Good Fences Make
by Alexander Volokh
unpublished, June 1998
The following parable was inspired by an exchange on the RESECON (resource
economists) listserv . On May 29, 1998, Edsel L. Beja Jr. of the Department of
Economics, Ateneo de Manila University, the Philippines, wrote:
Here's a question. Suppose there are indigenous people living in a certain area. They have been living
there since time immemorial. It is their ancestral domain. Although it is ancestral domain, the
government does not recognize that indigenous people own the land (as private property). Moreover, they
live in areas classified as public domain. They are now being threatened by outsiders, say loggers or
miners. Now let us also suppose that they (indigenous peoples) are being driven out forcefully
(threatened, etc.) by the outsiders. The outsiders have permits or license from government to conduct
operation in the area while indigenous peoples have only their "claims" to the land. And suppose an
armed conflict arises as a result. Lives are lost; property destroyed. Can indigenous people invoke
Another participant, Mike Travis, an economist at NOAA, argued on June 2:
1) What do you mean by "time immemorial"? How far back in history do you intend to go and must the
"ownership" be documented in a written fashion? Moreover, what if there are conflicting histories as to
who settled the land and when? As time goes by, we find out that once held beliefs on such matters are
in fact wrong.
2) Given the beliefs of most "indigenous" groups, particularly those
of a tribal nature, the idea of private property for anyone, including
themselves, would be a foreign concept. Well, except in a few
instances where chiefs were granted exclusive rights to the harvest in
particular waters or lands. But even then, I'm still not sure this
implied "ownership" as we commonly think of it.
On June 4, 1998, I wrote:
[. . .] I suspect the
concept [of private property] would be foreign to [these indigenous peoples] not because they could never
accept it, but because they had just never lived in circumstances that required such
a right to be made explicit. I imagine a possible historical conversation
between an Indian and an enlightened colonist (one who really was
interested to find out what the indigenous peoples would have chosen if
they were aware of all the consequences) going something like this:
Good Fences Make
COLONIST: So, you guys occupy this land, huh.
COLONIST: So it's your property, right?
COLONIST: I don't get it.
INDIAN: We don't understand this "property." It is a foreign concept to us.
COLONIST: So would you take, like, beads for it?
INDIAN: No, you don't understand. We don't actually own the place.
COLONIST: So you mean this place is communally held?
INDIAN: You betcha.
COLONIST: Now you realize you have a moral right to claim this property
as your own, since no one else has and you've been, like, occupying the
place, you know?
INDIAN: You grate on me, colonist, with this foreign concept of yours.
COLONIST: So can we claim this property?
INDIAN: [Looks irritated. Crosses his arms, taps his foot.] O.K.,
Pilgrim, explain to me this "property."
COLONIST: Oh, well, see, property, hmmm.... [Scratches head.] See it's
not a thing, it's really a set of rights.... It's kind of like a bundle
of sticks, see.... [Sees that his explanation does not carry much water
with INDIAN.] Like it means that you get to develop the land and build
INDIAN: That doesn't interest us, we've got no-growth zoning here.
COLONIST: Well, you get to kill the animals --
INDIAN: We do that already. That's what the commons is like.
COLONIST: Well, supposing you start running out of animals, then, you
know, the Tragedy of the Commons --
INDIAN: Do you see an animal shortage around here?
COLONIST: Well, but maybe one day, you'll realize that you guys are
imposing externalities on each other and you'll find that it's worth
setting up an institutional structure that makes you internalize those
INDIAN: Maybe one day. Transaction costs for that are too high right now.
COLONIST: O.K., well, also, asserting a property right lets you exclude
INDIAN: Why would we want to do that?
COLONIST: Well, didn't you fight some war against the Winnebagos a few
INDIAN: Well, yeah, but they wanted to use our hunting grounds.
INDIAN: But that's not asserting a property right. We don't have any
higher adjudicative authority to sort this stuff out, we just go at it
COLONIST: But don't you know your life is nasty, brutish, and short that
INDIAN: No, but you see, you just can't own stuff. It's just, you know,
not done. [Sings from "Colors of the Wind" from Pocahontas:]
You think you own whatever land you land on,
The earth is just a dead thing you can claim,
But I know every rock and tree and creature
Has a life, has a spirit, has a name.
