Time To Implement Economic Regulatory Reform For Tribes by Robert Porter and Paul Moorehead

In our work with American Indian tribal nations and Alaska Natives, we have identified and advocated for the elimination of legal and regulatory barriers to land use, entrepreneurship, infrastructure construction, outside investment and capital formation, and other building blocks of strong tribal economies.

The last comprehensive effort by the federal government to identify these kinds of barriers came in 1983 when President Ronald Reagan established, by executive order, the Presidential Commission on Indian Reservation Economies. The commission held more than 15 meetings across the United States, with hundreds of tribal leaders and others testifying to the commission. Those leaders included such luminaries as Philip Martin, Eddie Tullis, Billy Mills, Ronnie Lupe, Earl Old Person, Apesanahkwat, Alan Parker, LaDonna Harris and many others.

A year later, the commission issued its report outlining the policy and legal changes it saw as necessary to improve business and investment conditions on Native American lands. Some of those recommendations have come to pass to expand economic opportunity.

Since 1983, tribal leaders and congressional allies have continued the effort to reform federal Native American law to break down the barriers to economic growth in Indian Country. A notable win was the Helping Families Save Their Homes Act in 2012 that authorized tribes to develop and manage their own surface leasing activity.

The fact that, until the HEARTH Act, simple surface leases of Native American land required the approval of the secretary of the interior, points out to us the broader need to consistently reexamine the legal and policy underpinnings of the federal legal regime that in most instances was based upon a colonization-based need for federal government control of tribal governments and economies.

Sometimes these changes come in more modest forms, like last year when Congress repealed an obscure part of Title 25 of the U.S. Code at the request of a Native American tribe seeking clarity and certainty regarding the legality of operating a large-scale distillery on its tribal lands.

The new statute repeals the 1834 Act to Regulate Trade and Intercourse with Indian Tribes and to Preserve Peace on the Frontier signed into law by President Andrew Jackson that prohibited the establishment and operation of alcohol distilleries in Indian Country. Subsequent enactments did little to clarify the law governing tribal economic activity, prompting Congress to act.

There are many other similar provisions in the five-volume Code, many simply anachronistic and paternalistic. For example, the code still carries a provision authorizing the secretary of the interior to withhold annuities from any tribe holding members of another tribe hostage.

Rather than pursuing this piecemeal approach, there is a better way to go about reforming the code to support tribal economic self-governance. In 2000, a Republican Congress and a Democratic president joined in establishing the Regulatory Reform and Business Development on Indian Lands Authority.[1]

The 21-member authority, comprised of both tribal leaders and private citizens, was to be appointed by the secretary of commerce to “conduct a review of laws (including regulations) relating to investment, business, and economic development that affect investment and business decisions concerning activities conducted on Indian lands.”

Given the still relevant need to reform the business and investment climate on Native American reservations, it is surprising that in the last two decades no administration — neither Democratic nor Republican — has seen fit to implement this law.

The Trump administration has made regulatory reform a major component of its agenda, with the president and the major cabinet members embarking on bold — and at times controversial — changes to the regulatory and administrative regimes governing large swaths of public and private activity, such as the use of federal lands for energy development.

In the same way, the U.S. Department of Commerce — loaded with business and investment expertise — should work with tribal leaders to launch the authority, identify outdated and antiquated laws and help build the kind of tribal economies that are robust and provide good jobs and household incomes for tribal members and for communities that surround many tribal communities.

Much has changed for Indian Country and tribal economies since 1983, most notably the explosive growth of a $32 billion gaming industry. But too much of Indian Country and Alaska Native territory remains undeveloped and economically undiversified.

The hard work of this important effort is already done — Congress has already acted. The time is now for the Trump administration to take this issue up and help mold a favorable business climate in Indian Country.

Robert Porter is a former president of the Seneca Nation of Indians and a managing principal of Capitol Hill Policy Group.

Paul Moorehead is a principal at Powers Pyles Sutter and Verville PC.

[1] Pub.L. 106-447, now at 25 U.S.C. §§ 4301 et seq.

See Law 360 Article: https://www.law360.com/articles/1216610/print?section=nativeamerican