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Published Date:05-07-2017
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ON IMPROVING TRIBAL-CORPORATE RELATIONS IN THE MINING SECTOR A White Paper on Strategies for Both Sides of the Table by The Harvard Project on American Indian Economic Development April 20141 1. INTRODUCTION The federally-recognized American Indian tribes on the more than 300 reservations in the Lower 48 United States are governments. Under the U.S. system of layered federalism, the tribes (or Indian nations) are much like the states. They exist under and are subject to U.S. federal law, but they exercise considerable local sovereignty—operating under their own constitutions, with their own police, tax, judicial, and regulatory systems. They also commonly are the owners of surface resources, as well as subsurface minerals and water on their reservations and, in some instances, in traditional areas outside reservation boundaries. This fundamental fact—that tribes are governments—conditions everything about tribal-corporate relationships in the mining sector and beyond. From the tribes’ perspective, governing and governing well means “walking the walk” of effective local self-governance: Having the capacity to say “no” to mining opportunities that, in fact, fail to serve the overall interests of the citizens, and having the self-determined capacity to exercise sovereign powers by saying “yes” when doing so promotes the tribal public’s interest. And if and when “yes” is the right answer for a community, effective self-rule is the key to striking and sustaining beneficial relations over the long haul with the companies that often bring the capital and expertise that mining requires. From companies’ perspectives, miners that seek to explore and/or develop mineral deposits subject to tribal ownership or cultural value without understanding and institutionalizing the fact that they are dealing with governments when they deal with tribes proceed at their own peril. The sovereignty of tribes over their own lands and resources is strong enough that proceeding with tribal minerals development without the consent and support of the tribal government is becoming wholly untenable. Sustaining a successful development, without The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T2 it being blown apart somewhere along the way, in the presence of unstable, illegitimate, or ineffective tribal government is vain hope in the face of high risk. Even the most responsible and responsive of companies is likely to find that strategies, techniques and even personnel that have proven effective in dealings with indigenous or other disenfranchised communities elsewhere in the world are poorly matched to the tasks of dealing with U.S. tribes. These themes form the core of this report. A great deal has been written, much of it just common sense, about such matters as the need for companies that would engage with indigenous communities to respect and understand those communities’ cultures and values, to provide tangible benefits to communities, to be forthcoming with information that affects community members, and the like. Little is added by repeating those messages here. Instead, we emphasize the implications of such precepts when tribal governments sit across from the mining company, on the community’s side of the table. Discussions of community-corporate relations in the indigenous context seem to invariably place their emphasis on the corporate side of the setting: If the company wants to be successful, it must understand the community’s history and values; it must develop trusting relationships with community leaders; and so forth. This focus on what a company has to do reflects the imbalances of wealth, power, and business experience that have historically conditioned community-developer negotiations and relations. The presumption is that the developer is the initiator and driver of any possible mining venture. The developer’s problem is then portrayed as one of trying—hopefully responsibly—to coax something out of the tribe, and the tribe’s problem is one of preventing itself from being coaxed out of something without losing on net. But the balances are starting to right themselves. At least with the Lower 48 States’ self-governing tribes, it is increasingly the case that tribes are developing the people and institutions that can hold their own as equals across the table. This means that the tribe that wants to proactively initiate mining or other large projects and to be in the driver’s seat in negotiations and relationship management starts to think of itself as coaxing something—a lot—out of the developer. Tribal decision makers then find that they need to understand the company’s values and culture; they must develop trusting relationships with the company’s leaders; and so forth. There are two sides to the table. Both companies and tribes need to On Impr Ov Ing Tr Ialb -COrp Ora Te r ela TIOns In The m In Ing s e CTOr3 know how to conduct themselves; to know what works and what doesn’t work in negotiations and the structuring of relationships; when to stay and when to walk away. The Setting: The Native Resurgence The timing of this study is revealing. Why the focus on tribal-corporate relations here st in the early 21 century? Why the focus on the capacities on “both sides of the table,” when history is marked by tribes worrying more about federal and state government—tribal relations and project developers focused on perhaps keeping the communities happy, but striking deals with the federal authorities that historically exercised control over tribal resources? The answer is that Indian Country—the lands and resources of the Lower 48 States’ tribes—is undergoing rapid and massive change that is showing up as the growth and empowerment of tribes. For decades, the American Indian population, both on-and off-reservation has been growing much more rapidly than the general U.S. population. Beginning sometime in the late 1980s, after a decade of declining standards of living, both gaming and non-gaming tribes began growing economically about three times more rapidly than the U.S. economy. 