This is an essay I recently wrote up for the Wilma Mankiller Fellowship, in its first draft. Enjoy!

Most unique advantages and disadvantages regarding tribal economic development stem directly from either the federal government, the surrounding state government, or from the ability of tribal nations to create wholly owned governmental corporations. Regulations surrounding tribal minerals and lands have largely inhibited tribes from considered development of mineral resources, and confuse the understanding of tribal environmental regulatory powers. State governments alternatively compete and partner with tribal nations, which makes state involvement a mixed bag. States have no authority over tribally owned businesses, and tribally owned businesses generally operate with legal protections similar to those of the tribe itself. Perhaps the most profoundly negative of these factors is the federal government.

The Federal Government’s regulatory role on Indian reservations has largely been toxic. The federal government has largely proved a very poor trustee, as shown via the relatively recent Cobell settlement case, which hinged on proving the criminal neglect and occasional malice in the modern trustee relationship. Aside from mismanagement via trustee status, the Federal Government must also approve the extraction of minerals, which creates a bureaucratic quicksand for energy companies attempting to operate on tribal lands. Tribal Governments often operate in parallel with state governments on these issues, as resources are often spread beyond the boundaries of the tribal land base. Energy companies often give much better deals outside of reservations, no doubt because they are dealing with tribal citizens, but also because of the additional bureaucratic friction that operating requires. Businesses owned by the tribe don’t have the same problems but protectionist states can band together to create federal laws which manipulate or regulate businesses in Indian Country.

The example of gaming comes immediately to mind because it exemplifies the reaction of states to competing, successful tribal businesses. Fear on the part of state governments manifested itself through IGRA, which now acts on the federal level to regulate tribal gaming operations. Individual states actually have very little power to no power to manipulate businesses on reservations, as the states do not have jurisdiction over tribal land.

The federal government acts as trustee on all transactions which involve the use of tribal lands and minerals. State governments can create partnerships or compete which can be an advantage when attempting to build a relationship to a state. Tribes may, and often do, choose to create government owned corporations, whose profits belong to the tribal government.

These tribally owned corporations can run businesses like casinos, which are highly regulated in many states, but are unregulated on the federal level. This is really where tribes can create an advantage, as they can use state regulations surrounding certain businesses to create a clientele among those in the surrounding state. Often, prices will be lower on goods which the state places taxes on as well, which gives the tribes the ability to setup competing businesses that will have built-in tax breaks. Further, these businesses can still take advantage of federal tax breaks to out-compete state businesses.

The Trump administration has recently issued a memorandum that worries many indigenous people, especially those at the camps near Standing Rock. This act has been reported as an executive order, but it is actually a memorandum. It adds uncertainty after the Corp refused to issue an easement, but it also does not serve to mandate that they actually rush the pipeline and change their decision. A memorandum is somewhat like a elevated blog post where the president can talk about his intentions and make strong calls to action. It also does not change any laws, nor create any rules surrounding those laws.

The memorandum cannot contradict established law, which is why the Standing Rock Lawsuit is important. The problem is the Obama administration used executive channels to stop pipeline, which are now in control of the Trump administration. The lawsuits proceeding through the courts are still completely valid and are a good step towards stopping the pipeline. The lawsuit brought by Standing Rock hinges on interpretation of the term consultation in this law: (http://www.achp.gov/regs-tribes.html). Another lawsuit is proceeding as well, brought by my own people, the Mandan, Hidatsa, Arikara Nation.

The cited law above relies on the fact that tribes were spread out all over this country before it became the United States. We have many places that can be considered sacred or historic, and thus worthy of preservation, outside of the boundaries of reservations. Taking this into account, the law makes provisions that tribes must be consulted before construction of this type takes place on federal lands. Certain thresholds must also be met in order for the tribe to actually claim that there is an important site.

