The articles are available here. Authors include Gavin Clarkson, David Haddock, Richard Monette, Alex Skibine, Judy Royster, Bob Miller, and me.
SYMPOSIUM
Indigenous Economic Development: Sustainability, Culture, and Business
Wall Street Indians: Information Asymmetry and Barriers to Tribal Capital Market Access
Gavin Clarkson
12 Lewis & Clark L. Rev. 943 (2008 )
Wall Street in New York City may be considered the financial center of the world, but the original wall on Wall Street was built to keep the Indians out. Unfortunately Wall Street has remained true to its origins and has excluded Indian tribes from equal participation in the capital markets, although Wall Street has had some help in this regard. Many of the barriers to tribal capital market access are statutory or regulatory, but a major impediment to overcoming any of these barriers is the problem of information asymmetry. Information asymmetry exists when a party possesses greater informational awareness pertinent to effective participation in a given situation relative to other participating parties. The combination of statutory, regulatory, and informational barriers further exacerbates the difficulty that tribes have when they seek capital for their emerging economies.
This Article discusses a typology of information asymmetry as well as information asymmetry in detail, demonstrating its relevance to tribal finance. This Article also discusses the nature of tribal economies and then examines three statutory and regulatory impediments that inhibit tribal capital market access: a) lack of accredited investor status for tribes, b) lack of meaningful tax-exempt bonding authority for tribes, and c) the liquidity premium imposed on tribal bonds because of a lack of a securities registration exemption. The Article concludes with an examination of how strategic information sharing and other methods of reducing information asymmetry can and will have a positive impact on tribal economies.
To Tax Tribes or Not to Tax Tribes? That Is the Question
David D. Haddock
12 Lewis & Clark L. Rev. 971 (2008 )
As a first approximation, a tax on a buyer has an impact that is identical to an alternative tax of equivalent size that is imposed on the seller. Students in an elementary microeconomics class quickly learn that fact, but Montana v. Blackfeet Tribe and Cotton Petroleum v. New Mexico imply that few justices or judges sitting on our courts have attained a similar level of economic sophistication. In view of the canons of construction of Indian law, and the understandings of the tribes when concluding treaties with the United States, Blackfeet Tribe quite properly repulsed Montana’s attempt to tax tribal royalties from on-reservation extraction of minerals. In contrast, Cotton Petroleum permitted New Mexico to tax the companies that held mineral extraction leases on tribal land. The two holdings, handed down less than five years apart, are mutually inconsistent. The inconsistency provides an incentive for tribal governments to enter lines of business for which private ventures would have been more efficient. By so doing, the tribes will be able to withhold some tax revenues from states, though at the cost of less efficient on-reservation enterprise and a consequent reduction in employment.
Richard Monette
12 Lewis & Clark L. Rev. 991 (2008 )
It is a well known fact that gambling is the most successful business venture in Indian Country. What most people don’t know is that in 1988 the United States government passed the Indian Gaming Regulatory Act (IGRA), which requires that casino operations in Indian Country be owned by tribes and not by private individuals. Today tribes struggle to reassume management of their lands and resources but tribal governments make it difficult for them by managing businesses for the Tribe as a collective whole, instead of purposefully facilitating and governing a private economy and a private property system within Indian Country. Under the General Allotment Act (GAA), the United States government attempted to promote a private economy on Native American land by allotting land for each Indian family, but it was inefficient in its management of individually owned assets. Tribes should amend their constitutions and create laws that re-organize their governments to correct the conditions created by the laws passed by the United States government.
Tribal Sovereign Interests Beyond the Reservation Borders
Alex Tallchief Skibine
12 Lewis & Clark L. Rev. 1003 (2008 )
After describing how, from a global perspective, traditional concepts of state sovereignty have moved away from being uniquely tied to exclusive control of territories, this Article shows how the United States concept of tribal sovereignty is also no longer tied to territorial sovereignty. This is evident from the fact that, mostly through Supreme Court decisions, tribes have lost much political control over their own reservations. Since this is the case, this Article argues that there is no reason why tribal sovereign interests should be limited to the reservation borders. After describing the various Acts of Congress that recognize tribal sovereign interests beyond tribal territories, this Article explores what limits there might be on the ability of Congress to recognize and protect tribal sovereign interests beyond the reservation. This Article concludes by discussing the economic benefits tribes might derive as well as the issues they might encounter, should they decide to impose a tribal income tax on their members, especially those residing beyond the reservation borders.
Indian Tribal Businesses and the Off-Reservation Market
Matthew L.M. Fletcher
12 Lewis & Clark L. Rev. 1047 (2008 )
American Indian tribes once operated regional trade centers, with broad geographical impact. With the arrival of European traders and settlers, this system began to erode, and later, the treaty and reservation system effectively eliminated the regional Indian economic market. Under the policies of measured separatism and assimilation, American Indians had no broad geographic power. Recently, as the policy of self-determination has taken hold, Indian tribes have begun to assert their economic power through federal government contracts, casino gaming, and trade agreements with foreign governments. This Article argues that this rising involvement has caused a backlash, and that holdover American government policy favoring assimilation and dependence threatens to frustrate emerging tribal participation in the broader economy.
Judith V. Royster
12 Lewis & Clark L. Rev. 1065 (2008 )
This Article addresses the latest attempt by Congress to promote tribal self-determination through a statute designed to increase tribal control over energy resource development on Indian lands. The author begins with a brief history of the gradual transfer of control over tribal resources from the federal government to tribes. This shift in government policy has culminated in the recent passage of the Indian Tribal Energy Development and Self-Determination Act (ITEDSA), which allows some resource development without federal approval. ITEDSA allows tribes to enter into tribal energy resource agreements (TERAs) which give the tribes final decision-making power over their energy-related resources. The author notes that the increased sovereignty conferred by TERAs comes with several trade-offs. TERAs increase the risks of resource development while reducing some of the government’s trust responsibilities. TERAs shift some of the cost of resource development from the government to the tribes and provide for more public scrutiny of tribal affairs. The author ultimately concludes that the benefits of ITEDSA will outweigh the costs for certain tribes.
Inter-Tribal and International Treaties for American Indian Economic Development
Robert J. Miller
12 Lewis & Clark L. Rev. 1103 (2008 )
American Indian nations and Indian people and Indigenous groups around the world are usually the poorest communities in their countries. These entities must develop and promote economic activities and jobs for their people. Economic development is an absolutely crucial social, political, and legal issue for these governments and their people. Recently, two efforts have been undertaken to create beneficial development based on treaties between Indigenous groups. In August 2007, American Indian nations, Canadian First nations, New Zealand Maori Iwis, and Australian Aborigine groups signed a treaty to engage in international economic activities. In addition, in 2007 and 2008, Pacific Northwest Indian Nations drafted an inter-tribal treaty to facilitate the conduct of business on reservations. This Article dissects these two treaties and addresses some of the unique legal issues that the treaties raise.
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