By Bruce L. Benson
The centralized legal systems of modern Indian reservations contrast sharply with Indian legal systems that prevailed before the arrival of Europeans in North America. Indian law evolved spontaneously in response to the demands for rules and justice by members of small groups. It was customary as opposed to authoritarian1. That is, it was accepted not because it was backed by some powerful individual or group but because each individual recognized the benefits of behaving in accordance with other individuals’ expectations.
As E. Adamson Hoebel, who is responsible for some of the most important anthropological studies of American Indian law (and whose work is cited several times in this article), explained, community groups were “autonomous and politically independent. There is no tribal state. Leadership resides in family or local group headmen who have little coercive authority and are hence lacking in both the means to exploit and the means to judge" (1954, 294).
The nineteenth-century Comanche illustrate the decentralized nature of traditional Indian culture. By then, tremendous changes had already occurred in the life of the Plains Indians as a result of the movement of Europeans into America (Hoebel 1954, 126–27). Before the arrival of the Spanish, for instance, the Plains Indians were largely river bound and rarely traveled over the plains. But the introduction of horses by the Spanish allowed the Plains Indians to significantly expand their hunting territories and led them to modify their legal institutions. Further pressure for change resulted from British and French settlement that displaced many of the Eastern woodland Indians.
In the sixteenth century the Comanche were part of the Shoshonean group of tribes occupying the headwaters of the Missouri and Yellowstone rivers. They were not warlike (Hoebel 1954, 129) and they had no tribal organization. They lived in isolated family bands that were economically self-sufficient. By the eighteenth century the Comanche had split from the rest of the Shoshoneans and invaded the Southern Plains.
CHANGES FOR THE COMANCHE
This was only part of a tremendous change in the Comanche way of life that followed their acquisition of horses. Their numbers grew, and they became very militant as they strove to acquire new hunting territory and then defend their claims. They also raided in order to obtain wealth from other Indians and from the advancing Euro-Americans. Military prowess became a source of considerable pride and prestige for the individual Comanche.
Still, the Comanche of the nineteenth century had no political unit that could be called a tribe. The population was distributed among a large number of loosely organized, autonomous bands with no formal organizations for warfare. “War chiefs” were outstanding ï¬ghters with long records of accomplishments against enemies. Anyone was free to organize a war party if he could convince others to follow him, but such individuals had leadership roles only when others voluntarily followed, and only for the period of the raid (Hoebel 1954, 132). They had no authority in internal tribal matters such as law.
There were also band headmen or “peace chiefs,” but they too had no formal authority. They were typically well-respected wise men of the band who made certain routine decisions regarding the day-to-day operation of the band, such as when and where to move the camp. However, as Hoebel observes, “Anyone who did not like his decision simply ignored it” (Hoebel 1954, 132). A respected peace chief might have influence in important decisions of the band but he had no special authority in such decisions.
Despite the lack of formal legal authorities, there was a clear, widely held set of rules of conduct reflecting individual rights to private property. Indeed, among the Comanche, “the individual is supreme in all things,” wrote Hoebel (1954, 131). It is true that the Comanche, like other Plains Indians, did not recognize private land holdings. But property rights develop only after the benefits of doing so outweigh the costs (Demsetz 1967). The nomadic hunting and gathering lifestyle of the Plains Indians, particularly after the introduction of horses, meant that rights to specific tracts of land were worth little. Furthermore, land was still so abundant that individual property rights were largely unnecessary.
For other resources, however, private property rights did evolve. Private ownership was firmly established for such things as horses, tools for hunting and gathering, food, weapons, materials used in the construction of mobile shelters, clothing, and various kinds of body ornaments that were used for religious ceremonies and other activities.
Cooperative production (such as group raids to take horses from enemy tribes or group hunts) did not imply communal ownership. The product of such cooperative activities was divided among participants according to their contributed effort. Individuals might share such things as food at times, but they did so out of generosity.
As with other Indians, respect for the rules regarding individual rights was encouraged by the threat of ostracism. In fact, among the Comanche, ostracism was not just directed at offenders. A male who suffered a legal wrong had to take action against the offender or face social disgrace as a coward. For example, adultery and the taking of another’s wife were considered direct attacks against the husband. The aggrieved could either confront the accused directly and publicly by stating the offense and demanding what he considered appropriate compensation for damages, or he could send a representative to prosecute the claim, perhaps implying the matter was not worth his personal attention. If the accused offender was a powerful warrior the accuser could also form a group to prosecute.
