Articles

Doing Business in Indian Country: A “Historic” Opportunity

Business relationships between American Indian Nations and non-Indian business interests have been growing in the last 30 years – mostly due to the development of gaming. In the last 10 years, Indian Nations have been looking for ways to diversify their economies and strengthen their sovereignty and opportunities for self-determination. It has been onerous to bring non-Indian business into Indian Country because of the legal difficulties of leasing Indian lands.

Recent statutory and regulatory activity has made doing business in Indian Country more encouraging. The HEARTH Act (Helping Expedite and Advance Responsible Tribal Homeownership Act, Pub.L. 112-151, was signed by President Obama on July 30, 2012; amended leasing regulations at 25 C.F.R. Part 162 were published in November 2012). The new statute and regulatory amendments allow Indian Nations to lease restricted Indian lands for residential, business, wind and solar development, religious, public, educational, or recreational purposes without the approval of the Secretary of the Interior. HEARTH and the amended regulations are deregulatory in nature to encourage industry to partner with Indian Nations and facilitate the productive leasing of Indian lands.

The passage of these laws has given witness to an increase of developers, engineers, consultants, lawyers and various types of salespeople at Indian Nation conferences and trade shows, and even on Indian leaders’ front doorsteps. Non-Indian entry into Indian Nation Territories has been historically destructive to the protection of Indian Nation sovereignty, self-determination and the health, welfare and safety of the Indian Nation and its citizens. In my practice with Indian Nations I still encounter outside business interests wanting to engage Indian Nations in manners that are contrary to Indian Nation interests.

Because of this past and present history, Indian Nation leadership is extremely cautious about who it will partner with – after all, it is the success of the business venture that will either support the health, safety and welfare of a community, or may cause its downfall. Doing business in Indian Country truly presents an opportunity to make history – and to make it better.

The first step to success requires the outside interest to learn about the unique status of a particular Indian Nation. There are 566 federally recognized Indian Nations – each one diverse in its history and culture, organic documents, internal laws, policies and priorities, and applicable federal and state law. The way one Indian Nation expresses its sovereignty, manages its priorities, and develops its business relationships may be different than another Indian Nation. Therefore, it is essential that outside business interests work in a cooperative and non-adversarial manner with Indian Nation leaders and Indian Nation legal counsel to work toward a productive and long-lasting future.

Related Practices

• Indian Nations