Westerns and Property Rights

Article excerpt

Several new westerns opened at the box office last fall, including Kevin Costner's Open Range, costarring Robert Duvall. The story was a familiar one, with a twist: Costner's Charlie Waite and Duvall's "Boss" Spearman are cowboys trailing a herd north through Montana Territory. They run afoul of a villainous cattle rancher who tries to deny them the cowboys' traditional grazing rights on the "free" range, which is public land. Since the land isn't actually the villain's but public land open to all, Charlie and Boss fight back, leading up to a predictable gun battle. Costner's western, despite luke-warm reviews, received a reasonable reception at the box office, proving there is still an audience for westerns and at least partially achieving Costner's goal of reviving what he called "the great American classic genre personified by John Wayne." Unfortunately, Costner only got part of the history right, missing a chance to show the real story of the open range.

In real life much of the Great Plains was truly open range and the plentiful grass that stretched from the Texas Panhandle to Montana and Dakota Territories offered wonderful grazing after the elimination of the buffalo and the military's removal of the Native American populations. As the railroads stretched west and created a means to transport cattle east to markets, the free-range cattle industry sprang up in the 1870s and 1880s. As homesteaders spread west, however, violence occurred between the two groups as the cattlemen sought to keep homesteaders off "their" range and the homesteaders fenced off streams and plowed up pastures for their crops. The conflict between free-range cattlemen and home-steaders (portrayed memorably in the 1958 western Shane) was more common than the "intramural" conflict between cattlemen shown in Open Range.

North of Texas much of the Great Plains was federal land. The land that wasn't federally owned was generally in noncontiguous blocks: "checkerboard" sections alternating along railroad lines granted to the companies to subsidize the building of the railroads, sections set aside for specific public purposes such as schools and the like. Someone who wanted to purchase large tracts of land outside Texas could do so only from the federal government, and it would not sell. Federal land for grazing could be acquired only in relatively small tracts through the homestead laws, which required actual occupation and residency. Cattle ranchers could not purchase the land they used.

Western cattlemen thus faced exactly the conditions that today we describe as producing the "tragedy of the commons." Most often used to describe environmental problems, the tragedy occurs when unregulated access to a common resource produces overuse. Private property solves the tragedy because each property owner receives the benefits and bears the costs of his actions, forcing the owner to be responsible.

Since they were denied land ownership as a means of solving their common property problems, cattlemen formed range and roundup associations to do the job instead. These associations organized cooperation on the roundups, greatly reducing costs, and wrote and enforced rules which prevented most of the problems that come with the lack of the ability to exclude others. Members were required to contribute bulls, ensuring the herds would continue to grow; contribute labor to the roundups, ensuring that everyone paid their share; and help pay for stock detectives to stop rustlers. All these contributions were proportional to their herd sizes, making the scheme fair. As the associations developed further, they also provided disease control, common facilities at railroad stations (pens and livestock inspectors), and brand registries to help identify cattle ownership.

The cattlemen's associations were not perfect substitutes for land ownership, however. They could do nothing to control nonmembers, as their only sanctions were to threaten expulsion from the association. …