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Campbell: Updating Indian law, sharpening the tools of Indian self-determination

Some of you may be interested to learn that the Secretary of Interior may withhold federal funds from an Indian tribe that is holding "captives." Even more would be surprised to learn that the legal authority to take such action remains the law and is still "on the books." 25 U.S.C. section 129.

Funds may also be spent and assistance rendered to Indians who want to "adopt the habits of civilized life." 25 U.S.C. section 185.

Current law also requires the Secretary of Interior to certify which persons are permitted to trade with the Indians. 25 U.S.C. section 262.

These examples are provisions that remain in full force in federal law.

If these legal anachronisms were the only examples of laws that have outlived their usefulness yet remain in the Code, I would not be so concerned.

But this is not the case and the provisions I listed are the tip of the iceberg. There are many other laws, regulations and policies that I believe need to be revisited, scrutinized and - if necessary and proper - updated if tribal governments and Indian people will be allowed to govern themselves and achieve real self determination.

For instance, it may come as a shock to you that tribal landowners are prohibited by law from leasing their own lands to whom they wish for a period of more than 25 years. 25 U.S.C. section 415.

Why is it important to revisit and, if necessary, change these laws? We do know that legal and policy environments can either encourage or discourage the actions of individual Indians, Indian tribes, and others that engage Indian country such as potential business partners.

Development economists - international and domestic, and from both sides of the political spectrum - are beginning to see legal infrastructure as key to job and income creation. For example, in his best selling "The Mystery of Capital," Peruvian economist Hernan de Soto makes the case that coherent legal and property rights systems provide the difference in whether nations are economically successful. He goes on to suggest that property rights are key to unlocking untapped capital and economic power in undeveloped areas such as inner cities, Indian reservations and the colonias along the Texas-Mexico border.

The groundbreaking work of Professor Joe Kalt of the Harvard Project on American Indian Economic Development also stresses good governance, transparency and solid institutions as keys to Indian economic advancement.

The idea of updating laws relating to Indians is not a new idea. In recent times these efforts have included the Commission on Reservation Economies whose report published in the mid-1980's contained a variety of legal and policy changes it recommended be undertaken to spur reservation economic development.

There were efforts underway in Secretary Babbitt's Interior Department to review Title 25 as well, though they never materialized in terms of a formal proposal.

Revising laws relating to Indians is not a radical idea either and, in fact, it takes place in a piecemeal fashion in every Congress. In addition to the dozens of comprehensive Indian statutes that have been enacted since the late 1990's such as Indian housing, education, health care, trust reform and natural resources laws, there are other changes that could have significant and positive impacts for Indian communities.

For example in recent years, key reform legislation was passed by Congress and signed into law including the following:

1. Amendments to 25 U.S.C. section 81 have scaled back the requirement that the Interior Secretary approve contracts entered into by Indian tribes. Prior to the amendment, contracts touching on Indian lands - even those as minor as contracts for copy machine paper and attorney contracts - took far to long to approve and the Secretarial approval became a tool for overzealous federal officials to get involved in tribal affairs.

2. Responding to situations where potential tribal energy development partners have walked away due to the enormous delays in securing federal approvals, language I offered to peel back the requirement that the Secretary approve energy leases has been included in the energy bill currently in conference. If enacted, this modest change will help those tribes that want to develop their energy resources by expediting lease agreements.

3. Acknowledging the unique labor-market settings of most Indian reservations, in 1999, Congress authorized a limited tribal pre-emption of the "prevailing wage" requirements of the federal Davis-Bacon Act. By putting the tribes in the saddle on the matter of wages paid on federally assisted housing, this small amendment will result in up to 30 percent more Indian housing built as a result.

In the course of reviewing Indian laws, it became apparent to the Committee that a more comprehensive effort was needed to review and reform the legal regime. As a result, in 2000 Congress passed and the President signed into law the Indian Tribal Regulatory Reform and Business Development on Indian Lands Commission (Pub. L. 106- 447) which holds much promise for legal reform and the creation of a more sound legal and policy environment in which Indian tribes and their partners in the business community can thrive.

I believe that by working together, the tribes, the Administration and the Congress can provide the kind of legal changes and policy reforms that will help tribes unlock their members' entrepreneurship and economic potential.

Among other key committee assignments, Sen. Campbell, R-Colo., is the vice-chairman of the Senate Committee on Indian Affairs; and is a member of the Senate Energy and Natural Resources Committee.