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College of Liberal Arts and Sciences Affiliated Colleges: Sandra Day O’Connor College of Law Mary Lou Fulton Institute and Graduate School of Education

1. Tribally-Driven Participatory Research 2009 2. Tribes and Transportation in Arizona 2009 3. Tribes in Arizona, Growth and Land Use 2007 4. Legal Infrastructure and Economic Development 2007 5. The Gila River Indian Community’s Tribal Air Quality Implementation Plan 2007 6. Navajo Nation Government Forum 2009 7. Gila River Elders Visit ASU 2008 8. Navajo Nation Presidential Debate at ASU 2007 9. Treaties with American Indians “ Property: Land and Natural Resources” 2008

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JOURNAL OF

HD RP JOURNAL OF

Health Disparities Research and Practice VOLUME 3 NUMBER 2 FALL 2009

An official publication of the Center for Health Disparities Research School of Community Health Sciences University of Nevada, Las Vegas


Journal of Health Disparities Research and Practice Volume 3, Number 2 Fall 2009

The Journal of Health Disparities Research and Practice is a peer-reviewed journal published by the Center for Health Disparities Research at the University of Nevada, Las Vegas.


Journal of Health Disparities Research and Practice Volume 3 • Number 2 • Fall 2009

Original Contributions Health Disparities in Kidney Transplantation: An Equity Analysis

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Shirley A. Wells Beyond the IT Magic Bullet: HIV Prevention Education and Public Policy Fay Cobb Payton

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Talking Glossary of Genomics Terminology: A Genomics Education Module for American Indian Communities Jill Peters, Pauline Davies, Naomi Lane, Kathryn Coe

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Tribally-Driven Participatory Research: State of the practice and potential strategies for the future

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Patricia Mariella, Eddie Brown, Michael Carter, Vanessa Verri Hepatitis C Diagnoses in an American Indian Primary Care Population

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Hillary E. Norton, John T. Redd, Ralph T. Bryan, Utilizing Community Resources to Reduce the Presence of Type 2 Diabetes in Rural Youth

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Antonia S. Mead, M. Christine Nagy, Steve Nagy Promoting Physical Activity in Low Income African Americans: Project LAPS

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Dorothy W. Pekmezi, Brooke L. Barbera, Jamie S. Bodenlos, Glenn N. Jones, Phillip J. Brantley Pastors’ Influence on Research-based Health Programs in Church Settings

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Shirley M. Timmons, Clemson University

Instructions for Authors

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JOURNAL OF

HD RP

Journal of Health Disparities Research and Practice Volume 3, Number 2, Fall 2009, pp. 41-58 Š2009 Center for Health Disparities Research School of Community Health Sciences University of Nevada, Las Vegas

Tribally-Driven Participatory Research: State of the practice and potential strategies for the future Patricia Mariella, Arizona State University, American Indian Policy Institute Eddie Brown, Arizona State University, American Indian Policy Institute Michael Carter, Arizona State University, Indian Legal Program Vanessa Verri, Arizona State University, Indian Legal Program

ABSTRACT This paper discusses current practice of research with and by American Indian tribal governments in the United States. It begins with a brief overview of Community-Based Participatory Research and compares and contrasts its principles and methods with what this paper terms Tribally-Driven Participatory Research. The paper analyzes current challenges and offers concepts for continuing to improve the effectiveness of TriballyDriven Participatory Research. Keywords: research policy; tribal governments; community-driven participatory research; American Indian

INTRODUCTION We begin this paper on Tribally-Driven Participatory Research (TDPR) by describing its roots in Community-Based Participatory Research (CBPR). We then compare and contrast the principles and methods of CBPR with those of TDPR. The current practice of research with and by American Indian tribal governments in the United States is described and current challenges are outlined and concepts and strategies for continuing to improve the effectiveness of Tribally-Driven Participatory Research are outlined. 41


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Community-Based Participatory Research (CBPR) Development of Community-Based Participatory Research For more than two decades, increasing numbers of communities, advocacy organizations, government agencies and university centers have promoted an approach to expanding knowledge and improving health and quality of life that builds on the strengths of communities, empowers communities, and produces valid, useful and meaningful results. The core principle of this model is that scientific research needs to involve, throughout the entire process, a full partnership between the researchers and the study-communities (Macaulay et al., 1998; Davis & Reid, 1999; Dignan et al., 1998; Garwick & Auger, 2003; World Health Organization, 2003; Holkup et al., 2004; Letendre & Caine, 2004; Manson et al., 2004; Brown, 2005; Burhansstipanov et al., 2005; Caldwell et al., 2005; Arizona Biomedical Research Commission, 2006; Brugge & Missaghian, 2006; Christopher et al., 2008; Edwards et al., 2008; Nilson et al., 2008). A whole taxonomy for this research model has been developed; however, there is growing consensus around the label Community-Based Participatory Research (CBPR) (Burhansstipanov, 1998; Davis & Reid, 1999; Israel et al., 2001; Fisher & Ball, 2003; Ortiz, 2003; Holkup et al., 2004; Letendre & Caine, 2004; Edwards et al., 2008; Gibson et al., 2008)1. Some reviewers suggest the CBPR practice involves collaboration at all stages of research, from planning through implementation and evaluation. Others propose that it need only involve one or two of these elements. Today some principles of CBPR have been incorporated into federal research guidelines and funding requests (Israel et al., 2001; Holkup et al., 2004; Burhansstipanov et al., 2005; Caldwell et al., 2005; Arizona Biomedical Research Commission, 2006; Brugge & Missaghian, 2006; Buchwald et al., 2006; Strickland, 2006). Numerous researchers have discussed the antecedent theoretical and methodological foundations, acknowledging that many of the core elements have been used for over a century in community organizing as well as participant-observation methodologies (Brugge & Missaghian, 2006; Nilson et al., 2008). Many analysts assign descriptive labels to distinguish core differences between research and CBPR. Research is often characterized by the ‘helicopter research’ approach in which outside ‘experts’ come into a community, gather information and leave, (Hodge et al., 2000; Brown, 2005) or ‘safari research,’ in which outside researchers visit a community, observe, gather limited information and leave with their ‘trophies’ (data; publications; careers) (Macaulay, 1994; Christopher, 2005). The community neither participates nor benefits. Federal protections have been in place for individual human subjects in biomedical and behavioral research since the publication of the 1974 Belmont Report of the National Commission for the Protection of Human Subjects (Beauvais, 1999; Model Tribal Research Code, 1999). These protections require informed consent of research participants, maximization of benefits and minimization of harm as well as fair treatment of all individuals (Beauvais, 1999; World Health Organization, 2003). Regulations (Title 45 of the Code of Federal Regulations, Section 46) resulted in the development of Institutional Review Boards in the 1980’s within federal agencies and universities to review proposals and ensure compliance with federal requirements (Hodge et al., 2000; Arizona Biomedical Research Commission, 2006; Brugge & Missaghian, 2006). In the past decade, a few federal agencies, primarily those involved in health research, such as the National Institutes for Health, began to adopt the CBPR approach because, despite the protections for individual human subjects, there was increasing recognition that communities also needed to be protected and that 1. Some of the names in the literature for this research model include: Applied Research; Appreciative Inquiry; Community-led Research; Co-operative Research; Culturally Competent Research; Development Action Inquiry; Emancipatory Research; Participatory Action Research; Respectful Research


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standard research approaches were not significantly reducing health disparities within the U.S (Israel et al., 2001; Burhansstipanov et al., 2005; Buchwald et al., 2006; Strickland, 2006). Agency Directors, inspired by a Clinton Administration Policy mandate to achieve results, were made aware of biomedical research ‘on’ communities that were at best exploitative and, at worst, criminal, began to consider strategies to avoid these problems and lawsuits (Holkup et al., 2004; Manson et al., 2004; Christopher, 2005; Christopher et al., 2008). As a result, CBPR largely has been focused on biomedical, health and behavioral science fields, although practitioners generally acknowledge that the principles of CBPR need to be part of all research that involves and affects not only individuals but communities (Model Tribal Research Code, 1999; Fisher & Ball, 2003; Brugge & Missaghian, 2006). Even so-called basic science, with its focus on the fundamental questions of the physical universe, has begun to incorporate elements of community empowerment in programs in order to increase student recruitment and retention in the science, technology, engineering and math fields (Nilson et al., 2008). Core Principles of Community-Based Participatory Research Most of the CBPR literature identifies the same core principles, elements and methods, although the names given to these sometimes differ. The greatest variability occurs concerning the inclusion of ‘post-research’ elements such as advocacy and implementation. This overview paper cites a number of articles on CBPR development, its core principles and its use in a wide range of projects. CBPR practitioners generally agree on these core principles: • Recognition of community (not just individual) values and goals as well as the potential for collective harm (Beauvais, 1999; Davis & Reid, 1999; Model Tribal Research Code, 1999; Ortiz, 2003; World Health Organization, 2003; Holkup et al., 2004; Letendre & Caine, 2004; Brown, 2005; Caldwell et al., 2005; Arizona Biomedical Research Commission, 2006). • Development of full partnerships between institutional researchers and communities that build trusting relationships over time (Beauvais, 1999; Davis & Reid, 1999; Israel et al., 2001; Fisher & Ball, 2003; Garwick & Auger, 2003; Ortiz, 2003; Letendre & Caine, 2004; Burhansstipanov et al., 2005; Christopher et al., 2008; Nilson et al., 2008). • Community participation in all aspects throughout the entire research process (Macaulay et al., 1998; Davis & Reid, 1999; Israel et al., 2001; Garwick & Auger, 2003; Burhansstipanov et al., 2005; Arizona Biomedical Research Commission, 2006). • Empowerment of communities by building research capacity (Israel et al., 2001; Letendre & Caine, 2004; Brown, 2005; Caldwell et al., 2005; Arizona Biomedical Research Commission, 2006; Baydala et al., 2006; Brugge & Missaghian, 2006; Teufel-Shone et al., 2006; Salsberg et al., 2007; Edwards et al., 2008). The basic CBPR elements and processes are built on regulations that protect individual human subjects in federally-sponsored research and mirror the principles for protecting individual human subjects laid out in the Belmont Report: • Respect for communities: -obtain informed consent by providing full information and ensuring full comprehension; acknowledge the voluntary nature of participation (Beauvais,1999; Model Tribal Research Code, 1999; Hodge et al., 2000; World Health Organization, 2003; Holkup et al., 2004; Arizona Biomedical Research Commission, 2006; Nilson et al., 2008). • Beneficence: -maximize benefits to communities (Davis & Reid, 1999; Stoddart et al., 2000; Ortiz, 2003;


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World Health Organization, 2003; Letendre & Caine, 2004; Caldwell et al., 2005; Arizona Biomedical Research Commission, 2006; Baydala et al., 2006; Nilson et al., 2008). • Non-maleficence: -do not harm communities (Ortiz, 2003; World Health Organization, 2003; Brown, 2005; Caldwell et al., 2005). • Justice: -develop knowledge that benefits communities; treat communities fairly (World Health Organization, 2003; Arizona Biomedical Research Commission, 2006). Increasingly, practitioners point out that CBPR efforts are much more likely to be sustained because the research results are of value to communities and the research process empowers communities through participation (Macaulay, 1994; Davis & Reid, 1999; Stoddart et al., 2000; Garwick & Auger, 2003; Ortiz, 2003; Holkup et al., 2004; Burhansstipanov et al., 2005; Edwards et al., 2008). Sustainability makes CBPR particularly well-matched to research affecting American Indian tribes in the United States because of the permanence of their status as governments as well as the long-term interests of tribal governments in their land and people (Stubben, 2001; Fisher & Ball, 2002; Manson et al., 2004; Brugge & Missaghian, 2006). This governmental permanence also fits well with the long-term funding approach essential to Tribally-Driven Participatory Research.

