Real Sovereignty for Native Americans Would Mean Property Rights and Policy Autonomy

“The Loophole Economy Is No Jackpot for Indians” is the headline to a Wall Street Journal article from yesterday written by Naomi Schaefer Riley, author of The New Trail of Tears: How Washington Is Destroying American Indians, which you can purchase from Amazon at this link.

I’m buying a copy as soon as I’m done with this post.

In her WSJ article, Riley argues that the obstacle Native Americans face is a lack of property rights and the strict regulation of tribal commerce. She notes that while in some ways tribes have been exempt from regulations non-Indians must follow – things like gambling prohibitions and tobacco taxes – these loopholes are few and far between and very often can be politically intermittent:

There are almost no private businesses or entrepreneurs on Indian reservations because there are no property rights. Reservation land is held in trust by the federal government and most is also owned communally by the tribe. It’s almost impossible for tribe members to get a mortgage, let alone borrow against their property to start a business. The Bureau of Indian Affairs regulates just about every aspect of commerce on reservations.

Instead of giving Indians more control over their own land—allowing them to develop natural resources or use land as collateral to start businesses—the federal government has offered them what you might call a loophole economy. Washington carves out a sector of the economy, giving tribes a regulatory or tax advantage over non-Indians. But within a few years the government takes it away, in many cases leaving Indian tribes as impoverished and more disheartened than they were before.

Riley focuses on tobacco and gambling in her article, but we could add tribal control of energy development – which is often superficial, at best – to the list.

Back in 2014 when President Barack Obama visited Cannon Ball, North Dakota, on the Standing Rock Indian Reservation he talked a good game about tribal sovereignty. “I know that throughout history, the United States often didn’t give the nation-to-nation relationship the respect that it deserved,” Obama said during a brief 12 minute address which attendees waited over an hour for. “So I promised when I ran to be a president who’d change that — a president who honors our sacred trust, and who respects your sovereignty, and upholds treaty obligations, and who works with you in a spirit of true partnership, in mutual respect, to give our children the future that they deserve.”

But a week after those remarks, members of Obama’s administration showed up before the House Natural Resources Committee to oppose legislation introduced by North Dakota Rep. Kevin Cramer which would allow tribes to opt-in to a categorical exclusion from the National Environmental Policy Act to speed the development of gas-gathering pipelines.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]…the Obama administration is happy to talk about Indian tribes being sovereign, rhetorically, but in practice is only willing to take their input on important energy and infrastructure policy on advisement.[/mks_pullquote]

That’s an important issue in North Dakota where the flaring of excess natural gas produced during oil extraction has been a consistent point of political rancor. The flaring issue has been particularly acute on tribal lands because building the infrastructure to gather the gas on tribal lands is an enterprise fraught with multiple levels of tribal and federal bureaucracy.

In addition to tribal oversight the infrastructure gets permit scrutiny from three separate federal agencies: The Bureau of Indian Affairs, the Bureau of Land Management and the US Fish & Wildlife Service.

Cramer’s legislation sought to let tribes bypass some of the federal red tape, but during the aforementioned hearing (video here) the congressman was met with opposition from the Obama administration.

“I was just with the President of the United States on a North Dakota reservation a week ago where he talked about honoring sovereignty and here the administration seems to be going against that very concept of sovereignty for the tribe,” Cramer told Michael Nedd, the assistant director for minerals and realty management for the Bureau of Land Management, during questioning before the House Natural Resources Committee.

In response, Nedd argued that giving tribes more control over the process would “inject confusion.”

“Congressman, what I can say again that the secretary’s authority under the Indian Minerals Leasing Act certainly allows the BLM to work with the tribes in managing those trust lands,” Nedd said. “In working through the tribes with consultation, the BLM certainly incorporates their input into that. And so the administration feels again they have enough authority to proceed to conduct the work on the authority Congress has given them. This bill would just inject confusion and the administration position is that we they have enough authority to do that.”

In other words, the Obama administration is happy to talk about Indian tribes being sovereign, rhetorically, but in practice is only willing to take their input on important energy and infrastructure policy on advisement.

The problems in America’s Native American communities are hugely complex. There is no silver bullet to fix them. But I’ve got to think that a much greater degree of self-governance from the tribes would be a giant step in the right direction.