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In Dark Times, a Silver Lining for Tribal Sovereignty

Thomas Jensen
10/5/11

The budgetary hard times that are facing the federal government and states can create a favorable environment for Indian tribal governments. There may be opportunities to reclaim assets and expand assertions of sovereign powers that have been taken or burdened by federal, state and private sector actors during the last four centuries of non-native incursion and ascendant state and federal power.

Now, as states and federal agencies face shrinking capacity to govern—to manage lands, maintain or improve infrastructure, serve public needs, settle disputes, and perform other sovereign functions—tribes with financial resources and governmental wherewithal to lead will find new or expanded opportunities to take control of places, things and duties that have long been out of reach, under impenetrable control by state and federal authorities. The change, already underway in some places, will involve forests, parks, rivers, schools, roads, utilities, public safety and services of all kinds. The Yocha Dehe Wintun Nation in California is already the principal firefighting and EMT provider to all residents in a large region of Northern California. The Seneca Nation, with strong local support, is moving to take over a hydropower facility.

Federal and state powers will retreat with shrinking budgets. The change will not be smooth or uniform. Some states will be healthier than others; some federal agency budgets will fare better than others; some changes will take a long time. In various ways, the legal system will be out of step with reality. But, inevitably, real gaps in power will open, inviting those tribes with vision and leadership capacity to step forward.

The tribes with the strongest governments and the greatest experience working successfully with non-tribal communities will be in the best position to move into the positions no longer controlled by state and federal governments. It will not be enough to have financial resources or personnel. Those resources will be nearly impossible to deploy in circumstances where trust and personal ties are missing. Tribal sovereignty was displaced by violence and injustice; it will expand by using different kinds of force. Change will need to follow the power of competence and credibility.

That said, change can and should be driven by the pursuit of historical justice.

Even the best prepared tribes will need to use exacting due diligence. Some opportunities will be strategic; some will offer no benefit. The majority of government roles are thankless—while also essential to society. Deciding which thankless jobs are, in fact, valuable platforms for expanding sovereignty will take a keen eye. Is wastewater treatment strategic? Maybe; who lives downstream? Are EMT services strategic? Maybe; who needs help? Do we want that pipeline or dam? Maybe; has it been maintained? Do its customers pay?

In many communities, governmental leadership is closely tied to leadership in the local business sector. Especially in smaller communities, the boundary between the private and public sectors gets pretty blurred. Those tribes with leadership positions in businesses that are integral parts of local communities will likely enjoy an advantage in expanding their sovereignty.

There is no governance without politics. Tribes that have chosen to participate in politics beyond their own internal elections are going to have a substantial, probably critical asset in finding and exploiting openings to expand their powers outward. Engagement in politics offers many things, some good and some not, but at a minimum it is a way to learn about what others are doing, wish to do or wish not to do. National politics are in a particularly sclerotic state—but the organizational and communications tools of social media offer new, powerful means for participation and influence.

There is irony here, of course, and risk. Many tribes will feel the pain of shrinking federal budgets. Other tribes have depended on state resources that will be withdrawn. There is a real chance that the “haves” will do well in this new environment, and the “have-nots” will fall farther behind. Inter-tribal equity and parity have been hard issues for Indian country to resolve; changing times seem likely to bring the issues into even sharper focus.

This is a time of opportunity for tribes with ambition to lead as governments in their territories or regions, and maybe beyond. We are in a period of American history that is making room for tribes with a desire to reclaim control over decisions that determine the quality of life for tribal members and communities. As federal and state powers retreat, they will make room for tribal governments and tribal leaders—some, not all—to step forward. Which voids will be filled? Which tribes will fill them? Which non-tribal powers will adjust, and which will resist? It will be a new chapter in the history of North America’s native people and nations, a new arc in the circle of life for Indian country.

Tom Jensen is a partner in the Washington, DC office of SNR Denton. He serves as legal and strategic counsel to government, corporate and non-profit leaders on energy, natural resource, and environmental matters. He previously served on White House staff during the Clinton Administration and as Majority Counsel to the U.S. Senate Committee on Energy and Natural Resources.

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