Tribally-Driven Participatory Research (TDPR) CBPR in American Indian Tribal Communities: TDPR There is a growing body of literature on Community-Based Participatory Research within American Indian tribal communities; many of the team members of the Southwest American Indian Collaborative Network (SAICN) are in the forefront of this research and a number have published on tribally-based participatory research goals and projects (Arizona Biomedical Research Commission, 2006). Researchers and agencies generally acknowledge that valid and empowering research with tribal communities (Tribally-Based Participatory Research) has a great deal in common with the principles and methods of CBPR, primarily the full participation of tribal governments from the earliest stages as well as their empowerment and capacity-building (Burhansstipanov, 1999; Fisher & Ball, 2002; Fisher & Ball, 2003; Burhansstipanov et al., 2005; Christopher et al., 2008). American Indians, as well as indigenous peoples throughout the world, have conducted research for millennia; in fact, indigenous knowledge gained by observation and experimentation produced much of the world’s foodstuffs as well as many medicines that researchers today seek to assess (Nilson et al., 2008). The Science in a Circle© model developed by First Nations in Canada notes that many aboriginal communities consult with elders to find out what is already known in the same way that academic researchers now conduct a literature review (Nilson et al., 2008). 2 For the last two centuries, tribal communities have been the subject of research by outsiders attempting to gain knowledge about American Indian biology and behavior (Model Tribal Research Code, 1999; Hodge et al., 2000; Garwick & Auger, 2003; Brown, 2005; Christopher, 2005; Christopher et al., 2008; Edwards et al., 2008). Many of these efforts not only gave ‘research’ a bad name in Indian Country but tragically, most of it did little to empower tribal communities, build capacity or protect intellectual property of American Indians and tribal governments (Beauvais, 1999; Inuit Tapiriit Kanatami, 2003; Brown, 2005; Burhansstipanov et al., 2005; Brugge & Missaghian, 2006). This research 2. Nilson, Suzanne M., Lalita A Bharadwaj, Elder Doug Knockwood, Vince Hill “Science in a Circle© : Forming “Community Links” to Conduct Health Research in Partnership with Communities” Pimatisiwin 6(1):123 – 135.


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done by outsiders not only exacerbated mistrust between American Indian communities, federal agencies and universities, but it often produced data and analyses that were invalid (Beauvais, 1999; Model Tribal Research Code, 1999; Caldwell et al., 2005; Christopher, 2005; Christopher et al., 2008). To the extent that mistrust generated by research in the past has made tribes and American Indian people less willing to conduct and participate in research projects today, including clinical trials, the damaging legacy of past research is multiplied (Macaulay, 1994; Burhansstipanov, 1998; Hodge et al., 2000). On the positive side, there are historical examples of individual researchers and governmentfunded projects that have succeeded in achieving at least some of the desired results of TBPR, particularly in improving health (Arizona Biomedical Research Commission, 2006). Often cited are the research project on sulfa antibiotic treatment for trachoma (eye infections) in the 1930’s with the White Mountain Apache, as well as the clinical trials, championed by Annie Wauneka at Navajo in the 1950’s, on isoniazid (INH), which proved effective in treating Tuberculosis (Davis & Reid, 1999). Most successful research of the past incorporated at least some elements of TBPR. Focusing on these empowering aspects of successful research may assist tribes to overcome the negative legacy of the past and to take steps to implement Tribally-Driven Participatory Research (Garwick & Auger, 2003; Christopher et al., 2008). From Tribally-Based to Tribally-Driven: The Active Power of Tribal Governments While CBPR core principles are critical to research that produces valid and positive results in tribal communities, there is a major difference, at some level a qualitative difference, between Community-Based and Tribally-Based Participatory Research (TBPR). Unlike other community participants in CBPR, tribal governments are established by law and have governmental authorities to regulate research activities within their jurisdictions (Beauvais, 1999; Stubben, 2001; Fisher & Ball, 2003; Letendre & Caine, 2004; Manson et al., 2004; Caldwell et al., 2005; Arizona Biomedical Research Commission, 2006; Brugge & Missaghian, 2006). Tribal governments, particularly under Self-Determination policies and Self-Governance procedures, can be more than a passive ‘base’ for research; they can actively control and ‘drive’ research (Davis & Reid, 1999; Model Tribal Research Code, 1999; Fisher & Ball, 2002). The phrase ‘Tribally-Driven Participatory Research’ captures a model that is active and controlling, rather than passive (Macaulay, 1994; Burhansstipanov, 1999; Ortiz, 2003; Gibson et al., 2008). TDPR involves research in which tribal governments ‘drive’ on their own as well as research in which tribal governments invite collaborators on the journey (Burhansstipanov, 1998; Macaulay et al., 1998; Fisher & Ball, 2002; World Health Organization, 2003; Letendre & Caine, 2004). In TDPR, the research direction and destination is determined by the tribal government/driver (Davis & Reid, 1999; Salsberg et al., 2007). One of the critical research issues discussed extensively in research guidelines developed by the World Health Organization and the federal government of Canada is defining and identifying a “community.” CBPR practitioners recognize that the membership and boundaries of particular communities may change over time (World Health Organization, 2003; Brown, 2005; Canadian Institute of Health Research, 2007). In contrast, tribal governments have largely defined authorities and jurisdiction (Brugge & Missaghian, 2006). Unlike most communities, but like most governments, tribal governments conduct their own research and are in an excellent position to build capacity over time (Stubben, 2001; Letendre & Caine, 2004; Brugge & Missaghian, 2006). Tribal governments have the jurisdiction to initiate and control research agendas and, as they determine appropriate, request the assistance and collaboration of agencies and universities (Macaulay et al., 1998; Manson et al., 2004; Nilson et al., 2008). The term Tribally-Driven Participatory Research echoes the similarities in core principles with CBPR while capturing the critical governmental authority of American Indian tribes.


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The qualitative difference between CBPR and TDPR is that tribal governments have the authority to codify research requirements in tribal statutes that can be more stringent than federal requirements (Macaulay et al., 1998; Model Tribal Research Code, 1999; Fisher & Ball, 2003; Letendre & Caine, 2004; Brugge & Missaghian, 2006). Tribal governments also can conduct compliance assurance and enforcement if researchers do not comply with their laws (Model Tribal Research Code, 1999; Fisher & Ball, 2002). There is a substantive difference between asking researchers to comply with community values and traditions and potentially taking them to court, issuing fines or taking other enforcement actions (e.g., injunctions; banning), if they do not (Model Tribal Research Code, 1999). Tribal governments in the U.S. are in a position to fully realize the goals of CBPR on a day-to-day basis and provide leadership in making full participatory research the national standard. Tribally Initiated Research: Internal, contractual and collaborative Tribal governments regularly conduct a wide-range of research and most tribes have substantial experience in identifying research needs, gathering and analyzing data and using information to shape decisions. Tribes often conduct their own research projects internally, using staff and even volunteers (Hodge et al., 2000; Stoddart et al., 2000; Fisher & Ball, 2003; Inuit Tapiriit Kanatami, 2003). In some cases, tribal governments and their departments may choose to use outside contractors to gather and analyze information because there is a lack of local specific expertise or it is more efficient to use contractors rather than hiring permanent employees for short-term, focused projects (Macaulay et al., 1998; Inuit Tapiriit Kanatami, 2003; Caldwell et al., 2005; Buchwald et al., 2006; Edwards et al., 2008). In some cases, tribal departments may chose to contract for research and analysis in order to increase the perception (or reality) of objectivity regarding outcomes (Fisher & Ball, 2003). These contractual relationships may be with private consulting firms or universities, and often face challenges similar to those found in CBPR. When outside researchers are brought in to a triballygenerated research project, there need to be conditions for respectful dialogue between the researchers and the tribal community (Baydala et al., 2006; Edwards et al., 2008). In research projects in which there may be conflict about the issues within the community, researchers ideally act as catalysts and facilitators to assist the community to understand the problems and develop solutions (Gibson et al., 2008). Tribal governments increasingly strive to incorporate the benefits of CBPR into contractual research and projects, particularly the hiring and training of tribal members and tribal ownership of any equipment or software purchased as part of the contracts (Manson et al., 2004; Arizona Biomedical Research Commission, 2006; Baydala et al., 2006). However, one of the ways triballyinitiated research may differ from CBPR, particularly when tribal governments have their own funding for the projects, is that tribes have essentially complete control over the project reports (Model Tribal Research Code, 1999; Ortiz, 2003; Brugge & Missaghian, 2006; Nilson et al., 2008). While issues may still surface with contractors who inappropriately publish or use data, most tribal contracts in Arizona specifically state that data produced as part of a contract is owned by the tribal government and that any use of data has to be formally approved by tribal government (Arizona Biomedical Research Commission, 2006). As part of good-government practice and because tribal budgets include federal and other funds, tribes have established procedures, contract language and oversight/audit capabilities to manage contractual research (Fisher & Ball, 2003; Manson et al., 2004; Canadian Institute of Health Research, 2007). These capacities, tools and procedures can also be very helpful in controlling research that does not use tribal funding or is initiated outside the tribal government in which the tribe decides to participate. Projects that use federal funding are subject to federal research requirements (like


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Institutional Review Board review) and federal agencies and other institutions may require that research projects be led by Principal Investigators who have certain credentials (e.g., Ph.D.); in some cases federal or other funding agencies may require that research teams be university-based (World Health Organization, 2003; Arizona Biomedical Research Commission, 2006). The research projects that are initiated elsewhere, but in which tribes agree to participate, require more formal structure, regulation and procedures to produce the results of TDPR. In the ideal TDPR model, all research would be based upon on-going, internal planning and discussions that lead to a governmental decision to conduct a research project. However, there may be situations in which tribal governments determine that research opportunities generated from non-tribal processes are potentially useful. Both internally-generated as well as ‘opportunistic’ TDPR may fit with the strategic goals of a tribe. One of the reasons tribal governments may seek out collaborators in conducting research is the high cost and infrastructure requirements for research, particularly biomedical research (Edwards et al., 2008). However, if it is possible for the tribe to be the proposal applicant, even if it seeks assistance in developing the proposal and chooses to subcontract parts of the work, it is still in a good position to control the research overall.

