Implementing the Federal Endangered Species Act in Indian Country: : The Promise and Reality of Secretarial Order 3206
by Marren Sanders
(PDF 1400 kb)

The federal Endangered Species Act (ESA) is nearly silent regarding its potential application in Indian Country. But by the mid-1990s, the ESA had proven to be a source of serious concern for Indian tribes. In 1997, as the culmination of months of negotiations between agency officials and tribal representatives, the Secretaries of the Interior and of Commerce jointly issued Secretarial Order 3206 (SO 3206), entitled “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.” The order sought to harmonize the federal trust responsibility to tribes and the statutory missions of the Departments of the Interior and Commerce in implementing the ESA. This paper considers whether the order has lived up to its promise of true bilateralism between the United States and sovereign tribal governments regarding their rights vís-a-vís the ESA process. It reviews the key requirements of the ESA, pertinent executive orders, and SO 3206 itself.  It analyzes government-to-government relations in several cases of “final rule” critical habitat designation and through a review of scholarly literature. Further, it discusses the difference tribes can make by creating and implementing their own habitat management plans, as alternatives to designation of critical habitat on Indian lands, and by actively partnering with the U.S. Fish and Wildlife Service and National Marine Conservation Service. The author concludes that while SO 3206 has not yet lived up to its full promise, it is making a difference by assisting federal land managers and sovereign tribal governments in building stronger working relationships while protecting the environment.

JOPNA No. 2007-01    52pp.

Indigenous Peoples, Poverty, and Self-Determination in Australia, New Zealand, Canada, and the United States
by Stephen Cornell
(PDF 269 KB)

Australia, New Zealand, Canada, and the United States share certain characteristics. All four are predominantly European-settler societies. All are English-speaking. Their legal and political systems, while different, share a primarily English heritage. They also share a particular pattern of relationships with indigenous peoples. In all four, European settlement dispossessed — often violently — indigenous peoples of their lands. But in all four, remnant indigenous peoples remain today on remnant lands, and in all four, those peoples are engaged to one degree or another in movements for indigenous self-determination. There is another commonality among these countries: In all four, central governments have tended to be more willing to address issues of indigenous poverty than issues of indigenous self-determination. But what if the two are connected? This paper argues that there is strong evidence from the United States that effective solutions to indigenous poverty depend on, among other things, indigenous self-determination. After making the case for comparative analysis among these four settings, it summarizes the U.S. evidence and considers its applicability to the situations of indigenous peoples in the other three countries. It also argues that while indigenous self-determination and self-governance are keys to positive economic change, self-determined indigenous governance in these countries is likely to be diverse, and that a single form of self-governance is unlikely to work across groups or across countries.

JOPNA No. 2006-02    44pp.

What Makes First Nations Enterprises Successful? Lessons from the Harvard Project
by Stephen Cornell
(PDF 197 KB)

Indigenous economic development takes multiple forms. One of the most common ways that indigenous peoples attempt to meet needs for revenue, employment, and services is through nation-owned enterprises. These are hugely diverse, ranging from timber companies and gaming operations to telecommunications enterprises and convenience stores. The record of such efforts is mixed: as with businesses everywhere, some succeed and others don't. This paper examines how the actions of Native nations themselves can either undermine or strengthen their own enterprises, drawing on extensive research carried out by the Harvard Project on American Indian Economic Development at Harvard University and the Native Nations Institute for Leadership, Management, and Policy at the University of Arizona. Of course many of the things that determine business outcomes lie beyond the control of the nations that own the businesses. The paper focuses on five factors that indigenous nations can control but that sometimes are ignored in the effort to build successful, nation-owned businesses: clarity about enterprise goals; effective management of the politics-business connection; the purpose, power, and composition of enterprise boards of directors; independent and reliable resolution of disputes; and the need to educate the community about enterprise goals and activity. Using real-world cases, the paper explores how the actions by indigenous nations in each of these areas can have a significant impact on business performance.

JOPNA No. 2006-01    24pp.

