An Evolutionary Contractarian View of Primitive Law: The Institutions and Incentives Arising Under Customary Indian Law

The European conquest and absorption of native American Indian groups obviously produced tremendous changes in the way Indians live and interact with one another. One very important source of change in Indian life was the changes in the rules and institutions of Indian law. Few Indian groups had any sort of strong central legal authority before Europeans began to exert various types of influence on the evolution of Indian law. This does not mean that there was no law, however. Evolving unwritten social contracts among Indian groups had produced well-developed legal systems based on customary rules of conduct which emphasized individual rights and private property. Adjudication procedures were in place to solve disputes without violence. No state-like centralized authority applied sanctions, but sanctions were applied, primarily in the form of economic restitution. These sanctions were enforceable because of reciprocal arrangements between individuals for recognition of law, support of judgments, and community wide ostracism.' Such characteristics of primitive American Indian legal systems have been discovered through extensive study by anthropologists.