TDPR: Specific Principles, Methods and Tools Full Participation and Social Validity A core principle of CBPR is to have communities participate as early as possible in designing the research effort (Macaulay et al., 1998; Davis & Reid, 1999; Burhansstipanov et al., 2005). For TDPR, the ideal is the scenario in which a tribe has conducted a strategic planning process or identified a research need and decides to undertake a project (Israel et al., 2001; Letendre & Caine, 2004; Gibson et al., 2008). However, in cases in which agencies or institutions approach tribes to participate in research projects, TDPR principles would require that the tribe participate in the earliest possible planning stage and come to full agreement on the goals, design and implementation of the project (Macaulay et al., 1998; Davis & Reid, 1999; Hodge et al., 2000; Israel et al., 2001; Garwick & Auger, 2003; World Health Organization, 2003). Development of a project-specific agreement could include language that clarifies ownership of data, review of analysis and approval of publications (Model Tribal Research Code, 1999; Inuit Tapiriit Kanatami, 2003; Manson et al., 2004; Arizona Biomedical Research Commission, 2006). Many studies on CBPR point out that community readiness is generally highest when research projects develop from internal community processes (Stoddart et al., 2000; Israel et al., 2001; Baydala et al., 2006). Without substantial social validity, in which participants understand the goals and process and believe that the results are valid, the project may fail to achieve its goals (Ortiz, 2003; Burhansstipanov et al., 2005; Christopher, 2005). Community-wide support and community readiness are key variables in successful implementation of research (Christopher et al., 2008). It can be a significant challenge to successfully conduct a research project if the initial buy-in that comes from participatory planning does not occur (Ortiz, 2003). It may be impossible to implement outcomes, recommendations or findings (Fisher & Ball, 2003). Informed Consent for Tribally-Driven Research Projects Informed consent by individuals is a difficult issue for the public as a whole; the more an individual knows about a field of study, the greater that individual’s ability to appreciate the potential consequences, both positive and negative, of participation in a research project. In general, most research projects use a written form to obtain consent (World Health Organization, 2003; Arizona Biomedical Research Commission, 2006). The language in the form needs to be understandable


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(potentially in English and the native language), to fit comfortably with the culture and be fully informative (Beauvais, 1999; Hodge et al., 2000). Written forms are useful for records and can serve as mnemonic devices when information needs to be verbally explained so that the researcher obtaining the consent covers all the information in a similar way each time. In cases in which the individual giving consent does not read or speak English, projects make use of interpreters or witnesses to confirm an individual’s consent (Hodge et al., 2000; World Health Organization, 2003; Holkup et al., 2004). In some cases, projects have taped (including video-taped) explanations and consents and kept them as part of the project records (Brown, 2005; Nilson et al., 2008). When a tribal government generates a research project, the budget and concept as well as the contract may be approved by a council resolution (Fisher & Ball, 2002; Fisher & Ball, 2003). In cases when a tribe is asked to participate in a research project generated from outside, it is also critical to obtain council approval (Arizona Biomedical Research Commission, 2006). Some tribes may require a contract, research agreement or resolution be presented and approved by a standing committee or an IRB in addition to the council (Fisher & Ball, 2003). In some cases, it may be acceptable to get the written approval of the highest elected tribal official, but it may be still be useful to obtain council approval (Hodge et al., 2000; World Health Organization, 2003). Inexperienced researchers, particularly in universities, often make the mistake of thinking approval from a director of a tribal department is tribal government approval (Burhansstipanov et al., 2005). Gathering Data Many CBPR practitioners note that survey methods are particularly vulnerable to producing invalid results in communities that are remote, speak languages other than those of the researchers, and when literacy among study population segments is limited (Hodge et al., 2000; Burhansstipanov et al., 2005). These issues are also critically important in TDPR. Language and vocabulary need to be fully vetted and culturally appropriate (Arizona Biomedical Research Commission, 2006). If translation is required and if literacy is a challenge, it is critical to have tribal team members to translate and explain the surveys and record responses accurately (Caldwell et al., 2005; Edwards et al., 2008). Other standard variables that affect survey validity in tribal communities include the lack of phones in many homes and the potential for low response rates (Hodge et al., 2000; Stoddart et al., 2000; Burhansstipanov et al., 2005). Because of these well-known issues, few TDPR projects rely solely on survey methods and may not use them at all. TDPR has a much stronger reliance on talking methods of gathering data, particularly interviews, focus groups and variants such as talking circles (Hodge et al., 1998; Burhansstipanov, 1999; Fisher & Ball, 2002; Garwick & Auger, 2003; Manson et al., 2004; Brugge & Missaghian, 2006; Nilson et al., 2008). Many health-related projects have made excellent use of patient ‘navigators’ or ‘sisters/brothers’ who are tribal members (Burhansstipanov, 1998). These project staff receive training and provide language translation, decode technical terms and are available to participants to answer questions in a non-public and low-key setting (Hodge et al., 2000; Stoddart et al., 2000; Caldwell et al., 2005; Edwards et al., 2008). It is sometimes useful to have researchers, particularly on projects dealing with sensitive, personal data, who are not part of the local community; participants may feel uncomfortable sharing information with people they know (Beauvais, 1999; Caldwell et al., 2005; Buchwald et al., 2006). Sometimes it is easier to talk to a stranger about health-related behaviors than to a neighbor, provided the outsider is respectful and keeps the information completely confidential (Hodge et al., 2000). Most of the literature on tribal research, like CBPR in small communities, notes that it can be a significant challenge to maintain confidentiality and to protect the identity of respondents and participants in small communities (Beauvais, 1999). Information can sometimes identify sources in


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communities in which everyone knows everyone else. Particular care needs to be devoted to these issues in the research design and in training the research team on a TDPR project. TDPR Builds on Existing Strengths and Builds Capacity and Produces Both Short and Long-term Benefits Another core principle of TDPR is that it builds on existing tribal strengths and empowers tribal governments and communities (Arizona Biomedical Research Commission, 2006). Empowerment means that tribal governments and tribal members gain skills and confidence as they are active ‘agents’ who can investigate their own situations and implement their own solutions (Davis & Reid, 1999; Garwick & Auger, 2003; Ortiz, 2003; Holkup et al., 2004; Letendre & Caine, 2004; Baydala et al., 2006; Teufel-Shone et al., 2006; Christopher et al., 2008). In TDPR, planning and data gathering may include identification of ‘what is working well’ in order to build on strengths rather than just focusing on problems. Often these existing strengths will be the key networks (for example, youth, families, elders, organizations, health programs) that are critical for recruiting individual participants into a research project and for implementing any findings or recommendations for action (Hodge et al., 2000; Israel et al., 2001; Stubben, 2001; Garwick & Auger, 2003). There is a potential and useful multiplier-effect of building on and strengthening institutions, processes or organizations that are already working well within tribal communities (Burhansstipanov et al., 2005). TDPR builds tribal capacity at every step within a research project in the form of providing training and jobs and bringing in additional funding, that can be used for buying equipment software or other items that the tribe can continue to use in the future (Israel et al., 2001; Manson et al., 2004; Arizona Biomedical Research Commission, 2006). For decades, the Inter Tribal Council of Arizona, Inc. has empowered tribal governments by coordinating working groups and providing research training in a wide range of areas, including the train-the-trainer Cancer 101 (Arizona Biomedical Research Commission, 2006). While outside researchers may provide the capacitybuilding resources, local community or tribal colleges may provide training to tribal interviewers who can thus also earn academic credit (Israel et al., 2001; Fisher & Ball, 2002; Burhansstipanov et al., 2005). The ASU American Indian Policy Institute recruits students from the tribes that have contracted with the Institute to work with them on projects. The students get academic credit for the project and usually get paid to work on it as well. The students also get field experience to complement their classroom instruction and they learn about their own tribe. The tribe sees its member-students getting academic credit and financial benefit from the project and that a tribal member is bringing connections and insights to the project team; this is a true win-win-win capacity-building scenario. All five of the student interns who worked on research projects through the ASU American Indian Policy Institute finished their degrees and have been hired as high-ranking administrators in their tribes or have gone on to graduate school. Tribal governments may also seek specific, short-term practical benefits as part of TDPR projects that may also have longer-term goals. In one TDPR project, the tribe required development of a Guidebook on Patient-Provider Communication as a project task so that the collaborative training of health providers and ‘project navigators’ could be written down and distributed more widely (Garwick & Auger, 2003; Baydala et al., 2006). In TDPR, tribal departments, leaders, tribal members and other tribal organizations are strengthened and, as a consequence, tribes expand their willingness and capacity to investigate and solve issues (Salsberg et al., 2007). Ultimately, tribes are further empowered by TDPR in which the information, analysis and outcomes are well understood, meaningful and provide increased ability to improve people’s lives.


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Tribes are Governments: Core Significance of TDPR Tribal Research Codes and Tribal Research Review Boards/Institutional Review Boards; Tribal Research Agreements and Partnerships The major tool used by tribal governments to control research that directly affects them is to enact tribal research codes (Model Tribal Research Code, 1999; Fisher & Ball, 2002; Fisher & Ball, 2003). Most non-tribal communities involved in CBPR do not have these governmental authorities (Stubben, 2001). The American Indian Law Center developed a model tribal research code in the late 1990s (available on their website) that includes establishment of a tribal research review board with specific duties and authorities, similar to Institutional Review Boards (IRB’s) in federal agencies and universities. Much of the existing work on tribal research codes and tribal IRB’s (or review boards) is focused on health research (Hodge et al., 2000; Manson et al., 2004). The Navajo Nation’s research review board is called the Health Research Review Board, although the board now oversees other research areas (Brugge & Missaghian, 2006). Increasingly throughout the U.S., tribal review is considering a wide range of research, including ethnographic, cultural and environmental research projects (Model Tribal Research Code, 1999). It is particularly valuable for tribal governments to enact tribal research codes because university IRB’s are able to require that their researchers comply with tribal laws and regulations just as they require compliance with international, federal and state laws (Brown, 2005; Brugge & Missaghian, 2006). In the absence of a tribal code, university IRBs apply federal laws and university requirements which are generally limited to research design and protection of individuals (Model Tribal Research Code, 1999). Only a tribal code or specific agreement can require that a researcher obtain tribal approval before publishing an article or report (Beauvais, 1999; Inuit Tapiriit Kanatami, 2003; World Health Organization, 2003; Letendre & Caine, 2004; Arizona Biomedical Research Commission, 2006). Tribal research codes can require tribal review of proposals and spell out a process for that review, clearly establish expectations, require tribal approval of any publication or use of the data, confirm intellectual property rights, and address a range of other specific requirements (Model Tribal Research Code, 1999; Fisher & Ball, 2002; Arizona Biomedical Research Commission, 2006; Brugge & Missaghian, 2006). Importantly, a code can also specify the process for ensuring compliance and enforcement including denial of future access as well as issuance of administrative or judicial penalties and fines (Model Tribal Research Code, 1999). In general, most researchers appreciate having an established process and set of rules to follow; although a statutorily required review process may seem burdensome, it is clear and relatively stable. As most tribal governments do not currently have research codes, tribes may consider developing specific project agreements with research organizations that lay out expectations and requirements similar to a code (Baydala et al., 2006; Christopher et al., 2008). The Salt River Pima Maricopa Indian Community developed an agreement with the Translation Genomics Research Institute (TGEN) for a project initiated by the tribe; the agreement has many elements of a tribal research code (Arizona Biomedical Research Commission, 2006). An overarching agreement could lay out the core elements of a long-term relationship and specific ‘contracts’ for individual projects could become addendums. Developing agreements allows for more flexibility in working with different organizations and promotes long-term partnerships, critical to CBPR and TDPR. In order to make effective use of time and resources, tribal governments may decide to pool their resources and work with an inter-tribal review board (Baydala et al., 2006). The Inter Tribal Council of Arizona, Inc. is exploring this concept because of the overall number of research projects conducted by and with the numerous tribes within the state (World Health Organization, 2003). Maintaining the structure and expertise for an effective IRB may take more resources than many tribal governments can commit at this time.


