Indigenous Law Bulletin
by Stephen Cornell
In much of the world today, relations between Indigenous peoples, on the one hand, and various kinds of settler societies, on the other, are in transition. Certainly in the United States (‘US’), Indigenous peoples are engaged in a massive effort to regain control of their resources and their futures, to restore their communities, to re-establish the right to govern themselves, to escape legacies of poverty and powerlessness, and to build societies that work. In some sense they have always been trying to do that, but in the last few decades this effort not only has become a major social movement, it has had some significant success. Thanks to legal and political decisions and to the assertions of Indigenous nations themselves, Aboriginal self-determination has been on the rise, admittedly to widely varying degrees.
The Harvard Project on American Indian Economic Development is one of the only projects in the US carrying out systematic research that speaks directly to these efforts. Founded in 1986 at Harvard University, by economist Joseph Kalt and me, this project is a comprehensive research-based effort to understand the dynamics of self-governance and economic development on American Indian reservations.
In the US, as in Canada, most Indigenous nations are poor. American Indians living on reserved lands have long led the US in unemployment figures, ill health, poor quality housing and a host of other negative economic and social indicators. But something interesting has been happening over the last three decades. Some Indian nations have been breaking out of this picture of relentless poverty. The Choctaw Indians in Mississippi, the Citizen Potawatomi Nation in Oklahoma, the White Mountain Apache Tribe of Arizona, the Confederated Salish and Kootenai Tribes in Montana, and Cochiti Pueblo in New Mexico are all examples of tribes that have interrupted the prevailing pattern of poverty on Indian reservations.
This divergence in economic development across Indian nations motivated our research. A decade and a half ago, we set out to try to understand this phenomenon. We did so via both statistical studies of large numbers of Indian nations and through extended, field-based research on smaller samples of tribes. Over time, as both data and analysis accumulated, we became increasingly confident in a set of robust, core findings. Our research points to four key determinative factors in American Indian economic development.
After years of research, we have yet to find a single case of an American Indian nation demonstrating sustained, positive economic performance in which somebody other than the Indian nation itself is making the major decisions about resource allocations, project funding, development strategy, governmental organisation and related matters. In case after case, we have seen development begin to take hold when Indian nations succeed in moving outsiders from decision-making roles into resource roles, replacing them as primary decision-makers in Indigenous affairs.
The reasons for this are several, among them the fact that it puts the development agenda in Indian hands. As long as some outside agency carries primary responsibility for economic conditions on Indian lands, development decisions tend to reflect those outsiders’ agendas. In the US, this has meant that considerations such as protecting agency budgets or expanding agency authority or avoiding media-worthy disasters were frequently given disproportionate weight in decision-making. When tribes begin making the decisions, those decisions begin to reflect tribal agendas in which sustained economic development often has primacy.
But there’s a still more important reason for such a shift: the link between decisions and their consequences. Outsiders bear fewer of the consequences of their decisions and therefore, are subject to a much less dependable, that is less disciplined, learning curve. When outsiders make bad decisions, they seldom pay the price. The community instead bears the brunt of the costs, but it has no power to respond with better decisions in the future. Once decisions move into the hands of those whose fortunes are at stake, the decision-makers begin to bear the consequences of their decisions. Over time and allowing for the learning experience, the quality of decisions improves. This has concrete, bottom-line payoffs. In the timber industry, for example, a Harvard Project study of 75 US Indian nations with significant timber resources found that for every job that moved from US Department of the Interior control to tribal control, profits and productivity rose.
However, self-rule is not enough to produce economic growth. Sovereignty must be backed up with effective institutions of governance if it is to lead to significant, sustainable development. Harvard Project results show that the chances of sustainable development rise as Indian nations put in place effective, non-politicised dispute resolution mechanisms, such as tribal courts, shut down opportunistic behaviour by politicians, eradicate corruption, place buffers between day-to-day business management and politics, build capable bureaucracies and so forth.