2 This was sustained into the 2000s. In addition to casinos (which drove the growth of the relatively small number of tribes located near major cities), increasing numbers of tribes are finding income and jobs in destination resorts, manufacturing, consulting businesses, small business development, oil and gas extraction, and the like. Along with economic development have come increased capacities for tribes to invest in the institutional capacities and human skills of their communities. A growing cadre of increasingly experienced Native leaders and managers is now running police departments, operating enterprises, delivering social services, and regulating commercial and environmental affairs on reservation. While the competition is often not particularly stiff (owing to budget cuts, politics, and so forth), tribes long thought of by “outsiders” as dysfunctional now are popping 3 up as better run, or no worse run, than their local non-Native county and city neighbors. While these are positive developments and the proverbial “glass” is filling, the “glass” started out close to empty and is still only about half full. Despite many strides in development there is still major underdevelopment and poverty among tribes. Progress is highly asymmetric across tribal reservations, and often the rural locales where minerals are located are among the The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T4 poorest. Overall, the 2010 census indicated that 28 percent of American Indians were legally “poor” compared to 15 percent of the whole U.S. population. Native median household income in this regard was 36,062, compared to 50,046 for all Americans. A majority of Indians now live off reservation in cities with higher income. Thus, poverty on some reservations is often far more than even these statistics may indicate. Decades of research across many dimensions by the Harvard Project on American Indian Economic Development keeps finding that the overall resurgence going on in Indian Country is the product of the formal policies of self-determination, or local self-government, that began with an Executive Order under President Richard Nixon in the early 1970s and that have been codified since (see the discussion of the legal and regulatory powers of tribe in Section 3 below). But as the data noted above indicate, the resurgence is uneven. Where things are turning around for the better on reservations, the secret is repeatedly revealed to be tribes backing up their federally-protected rights of local self-rule with the capacity to govern well. In fact, tribes are like cities, states, and nations elsewhere in this regard: If you can govern well, people are productive and communities prosper; if you govern poorly, everything seems to fall apart—from the local schools to the contract with the big mining company. As we discuss in Section 2 below, a substantial number of Lower 48 tribes own and control substantial oil, gas, coal, and hardrock resources. In addition, many tribes’ treaty territories, which commonly extend well beyond their reservations, contain substantial mineral resources. These include oil, gas, and coal, as well as a wide array of hardrock resources. If development can be done well—culturally, environmentally, and economically— many tribes are quite receptive for expanded development to occur. Thus, we see the Crow Nation of Montana aggressively seeking partners for coal, coalbed methane, and oil and gas 4 development. The Navajo Nation has formed its own company and taken over the Navajo 5 Mine from BHP Billiton. And the Southern Ute Tribe of Colorado is a fully formed, vertically integrated “player” in the San Juan Basin natural gas fields. On the other hand, for some tribes, such as the copper-owning Tohono O’odham in southern Arizona, the answer on mining under 6 the federal policies of self-determination has been a clear no for quite some time. And for some tribes, such as the coal-owning Northern Cheyenne in Montana, long enunciated “no’s” are hotly debated by tribal leaders as they wrestle with tensions between persistent poverty 7 and disruption of culture and the environment that they see accompanying mining. On Impr Ov Ing Tr Ialb -COrp Ora Te r ela TIOns In The m In Ing s e CTOr5 Of course, in these decisions and debates, Indian tribes do not differ from mainstream American culture, which wouldn’t think of turning a cultural heritage site like Yellowstone Park into a world class geothermal factory or even subjecting such an idea to a quantitative cost-benefit analysis; would debate fiercely over a new iron mine in Michigan; and would think hard before expanding offshore oil and gas drilling in an effort to find substitutes for very expensive imported energy. Indian Country, however, confronts decisions on minerals development in a unique context. Tribes have endured long histories of de facto and de jure taking and/or development of their