COLONIST: But rocks and trees and creatures have neither votes nor
standing. So asserting your property right would allow you to protect
INDIAN: Um, whom would that be from?
COLONIST: Well, suppose you don't assert any property right here. So we
colonists, who aren't so savvy in figuring out rough cultural equivalents
of economic concepts among people who don't use our language, are just
going to assume that you don't feel you have a claim here, and we're
going to move in on your hunting grounds and build houses and schools and
skyscrapers and nuclear power plants. Oh yes, and then we'll start
shooting you, 'cause, like, we'll feel you're interfering with our
INDIAN: You guys would do that?
COLONIST: You betcha.
INDIAN: Well, what if when that happens, we say that because we've
occupied this place since time immemorial --
COLONIST: You have not occupied this place since time immemorial --
INDIAN: [Glares at COLONIST.] Well, longer than you guys, O.K.?
INDIAN: So what if we say that because we've occupied this place since
time immemorial, we're actually acting in environmental self-defense by
COLONIST: Somehow I don't think that argument would fly. See, even if the
land is improperly acquired, the people who are actually getting the
government permits to build things aren't at fault themselves, since it's
their ancestors that took your land. And plus, lots of folks are going to
claim that because property is a foreign concept among you, you had no
valid claim in the first place.
INDIAN: Hmmm, I'm starting to think I might want to exclude you guys.
COLONIST: I thought you might. See, the desire to exclude is never a
INDIAN: But doesn't the desire to exclude sound so selfish?
COLONIST: Well, it all depends whom you're excluding. If you're
excluding, say, us, then, given the historical record --
INDIAN: What historical record?
COLONIST: The future historical record. Trust me on this.
COLONIST: So if you're excluding us, I'd call that a simple matter of
INDIAN: O.K., that sounds fair enough. [Pause.] You're sure I'm not
going to like you?
INDIAN: But look, see, I don't actually personally control any of this land
here. My tribe does that.
COLONIST: Heck, doesn't anyone own anything around here?
INDIAN: Well, except in a few instances where chiefs are granted
exclusive rights to the harvest in particular waters or land. But I'm
not sure this implies "ownership" as you commonly think of it.
COLONIST: Well, but your tribe owns stuff collectively, doesn't it?
INDIAN: Remind me what "owns" means.
COLONIST: "Has the right to make decisions regarding the use of."
INDIAN: Yes, sir.
COLONIST: O.K., so why don't you set up the tribe as this corporation
that owns the land, and you guys can all be stockholders and set up
voting and decisionmaking processes that mirror the ones that have
historically held sway in your culture.
INDIAN: We can do that?
COLONIST: Hey, if it's your property, you make the rules.
INDIAN: Well, now, we move around quite a bit here. What if we only
occupy this area for a season and then go south for the winter?
COLONIST: Well, I guess you could claim this area as your property during
certain times of the year.
INDIAN: That could get kind of hairy.
COLONIST: Yeah, maybe. Well, hey, you're the only ones around here --
INDIAN: Well, this other tribe has a competing legend about why it should
occupy this area, but we won't really talk about that right now.
COLONIST: Good plan. So why don't you just claim all the areas you
occupy as your property -- assuming no other tribe has a competing claim,
and we'll let you guys duke it out among yourselves -- and then we'll
have to buy or lease it from you?
INDIAN: Hey, we would be really powerful then.
COLONIST: Well, maybe now isn't the right time for me to mention that
lots of Westerners don't actually follow this ideal of contract and rule
of law. Especially when they have more guns than you do.
INDIAN: Hmmm, yeah, let's not think about that right now.
A short pause.
COLONIST: So you guys own this place, huh.
INDIAN: Yes sirree, Bob.
COLONIST: So could we like buy it off you for these beads?
INDIAN: Uh, well, I'll have to run that by my... uh, board, yeah.
Somehow I don't know whether they'll go for the beads. We'll get back to
you with a counteroffer.
COLONIST: See, private property is possible without destroying
INDIAN: Hey, maybe this Western rule of law and private property stuff is
the best way of harmonizing competing claims on the use of resources.
Now that you guys are going to be coming over in droves, I think we'll
have more conflicting claims on who gets to use what.
COLONIST: Hey, it's the fundamental economic problem, man.
INDIAN: Say, are you guys going to build restaurants too?
COLONIST: Yeah, but you're going to need a reservation.
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