Scaling Commercial Law in Indian Country

Abstract

How do you drive economic enterprise in a financial desert? Indian tribes, academics, economists, and policy makers have considered the means and methods for energizing economic growth for forty years. Efforts such as the creation and promotion of the Model Tribal Secured Transactions Act (“MTSTA”) promise much towards creating conditions that would gather financial opportunity to tribal regions that experience poverty at the strikingly higher rate than any other place in the U.S. And yet, while the law has been available for more than ten years, tribes have been reticent to adopt it. This article fills the vacuum in the literature around the promise of uniform laws in Indian Country by describing the inherent tension that exists between down-scaling uniform laws into tribal contexts and the local-ism that seeks to preserve localized values. This Article argues that tribal choices to accept uniformity or reject uniformity in these areas are built around a combination of formal associations and organic relationships designed to create “institutional thickness” in the face of other scarce resources.

Keywords: Indian Tribes, Secured Transactions, MTSTA, Article 9, UCC, Filing Systems, Commercial Law, ULC, Uniform Law, Scale, Institutional Thickness, Legal Geography, Localism, Formal Associations, Organic Relationships, Economic Development, NAFI’s