resources, historically without their real consent and often with far below fair market value compensation and highly destructive impacts on their cultures and environments. When compensation has been paid, little or no account has been accorded non-market 8 cultural and lifestyle values that were adversely impacted. Yet values attached to historically or spiritually significant sites and landscapes, fresh and healthy water where wild rice can continue to be harvested, the peace and quiet of undeveloped rural areas, and myriad similar amenities can readily trump the desire for jobs and income that mining might bring—just as the same kinds of values trump minerals development in mainstream society’s national parks, National Historic Monuments, wilderness areas, and so on. Tribes do not differ from the rest of the American public in wanting to protect cultural, spiritual, historical, and environmental values. They only differ in that they have long had little or no say when it comes to treading on such values. The tribal context is unique even where the tribal community does have decision control and does decide it would like to develop—as we see in the case of the Crow Tribe’s current push to develop its minerals (see profile below). The particular legal and regulatory gauntlets that projects on or near Indian lands must get through are described in Section 3. They form an overlapping, sometimes inconsistent, morass. Moreover, they create structures that enhance the ability of third-party players, from environmental groups to the press, to affect the course and outcome of project initiation and operation. Both tribes and companies, watching out for their own respective interests, are required to manage and adapt to the third- party players. We examine various approaches to this and related problems in Section 4. The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T6 For their part, mining companies and other developers of large, long-lived, tribal resource-using projects in and near tribal lands are in the midst, proactively or reactively, of figuring out how to successfully deal with the U.S. tribes. As we stress in Section 4 below, the challenge is to “thicken” their corporate institutional capacities with knowledge, structures and strategies that recognize that the setting in the Lower 48 States of sovereign and increasingly sophisticated tribes is different from their experiences elsewhere, and that they have little choice but to respect and learn to deal responsibly with the governing powers of the tribes. While they may at times be young, poor and struggling, more than one would-be developer has found out the hard way that tribes are real governments and they have the power to make or break otherwise attractive projects. Indeed, just as for tribes, the proper answer for a prospective developer of an otherwise attractive investment may well be no or, at least, not now when a tribe lacks the necessary capacity on its side of the table. When the answer is yes, as we set out in Section 5, the striking of durable relationships entails investments by tribes and companies in relationships with identifiable structures and payoffs for mutual benefit. On Impr Ov Ing Tr Ialb -COrp Ora Te r ela TIOns In The m In Ing s e CTOr7 2. THE RESOURCES: TRIBAL MINERALS IN THE LOWER 48 STATES As we have noted, indigenous communities in the United States—i.e., the 567 federally-recognized American Indian/Alaska Native tribes on the 300+ reservations and in the 200+ Alaska Native villages—have operated since the mid-1970s under formal policies 9 of self-determination. For at least the several hundred tribes in the Lower 48 United States, these translate into extensive powers of internal self-government. These U.S. tribes are similar to U.S. states, subject to federal law, but operate under their own constitutions, administer their own judicial systems, and implement self-managed tax and regulatory regimes. Vis-à- vis other federal, state, and municipal governments, tribes expect and demand government- to-government relations, rather than the earlier role of a dependent subject to overbearing paternalism by non-Indian governments. The policies of self-determination result in extensive tribal government control over natural resource development on and near tribal lands. Not surprisingly and like nations all over the world, U.S. Indian tribes vary considerably in their capacities and success in governing themselves, with Indian Country marked by the extremes of economic and social prosperity and despair. Particularly in sectors such as natural resources, one of the frontiers of development for tribes that are making their way toward self-sufficiency is the management of productive and sustainable relationships with corporate partners. At the same time, in sectors such as minerals development, non-Native corporations are attracted by opportunities for large scale resource extraction and typically bring with them capital, specialized expertise and organizational structures that are otherwise lacking, but necessary, for mineral and other large project success in Indian Country. The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T8 The potential for natural resource development on Indian lands is substantial. In terms of land area, agriculture is the most important use of Indian lands. Of the 56 million acres of tribally-held land in the continental U.S., approximately 47 million acres are used for grazing and other agriculture. Indian lands also have significant energy resources. At current