Why are institutions so important? Institutions send a message to potential investors. If the message is positive (stability, depoliticised business management and dispute resolution, procedural efficacy, regulatory regimes that are fair and make sense, etc), the chances of investment rise. If the message is negative (instability, politicised business management and dispute resolution and so forth), the chances of investment fall. Our definition of ‘investors’ embraces not only those with dollars but also those with ideas, energy, time or any other resource that can be an asset to development. Tribal members of meagre means are as much potential investors in the future of their communities as anyone else is. They may take a job in tribal government or start a small business. Importantly, they make investment decisions on much the same basis as outsiders or as those with greater financial resources do: where is my investment of time, energy, ideas or money likely to be most productive, satisfying and secure?
Institutions are a major part of the community’s answer to this question and therefore, are one of the central pivots on which development turns. Investors have choices. In building effective governing institutions, Indian nations attempt to shape those choices, sending a message to investors, including their own peoples, inviting them to invest here. In sending that message and in backing it up with institutional integrity and real action, they pave the way for productive economic development. John Barrett, Chairman of the Citizen Potawatomi Nation in Oklahoma, which is one of the more dramatic tribal economic successes in the US, bluntly draws the connection, ‘If you’re not talking about constitutional reform,’ he says, ‘you’re not in the economic development ballgame’.
The third finding from our research has to do with something we call ‘cultural match’. If Indian nations are to mobilise community energies and resources on behalf of productive economic development, these governing institutions have to have the support of the people they govern. This in turn appears to be a matter of the fit between the formal institutions of governance, on one hand, and Indigenous conceptions of how authority should be organised and exercised, on the other. Institutions whose form departs significantly from such Indigenous political conceptions fare significantly worse than those that build, sometimes innovatively, upon such conceptions.
Historically, outsiders designed and, in effect, imposed the governing institutions through which many contemporary Indian nations attempt to achieve their goals. Most such institutions were never conceived as tools for the management of sovereign societies and are notably ineffective. Furthermore, many are starkly at odds with Indigenous political cultures and consequently, find little support within their own communities. The successful Indian nations we’ve looked at for the most part have solved this problem, either adopting or inventing institutions that match their own contemporary political cultures and that are capable of governing well.
This is not necessarily an argument for a return to ‘tradition’. The point is to search out and organise a resonance between formal institutions and what people currently view as appropriate for them. For the Confederated Salish and Kootenai Tribes of the Flathead Reservation, this may mean classic parliamentary democracy with a strong, depoliticised judicial system. For Cochiti Pueblo, it may mean a system of government without any written constitution in which the spiritual leadership of the tribe appoints the senior tribal administrators. Both of these tribes are notably successful and both have matched formal institutions to contemporary Indigenous political culture.
Our support for the fourth finding remains largely anecdotal, but the evidence is rapidly increasing that those Indian nations that think strategically do better than those that don’t. In the last century or so, most Indian reservations have seldom been characterised by strategic thinking, and for good reason. If political and economic control lies largely in the hands of outsiders, what’s the point of strategic thinking? Another reason is the often desperate economic and social conditions of many Indian reservations. Such conditions place enormous pressures on elected tribal leadership to ‘get something going’. The ‘something’ can be almost anything, as long as it produces jobs. Faced with typically short terms of office, frequent political turnover, and an endless stream of petitioners looking for relief, tribal leaders tend to look for quick fixes. Their development strategy, in effect, pursues whatever can be funded, typically via federal grants, pays less attention to sustaining businesses than to starting them, and puts a premium on hitting home runs instead of building economies incrementally.
The alternative is strategic thinking: a systematic examination not only of assets and opportunities but of priorities and concerns. Unless such considerations are thought through, decision-making occurs in a strategic vacuum, simply reacting to the pressures of the moment or to funding decisions made thousands of miles away by governments serving diverse interests and handicapped by limited local knowledge. With a strategic perspective in hand, tribes at least have criteria by which to evaluate development options.
This research highlights the great importance of ‘nation-building’ or ‘nation-rebuilding’: the effort to equip Indigenous nations with the institutional foundations that will increase their capacity to effectively assert self-governing powers on behalf of their own economic, social and cultural objectives. As our research results suggest, however, it is not simply a matter of transferring institutions from the dominant society to Indigenous nations. These institutions not only have to be effective, they also have to command the support of Indian peoples. This means they have to be produced by Indigenous peoples themselves.
