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Lewis & Clark Law Review

Volume 12 / Number 4 / Winter 2008


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.

Imposing Communism

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.

Practical Sovereignty, Political Sovereignty, and the Indian
Tribal Energy Development and Self-Determination Act

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.



Looking at a State High Court Judge’s Work

Stephen L. Wasby

12 Lewis & Clark L. Rev. 1135 (2008)

As part of a larger project concerning one judge’s judicial career, this Article explores the work of Justice Alfred T. Goodwin of the Oregon Supreme Court and his colleagues during his nearly ten years of service (1960”“1969) on that court. Despite its limited focus—a single court in the relatively limited period of one decade, with primary attention to a single judge—the data presented are useful because of the present paucity of information about state high courts, particularly a state common law high court early in the second half of the twentieth century, before an intermediate appellate court was created in Oregon. Principal attention is given to the process by which cases were decided, including the time from argument to disposition and the use of rehearings; affirmances and reversals of the trial courts; and voting patterns both when the court sat in department and when en banc.

While most trial court rulings were affirmed, this Article examines the court’s treatment of trial judges individually, and on a geographical basis. While disagreement within the court was greater when it sat en banc than when it heard cases in department, dissensus was far less common than would be expected in discretionary jurisdiction courts. Dissent, which occurs less frequently in the supposedly less-contentious cases heard in department, is also not random; and alignments among the judges fall into patterns, with a judge more likely to dissent from the work of some colleagues than of others.

Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing To Sue?

Craig A. Stern

12 Lewis & Clark L. Rev. 1169 (2008)

The Supreme Court seems to have shuttled the federal rule against hearing generalized grievances back and forth between a home in the Constitution and a home in the Court’s prudence. Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007), stamped the latest forwarding address.

Where the generalized grievance finds its home orients the whole map to justiciability. The much controverted question of the sort of injury required for standing to sue may find answers in the location of the generalized grievance test. The prudential tests of standing focus upon the legal theory a party argues. The constitutional test of standing focuses upon the harm a party suffers. If the generalized grievance test retains its focus upon legal theory even as the test is drawn into constitutional standing doctrine, the injury-in-fact of that doctrine moves from simple harm towards the old invasion-of-legal-interest reminiscent of standing as a test of merits and not of justiciability.

This Article tracks the generalized grievance, exploring along the way the whole terrain of standing, ripeness, and mootness. In so doing, the Article finds that constitutional standing has more to do with the meaning of “judicial Power” than with the meaning of “Cases” and “Controversies.”

Was Dred Scott Correctly Decided?
An “Expert Report” for the Defendant

Paul Finkelman

12 Lewis & Clark L. Rev. 1219 (2008)

This Article offers an “expert report” for the defendant in Dred Scott, and argues that “given the history of the writing of the Constitution, the importance of slavery to the American economy, the specific protections for slavery found in the Constitution, and the politics of the era,” the “decision upholding Dred Scott’s status as a slave was surely inevitable.” However, from “the perspective of modern scholarship ”¦ it is not unreasonable to ask if the case was in fact correctly decided. To ask this question is not to defend [Chief Justice] Taney’s racism” or to argue “in favor of slavery.” Instead, this Article suggests “how the Court might have reached the same result that Chief Jusitce Taney reached—and why perhaps the result was constitutionally correct—without relying on racism or aggressively proslavery thought.”



Failing Students or Failing Schools?:
Holding States Accountable for the High School Dropout Crisis

Deborah N. Archer

12 Lewis & Clark L. Rev. 1253 (2008)

The issue of the nation’s low high school graduation rates is beginning to emerge as part of our national discussion about education reform. Yet, there has been very little discussion of who is responsible for addressing the growing crisis and devising a comprehensive response. Implicit in state constitutional provisions providing a right to education is the obligation for the state to provide every child with a meaningful opportunity to earn a high school diploma. School systems with chronically low high school graduation rates are failing to provide their students with the basic level of education guaranteed by most state constitutions. Low graduation rates are evidence of the systemic failure of schools to educate their students. States must be held accountable for implementing the systemic reforms necessary to reverse the alarming dropout trend and to reengage students with their education.

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