prices, oil and gas production in Indian Country generates on the order of 3.2 billion in revenues annually, with associated royalties to tribes and individual Indians totaling approximately 400 10 million per year. The potential for further development is immense: Over 2 million acres of Indian lands have been actively developed for oil, gas, and coal resources, but another 15 11 million acres hold potential. Other minerals are similarly concentrated, with, for example, 40 percent of U.S. uranium reserves and 30 percent of known U.S. coal reserves estimated to be in Indian Country. Detailed data on other, hard rock mineral reserves are difficult to compile, but the resources on Indian lands appear to be similarly substantial. As a general matter, U.S. tribes are not hostile to development of their resources, and they commonly recognize that the levels and types of capital investment, organizational infrastructure, and technical and business expertise required to undertake and to sustain major minerals development mean that they must turn to major corporations as partners. Tribes do want to be in the lead in governing development on their lands, and they seek development that yields both market-level economic returns and protection of environmental and cultural values and amenities. When the latter are at stake, tribal control is sought most arduously, since an affected tribe is quite likely to be in a much better position than a private company or a federal or state bureaucracy to minimize and mitigate damage to the tribe’s environmental and cultural values. Yet, tribes are relatively inexperienced in dealing with major corporations, and they are generally only part way down the path to developing their own governing and business capacities needed to interface effectively with corporate partners. Moreover, when it comes to major minerals development, tribes operate under an overlay of federal (and some state) legal structures that must be managed effectively if development is to occur. Finally, third party interests from, for example, environmental organizations are commonly called into play when tribes undertake consideration of minerals and other natural resource development. Inexperience and inadequate capacity in navigating and managing in these areas readily thwarts development and turns relationships sour. On Impr Ov Ing Tr Ialb -COrp Ora Te r ela TIOns In The m In Ing s e CTOr9 For many U.S. tribes with requisite resources, major minerals development is unrealized potential, rather than productive actuality. Appendix 1 compiles known mineral interests of tribes across the Lower 48 States. In terms of ongoing production, oil and gas operations are the most common. Reservations such as Osage (OK), Fort Berthold (ND), Fort Peck (MT), Crow (MT), Navajo (AZ/NM/UT), Southern Ute (CO), Chickasaw (OK), and Jicarilla Apache (NM) have substantial production. In coal, the Crow Nation is one of the largest owners of coal in the world, holding an estimated 9 billion tons of recoverable coal, with a 15,000-acre single pit surface coal mine complex operated by Westmoreland Resource Inc. that has been in operation since 1974. In addition, the Nation has entered into major new contracts for the 12 development of additional coal resources, including a potential major coal-to-liquids project. The Navajo and Hopi Nations were the site of Peabody Energy coal mining operations at the Black Mesa mine from the mid-1960s until recent suspension of operations; the neighboring Kayenta mine continues to operate. Hardrock minerals development is quite spotty. Uranium mines, now closed, dot Indian Country. Much current activity and proposals are focused on copper near reservations in Arizona and nickel, iron, copper, zinc, and other ores in the Upper Midwest. Sand and gravel aggregate operations are present at reservations such as Salt River, Gila River, the Colorado River Indian Tribes, and a number of other reservations. The array of resources detailed in Appendix 1 suggests that Indian owned, controlled, and/or impacted hardrock and other minerals represent substantial opportunities for development. But pursuit of that development by companies or tribes could turn out to be either positive or negative in any given case. Wisely getting to “yes” and mutually beneficial development, or wisely getting to “no” and walking away from prospects that would likely be net harms to Native communities and/or net losses for developers will turn significantly on the quality of the tribal-corporate relations that are pursued in any particular case. Resources: Tribal Energy & Mineral Data United States Tribal Mineral Data at http://www.bia.gov/WhoWeAre/AS-IA/IEED/DEMD/TT/ MTD/index.htm The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T10 Further Information: http://www.bia.gov/WhoWeAre/AS-IA/IEED/DEMD/WIL/index.htm http://www.onrr.gov/About/FreqAQ.htm Brossy, Jackson and Christopher Kolerok, Building Successful Business Partnerships: The Tribe’s st Side of the Table, report to Rio Tinto in “Native Americans in the 21 Century: Nation Building II,” Harvard University Native American Program, 2010. On Impr Ov Ing Tr Ialb -COrp Ora Te r ela TIOns In The m In Ing s e CTOr11 3. THE LEGAL AND REGULATORY SETTING Introduction: American Indian Nations, History, and Sovereignty The history of the United States’ relations with its indigenous peoples has much in common with the histories of other nations throughout the world, and in particular with the former commonwealth countries. Commonalities include the settler nation’s