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Tribal Governments Ownership of Data and Participation in Interpretation and Analysis; Control of Data, Dissemination of Data and Results; Rights to Intellectual Property Many researchers note that tribes and tribal communities are interested in obtaining high quality data and cutting edge analyses; they want good science and data to help with their decision-making and policy-setting. In general, tribal research concerns focus on the presentation of the analysis (Christopher, 2005). Often tribes insist on the opportunity to participate in the interpretation of the findings because of past experiences with research that produced information that was misleading or simply inaccurate (Davis & Reid, 1999; Garwick & Auger, 2003; Letendre & Caine, 2004; Brown, 2005; Burhansstipanov et al., 2005; Arizona Biomedical Research Commission, 2006; Christopher et al., 2008). This experience is very similar to researchers who may feel that they are misquoted by the media and feel slighted that they do not have a chance to review newspaper articles written by reporters before they are published. There do not appear to be examples of tribes intervening in data analysis based on political interest in censorship (Manson et al., 2004). A concern over censorship is often cited by academics who point out that political censorship is in conflict with principles of academic freedom (Macaulay, 1994; Fisher & Ball, 2003). Researchers also point out that when federal dollars are involved in projects, they may be violating regulations and grant requirements if all data is not incorporated into the analysis (Ortiz, 2003). Some methodological challenges may occur with clinical trials or trials that involve providing information about the health benefits of certain behaviors, in which a control group does not get information. These controls are critical to most scientific research designs but are often problematic for the tribal public. Experience suggests that concerns about controls are better handled in a TDPR context because follow-up is more likely to occur. The national diabetes study is such an example; during the nationwide study, it was determined that the approach of individualized counseling on diet and exercise was so successful, trials were stopped and agencies began implementing the program (Salsberg et al., 2007). If the research determines that a particular educational approach is useful, tribes can readily contact members of the control group to provide the information as quickly as possible. Federal rules require that costs and benefits to the individual participants in health studies are weighed (Beauvais, 1999; World Health Organization, 2003). Research that might produce very useful results may still not be ethical or allowed because it may present risks to the individual participant that are too high (Ortiz, 2003; World Health Organization, 2003). As a parallel, tribes can be collectively harmed, stigmatized and suffer unwarranted criticism if data and analyses are inappropriately characterized, particularly if they become available to the media (Model Tribal Research Code, 1999; Brugge & Missaghian, 2006). Cases often cited in the tribal research literature include the Barrow Alcohol study in which the media inappropriately characterized the study results as showing that alcoholism was common in the community; as a result, local communities were denied funding for key projects (Davis & Reid, 1999; Manson et al., 2004; Caldwell et al., 2005; Christopher et al., 2008). Another often cited case of tribal stigmatization is the media labeling of the hantavirus as the ‘Navajo’ Flu following release of research data (Burhansstipanov, 1999; Davis & Reid, 1999; Manson et al., 2004; Brugge & Missaghian, 2006; Christopher et al., 2008). In part, these challenges may flow from the lack of training many scientists have in communicating with the public and the media and their use of technical vocabulary that the media view as jargon that needs to be simplified. Tribal leaders as elected officials generally are experienced public speakers and tribes often have outreach and public relations staff skilled in getting across a message through the media (World Health Organization, 2003). Tribal governments have substantial experience in identifying trigger issues that may result in media mischaracterizations or reinforcement of negative stereotypes


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(Holkup et al., 2004). As principles of TDPR emphasize, tribes have the authority to verify that data are accurate and complete by getting key players to review research reports (Holkup et al., 2004). Tribes have the authority to ensure that appropriate caveats or limitations on the data are made clear in research reports (Holkup et al., 2004). In addition, tribes, often through their attorneys and department staff, recognize data that may be considered sacred or confidential for legal reasons (Holkup et al., 2004). To protect legal rights as well as their culture and religion, tribes have the authority to review research reports that affect them (Davis & Reid, 1999; Holkup et al., 2004). In order to protect tribal interests and clarify procedures, it is ideal to address these issues of data confidentiality and tribal review in tribal research codes and agreements (Inuit Tapiriit Kanatami, 2003; Holkup et al., 2004; Manson et al., 2004; Arizona Biomedical Research Commission, 2006). It is essential that issues of review and presentation are clearly laid out in research agreements before activities begin (World Health Organization, 2003; Letendre & Caine, 2004; Brugge & Missaghian, 2006; Canadian Institute of Health Research, 2007; Nilson et al., 2008). While an individual tribal member can authorize the collection of data for his/her own purposes, to the extent that individual’s data may have an impact on the tribe, the information is still subject to a tribal agreement (Brown, 2005; Arizona Biomedical Research Commission, 2006). A review of the literature notes that native individuals have reported feeling offended when researchers sought tribal approval to obtain information that the individual feels he/she has the authority to share or not share. However, establishing tribal government authority and the review and approval process in a research code or agreement will help avoid such conflicts. Publishing Academic Articles For university faculty who are research partners in TDPR, the issues of publication can be difficult. The core criteria of tenure decisions remains authorship including sole-authorship articles published in peer reviewed journals (Strickland, 2006). As a result of its career implications, many non-tenured faculty members may be unwilling to participate in TDPR unless there is some potential for publication. When articles are written as part of TDPR, they generally recognize the contributions of all the research team; most TDPR reports and articles list the tribal members of the research team as co-authors (Macaulay et al., 1998; World Health Organization, 2003; Arizona Biomedical Research Commission, 2006; Christopher et al., 2008). Encouraging universities to give recognition for tribally solicited research reports and for publications with multiple authors may be an area in which tribal governments can provide support to their long-term academic partners. Tribal governments have the authority to require review of articles before publication; once again, establishing this authority and the review and approval process in a research code or agreement will avoid conflicts after the research project is underway or concluded. Tribes may choose to establish a dispute resolution procedure for disputes over publication, but ultimately tribal governments have the authority to make the decision whether and how information is published and made available to the public and media (Macaulay et al., 1998; Ortiz, 2003; Brugge & Missaghian, 2006). In practice, there do not appear to be many cases in which a tribe has denied permission for publication to a researcher, particularly if a review and approval process has been established before research begins. The literature cites very few examples, although it may be inherently difficult to find published information on these cases (Brugge & Missaghian, 2006). It is more common to hear of researchers moving on to other projects because of the timeframe for obtaining tribal council or IRB approval to conduct research (Fisher & Ball, 2003; Manson et al., 2004; Brugge & Missaghian, 2006). This challenge seems particularly relevant to undergraduate or graduate students seeking to conduct short-term projects within their own tribal communities. There are cases of students seeking to write


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papers for courses, who become frustrated with the bureaucracy of tribal review boards because the semester ended before they received IRB approval for their research project. There are also cases of tribal employees, both native and non-native, seeking tribal government permission to use their work settings (and in some cases work-related data) for graduate theses and dissertations, who are denied permission. It may be useful to develop a better understanding of the situations in which tribal permission to conduct research has been denied. The evidence suggests, not surprisingly, that approval for publication is significantly enhanced when the research project is initiated by the tribal government itself and the procedures for tribal review are clearly established up front (Brugge & Missaghian, 2006).

What Are the Next Steps? What are the structural supports that still need to be developed to support TDPR? What are the structural and institutional barriers? While the core principles of CBPR have been implemented for several decades and many elements of TDPR are being implemented by tribes throughout the United States and Canada, TDPR is still in its formative stage. Some elements have been institutionalized by governmental and non-governmental funding agencies and universities are starting to develop policies and establish research units incorporating the principles of TDPR (Davis & Reid, 1999; World Health Organization, 2003; Letendre & Caine, 2004; Brown, 2005; Arizona Biomedical Research Commission, 2006; Baydala et al., 2006; Strickland, 2006; Canadian Institute of Health Research, 2007; Edwards et al., 2008). But what is the level of understanding and overall penetration of the core principles within universities, non-governmental funding sources, governmental agencies and even tribal governments? How many researchers or bureaucrats understand or have even been exposed to the basic concepts of tribal sovereignty, self-determination and Tribally-Driven Participatory Research? There is considerable work to be done by tribal governments, tribal organizations, federal agencies, non-governmental organizations and universities, both internally and together. Many of the papers cited in this article include suggestions of steps to be taken to fully realize TDPR. The following section draws from these suggestions as well as lessons learned and promising practices derived from the Southwest American Indian Collaborative Network project. Promising Practices While the basic principles of TDPR may apply in general to tribal governments, tribes throughout the United States vary significantly in cultural traditions, governmental structure, size and a wide range of other variables (Davis & Reid, 1999; Hodge et al., 2000; Fisher & Ball, 2003; Letendre & Caine, 2004; Brown, 2005; Caldwell et al., 2005; Christopher, 2005; Brugge & Missaghian, 2006; Christopher et al., 2008). Rather than making an assumption of homogeneity by discussing ‘best practices’ that may apply across the board to tribes, it is often useful to think about ‘promising practices’ that tribes may want to consider and potentially modify for their own, unique situation. It is the recognition that tribal governments are able to tailor their approach to TDPR that makes development of tribal research codes so promising. Rather than a national standard, or university policies, tribal governments have the authority to enact research codes that fit their specific situations and can evolve over time, based on needs. Some useful tools have been developed and are available to tribal governments in implementing the principles of TDPR. Most of these came from federally-funded projects, such as the Southwest American Indian Collaborative Network (SAICN) that bring together tribes, universities, as well as state and federal agencies, using the support of inter-tribal organizations like the Inter Tribal Council of Arizona (Arizona Biomedical Research Commission, 2006). To advance TDPR, existing tools need to be made available on-line and presented in more workshops and conferences both regionally


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and nationally. In addition, use of these tools and concepts needs to be expanded through funding for technical assistance activities such as those done by SAICN. Tribes and tribal organizations may want to encourage other agencies, such as the Administration for Native Americans and the National Science Foundation, to set aside funding for development of tribal research efforts. Some of the existing tools include:

Model Research Agreements (First Nations of Canada; WHO; Indigenous Peoples Council of Biocolonialism)

Model Tribal Research Code (American Indian Law Center)

Indigenous Research Protection Act Model (Indigenous Peoples Council of Biocolonialism)

Enhancing Partnerships with the Native American Community (Handbook developed by the Arizona Biomedical Research Commission)

Southwest American Indian Collaborative Network website (Inter Tribal Council of Arizona, Inc. which can serve as a clearinghouse)

Tribal Research Review Boards and Institutional Review Boards (IRB’s).

