Culture, Sovereignty, and the Rule of Law: Lessons from Indian Country

Abstract

In their book, The Narrow Corridor, Daron Acemoglu and James Robinson contend that prosperity requires a rule of law that threads the needle between anarchy and despotism. We emphasize that creating that rule of law is a process in which society—the citizens of a sovereign state—is in a race with the state to which it has yielded power necessary for maintaining law and order. If society gets too far ahead in the race, local power groups may oppress others; if the state takes the lead, despotism suppresses liberty. Staying within the narrow corridor is, therefore, a never-ending process of an evolving rule of law that checks state power without dismantling social structures based on customs and culture. The balance depends on the costs of monitoring agents who govern society which rise at the margin with the size of the state and the benefits of being governed which decline at the margin as the state manages more transactions of the citizens

We argue that achieving this balance was critical to Native Americans before European contact when they had rules of law that evolved from the bottom up. Since European contact, American Indians have been losing the race to the federal government. It has treated Indians as “wards” of the state, stifled tribal sovereignty, weakened tribal governance, deterred private investment, and prevented the evolution of tribal rules of law and cultures. We explain how non-Indians justified imposing top-down rules based on western concepts (e.g. allotment of land parcels to individuals and state and federal judicial systems) because they deemed tribal customs and cultures to be lawless and inefficient. Ironically, the piecemeal imposition of federal control has suppressed Indian liberties, caused abject poverty, and left jurisdictional gaps in the rule of law that have enabled disorder. We conclude that there is hope for American Indians to return to the narrow corridor by rebuilding their governance structures and regaining sovereignty.

Keywords: The Narrow Corridor, rule of law, despotism, Native Americans, American Indians, tribal sovereignty, tribal governance, private investment

JEL Classification: K1, K10, K11, K12