efforts to dispossess indigenous peoples of their land and resources, eradicate their political and cultural structures, and assimilate them into the dominant society. Within this shared historical narrative, however, each country took a unique path in terms of developing laws and policies to address the rights of indigenous peoples within its borders, and ultimately to reconcile a history of attempted dispossession with current policies of self-determination. The United States’ approach was to enter into numerous treaties with the many tribes within its original and expanding territory, and then to subject those treaties to varying interpretations depending on the dominant policy of the times. The body of law known as “American Indian law” consists of those treaties as well as the proliferation of statutory and case law justifying, interpreting, elaborating on, and sometimes undermining treaty terms. At the core is a government-to- government relationship between American Indian nations and the United States, established in the treaties and never relinquished notwithstanding the many fluctuations in federal policy. Further, in U.S. law, Indian nations are recognized as sovereigns whose rights of internal self-governance derive from their own pre-contact status. This feature—retained inherent sovereignty—sets American Indian tribes apart from almost all other indigenous peoples. While American Indian tribal sovereignty is not unqualified, it encompasses the The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T12 right to govern tribal territory and tribal members, and also includes some powers over the actions of non-Indians. Some of the exceptions to these general rules are described in more detail below. As a starting point, however, it is crucial to grasp that American Indian tribes are governments separate and apart from the federal government (they are not arms of the federal government), and certainly separate and apart from states, which have only very limited powers to exert their laws within Indian tribal territory. Since the late 1960s, the federal government has formally embraced a policy of supporting American Indian tribal self-determination. Many federal statutes encourage tribal governments to adopt and run their own programs, generate their own revenue, and provide their own services. Federal laws, including several environmental laws, have been amended to allow tribes to enact regulations and engage in environmental enforcement. As a result, for the 567 tribes that are recognized by the federal government, this is an era of nation building. American Indian nations have taken advantage of self-determination policies to restore their land bases, rejuvenate their languages and cultures, and chart their own paths within the contemporary economy. Yet the policies of the past complicate the picture considerably. In order to understand the current regulatory and jurisdictional situation, an overview of previous policy periods is necessary. Legal historians and American Indian law experts generally agree on the following periodization for U.S. Indian policies: (1) Treaty, Trade and Intercourse Period (1790 to 1820s) Treaties and other forms of intergovernmental agreements drew boundaries between sovereigns and memorialized rules for interaction; trade and intercourse statutes consolidated control over tribal relations and tribal property acquisition in the federal government. (2) Removal Period (1820s to 1840s) Tribes were relocated, typically by coercion or force, from their Aboriginal territories to areas west of the Mississippi. East coast tribes were most heavily affected, but many western tribes were also displaced and required to consolidate on smaller landholdings. (3) Reservation Period (1840s to 1880s) Tribes were concentrated on reservations where their actions could be monitored and influenced by federal agents. In 1871, Congress passed legislation purporting to end treaty making with tribes. Despite the end of On Impr Ov Ing Tr Ialb -COrp Ora Te r ela TIOns In The m In Ing s e CTOr13 treaties as a formal matter, Congress and the Executive Branch continued to enter into arrangements with tribes, through legislation or executive orders, recognizing their claims to land and self-governance. (4) Allotment and Assimilation Period (1880s to 1920s) Congress passed forced assimilation measures and the Supreme Court sanctioned these actions, ratifying broad and unilateral federal powers in Indian affairs. The Dawes Act, also known as the Allotment Act, authorized the break-up of tribal lands into individual “Indian allotments,” with the ultimate goal of privatizing all reservation lands and converting tribal members into yeoman farmers. The policies of this period were largely a failure, causing widespread poverty, land loss, and accompanying negative effects on health and welfare throughout Indian country. To cite just one figure, allotment reduced the tribal land base from 138 million acres to 48 million acres. (5) Indian Reorganization Act Period (1820s to 1940s) The federal government sought to reverse the negative effects of the Allotment and Assimilation Period by restoring tribal governments and economies. Federal legislation (the Indian Reorganization Act) put an end to allotment and provided technical assistance for tribes wishing to restore their governments. Congress also passed legislation defining “Indian country” for jurisdictional purposes. (6) Termination Period (1940s to 1960s) The federal government, in an abrupt reversal from the IRA