A number of tribes have developed research review boards and the Navajo Nation has met the Indian Health Service requirements to take on the regulatory role of IRB for federally-funded biomedical research projects (Manson et al., 2004; Brugge & Missaghian, 2006). Unless a tribe has a fairly regular flow of research proposals to review, it may be difficult for tribal policy-makers to allocate the on-going funding required to develop and maintain the capacity for a research review board. There may be a role for inter-tribal organizations that can maintain staff to provide technical and logistical support to tribal governments for research proposal review; this approach would also provide more opportunity for tribes to gain experience and develop increased capacity in this area before determining the optimum strategy for managing research goals and projects. Tribes and universities may benefit by collaboratively determining if there is a role for university IRB’s in situations in which tribes select academic units or university faculty to work on tribal research contracts, particularly those that are tribally funded. Tribes, possibly in collaboration with universities, may want to develop expedited or generalized procedures for research projects conducted by undergraduate students, particularly by tribal members, especially when students need to complete their work within the timeframe of one academic semester. Universities with Native faculty or faculty with extensive experience working successfully with tribal governments would benefit by making maximum use of these faculty resources in reviewing tribal research projects. Tribal governments may find it useful to include faculty as ex officio advisors on their IRB’s. The Indian Health Service Aberdeen Area has appointed tribal representatives to its IRB, and universities may want to find a role for tribal government representatives in their IRB process for tribal research projects, even if only in an advisory capacity (Letendre & Caine, 2004; Manson et al., 2004; Brown, 2005). Building Partnerships Based on Trust: University Policies, Training and Self-Certification Policies and Procedures Universities with a strong interest in building long-term partnerships with tribes will significantly enhance that effort by developing policies and procedures that affirm the principles of TDPR and build trust with tribal governments and communities (Davis & Reid, 1999; Israel et al., 2001; Brown, 2005; Strickland, 2006). It would particularly facilitate and expedite TDPR for tribes and universities to develop standard contract or agreement language concerning resolution of disputes, non-


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disclosure of data and issues of review and approval of publications. Academic institutions are able to negotiate terms with industry and deal with proprietary data that preserve the scientific integrity of researchers and institutions while making use of the private research dollars to fund faculty and staff, train graduate students and expand research capacity through the purchase of equipment and construction of facilities. In Arizona, Governor Janet Napolitano directed each state agency, including the University Board of Regents, to develop a tribal consultation policy. As a result, the Arizona Board of Regents (ABOR) recently enacted a Tribal Consultation Policy that incorporates goals for consulting with tribes on research issues and projects that affect them; the ABOR tribal policy then directs the three state universities to develop their own policies and procedures to implement the ABOR policy. As with all policies and procedures, there is a significant need for training faculty and administrators within academia as well as in federal and state agencies about the ABOR policy. In addition, it is necessary to provide on-going training to maintain awareness and to reach new employees. Training and Self-Certification To continue the development of TDPR, tribes, tribal organizations, universities and research funding agencies may want to develop training programs that orient researchers to the concepts of TDPR. In order to avoid conflicts and to continue to build relationships, universities may want to require that all faculty, research staff and graduate assistants obtain appropriate training before working on research projects with tribal governments (Strickland, 2006). Core elements of training programs could be made available on-line, similar to requirements by certain federal agencies that grantees and researchers demonstrate a basic awareness of agency rules by taking an on-line test. In addition, to avoid potential conflicts concerning academic freedom, TDPR may be advanced by the development of a national self-certification program in which researchers voluntarily commit to the principles of TDPR. Such a self-certification program could also be placed on-line, and a registry of researchers could be maintained who completed the training and commit through selfcertification to follow the principles of TDPR in their work. The National Congress of American Indians Policy Research Center could fill this role and make the registry readily available to interested tribal governments. Importantly, tribes will want to determine that sub-contractors and all research and graduate assistants on specific projects have received training and have self-certified in situations in which the self-certification is a deciding factor in entering into collaborative research projects. Trans-disciplinary Approaches for Complex Research Issues Historically, one of the reasons that research with tribes may not have fulfilled expectations is the uni-dimensional approach and narrow focus of many funding agencies and in some cases the focused interests of individual researchers (Christopher, 2005; Brugge & Missaghian, 2006; Edwards et al., 2008). Often, goals tribes seek to obtain through research are complex and require understanding and involvement of many tribal institutions at many levels, including individuals, families, networks, organizations and governments. In order to achieve results, trans-disciplinary research needs to become the gold standard in TDPR, going beyond multi-disciplinary approaches by fully integrating the perspectives of a wide range of expertise, knowledge and perspectives (Arizona Biomedical Research Commission, 2006; Salsberg et al., 2007). Trans-disciplinary research units, such as the Arizona State University American Indian Policy Institute, are able to pull together teams of researchers with diverse expertise from throughout the university. In addition, research units with extensive experience working with tribes are in a good position to orient the academic research team members to TDPR.


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Publishing One of the core principles of collaborative TDPR is to determine expectations up front and resolve any issues through a contract or research agreement; in TDPR, in which universities are partners, the issues associated with review and permission to publish articles are an essential element of contract and agreement negotiations. Untenured faculty and graduate students tend to be very reluctant to participate in TDPR because they are under relentless pressure to publish (Fisher & Ball, 2003; Brugge & Missaghian, 2006). Tenured faculty may be willing to participate in TBPR projects if they have an interest, but they are less ‘hungry’ to join large-scale research projects than younger, non-tenured faculty and they still may face the same need to publish to obtain promotions. Academic institutions, tribes, inter-tribal organizations and research funding agencies may be able to mitigate some of the concerns of university-based research by working to establish journals that focus on TDPR and understand the value of articles with multiple-authors who participated on research teams (Israel et al., 2001). Such journals would simultaneously make TDPR more visible, increase awareness of the results that come from TDPR and provide more publishing outlets for university faculty and students. There may also be an opportunity for a coalition to advocate with established journals to publish more articles on TDPR. Collaborative Efforts and Results Given that TDPR, like CBPR, takes more coordination, time and funding, it is critical to document results, such as improvements in health, and make those results available to funding agencies to justify and encourage additional support. The Southwest American Indian Collaborative Network is an outstanding multi-year effort that focuses on results that are important to the tribal participants. SAICN accomplishes this goal by providing technical assistance to tribes in building health research capacity and developing long-term collaborations among tribes, agencies and universities.

CONCLUSION Tribal governments are in a strong position to conduct and manage the research they need to achieve their goals. Consistent with the core principles of Tribally-Driven Participatory Research, tribal governments are building their internal capacity to conduct research through their own projects as well as in partnerships with universities and other organizations. As governments, tribal nations are able to set specific research standards and protocols through tribal statutes as well as through formal agreements that clearly lay out tribal authorities.

REFERENCES Arizona Biomedical Research Commission. (August 2006). Enhancing Partnerships with the Native American Community. Phoenix, Arizona. Baydala, A., Placsko, C., Hampton, M., Bourassa, C., & McKay-McNabb, K. (2006). A Narrative on Research with, by, and for Aboriginal Peoples. Pimatisiwin, 4, 47-66. Beauvais, F. (1999). Obtaining Consent and Other Ethical Issues in the Conduct of Research in American Indian Communities. Drugs and Society, 14, 167-184. Brown, M. (2005). Research, Respect and Responsibility: A Critical Review of the Tri-Council Policy Statement in Aboriginal Community-Based Research. Pimatisiwin, 3, 79-100. Brugge, D., & Missaghian, M. (2006). Protecting the Navajo People through Tribal Regulation of Research. Science and Engineering Ethics, 12, 491-507. Buchwald, D., Mendoza-Jenkins, V., Croy, C., McGough, H., Bezdek, M., & Spicer, P. (2006). Attitudes of Urban American Indians and Alaska Natives Regarding Participation in Research. Journal of


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General Internal Medicine, 23, 648-651. Burhansstipanov, L., Christopher, S., & Schumacher, S. (2005). Lessons Learned From CommunityBased Participatory Research in Indian Country. Cancer Control, 12, 70-76. Burhansstipanov, L. (1998). Native American Cancer Programs: Recommendations for Increased Support. Cancer, 83, 1849-1855. Burhansstipanov, L. (1999). Native American Community-Based Cancer Projects: Theory versus Reality. Cancer Control, 6, 620-626. Caldwell, J. Y., Davis, J. D., Du Bois, B., Echo-Hawk, H., Erickson, J., Goins, R., Hill, C.,Hillabrant, W., Johnson, S. R., Kendall, E., Keemer, K., Manson, S. M., Marshall, C. A., Running Wolf, P., Santiago, R. L., Schacht, R., & Stone, J. B. (2005). Culturally Competent Research with American Indians and Alaska Natives: Findings and Recommendations of the First Symposium of the Work Group on American Indian Research and Program Evaluation Methodology. American Indian and Alaska Native Mental Health Research, 12, 1-21. Canadian Institute of Health Research. (2007, May). CIHR Guidelines for Health Research Involving Aboriginal People. Retrieved September 03, 2008, from http://www.cihr-irsc.gc.ca/e/29134.html. Christopher, S. (2005). Recommendations for Conducting Successful Research with Native Americans. Journal of Cancer Education, 20, 47-51. Christopher, S., Watts, V., McCormick, A., & Young, S. (2008). Building and Maintaining Trust in a Community-Based Participatory Research Partnership. American Journal of Public Health, 98, 1398-1406. Davis, S. M., & Reid, R. (1999). Practicing Participatory Research in American Indian Communities. American Journal of Clinical Nutrition, 69, 755S-759S. Dignan, M. B., Michielutte, R., Wells, H., Sharp, P., Blinson, K., Case, L., Bell, R., Konen, J., Davis, S., & McQuellon, R. P. (1998). Health Education to Increase Screening for Cervical Cancer among Lumbee Indian Women in North Carolina. Health Education Research, 13, 545-556. Edwards, K., Lund, C., Mitchell, S., & Andersson, N. (2008). Trust the Process: Community based Researcher Partnerships. Pimatisiwin, 6, 187-200. Fisher, P. A., & Ball, T. J. (2003). Tribal Participatory Research: Mechanisms of a Collaborative Model. American Journal of Community Psychology, 32, 207-216. Fisher, P. A., & Ball, T. J. (2002). The Indian Family Wellness Project: An Application of the Tribal Participatory Research Model. Prevention Science, 3, 235-240. Garwick, A., & Auger, S. (2003). Participatory Action Research: The Indian Family Stories Project. Nursing Outlook, 51, 261-266. Gibson, G., Martin, J., Zoe, J. B., Edwards, K., & Gibson, N. (2008). Setting our Minds to it: Communitycentered Research for Health Policy Development in Northern Canada. Pimatisiwin, 5, 33-54. Hodge, F. S., Stubbs, H. A., Gurgin, V., & Fredericks, L. (1998). Cervical Cancer Screening: Knowledge, Attitudes, and Behavior of American Indian Women. Cancer, 83, 1799-1804. Hodge, F. S., Weinmann, S., & Roubideaux, Y. (2000). Recruitment of American Indians and Alaska Natives into Clinical Trials. Annals of Epidemiology, 10, S41-S48. Holkup, P., Tripp-Reimer, T., Salois, E., & Weinert, C. (2004). Community-based Participatory Research: An Approach to Intervention Research with a Native American Community. Advances in Nursing Science, 27, 162-175. Inuit Tapiriit Kanatami. (2003). Negotiating Research Relationships: A Guide for Communities. Pimatisiwin, 1, 18-26. Israel, B. A., Schulz, A. J., Parker, E. A., & Becker, A. B. (2001). Community-Based Participatory Research: Policy Recommendations for Promoting a Partnership Approach in Health Research. Education for Health, 14, 182-197. Letendre, A., & Caine, V. (2004). Shifting from Reading to Questioning: Some Thoughts around Ethics, Research, and Aboriginal Peoples. Pimatisiwin, 2, 1-32.