If an individual lacked self-confidence or status to gather a prosecuting group, Comanche legal procedure allowed for two options. The plaintiff could ask a war chief—or “champion-at-law” —to act for him, and if this warrior agreed, he would then be obliged to see the process through to the end. Or second, an old woman could be sent to prosecute, “hoping through presenting his cause pitiably to touch the compassion of the offnder and so gain larger damages than he himself would dare demand” (Hoebel 1967, 191).
Once the charges were made, the next step was bargaining. Rules of “judicial” procedure were followed, but evidence and witnesses were seldom presented. The accuser was expected to ascertain guilt before confronting the offender, so no evidence was necessary. Of course, guilt could be denied, but such denial “was so uncommon that there are not cases enough to draw sound conclusions,” wrote Hoebel (1967, 192).
The defendant typically recognized that he would have to pay restitution when he committed an offense (Hoebel 1954, 134), because Comanche rules of obligation were well known. He hoped to use the adjudication process to keep the payment light, whereas the plaintiff hoped for a large payment. Cases could only be settled by mutual agreement reached through bargaining. Previous legal decisions might serve as a guide, and in this respect Comanche law was case law (Hoebel 1954, 135).
If the bargaining process broke down, the parties had the right to use or threaten to use force. This did not result in individual “might makes right,” however, because a plaintiff need not prosecute his claim by himself. If an offended individual was not conï¬dent of his strength, he could gather his relatives (particularly his brothers) and perhaps other friends to aid him in seeking compensation, as noted above. Friends and relatives were willing to provide support because they might need the plaintiff ’s support in some future dispute or other joint venture. This did not degenerate into violence, with the offender building his own support group, because Comanche law did not extend to the offender the privilege of putting a group together (Hoebel 1967, 196).
This over-balancing in favor of the injured party did not result in unduly high restitution, mainly because plaintiffs had to share their compensation with their support group. Moreover, group participants’ claims to shares of the compensation took precedent over the plaintiff’s claim, providing another incentive for the plaintiff to limit his show of force. In addition, a large show of force meant that the plaintiff lost considerable prestige within the band.
Those injured parties whose status was so low that they could not gather a support group could still rely on the “champion-at-law” (Hoebel 1967, 198). This institution was purely a social device. There were no payments to convince a warrior to act as a champion, and he did not receive a share of the compensation paid by the offender. But any warrior who refused to do so was considered to be afraid of the defendant. The champion-at-law was not an arbitrator or even a mediator. He served to represent a damage claim in the bargaining process and, if need be, in physical combat.
This and other procedures developed by the Comanche were clearly designed to generate a bargained settlement rather than violent confrontation. Given the primitive, warlike nature of nineteenth-century Comanche society with respect to other social groups, whether Indian or white, their laws and legal institutions represent a remarkably efficient, violence-free system of internal order.
Benson, Bruce L. 1990 The Enterprise of Law: Justice without the State. San Francisco: Pacific Research Institute for Public Policy.
———. 1991. An Evolutionary Contractarian View of Primitive Law: The Institutions and Incentives Arising under Customary Indian Law. Review of Austrian Economics 5: 65–85.
Demsetz, Harold. 1967. Toward a Theory of Property Rights. American Economic Review 57. 347–59.
Hoebel, E. Adamson. 1954. The Law of Primitive Man. Cambridge, MA: Harvard University Press.
———. 1967. Law-Ways of the Comanche Indians. In Law and Warfare, ed. Paul Bohannan. Garden City, NY: Natural History Press, 183–204.
1. See Benson (1990, 1991) for detailed theoretical explanations of the development of customary law and cooperative institutions for law enforcement and adjudication.
BRUCE BENSON, a PERC Julian Simon fellow in 2004, has written widely on non-governmental systems of law, including The Enterprise of Law: Justice without the State. Benson is the DeVoe Moore Distinguished Research Professor at Florida State University. This essay is adapted from “Customary Indian Law: Two Case Studies,” in Property Rights and Indian Economics, Terry L. Anderson, ed., Rowman & Littleï¬eld, 1992.