Period, undertook to terminate the federally recognized status of several tribes and to impose state law in Indian country. In 1953, Congress enacted Public Law 280, which extended state jurisdiction into Indian country in several states and gave others the option to assume jurisdiction. (7) Self-Determination Period (1960s to present) Congress and the Executive Branch embraced a policy of “self-determination without termination.” Statutes were passed that restored powers to tribal governments, gave tribes the option to run their own programs, and recognized tribal control over natural resources. Initially, federal courts also embraced the revival of self-determination, recognizing inherent tribal sovereignty and reviving treaty rights in contemporary cases. More recently, the period has also been characterized by what some describe as a judicial backlash, in which federal courts have relied on prior discredited policies to deprive tribes of control over land and resources. Tribal self-determination today is enacted against the backdrop of all the previous historical periods. Many tribes have had to adjust their cultures and economies to dramatically The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T14 smaller homelands. Even more challenging, some tribes have had to adapt to homelands geographically distant from their Aboriginal territory. In addition, allotment policies have left many tribes with a checker-boarded territory, with corresponding gaps in regulatory and judicial jurisdiction. These are just a few ways in which the history of inconsistent, and often unjust, federal policies have left their marks on American Indian law and politics today. Nonetheless, American Indian nations are working their way through the past to engage in diverse, contemporary, and culturally relevant forms of governance to meet the social and economic needs of their people today. Tribal Sovereignty and Treaty Rights: Sources and Limitations The legal status of American Indian nations is unique in domestic and international law. At the heart of this status is American Indian tribal sovereignty. American Indian nations have attributes of sovereignty that entitle them to govern their members, their lands, and, with qualifications, their interactions with non-tribal members. The source of American Indian tribal sovereignty is tribes’ own pre-contact status as governments. In the early period of European arrival to North America, European nations consistently adopted a foreign policy of entering into treaties with the indigenous nations of North America. North American Indian nations were, as a legal matter, viewed as sovereigns for the purpose of ensuring peaceful and orderly settlement by the arriving nations. After the Revolutionary War, the U.S. continued to treat American Indian peoples as nations, rather than aggregations of individuals, and early post-colonial policy and the Indian Commerce Clause of the U.S. Constitution reflect this 13 understanding. Against this historical and constitutional backdrop, the U.S. Supreme Court, in a series of three decisions authored by Chief Justice John Marshall during the first half of the nineteenth century, defined American Indian tribes as “domestic dependent nations,” retaining 14 attributes of sovereignty that they possessed before the arrival of Europeans. The sovereignty retained, according to Justice Marshall, was necessary to govern internal matters, including control of tribal members and tribal territory. The sovereignty that was lost upon the arrival of Europeans included the power to enter independently into international agreements with other foreign nations and to transfer property title cognizant in U.S. courts to non-Indians. On Impr Ov Ing Tr Ialb -COrp Ora Te r ela TIOns In The m In Ing s e CTOr15 These decisions, known as the Marshall Trilogy, continue to inform the basic legal status of American Indian nations, though federal statutes, executive policy, and subsequent judicial decisions have altered, refined, and, depending on the era, affirmed or restricted tribal powers of self-governance. Treaties and treaty-substitutes (in the form of legislation or executive orders recognizing tribal status and territory) provide the textual acknowledgment for inherent tribal sovereign status. The great variety of treaties and the distinct geographies and histories of the 567 federally recognized tribes make it difficult to generalize about treaty rights. In addition, the Alaska Native Claims Settlement Act created a different regime for the rights of Native Alaskans. Still, it is possible to make some broad observations. First, treaties typically identify the territorial boundaries for American Indian nations. The tribal land base serves as the cultural and political homeland for Indian nations, and the related treaty and statutory rights often stem from the size and potential of the reservation. Second, treaties often include both implied and express rights to natural resources on and near the reservation. Many American Indian nations have “reserved” rights to water and other natural resources, which give them powerful bargaining chips to use with non-Indians 15 in circumstances of present or future scarcity. Third, treaties establish a consensual ongoing political relationship between the U.S. and particular Indian nations. Tribal sovereignty provides a legal and political basis for tribes to maintain their distinct status as peoples, and to govern their land and resources in ways that preserve at least some degree of independence. The