Securing Economic Sovereignty Through Agreement
Suffolk University Law School
September 25, 2008
New England Law Review, Vol. 37, p. 523, 2003
Economic development is one of the most important issues facing Indigenous nations in the United States. Politically, it speaks to a tribal nation's fundamental right to development, which is closely linked to its right of self-determination. Socio-economically, it is the means by which a nation seeks to confront the enduring consequences of poverty. Culturally, it offers a pathway to preserving and enhancing indigenous worldviews. Indigenous land-based economies sustained millions of Native Americans for thousands of years before the arrival of the Europeans. Contact with the Europeans altered the form of some of these economies, but also led to new avenues of trade and commerce. Over time disease, warfare, and the plundering of Indian lands and resources took their toll on indigenous economies. Next came two and a half centuries of U.S. Indian policies that sought to destroy the customs, laws, and institutions that supported these economies. The latter part of the twentieth century ushered in a new era of federal-tribal relations with the emergence of the policy of self-determination. With a new emphasis on tribal control of resources, land, and government, sustained economic development for Indian nations was once again possible. Today, American Indian nations are engaging in a range of domestic and international initiatives as a means of rebuilding their economic base. The scope and breadth of Indian economic development is as varied as the tribes themselves: recreation, manufacturing, retail, eco-tourism, timber, grazing, agriculture, banking, construction, energy, gaming, and telecommunications, to name a few. While the long-term effects of this development are yet to be fully realized, short-term indicators suggest socio-economic gains for tribes, as well as off-reservation local, state, and federal economies. Yet even with these advances, there exist variations in the rates and levels of economic recovery among tribes. A number of non-legal factors affect long-term economic growth, such as institution-building, strategic planning, and access to capital. Additionally, the unique legal status of tribes has resulted in a set of complex rules that impact development efforts. While these legal rules can result in development advantages for tribes, this is not always the case. This paper analyzes an important legal hurdle to sustained development: U.S. Supreme Court cases that create jurisdictional uncertainties regarding the scope of tribal sovereign powers. This paper also explores how American Indian nations might minimize the development impact of these decisions through negotiated agreements.
Number of Pages in PDF File: 26
Date posted: September 29, 2008