Two Approaches to Economic Development on American Indian Reservations: One Works, the Other Doesn't
by Stephen Cornell and Joseph P. Kalt
(PDF 163KB)

A revolution is underway in Indian Country as American Indian nations increasingly take back control over their own affairs and take responsibility for reshaping their futures—efforts that are leading to unprecedented economic success and the alleviation of poverty. Significantly, this success does not appear to be tied directly to the Native nations' asset bases or market locations. Instead, it is tied to their invention of a new approach to economic development, which the authors term the “nation-building approach.” This paper compares the “standard approach,” long supported by the U.S. government and by some Indian nations, to the nation-building approach. The two approaches are very different, and they have led to dramatically different outcomes. The standard approach has four leading characteristics. It is short-term and non-strategic; it lets outsiders set the development agenda; it treats economic development as fundamentally an economic problem, ignoring its political dimensions; and it views indigenous cultures as an obstacle to development. Decades of effort using the standard approach have produced little change in indigenous socioeconomic conditions. In contrast, the nation-building approach puts genuine, decision-making power in indigenous hands; it backs up that power with capable institutions of self-governance; it matches those institutions to indigenous political culture; it has a strategic orientation toward long-term outcomes; and it is guided by public-spirited leadership. Over the last twenty-five years, this approach has begun to produce significant improvements in reservation socioeconomic conditions.

JOPNA No. 2005-02    25pp.

Seizing the Future: Why Some Native Nations Do and Others Don't
by Stephen Cornell, Miriam Jorgensen, Joseph P. Kalt, and Katherine A. Spilde
(PDF 248KB)

Both research and the experience among Native nations daily drive home the conclusion that the so-called “nation building” approach holds the keys to self-determined social, political, and economic development for indigenous communities. This approach emphasizes the critical role of asserting rights of self-rule and backing up those assertions with governing institutions that are legitimate in the eyes of the people and efficient in their operation. This study examines the question of why is it that some Native nations seize upon the nation building strategy and take effective control of their futures while others do not. We find that foundational change in a community arises when the external and internal conditions a people face interact with their interpretations of their situation, producing a new, shared “story” of what is possible, and how it can be achieved. The keys to changing a community's “story” are found in proactive decisions to alter internal and external situations, acquire concrete knowledge of the feasible, build on the community's cultural assets, and exercise leadership—especially in educating the people in a new vision.

JOPNA No. 2005-01    42pp.

Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule
by Joseph P. Kalt and Joseph William Singer
(PDF 337KB)

This study explores legal and economic dimensions of current perceptions of (and debates over) the nature and extent of tribal self-rule in the United States, with the objective of distinguishing between myth and reality. The authors address key threads of thought and assumptions that pervade, accurately or inaccurately, discussions in the public policy arena. What emerges is a picture in which tribes do exercise substantial, albeit limited, sovereignty. This sovereignty is not a set of special rights. Rather, its roots lie in the fact that Indian nations predate the United States. While their sovereignty has been diminished, it has not been terminated. Tribal sovereignty is recognized and protected by the U.S. Constitution, legal precedent, and treaties, as well as applicable principles of human rights.

JOPNA No. 2004-03    47pp.

History's Lesson for HUD and Tribes
Miriam Jorgensen
(PDF 227KB)

In 1998, Indian housing entered a new era. HUD ended its practice of channeling funds for Washington-designed Indian housing programs to HUD-sponsored local Indian Housing Authorities (IHAs) and converted programmatic funds into block grants to tribal housing agencies, which were allowed to design and implement their own programs. The hope was that increased tribal control would greatly improve the quantity and quality of housing available in Indian Country. This paper analyzes the differential success of the IHAs and provides important information about the conditions under which the new tribal efforts will be successful. Results suggest that unless the new approach addresses core issues of tribal governance, it will be inadequate for real reform of Indian housing. IHAs that had access to capable judicial, political, bureaucratic, and socio-cultural governance mechanisms could better enforce rent payment, deter vandals, and constrain official opportunism—factors that negatively affect IHA performance. IHAs located in environments that lacked such governance institutions were less able to develop and maintain the community's housing resources. Thus, unless tribal housing program development proceeds hand-in-hand with tribal institutional development, the promise of new, tribally controlled programs may go unfulfilled.

JOPNA No. 2004-01    43pp.