U.S. Constitution does not impose any limits on the character, structure, or nature of tribal governing institutions, but federal legislation and federal judicial decisions have limited tribal powers over non-Indian land and some non-Indian activities, as well as shaped tribal institutions through direct and indirect means. Tribal Government and Tribal Laws The 567 federally recognized American Indian tribes have a great variety of governmental structures and legal systems. The Navajo Nation, which has over 260,000 members and governs a territory as large as Ireland, has a tri-partite government with an executive, legislative, and judicial branch. The judicial branch has several judicial districts, a trial and appellate The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T16 GLIFWC – Tribal Treaty Defense and Implementation Formed in 1984, the Great Lakes Indian Fish & Wildlife Commission (GLIFWC) represents the eleven Ojibwe tribes in Minnesota, Michigan and Wisconsin who reserved hunting, fishing and gathering rights in territories they ceded to the United States in Treaties entered into in 1836, 1837, 1842 and 1854. As the members of GLIFWC stress: “The exercise of these rights was and continues to be fundamental to the tribes’ culture and way of life, and explains their insistence on explicitly reserving them in the treaties. The tribes share a traditional and continuing reliance upon fish, wildlife and plants to meet religious, ceremonial, medicinal, subsistence, and economic needs. Therefore, to maintain this lifeway and meet these needs, the tribes reserved the right to hunt, fish, and gather in the ceded territories. In proper perspective, this reservation of sovereign rights is part of the Ojibwe’s ongoing struggle to preserve a culture—a way of life and a set of deeply held values—that is best understood in the terms of 1 the tribes “relationship to AKI (earth) and the circle of the seasons.” GLIFWC and its individual member tribes carry out their mission of treaty enforcement through court litigation when they feel it is necessary, but GLIFWC is widely recognized for entering into collaborative and cooperative agreements and memorandums of understanding with non-tribal governments to regulate hunting, fishing and gathering seasons and to protect the resources of the Ojibwe’s ceded territories. With its mission grounded in fish, wildlife and gathering, GLIFWC works to combat the ecological harms of closed mines and its “Environmental Section staff participate in the environmental review or proposed mines in ceded territory by interacting with federal and state regulatory agencies and advocating for thorough analyses of the environmental 3 impacts…”. 1. http://www.glifwc.org/Recognition_Affirmation/affirming.html, accessed March 19, 2014. 2. Harvard Project on American Indian Economic Development, “Treaty Rights/National Forest Memorandum of Understanding Tribes of the Great Lakes Indian Fish and Wildlife Commission,” Honoring Nations 2000, at http://hpaied.org/images/resources/publibrary/Treaty%20Rights%20National%20Forest %20Management %20MOU.pdf, accessed March 19, 2014. 3. http://www.glifwc.org/Environmental/mining.html, accessed March 19, 2014. On Impr Ov Ing Tr Ialb -COrp Ora Te r ela TIOns In The m In Ing s e CTOr17 level, as well as a peacemaking branch committed to traditional alternative dispute resolution. On the other end of the spectrum, some pueblos in New Mexico have unitary governments with combined judicial and legislative functions, all of which remain strongly influenced by traditional political, religious, and cultural norms. It is therefore difficult to generalize about the structures and workings of American Indian political systems. The most important caveat is that each American Indian nation should be approached as a sovereign government, and outsiders should take the time to learn as much about the particular history, culture, and laws of that nation as possible before embarking on economic or other transactions. American Indian nations generate their own laws that may apply to non-Indians depending on the nature of their activity, the terms of any individual transaction, and the land status involved. The general jurisdictional rules that govern when tribal laws may apply are discussed in more detail below, but given the variety of tribal legal systems, it is crucial to retain and consult with an expert in American Indian law who is also able to conduct research into the particular tribe’s laws when engaging in any proposed transactions in Indian country. Tribal Sovereign Immunity from Suit Like other sovereigns, American Indian tribes are governments whose sovereignty derives from their status as nations that pre-dated European arrival and settlement. Like other sovereigns (including, for example, each of the fifty U.S. states), tribes are immune from being sued in their own tribunals or those of any other government unless, for example, their immunity has been waived explicitly by legislation or the tribal constitution. The Supreme Court affirmed the tribal sovereign immunity doctrine in Kiowa Tribe of Oklahoma 16 v. Manufacturing Technologies, Inc., which was decided in 1998. There is reason to suspect, however, that the doctrine is vulnerable due to the Court’s own statements in that case as well as changes in Supreme Court personnel since Kiowa. There is one case currently pending before the Supreme Court that could result in a modification or retrenchment of Kiowa, but 17 for now the tribal sovereign immunity doctrine remains the