been profoundly perverted. Government-funded departments are constantly in competition with other adjacent bureaus for budgetary allocations. Creating the need to demonstrate a demand for the services provided by the agency (Benson, 1990, p. 94-95) [5]. Those in law enforcement keep the demand for their services high through advocating and influencing policy (Benson, 1990, p.109) [6]. Police unions operate as muscular lobbying organizations. For example, police unions funding anti-marijuana campaigns to thwart legalization attempts. Why? Because keeping the sale and consumption of cannabis criminalized (one of the most commonly used illegal drugs) will help solidify job security. Budgets are determined based on need. The publicly funded police respond to crime on a first-come first-service basis leaving many incidences of crime unaddressed until it is too late (Benson, 1990, p.137) [7]. This method while not wholly intentional does help facilitate larger budgets towards various local policing bureaus. A more reactive approach towards crime versus a preventive approach tends to reward the local agency. This is because budgets are predicated on crime statistics (Benson. 1990) [8]. All of these concerns make it kind of ironic that there is so much distrust of private enterprise in handling policing. The claims that private firms will cut corners and “fabricate” offenses to increase profits (Benson, 1990, p.303) [9], when much of this behavior seems to model what is done by state police agencies.

The postulation that a for-profit policing system would benefit the rich, does not take into account that the poor take on most of the costs of the current system. It goes beyond just the misaligned incentives of the public police agencies. A woman living below the poverty line is significantly more likely to be raped (Benson, 1990, p.310) [10]. While this fact may not prove causation is qualitatively indicative of a lack of protection under the current system. Due to higher tax rates in affluent neighborhoods, there are more resources for patrols and crime investigations (Benson, 1990, p.309) [11]. Demonstrating a disparity between the quality of service between poor citizens and rich ones. In a private arrangement, the state would not hold a monopoly on the production and policing services. Allowing less affluent citizens the ability to form their firms and organizations to provide policing for their community (Benson, 1990, p.308-309) [12]. If firms do not provide affordable services the economically disadvantaged can form their institutions. Something that would not be an option for government-provided policing due to political opposition. A prime example of this was measures taken against the Black Panthers’ neighborhood patrols back in the 1960s.

Many pundits could respond by mentioning the difficulty for disaffected communities lacks the organization to form their institutions. However, if we truly treat policing and law enforcement services as a purchasable commodity this collective action problem may soon dissipate. Charitable foundations can be formed to provide communities or individuals with free private security and protection services. Security services can also be gifted on an individual basis through gift cards for private security services. The idea of transferring security services to another person either as a gift or through charity was influenced by an adjacent concept practice in medieval Iceland. In this medieval society like most during the “dark ages” there was no central government. Most adjudication took place within the context of customary law. Meaning that most infractions were resolved through restitution, mimicking modern-day Tort law. If a poor man could not afford to pay his restitution for an offense, a wealthy member of the community could pay it on his behalf. Treating this obligation as a transferrable right (Benson, 1990, p.307) [13]. If historically, the obligation to pay restitution can be transferrable, why cannot policing services also be transferrable? Beyond being able to give such services charitably or as a gift, couldn’t individuals also sell, less, or otherwise transfer unused services? We could even set up private voucher programs for poor communities to receive funds to patronize any security firm of their choosing. All of these possibilities from a prima facie standpoint, appear to be better than the present system.

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].

Citations

  1. GALBRAITH, CRAIG S., RODRIGUEZ, CARLOS L., STILES, CURT H. EDITED BY ANDERSON, TERRY L., BENSON, BRUCE L.,  FLANAGAN, THOMAS G. Self-Determination THE OTHER PATH FOR NATIVE AMERICANS (2006). STANFORD UNIVERSITY PRESS. Page 19.
  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).

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.