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Macaulay, A. C., Delormier, T., McComber, A. M., Cross, E. J., Potvin, L. P., Paradis, G., Kirby, R. L., SaadHaddad, C., & Desrosiers, S. (1998). Participatory Research with Native Community of Kahnawake Creates Innovative Code of Research Ethics. Canadian Journal of Public Health, 89, 105-108. Macaulay, A. C. (1994). Ethics of Research in Native Communities. Canadian Family Physician, 40, 1888-11897+. Manson, S. M., Garroutte, E., Goins, R., & Henderson, P. (2004). Access, Relevance, and Control in the Research Process: Lessons from Indian Country. Journal of Aging and Health, 16, 58S-77S. Model Tribal Research Code. (1999). American Indian Law Center’s Materials Concerning a Model Code for Tribal Regulation of Research. Nilson, S. M., Bharadwaj, L. A., Knockwood, E., & Hill, V. (2008). Science in a Circle©: Forming “Community Links” to Conduct Health Research in Partnership with Communities. Pimatisiwin, 6, 123-136. Ortiz, L. M. (2003). Toward Authentic Participatory Research in Health: A Critical Review. Pimatisiwin, 1, 1-26. Salsberg, J., Louttit, S., McComber, A. M., Fiddler, R., Naqshbandi, M., Receveur, O., Harris, S. B., & Macaulay, A. C. (2007). Knowledge, Capacity, and Readiness: Translating Successful Experiences in Community-based Participatory Research for Health Promotion. Pimatisiwin, 5, 125-150. Stoddart, M. L., Jarvis, B., Blake, B., Fabsitz, R. R., Howard, B. V., Lee, E. T., & Welty, T. K. (2000). Recruitment of American Indians in Epidemiologic Research: The Strong Heart Study. American Indian and Alaska Native Mental Health Research, 9, 20-37. Strickland, C. (2006). Challenges in Community-Based Participatory Research Implementation: Experiences in Cancer Prevention with Pacific Northwest American Indian Tribes. Cancer Control, 13, 230-236. Stubben, J. D. (2001). Working With and Conducting Research Among American Indian Families. American Behavioral Scientist, 44, 1466-1481. Teufel-Shone, N. I., Siyuja, T., Watahomigie, H. J., & Irwin, S. (2006). Community-Based Participatory Research: Conducting a Formative Assessment of Factors that Influence Youth Wellness in the Hualapai Community. American Journal of Public Health, 96, 1623-1628. World Health Organization. (2003). Indigenous Peoples & Participatory Health Research. Retrieved September 03, 2008, from http://www.who.int/ethics/indigenous_peoples/en/print.html.

ACKNOWLEDGEMENTS This project was supported by a grant awarded by the National Cancer Institute, Community Network Program (Grant Number 1U01 CA114696). The contents are solely the responsibility of the authors and do not necessarily represent the official views of the National Cancer Institute – National Institutes of Health.

Patricia Mariella, Ph.D., Arizona State University, American Indian Policy Institute Eddie Brown, D.S.W., Arizona State University, American Indian Policy Institute Michael Carter, J.D., Arizona State University, Indian Legal Program Vanessa Verri, J.D., Arizona State University, Indian Legal Program


Ninety-Fourth Arizona Town Hall April 19-22, 2009

From Here to There: Transportation Opportunities for Arizona Background Report Prepared by Arizona State University Michael Crow, President School of Geographical Sciences Luc Anselin, Director School of Planning Luc Anselin, Director School of Sustainability Charles L. Redman, Director College of Public Programs Debra Friedman, Dean

Editors Michael Kuby School of Geographical Sciences

Aaron Golub School of Planning

Authors Soyoung Ahn Jessica F. Aquino Keiron Bailey Stephen Blank Jeffrey Chapman Esther Corbett Matthew Croucher Norm DeWeaver Laurence Gesell Aaron Golub Mark Hickman

Tim James Karthik Konduri Michael Kuby Erik Lee Eva Madly Arnold Maltz Patricia Mariella John McNamara Ram M. Pendyala Joseph Plotz Sandra Rosenbloom

Ethan Rauch William Sheaffer Kangwon Shin Martin L. Shultz Jennifer Toth Sravani Vadlamani D. Rick Van Schoik Simon Washington Dave D. White Zuduo Zheng


Chapter 6

TRIBES AND TRANSPORTATION IN ARIZONA Esther Corbett Inter Tribal Council of Arizona, Inc. Norm DeWeaver Independent Consultant Patricia Mariella, Ph.D. Arizona State University, American Indian Policy Institute Key Points • • • • •

Nearly 20% of Arizona state highway miles cross Indian reservation land. There are roughly 15,000 miles of roads, most of which are unpaved, on Arizona reservations in the inventory for the federal Indian Reservation Roads program. The current annual level of federal funding available to Arizona tribes under the Indian Reservation Roads program represents less than 0.7% of the unmet need. State funding for that system is unavailable. In Arizona, the motor vehicle crash mortality rate for Indian people is more than triple the rate for the general population. Reservation residents must drive much farther to work, shopping, and services than residents in urban Arizona. Public transit services in such reservation communities are largely non-existent. Such factors are relevant to the evaluation of potential solutions to transportation infrastructure financing, such as increased fuel taxes and a Vehicle Miles Traveled taxation system.

Traveling Arizona highways is, for many, a trip through Indian Country. Indian tribes occupy 28% of the state’s land area. Many of Arizona's major transportation corridors cross tribal lands. The State Highway system contains 1,324 miles of roads on tribal land, nearly 20% of the total mileage.1 Every interstate highway passes through or near a reservation (Figure 6.1). Since the rights-of-way for these roads have been granted by tribal governments, the governments are key stakeholders in the transportation arena. Indian people who live on tribal land are a vital part of the Arizona transportation picture. Like other Arizonans, they need access from home to work, education, health, and other services, as well as to shopping and recreational opportunities.2 There are 22 federally recognized tribal governments within Arizona's boundaries. Their lands vary in area, population, accessibility, and cultural traditions. They include the Navajo Nation with a reservation the size of West Virginia, and the San Juan Southern Paiute Tribe with no trust-land base.

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Figure 6.1: American Indian Reservation and Transportation District Boundaries

Some Arizona tribes are among the most isolated in the country. The Havasupai people occupy a side canyon of the Grand Canyon. There is no road access to their village. It is the only place in the United States where mail is still delivered by mule. Communities on the Navajo, Hopi, Tohono O'odham, San Carlos, and White Mountain reservations are many miles from a city of even moderate size. At the opposite extreme, several reservations share boundaries with urban areas in the East Valley and Tucson. 66


Current Conditions Rights-of-Way. Under the U.S. Constitution, multiple treaties, federal law, and numerous Supreme Court decisions, Indian tribes have jurisdiction over what occurs within the boundaries of their reservations. Tribal land is held in trust by the U.S. government for the tribe involved.3 As such, it is not subject to the condemnation procedures of state or local government that are sometimes used to acquire rights-of-way for transportation corridors. Although tribes have repeatedly given their consent to allow state roads to cross their land, making the development of major corridors such as I-10 possible, they expect benefits in return for allowing use of their limited land bases and for tolerating traffic impacts in their communities. Authorizing rights-of-way for roads across tribal land can create significant economicdevelopment opportunities, as well as environmental issues. For example, the development of a commercial corridor along Route 101 in the East Valley has provided opportunities for the Salt River Pima-Maricopa Indian Community. But the volume of traffic on interstates and major state roads that cross reservation land can cause serious problems. Periodically, traffic congestion and vehicle crashes on the through-roads spill traffic into residential areas, putting citizens at risk and forcing tribal governments to spend their limited resources to manage these incidents. Rights-of-way for limited-access highways can block movement from one village to another and to nearby agricultural areas. Air quality around major transportation arteries is degraded, affecting health and sometimes constraining land use. The rural nature and relatively low population density of most reservation land encourages urban neighbors to assume that tribal land is “unused,� and therefore a resource that should be available for transportation corridors. Some past state and regional transportation plans have assumed that tribal land was the least expensive and easiest to acquire for new or expanded freeways. After years of experience negotiating right-of-way issues, state and local transportation planners are now more careful to avoid designing routes that enter tribal lands. Recently, the Pinal County Manager said that the Hidden Valley Transportation Framework Study of future transportation corridors in Maricopa and Pinal counties was not considering any new routes that would cross the lands of the Ak-Chin Indian Community or the Gila River Indian Community.4 Indian Reservation Roads (IRR). The main source of information on the mileage, ownership, and condition of roads on Indian reservations is the national inventory of the Indian Reservation Roads (IRR) program, maintained by the Division of Transportation within the U.S. Bureau of Indian Affairs (BIA).5 An IRR is a public road that is located within or provides access to an Indian reservation or to Indian trust land that is not subject to sale or transfer without the approval of the federal government or the Indian tribe involved.6 The IRR inventory7 for federal Fiscal Year (FY) 2008 includes over 15,000 miles of existing roads on the reservations of tribes whose main land bases are within Arizona borders.8 BIA roads account for about 71% of the miles in this inventory. State roads constitute 14%, county roads 12%, and tribal and other roads 3%.

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While nearly all of the state roads and most of the county roads are paved, over 74% of the BIA roads are not. About 66% of the total mileage consists of dirt roads; gravel roads account for another 4%,9 and other categories account for the remainder. Air Quality. Transportation corridors that increase traffic through reservation communities also increase air pollution from vehicle emissions. The National Air Toxics Assessment and the Joint Air Toxics Assessment Project, a multi-jurisdictional monitoring effort of the Salt River Pima-Maricopa and Gila River Indian Communities and the Arizona Department of Environmental Quality, determined that hazardous air pollutants from vehicle emissions are highest adjacent to high-volume roadways, such as those on or near those reservations. Emissions from vehicles traveling on roadways near tribal lands can also have adverse effects. Ozone is created by sunlight and heat acting on pollutants from vehicle emissions as they move through the airshed. Some of the highest readings in the Valley of the Sun are on or near the Salt River Pima-Maricopa Indian Community and the Fort McDowell Yavapai Nation, both of which are downwind of the Phoenix metro area. The miles of unpaved roads in tribal communities also pose a health risk from particulates (dust). Children in tribal communities are especially vulnerable to respiratory health problems caused by particulate air pollution because they breathe more air for their body weight than adults, and they often wait daily for school buses on unpaved roads. School buses in tribal communities are often old, so problems caused by road dust are exacerbated by open windows on buses without air conditioning, and by high levels of diesel emissions. Safety. Numerous studies on transportation safety in Indian Country have compiled alarming statistics on injuries and fatalities. Remoteness, lack of public transit, poor road conditions, and lack of roadside lighting all contribute to vehicle accidents. • •

68

The Associate Administrator for Federal Lands in the U.S. Federal Highway Administration (FHWA) has noted that the annual fatality rate on reservation roads continues to be more than four times the national average.10 The motor-vehicle-crash mortality rate for Indian people in Arizona, on and off reservation, is more than three times the rate for the general population of Arizona (Figure 6.2). Injuries from motor-vehicle crashes are among the top five causes of death for Indian people in Arizona. The motor-vehicle-related fatalities suffered by Indians in Arizona in 2003, on and off reservation, were roughly twice the number as those suffered by Indians in any other state. According to a BIA publication with state-by-state comparisons, the number of fatalities in Arizona represented about 22% of fatalities nationwide.11 A study done for the National Highway Traffic Safety Administration found that from 1975 to 2002, the number of fatal crashes on reservation roads increased 52.5%. During the same period, the number of fatal crashes in the nation as a whole dropped by 2.2%.12 An analysis by the Arizona Daily Star found that although Indian people make up only 6% of the state's population, they account for nearly one-quarter of the state's pedestrian fatalities.13


Figure 6.2: Motor Vehicle Collision Mortality Rates for American Indians/Alaska Natives in AZ 1980, 1990, 2000-2007

Source: Bureau of Public Health Statistics, Arizona Department of Health Services. Arizona Health Status and Vital Statistics Report, 2007.