law. In its current contours, it protects tribes from suit for actions both on and off their reservations, and for suits on contracts of either a governmental or commercial nature. The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T18 Tribal sovereign immunity can be waived either by clear congressional action, or by a tribe itself. Congress has authorized suits by states against tribes for failure to comply with negotiated state-tribal gaming compacts, and has also required waivers of tribal immunity for suits arising out of federally funded self-governance activities for which liability insurance is required. Clear tribal waivers of immunity have been found in the context of tribal consent to arbitration clauses and, like a number of the fifty U.S. states, tribes can self-legislate limited waivers (up to, for example, amounts consonant with tribal insurance coverage). Tribes’ immunity from suit can pose barriers to economic activities when tribes are acting in a commercial capacity and the other parties’ normal expectations include the ability to seek legal redress for contractual breaches. Many tribes therefore consent to waive their immunity from suit for the purposes of enforcement of commercial contracts or leases. This can be a difficult issue for tribal governments, many of which remain concerned that waiving immunity from suit is akin to giving up their hard-fought sovereign status. For many other tribes, however, the power to consent to being sued for engaging in high-level economic activity is perceived as an important exercise of tribal sovereignty. It allows the tribe to control the terms on which it will be sued, instead of courting the risk of further federal court diminishment of tribal sovereignty, and includes the potential to include forum selection and choice of law provisions that the tribe might prefer. As with all business negotiations, the issue of waivers of immunity from suit is appropriately approached from the perspective of knowledge of the broader risks for tribes as well as respect for their internal decision-making processes. Not surprisingly, long histories of ill and racist treatment in non-tribal courts have left many, many tribes less than sanguine about consenting to such courts’ jurisdictions in commercial and other disputes. At the same time, even the best-intentioned developer often has little understanding and even less experience with tribal courts. Thus, while politicization, lack of commercial expertise, and overcrowded dockets often earn federal and state courts 18 low marks from business interests, developers and investors are commonly leery of tribal courts. Impasse and/or delay in reaching commercial agreements, however, can be avoided by innovative use of neutral arbitration provisions (of the common “each side selects a party arbitrator, and the party arbitrators select a third neutral arbitrator” variety). On Impr Ov Ing Tr Ialb -COrp Ora Te r ela TIOns In The m In Ing s e CTOr19 Arbitration provisions alone, however, leave open the question of the venue for enforcement of arbitration awards. Here, we see tribes and their commercial counterparties employing innovative approaches, such as: • Limited waivers of immunity from suit in tribal court for contract disputes involving tribally-owned enterprises (as distinct from disputes involving the tribal government itself). • Limited waivers of immunity from suit in state court for contract disputes involving tribally-owned enterprises (as distinct from disputes involving the tribal government itself). • Waivers of immunity from suit of a tribal enterprise and/or a tribe in tribal court for the limited purpose of enforcing otherwise duly entered arbitration awards. • Waivers of immunity from suit of a tribal enterprise and/or a tribe providing for enforcement of otherwise duly entered arbitration awards by first bringing suit for enforcement in tribal court, with provision for subsequent appeal in state court. These approaches highlight tribes’ clear preferences for use of their own courts in the event of commercial disputes. In pursuing such preferences, however, tribes operate in a highly competitive environment, as jurisdictions all over the world find that attracting and holding capital and human capital investment means development of capable, stable, and politically independent commercial court systems. Indeed, research on Indian Country repeatedly nd fi s that tribal success in economic development rides on the back of depoliticized tribal systems of dispute resolution, whether such systems are courts modeled after “western” institutions 19 or are longer-standing, traditional tribal systems. The implications for “both sides of the table” are clear: The tribe seeking to uphold its sovereignty by exercising waivers of sovereign immunity into its own courts must meet the challenge of building and sustaining its own rule of law. At the same time, the responsible non-tribal commercial partner should be expected to respect such efforts and to judge each tribal nation’s court on its merits. In the process, it may well be found that a tribal court 20 outperforms its non-tribal counterparts. Minerals Extraction and American Indian Tribes A key threshold question with respect to tribal legal interests in minerals extraction is the status of the land. Almost all of the 567 American Indian tribes have their own land bases, often within formal or informal reservations but sometimes also including lands outside of those The h ardvar Projec T on a anmeric i ndian e conomic d evelo Pmen T