Excerpted From: Adam Crepelle, Federal Policies Trap Tribes in Poverty, 48 Human Rights 8 (2023) (Full Document)


AdamCrepellePoverty and its related maladies are a scourge upon Indian Country. Many people believe this poverty stems from Indigenous cultures' inability to adapt to Western economic models. This notion arises from the belief that North America's Indigenous inhabitants were noncommercial prior to European arrival, but this is false. Commerce with distant and diverse peoples occurred so frequently that trade languages emerged in pre-contact North America. Wiping out tribal economies was a colonial tactic. Although federal policy now seeks to encourage tribal economic development, tribes remain trapped in a byzantine legal regime that subverts tribal economies.


[. . .]



Self-determination has not meant full sovereignty for tribes. Tribes still lack the legal and practical ability to perform many conventional government functions, such as making an arrest or collecting taxes. Tribes continue to fight for their right to execute these essential government functions because tribes remain “domestic dependent nations.” In 1831, the U.S. Supreme Court explained this nomenclature means tribes “are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.” Consequently, tribal sovereignty is severely limited. Limited tribal sovereignty leads to high transaction costs and uncertainty, both of which are bad for economies.

Trust land is a prime example. It is the most common type of land in Indian Country. Trust land is owned by the federal government while a tribe or individual Indians possess rights to use the land. Because the federal government holds the underlying title to it, trust land is not freely alienable. This means individual Indians cannot use the land their home sits on without first obtaining federal approval. In fact, an action as simple as executing a mortgage can require the Secretary of the Interior's approval. While Congress slightly improved the situation with the Helping Expedite and Advance Responsible Tribal Home Ownership (HEARTH) Act, fewer than 100 of the 574 federally recognized tribes have implemented the act. The HEARTH Act has improved the ability of these tribes to access capital; nevertheless, it does not make the land alienable. Hence, Indians must get leasehold mortgages, which result in higher interest rates than conventional mortgages, so Indian borrowers are subject to higher costs of capital.

Trust land's bureaucratic fetters extend beyond accessing capital, as the federal government is ensnared in virtually every activity. For example, engaging in oil production on state land takes approximately four permitting steps, and production can usually begin within three months. In Indian Country, the same exact oil operation requires 49 permitting steps and can take over three years. The steps also cost more in Indian Country, such as over $10,000 for a drilling permit in Indian Country, compared to approximately $100 in Montana. Accordingly, a 2012 Office of the Inspector General report noted “the oil and gas industry generally considers Indian leases to be their lowest priority, preferring to lease private, state, and federal lands first.” Consequently, oil and other industries operate outside of Indian Country whenever possible, thereby depriving tribes of economic opportunities.

Not only does tribes' limited sovereignty complicate land use, but it also complicates tribal jurisdiction over non-Indians. The Supreme Court has opined, “[T]ribes do not, as a general matter, possess authority over non-Indians who come within their borders.” Instead, tribes only have civil jurisdiction over non-Indians in two circumstances. Tribes can assert civil jurisdiction over non-Indians who enter a consensual relationship with the tribe or its citizens. Tribes can also assert civil jurisdiction over non-Indians engaged in conduct that imperils the tribe's economic or political welfare. Both exceptions have been construed incredibly inconsistently. Uncertainty over the scope of jurisdiction leads to litigation, which costs time and money. Businesses avoid this jurisdictional premium by operating outside of Indian Country. Without businesses, there are few economic opportunities, and this leads to poverty and its related ills.


Poverty is not an Indigenous trait. Rather, tribal economies enabled their citizens to thrive for thousands of years. Tribal economies can thrive again. The federal government simply needs to start treating tribes like the sovereigns they are and always have been.

Adam Crepelle is an assistant professor of law at the Antonin Scalia Law School at George Mason University and the director of the Law & Economics Center's Tribal Law & Economics Program. He is a Campbell Fellow at the Hoover Institution at Stanford University and an associate justice on the Pascua Yaqui Tribe's Court of Appeals.