Tribal Economic Development and the Constitution

Author:Carole Goldberg

Page 2731

Contact between non-Indians and Native American tribal nations largely destroyed the traditional economies of tribal nations, which included agriculture, hunting and fishing, and associated trade networks. Fish and game were slaughtered or depleted, tribal land bases and water resources were lost or placed under federal control, populations declined, and traditional sociopolitical organizations that structured economic activity were disrupted and replaced with an oppressive federal bureaucracy. Today, despite the presence of significant mineral, water, timber, and other assets on some reservations, most of the 554 Indian nations recognized by the United States experience severe poverty and related social consequences. Unemployment rates as high as 50 percent are common, with some tribes suffering 90 percent unemployment or higher.

The Constitution played a supporting role in the devastation of traditional tribal economies and the impoverishment of reservations. Although the Constitution makes few and cryptic references to tribes, the constitutional plan of federal supremacy over Indian affairs has emboldened the Supreme Court to develop a body of constitutional COMMON LAW in this area. The grant of federal power over "commerce ? with the Indian Tribes" in Article I, section 8, for example, has been embellished with notions of a federal guardianship over tribes to allow Congress nearly unlimited authority over internal tribal matters. Since the last decades of the nineteenth century, Congress has invoked this authority, also known as "plenary power," to support LEGISLATION abrogating TREATY promises that set aside lands for the "perpetual" use of the tribes. For example, Congress constructed dams that flooded tribal lands, divided or allotted tribal lands for individual tribal members, and opened tribal lands for homesteading by non-Indians. Congress also used its broad power to impose bureaucratic restraints on tribal resource use, to open tribal timber and mineral resources for exploitation by non-Indians without market-rate compensation, and to dictate tribal constitutions that organize tribal governing institutions as well as the ordinances that tribal governments enact. Experts on tribal economic development, such as Joseph Kalt of Harvard's Kennedy School of Government, have shown that without tribal control over the management of tribal affairs and the use of tribal resources, sustained economic...

To continue reading