Existing Plans and Programs Road Funding. Funding for the IRR program is provided through the tribal provisions of the federal surface transportation act—currently the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Passed in August 2005, the Act authorizes $450 million in FY 2009 for the IRR program, to be divided among all tribes in the U.S. The money may be used for a variety of activities, including planning, transit facilities, maintenance, and road construction. IRR funding is, in reality, the only source of funding for BIA and tribal roads in Arizona. Public Transit. Public transit is often missing in the small communities of rural Arizona, including tribal communities. A study conducted for the Arizona Department of Transportation (ADOT) found that 82% of the need for public transit in rural Arizona is unmet.14 The study, which combined reservation needs with those of other rural areas, identified services to the elderly, disabled, and low-income populations as the most serious needs. Only three tribes receive federal Rural Public Transportation funding through ADOT to operate public transit systems: the Navajo Nation (Navajo Transit System), the Hopi Tribe (Hopi-Senom Transit), and the Salt River Pima-Maricopa Indian Community. Several tribes have received federal Tribal Transit Grant funding through the Federal Transit Administration to plan, establish, and operate transit systems: the Hualapai, Havasupai, Quechan, Cocopah, White Mountain Apache, San Carlos Apache, and the Yavapai-Apache Nation (at Camp Verde). 69


While public transit providing scheduled service over fixed routes is absent in most reservation communities, other mobility services exist. They are generally provided for a defined population by health, education, and human services programs. Transportation services to medical facilities are fairly common in tribal communities, although they have a difficult time reaching the most remote areas. Some tribes have purchased vans to serve the elderly and physically challenged, with funds from the federal Elderly and Persons with Disabilities transit program administered through ADOT. Reservation school systems have their own transportation services, as do many tribal Head Start and childcare programs. Tribal employment and training programs sometimes provide transportation as a component of their main activities. For most reservation residents who do not own cars, family members and friends are the providers of last resort. Fragmentation of specialized services in education, health, and other programs can be a serious impediment to optimizing the limited transit resources available to tribal governments. Transportation is one of the most important support services needed to move individuals from welfare to work; in Indian Country transportation is especially critical to employment because work opportunities are often a long distance from home. Recognizing this need, the Navajo Nation's Temporary Assistance for Needy Families (TANF) program tried to negotiate a contract with the Navajo Transit System to serve TANF clients. It failed, in large part because federal rules on cost allocation require a clear paper trail showing that federal funds for TANF are spent exclusively on that program's clients and purposes. Safety. Tribal governments have responded to their serious transportation safety issues in many ways, including with safety audits, seatbelt education, and sobriety-checkpoint programs. The first ADOT-sponsored Road Safety Audit (RSA) was conducted on a road segment on the Tohono O'odham Reservation. An RSA is a formal safety-performance examination of an existing or future road or intersection by an independent, multidisciplinary team. Intergovernmental coordination among the Tohono O'odham Nation, the Pima Association of Governments (PAG, the regional transportation-planning agency), and ADOT was the key to planning improvements for a dangerous intersection identified in the RSA. PAG agreed to pay for developing a scope of work for the project, a process that is now underway. The tribe has assumed responsibility for some of the lower-cost improvements, such as supplying electricity for new street lights. The Navajo Nation was among the first tribes in the country to conduct a federally sponsored RSA, on the highway from I-40 at Lupton to Window Rock (the Navajo capital), and Fort Defiance. The audit identified a number of features needing improvement, such as signage, channelization, and pavement markings.15 In 2004, the Centers for Disease Control and Prevention funded multi-year Prevention of Motor Vehicle Injuries grants to develop, implement, and evaluate tailored, tribal-community-based interventions, such as seatbelt education programs and sobriety checkpoints. Three of the four national pilot projects were in Arizona, with the Tohono O'odham Nation, and the San Carlos Apache and White Mountain Apache Tribes. One impediment to safety improvements has been the fragmentation of responsibility among agencies. Several units inside USDOT and the Indian Health Service are important on the federal side. At the tribal level, coordination among law enforcement, emergency medical

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services, transportation, behavioral-health services, and education personnel are essential. To increase attention to reservation transportation safety at the state level, the Governor's Traffic Safety Advisory Council has formed a subcommittee on tribal issues, led by the representative from Inter Tribal Council of Arizona. Challenges Although many aspects of tribal transportation are challenging, financing stands out above all. Despite a significant increase in funding from prior levels, the IRR program is grossly inadequate to meet tribal needs. The BIA estimates the unmet need in FY 2007 at over $10 billion for the tribes in Arizona, including all of the Navajo Reservation. In contrast, the actual funding allocated in FY 2008 was roughly $68.3 million. At this rate, it would take over 146 years just to meet the need as it existed in FY 2007,16 let alone future needs that will continue to grow due to inflation and the additional mileage likely to be added to the system. Tribes, as well as states, are concerned about reduced federal fuel-excise-tax collections that result in lower revenues for the federal Highway Trust Fund, the source of funds for the IRR program. This reduction of revenues is the result of a drop in vehicle-miles traveled and an increase in the fuel efficiency of vehicles that actually began before the current recession.17 While these may be positive trends for national oil dependency, they threaten to produce a $4.3 billion shortfall in the Fund in FY 2009.18 The impact could be devastating to tribal and state transportation programs alike. The very-limited maintenance funding for reservation roads is an equally serious and closely related problem. For FY 2008, only $26 million was available to the U.S. Department of the Interior to maintain the over 108,000 miles in the IRR inventory. As an example of road construction and maintenance needs, the Hualapai Tribe in northern Arizona cites the Diamond Creek Road that provides the only vehicle access to the Colorado River in the 200-plus miles between Lee's Ferry and Lake Mead.19 The road, essential to tribal tourism, washes out an average of three times a year. Recent flooding also destroyed the trail system on the Havasupai Reservation, a system essential to the tourism industry that produces nearly all the tribe's non-governmental income. Opportunities Partnerships. Collaborative problem-solving efforts are underway to address challenges. “Partnership� is now the term used by all parties to describe the relationship between the tribes and ADOT. In contrast, just nine years ago an ADOT official devoted most of a report on state-tribal transportation coordination to discussing perceived obstacles such as tribal sovereignty issues, conflicts over Indian preference in employment (as authorized by federal law), and difficulties in negotiating rights-of-way.20 While some of these issues have yet to be resolved, relationships have improved. In 2006, FHWA presented a national award for transportation-planning excellence to ADOT for its Arizona Tribal Strategic Partnering Team. The Team consists of 23 members drawn from

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tribes, federal agencies, and ADOT divisions. It brings together representatives from tribal, federal, state, and local governments and agencies to discuss state-tribal transportation issues and to develop inter-agency forums through which problems can be addressed.21 The Inter Tribal Council of Arizona established the Transportation Working Group to facilitate information exchange among tribes and to advocate with the state and other agencies. Individual tribes also create partnerships. ADOT has formal partnership agreements with the Hopi Tribe and the Navajo Nation, and less formal relationships with a number of other tribes. The major responsibility for state-highway-system planning in Arizona is shared by ADOT and the various regional planning organizations. The Salt River Pima-Maricopa Indian Community, the Fort McDowell Yavapai Nation and the Gila River Indian Community belong to the Maricopa Association of Governments, and the Salt River Pima-Maricopa Indian Community is a member of the organization's Transportation Committee. The Pascua Yaqui Tribe and Tohono O'odham Nation are members of the transportation committee of the PAG. The Cocopah Tribe is a member of the Yuma Metropolitan Planning Organization and the Hopi Tribe is a member of the Northern Arizona Council of Governments. Financing for Transportation Improvements. Funding roadway improvements, public transit, safety programs, and other activities is a serious challenge. Tribal governments, like states, were pleased that highway construction funds were approved in the recently passed federal economic stimulus bill. The IRR program will receive an additional $310 million from that legislation.22 Tribes are also hopeful that there will be improvements when Congress enacts the next iteration of the federal surface transportation statute. At the top of the agenda for Arizona tribes are continuing increases in construction money for the IRR program to compensate for rapidly rising construction costs and the huge backlog of unmet needs. Increased appropriations for the woefully inadequate routine-roads-maintenance line item in the U.S. Interior Department's budget is a close second. Greater support for data collection, management, and analysis is also essential to improve understanding of tribal needs and craft effective ways to meet those needs. In 2007, the Hualapai Tribe proposed an innovative idea to the U.S. Senate Committee on Indian Affairs: the establishment and start-up funding of an IRR loan program comparable to the state infrastructure banks (SIBs).23 Such an IRR SIB could make direct, low-interest loans to tribes for transportation infrastructure development, and guarantee loans to enhance the prospects for leveraging tribal resources. Although tribes can borrow from the state's SIB, the low-interest Highway Expansion and Extension Loan Program, several major obstacles prevent effective access to this money. The barriers stem from program regulations that require tribal governments to: • • • •

72

waive their sovereign immunity agree to resolve disputes in state courts create separate legal entities to receive the funding disclose their government assets


A separate, federal IRR infrastructure bank would bypass these issues. Another barrier is a provision of the state constitution that has the effect of prohibiting direct tribal access to state transportation revenue in the Highway User Revenue Fund.24 Levying tribal excise taxes on fuel sold on reservation land is a financing option available to a relatively few tribes with commercial gas stations on their land. Where this resource can be tapped, it can supplement the limited federal funding for transportation improvements. For example, the Navajo DOT recently took delivery of seven new state-of-the-art road graders purchased with tribal gas tax funds.25 The foregoing discussion relates to tribal-specific approaches to transportation financing. In addition, tribes and reservation residents have an important stake in what approaches are adopted for the state as a whole. Some of these potential solutions would seriously disadvantage Indian people, particularly in remote rural reservations. These include such ideas as increased fuel taxes, a VMT approach to transportation financing, congestion pricing and public private partnerships, all of which might be desirable in urban areas but would adversely impact the rural population who must drive considerably further to work, shopping, and services and where there is little private sector with which to create partnerships. (See Chapter 18 for a general discussion of transportation finance.) As Arizona’s population grows and new and expanded corridors are needed for roads and public transit, tribal engagement and partnership with state, local, and federal agencies on transportation issues will become even more important than it is now. Progress through partnership is possible as tribes and tribal communities work, along with the rest of Arizona, to meet transportation challenges in the decades to come. List of Abbreviations Used ADOT BIA FHWA IRR

Arizona Department of Transportation Bureau of Indian Affairs, U.S. Department of the Interior Federal Highway Administration Indian Reservation Roads

PAG RSA

Pima Association of Governments Road Safety Audit

SIB TANF

State Infrastructure Bank Temporary Assistance for Needy Families

Esther Corbett is the Transportation Project Coordinator for Inter Tribal Council of Arizona, Inc. In this capacity she has worked since 1998 to increase the capacity of tribal governments to access transportation resources, develop transportation plans, and create and improve safety programs and transit services. Esther also leads the subcommittee on tribal issues of the Governor's Traffic Safety Advisory Council. Norm DeWeaver, an independent consultant, has worked with tribal governments and Indian organizations in Arizona on many issues since 1972. He lives in Casa Grande. Patricia Mariella is the Director of the American Indian Policy Institute, Arizona State University. The Institute collaborates with Indian tribes on issues that affect them and empowers tribes through the provision of information, expertise, and certifications. 1

ADOT. Tribal Consultation Policy Annual Report September 2006-November 2007. December 5, 2007. As used in this paper, the following terms have the meanings described for them. The term "Indian Country" means federal reservation areas and other communities meeting the technical definition in U.S. law of Indian 2