Treaty-making is potentially a nation-building enterprise. Much of the discussion of the treaty process is about correcting old wrongs and satisfying claims. But in addition, this process could, not will but could, dramatically improve the chances of successful economic development for Indigenous nations. The critical issues are these: will that process lead to genuine decision-making power in the hands of Indigenous nations, and will it equip those nations with the necessary institutional mechanisms for exercising that power effectively?
Our research indicates that successful treaties must avoid an approach to Indigenous self-governance that is limited to ‘operational administration’, that is simply allowing tribes to deliver services that once were administered by somebody else. This is a form of administrative subcontracting, in which bureaucrats in provincial or federal capitals allow Indigenous nations to run the administrative show at the local level, while the big decisions still get made elsewhere. In both the US and Canada, this approach to self-governance seldom takes nation-building seriously: rebuilding Indigenous power to shape and reshape Indigenous futures, to build societies of Indigenous design, to realise Indigenous visions in practical, day-to-day, substantive decision-making.
Now why, someone might ask, should non-Native people care, other than on moral grounds? I think moral grounds ought to be sufficient, but let’s be realistic and see what else we can offer. The evidence from the US is emphatic. Genuine Indigenous self-government, what in the US is called tribal sovereignty, is a win-win proposition. Over and over again, Indian reservation economic success spins off benefits to non-Indian communities. Our data indicates that as reservation economic fortunes improve, we see reductions in welfare rolls, decreased burdens on taxpayers, growth in job opportunities for both Indians and non-Indians, and major contributions to regional economies. It takes time, and it happens in fits and starts, but in the long run, successful Indian economies add significantly to the economic pie.
What are the practical implications of this research? First, for non-Indigenous governments, the provinces and the federal government, the critical issue is this: what does self-governance truly mean? Will it be limited to operational administration? Will it mean the central government ultimately calling the shots? Or will it embrace genuine control over resources; significant and consequential dispute resolution (which means, ultimately, First Nations courts); funding via block grants instead of program funds (which moves substantive decision-making power into Indigenous hands) until First Nations can support themselves; a partnership (not consultation) in major decisions wherever Indigenous interests are at stake; and genuine jurisdictional power? If we are serious about self-government, then we have to include these things, and we have to invest not only in the treaty process, but in building the institutional capacity of First Nations to back up their power with capable and effective governing systems that operate under their own control.
There are implications for First Nations as well. Governing power without the determination and the institutions necessary to exercise it effectively won’t amount to much. As one tribal chairman said to some of us just a few weeks ago, ‘a tribal government without good institutional rules is just a bad family reunion’. The questions are these: can you back up genuine self-governing power, by which I mean substantive jurisdiction, with good government? Can you eradicate corruption? Can you depoliticise judicial decisions and dispute resolution, so that everyone from the First Nations citizen who is trying to decide whether to stay at home or move to the city, to the potential non-Indian partner in an enterprise, knows that their investment will not be hostage to politics? Can you work with other First Nations to overcome the disadvantages of small size and population, perhaps forming institutional cooperatives where size demands larger organisational scale, assisting each other in providing the kinds of effective institutions without which no nation can succeed? Nation building is not a matter of power. It’s a matter of power coupled with its effective, fair, judicious and culturally appropriate exercise.
That is the nation building challenge, not only here, but around the world. It is a difficult challenge, but it also is a crucial one on which the future of First Nations may well depend.
Stephen Cornell is Director of the Udall Center for Studies in Public Policy at The University of Arizona, where he also is Professor of Sociology and of Public Administration and Policy. In addition, he co-founded and continues to co-direct the Harvard Project on American Indian Economic Development, Kennedy School of Government, Harvard University.
 Matthew B Krepps and Richard E Caves, ‘Bureaucrats and Indians: principal-agent relations and efficient management of tribal forest resources’ (1994) 24(2) Journal of Economic Behavior and Organization 133.