Washburn Law Journal
Introduction
Volume 49, No. 3 (Spring 2010)
The Indian Nations and Indigenous Peoples Section of the American Association of Law Schools (AALS) theme for the January 2010 Symposium was: "Tribal Nation Economics and Legal Infrastructure." As Tribal Nations rebuild their economies in the wake of failed federal policies, legal infrastructure promoting a climate of healthy economics has become vitally important. For the last several decades, Tribes have become increasingly savvy in developing economic development initiatives, lobbying for greater federal support in economic rebuilding of tribal communities, and in raising capital from a variety of sources. In the five Symposium articles published for this Issue, the authors explore this increasing sophistication, discuss the threats to tribal economic development, examine racial dimensions of Native American business operations, consider the ecological aspects of indigenous economics, and draw on cultural wealth to address intergenerational poverty in tribal communities. These articles represent a growing intellectual focus on the means by which Tribal Nations can fully enter the U.S. and global marketplace with tribal values intact.
In Exercising and Protecting Tribal Sovereignty in Day-to Day Business Operations: What the Key Players Need to Know, S. Chloe Thompson begins her discussion by highlighting that it is imperative for tribal officials and representatives to be well aware of matters of tribal authority and the extent of federal and state authority as they may apply within the tribal jurisdiction. Due to the retained authority of Tribes in exercising their sovereignty, she emphasizes that Tribes have become "increasingly successful at conducting business within the Euro-American framework" even as attacks are levied against tribal commerce. Forewarned of the possible attacks on tribal sovereignty, Thompson cautions that Tribes should selectively exercise tribal sovereign immunity and authority strategically to avoid outright confrontations whenever possible.
Practical suggestions are offered in the form of legislating strong tribal business, employment, and commercial laws; holding such legislation to a standard of reasonableness and fairness; including provisions for the broad applicability of tribal laws to protect sovereign jurisdiction; working closely with well-trained lawyers; and implementing fair and effective tribal regulations. She also discusses the importance of choosing proper business structures and weighing the availability of sovereign immunity to business transactions. Another important area focused upon is the accessibility of tribal dispute resolution options. This comprehensive article adds considerably to the literature on supporting tribal sovereignty while engaged in tribal economic development.
The Symposium Issue continues with Helaman S. Hancock's article, America's War on Tribal Economies: Federal Attacks on Native Contracting in the SBA 8(A) Business Development Program. This important article details the history of the Small Business Administration's 8(a) program developed to assist minority and disadvantaged business owners, which eventually included provisions for Tribal Nation-owned businesses and Alaska Native Corporations (ANCs). These latter provisions are referred to as "Native 8(a)" and serve to incentivize awarding federal government contracts to these types of businesses. Thus, the Native 8(a) program has become a positive economic development initiative for Tribes and ANCs as demonstrated in the article.
However, the article points out that recently, opposition from various levels of the federal government have arisen targeting the Native 8(a) program. These attacks have also focused on de-prioritizing Native 8(a) contracts in favor of another program, the HUBZone program. The article explains that through political activism Tribal Nations were able to resolve the dispute to prevent the new prioritization of another program before Native 8(a). The article concludes with a call to be vigilant and continue to remind federal policymakers of the trust responsibility and the need to support economic programs that support positive economic growth in tribal communities.
Turning to the individual opportunities for Native Americans, Professor Raymond Cross has contributed an article entitled, Keeping the American Indian Rancher on the Land: A Socio-Legal Analysis of the Rise and the Demise of American Indian Ranching on the Northern Great Plains. This article begins by challenging the opinion that Indian ranching was a fundamentally flawed economic activity on the northern Great Plains. Rather, Indian ranching has been a worthwhile endeavor that merged the interests of individual Indians and the policies of the federal government to assimilate the tribal people of the region. According to the article, on the Indian side, ranching allowed for the continued cultural expression of the horse culture while permitting an ease of tension with the implementation of federal policies. Due to the short-sighted federal policies of the 1930s and beyond, the development of Indian ranches into advanced commercial enterprises was hampered.
Professor Cross provides that in contemporary times Indian ranching has strong roots in tribal culture and is a means of economic adaptation on the northern Great Plains. By specifically examining the rise, success, and adversity faced by Indian ranchers from the Fort Berthold Reservation, he sets the stage to discuss the Keepseagle litigation which charges the United States Department of Agriculture (USDA) with unlawful discriminatory actions towards Indian ranchers. With settlement of that lawsuit and the trust accounting class action, Cobell v. Salazar, Professor Cross proposes a comprehensive federal initiative to re-invigorate Indian ranching on the northern Great Plains.
In Indigenous (Ecological) Economics Remastered, Valerie J. Phillips proposes ecological economics as a framework for Tribal Nations to utilize in pursuing economic goals. She thoroughly explores the three primary economic philosophies at work in the United States to conclude that another option is a possible way to move from individual wealth maximization towards reciprocity. Next, she delineates between environmental economics, a subset of neoclassical economics, and ecological economics, which is focused on a steady-state economy with explicit values guiding its application.
By navigating through ecological economics, the article posits that Indigenous Peoples can reframe traditional economics and the influence of the dominant settler economic system through a re-mastering process. In identifying the key attributes of Indigenous economics as based upon "relationships, responsibility, reciprocity, and redistribution," she urges that these fundamental values inform contemporary Indigenous economics. With the model of ecological economics, she asserts that Indigenous economies have a viable alternative and a process for rebuilding sustainable economies.
In the final article in the Symposium Issue, Tribal Nations and Tribalist Economics: The Historical and Contemporary Impacts of Intergenerational Material Poverty and Cultural Wealth Within the United States, I explore the contemporary realities of intergenerational material poverty alongside cultural wealth which exists for most tribal communities in mid-North America today. The article traces the economic history of the Tribal Nations in mid-North America and material prosperity enjoyed prior to the European invasion. Next, the article explores commercial interactions involving various European outfits including the colonial policies of the British colonies and the economic basis of the relationship with the newly-formed United States. Following that discussion, the article examines historic causes of tribal intergenerational poverty up to the present day that is largely the result of the U.S-imposed trustee status over tribal resources.
In the second part of the article, the deep and rich cultural wealth inherited through tribal generations is presented as the appropriate response mechanism for the plagues of poverty in tribal communities. By returning to traditional values of stewardship, communal values, and leadership, Tribes have the means to overcome the past two-hundred years of failed U.S. Indian policies. The Article posits that a re-alignment of the relationship between the Tribal Nations and the United States in harmony with the principles in a nation-to-nation treaty partnership will assist in restoring the wealth and prosperity of tribal peoples and Tribal Nations in mid-North America.
As this Symposium Issue demonstrates, Tribal Nations and individual Indigenous People are reclaiming lives of prosperity and stewardship over the bountiful resources that exist in mid-North America. With a strong legal infrastructure in place, tribal economics may re-surge and flourish in the years to come. Through the intellectual discourse and legal proposals being asserted in this Symposium Issue, the authors are contributing to this resurgence and to a new day in Indian Country.
Angelique EagleWoman (Wambdi A. WasteWin)