The fact that the ETP continued using heavy equipment while the area remained uninvestigated by authorities (who had only put in place a voluntary exclusion zone) was devastating. It was devastating to the people of Standing Rock, who believed there were important burials performed there, and it was devastating to the case, as it hinged on the evidence of historical sites. The destruction of these sites is now nearly impossible to verify, as heavy machinery rarely leaves much evidence to be found.

While Trump’s memorandum cannot break the law, the destruction by ETP may cause the lawsuit to fail. If the lawsuit does not stop the pipeline, then there is little preventing the Trump administration from restarting the easement issuing process later.

UPDATE:

The Army Corp has chosen to issue the easement, which is a great tragedy considering what may have already been lost to the ETP machines. The lawsuit appears to be what we’ll have to rely on after all.

It’s interesting that the Clive Bundy militia group has decided that they have the right to the land there around that building, and that their claim is somehow more valid than the claim of the Federal Government. The real spiritual owners of that land should not be invading ranchers, whose only claim truly stems from their forefather invading via Federal government mandate. The true spiritual owners of that land are the Paiute nation and their people. If anyone has a right to that land it is them. It is also strange to me that we still have not called in any Federal forces to retake the land that is  being held.

The fact that the only true legal claim stands with the Federal Government who created false treaties and other documents to support their claims. People living there have no reason other than their own government to claim any kind of ownership over the land. The government could simply seize any surrounding lands through eminent domain. Further, the full plenary power of congress can be brought to bear on any citizen, and no citizen is immune from the laws that govern these United States.

The fact of the matter is that the people who the militia is supposedly standing up for do not even want them there. If that is the case then who exactly are they fighting for? Ranchers according to them, though it does not make very much sense to fight for the ranchers who have stated that they do not support the militia. They must fight for something else then, perhaps the idea of free ranchers. If they are fighting for the idea of ranchers be allowed their opinions and land undisturbed, then it is a curious thing that they choose to disturb the land of ranchers and then disregard rancher backlash in order to make their point.

They may then claim they’re “giving them a taste of their own medicine!” but that does not hold up either. The ranchers in this case were found guilty of federal crimes with mandatory minimum sentences, somewhat like the drug sentencing in the war on drugs. The ranchers managed to weasel out of the mandatory minimum somehow, which is not how the justice system is supposed to work. If you commit a crime with a mandatory minimum then you are legally required to serve that sentence, other considerations be damned. The government has not committed a crime the way that these ranchers have, except perhaps against the Native Americans who they swindled for the land. If anyone deserves to occupy that land, then it is Native Americans, specifically Paiutes. So in truth, in order to give the Government a taste of its own medicine, and truly represent the spiritual owners of the land, they would have to be fighting for Native Americans, not ranchers.

There are the conspiracy theories about how these ranchers are being land grabbed, and that may have a seed of truth. The government is known for its land grabs if we look back to how the government obtained that land in the first place. What I do not understand is what makes these men think that they are so damn special that Native Americans can have their land grabbed and then think its a good thing, while if it happens to non Indian ranchers then it is the tyranny of the government. The fact that these people are whining that men who belong in jail for their offenses are being pushed is hysterical looking at the broad history of the area, where the land was stolen blatantly without any justification.

Perhaps they are more kindred with the federal government than they realize, as they have now reenacted the taking of the land from Native people. They have come with guns and foisted the current, and Federally true, owners off of the land. When Native Americans would try to take back their land in order to peaceably live in the land of their childhoods they were often rounded up, shot, and if they survived were sent to internment camps. I doubt that this will happen in modern America, as the government is far more crafty than that. Perhaps there should be an indigenous protest, one that is truly peaceful and does not demand the fear and insecurity that the scared, armed white men represent.

White men can carry guns to their protests, though I would not recommend that to any people of color. I would not even recommend a toy gun when facing down any law enforcement, unless of course you are a white men, simply exercising his privilege under the 2nd amendment. It will be an interesting day when minorities are able to exercise that right too.