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Country. The term "tribe" means any Indian tribe, band or nation which is recognized as eligible for the special programs and services provided by the U.S. to Indians because of their status as Indians. The term "tribal government" means the governing body of an Indian tribe. The term "Indian reservation" means a geographic area established as such by treaty, statute or Executive Order of the U.S. government. The term "tribal lands" is used in this paper as synonymous with reservation(s). The term "Indians" or "Indian people" means persons who are members of an Indian tribe. 3 25 U.S.C. 2201. 4 Levine, A. Road Strategy Spares Area's Tribal Lands. Casa Grande Dispatch, July 14, 2008. 5 U.S. BIA, Division of Transportation. Indian Reservation Roads Inventory. www.doi.gov/bia/roadreservation.html. Accessed: October 9, 2008. 6 Title 25 U.S. Code of Federal Regulations Section 170.5. 7 The IRR inventory includes trails and proposed roads as well as existing roads intended for vehicle traffic. However, these uses do not figure significantly in the mileage summary data. The IRR program also includes bridges, which are reported and funded separately. 8 This includes the entire Fort Mojave reservation, which extends into California and Nevada. It also includes all of the Navajo Reservation, which extends into New Mexico and Utah. It does not include the Fort Yuma Quechan Reservation, which has relatively little land in Arizona, nor the Zuni Reservation, whose major land area is in New Mexico. The San Juan Southern Paiute Tribe currently has no federal trust land. 9 Data for the Arizona tribes other than Navajo were taken from Western Region, Division of Transportation, U.S. Bureau of Indian Affairs. Indian Reservation Roads Program: Miles of Road by Organizational Responsibility and Surface Type. Phoenix, AZ. November 6, 2008. The Navajo data is from Transportation Planning Program, Department of Transportation, Division of Community Development, Navajo Tribe. 2003 Navajo Nation Long Range Comprehensive Transportation Plan. October 2004. 10 Statement of John R. Baxter, Associate Administrator for Federal Lands, Federal Highway Administration, U.S. Department of Transportation. Testimony at a hearing of the Committee on Indian Affairs, U.S. Senate. July 12, 2007. 11 BIA Indian Highway Safety Program, U.S. Department of the Interior. Traffic Fatality Crash Information 2003. February, 2006. 12 National Highway Traffic Safety Administration, U.S. Department of Transportation. Fatal Motor Vehicle Crashes on Indian Reservations 1975 - 2002. April, 2004. 13 Tobin, M. Ariz. Indians a Fourth of Pedestrian Fatalities. Arizona Daily Star, December 18, 2005. 14 Cambridge Systematics, Inc. Final Report, Arizona Rural Transit Needs Study. May 2008. 15 Gibbs, M. et al., Opus Hamilton Consultants and Vanasse Hangen Brustlin Inc for the Office of Safety, Federal Highway Administration, U.S. Department of Transportation. Tribal Road Safety Audits: Case Studies. April 2008. 16 U.S. Department of the Interior. Indian Reservation Roads Program. RNDF Report, FY 2008 Relative Need Distribution Factors, FY 2007 Inventory. 17 Puentes, R. The Road‌ Less Traveled: An Analysis of Vehicle Miles Traveled Trends in the United States. The Brookings Institution, Washington D.C., 2008. 18 American Road & Transportation Builders Association. Recommendations for SAFETEA-LU Reauthorization. A New Vision & Mission for America's Federal Surface Transportation Program. www.artba.org. Accessed November 5, 2008. 19 Transportation Issues in Indian Country. Testimony of Hualapai Tribe submitted at a hearing of the Committee on Indian Affairs, U.S. Senate. July 12, 2007. 20 Swan, J. Native American Transportation Issues in Arizona. Transportation Research Circular E-C039. Transportation Research Board of the National Academies, Washington, D.C. September 2002. 21 ADOT. Arizona Tribal Strategic Partnering Team. ADOT Tribal Transportation Web site, www.aztribaltransportation.com/atspt/index.asp. Accessed November 3, 2008. 22 National Congress of American Indians. Economic Recovery & Reinvestment Act. Updated 2/18/2009. www.indiancountryworks.org. Accessed February 23, 2009. 23 See note 19. 24 Arizona Constitution, Title IX, Section 14. 25 Francis, K. New road graders will help reservation roads. The Gallup Independent, October 29, 2008.

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Ninety-First Arizona Town Hall October 28-31, 2007

Land Use: Challenges and Choices for the 21st Century Background Report Prepared By Arizona State University Michael Crow, President College of Public Programs Debra Friedman, Dean Global Institute of Sustainability Decision Center for a Desert City Editor Patricia Gober

Dana Bennett Anthony Brazel Edward Cook Peter W. Culp Susan Culp Norm DeWeaver Joseph Feller

Authors Grady Gammage, Jr. Patricia Gober Suzanne Grossman-Clarke Subhrajit Guhathakurta Carol E. Heim Jim Holway Nancy Jones

Kristen Keener-Busby Patricia Mariella Martin Pasqualetti David Pijawka Edgar Ramirez Delacruz Matthias Roth Nancy Welch

Arizona Town Hall Research Committee Members Warren L. Prostrollo, Jr., Chair Anna Jolivet, Vice Chair Arlan Colton Catherine Connolly Debra Friedman Grady Gammage, Jr. Mary Grier Patricia Gober Susan N. Goldsmith Patrick Graham

Jay S. Kittle Hartman Lomawaima Robert L. Matia Elizabeth McNamee Elliott D. Pollack Fred Rosenfeld William C. Schubert David Snider

Devan F. Wastchak Terence O. Wheeler Mark Winkleman Shirley Agnos, ex officio James R. Condo, ex officio Tara L. Jackson, ex officio Janet R. Jennings, ex officio L. J. "Chip" U'Ren, ex officio


Table of Contents Table of Contents

v

List of Figures

ix

List of Tables

xi

Executive Summary Chapter 1

xiii

Taking Stock: How Much Growth, Where, and When

1

Patricia Gober and Nancy Jones Uncertainties about Future Population Growth

1

Sources of Growth

3

Characteristics of Growth

5

Geography of Growth

9

Population Density

14

Growth and Land Development

17

Land Ownership

18

Entitlements and Development Areas

18

Chapter 2

Smart Growth and Growing Smarter in Arizona

21

Jim Holway and Kristen Keener Busby The Smart Growth Movement

21

Smart Growth Principles & Implementation

23

The Evolution of Planning and Smart Growth Approaches

24

How Is Smart Growth Different

25

Smart Growth Lessons from Elsewhere

26

What Has the Smart Growth Movement Achieved?

28

Limitations and Criticisms of Smart Growth

28

Arizona’s Growing Smarter and Grower Smarter Plus Programs

30

Growing Smarter Oversight Council

35

Governor’s Growth Cabinet

37

Evaluating Arizona’s Growing Smarter Programs

37

Smart Growth Recommendations

40

Chapter 3

Land-Use Regulation

42

Edgar Ramírez De la Cruz v


Principles and Goals of Land-Use Regulation

42

Rezonings, Variances, and Other Special Uses

50

Financing Infrastructure and Adopting Flexible Land Uses

52

Annexation

54

Role of Interest Groups in Land-Use Regulation

56

Role of Local Political Institutions in Land-Use Regulation

58

Final Considerations

60

Chapter 4

Proposition 207

62

Grady Gammage, Jr. Introduction

62

Eminent Domain and Regulatory Takings

62

The Kelo and Bailey Cases

65

The 2006 Election

68

The Provisions of Prop 207

70

The Oregon Experience

74

Initial Reactions to Prop 207

77

Chapter 5

State Trust Lands: The Future of Urban Growth in Arizona

81

Peter W. Culp and Susan K. Culp Arizona’s Trust Lands

82

Trust Land Management in Arizona

82

Revenues from State Trust Lands

86

The Trust Responsibility

87

Important Restrictions on Arizona Trust Lands

90

Emerging Issues for Trust Lands in Arizona

91

Recent Developments on Arizona State Trust Lands

99

Conclusion: Facing the Future

Chapter 6

102

Tribes in Arizona: Growth and Land Use

104

Patricia Mariella and Norm DeWeaver Tribal Perspectives on Land

105

Tribal Development

107

Gaming

108

Effects of Off-Reservation Growth on Tribes in Arizona

109

vi


Opportunities Related to Growth

117

Tribal Participation in Regional Planning

119

Summary

120

Chapter 7

Landscapes of Energy Consumption and Energy Supply

122

Martin J. Pasqualetti Introduction

122

Landscapes of Energy Consumption

123

Landscapes of Energy Supply

126

Combining the Landscapes of Energy and Water

140

Conclusions

141

Chapter 8

Taxes, Incentives, and Fiscal Policy Choices

142

Carol E. Heim The Importance of Sales Taxes

142

Sales Taxes and Land Development

144

Tax Incentives for Retail Development

146

Joint Revenue Sharing

149

Alternatives to Sales Taxes

150

Municipal Finance in Different Phases of Growth

153

Strategies for Build-Out

157

Forward-Looking Policies

160

Conclusion

163

Chapter 9

Living in Growth Communities: Affordability and Livability

165

Nancy Welch and Dana Bennett Growth Communities Must Search for Balance

166

Personal Perspectives on Quality of Life

167

Tracking Quality of Life

171

Housing, Jobs, and Transportation

173

“Getting There� and Livability

178

Livability Initiatives

180

vii


Chapter 10

Land Use and Environmental Quality

182

David Pijawka, Anthony Brazel, Edward Cook, Joseph Feller, Susanne Grossman-Clarke, Subhrajit Guhathakurta, and Matthias Roth Introduction

182

The Urban Heat-Island Effect

183

Environmental Justice

186

Biophysical Risks of Land Development

189

Landscape Ecology and Ecological Networks

193

Compact Urban Form and Ecosystem Integrity

195

The Effect of Two Recent Supreme Court Decisions on Growth and Development in Arizona

196

Conclusions

202

Endnotes

203

About the Authors

220

viii


Chapter 6 Tribes in Arizona: Growth and Land Use Patricia Mariella and Norm DeWeaver,1 American Indian Policy and Leadership Development Center2

There are twenty-two federally recognized tribal governments within the boundaries of the State of Arizona that vary in land base, population size, and cultural traditions (Figure 6.1). Tribal lands are located throughout the state in a variety of settings, some near urban areas and others in remote locations. The US tribe with the largest land base (Navajo Nation), as well as a tribe with no land base (San Juan Southern Paiute) are in Arizona. The varied geology and ecosystems of Arizona provide the basis for the diverse traditional economies of the Tribal Nations, support their modern economies, and offer the potential for future development. The dramatic population growth in Arizona over the past twenty-five years has put non-Indian communities in close and direct contact with tribes, in some cases completely surrounding rural, tribal lands with new residential and commercial developments. Tribes in Arizona have experienced the ongoing growth of the non-Indian population for well over a century. Prior to Europeans coming to the territory, Arizona tribes used virtually all of the land in the state.3 Tribes gave up large tracts of land when reservations were established in Arizona. Tribal peoples are concerned about the explosive growth in residential and commercial construction on their boundaries, the expansion and construction of new freeways across tribal lands, and regional issues such as water and air pollution. Tribes also recognize opportunities associated with growth. A number of tribes have prime land for development, and the value of that land is related to the growth of surrounding 104


communities. Although tribal lands, people, and water are generally recognized as critical players in the growth of Arizona, there are few studies or scholarly articles on the subject of tribal nations and growth in Arizona. This overview will summarize the effects of growth on tribes and land use, as well as the opportunities for collaboration and coordination between tribes and local jurisdictions.

Figure 6.1. Location of tribal lands in Arizona. Source: Inter-Tribal Council of Arizona.

Tribal Perspectives on Land American Indian traditions generally view land as commonly-held, recognizing the use rights of extended families, lineages, and clans. This system is flexible to meet 105


community needs as some families grow and others diminish, and it avoids disputes among families. Under traditional land-use systems, no tribal people were homeless. Many American Indian people over the centuries have eloquently expressed the view that monetary value cannot be placed on land, water, plants, animals, and sacred places. The native worldview consistently values land and the living world not as property to be bought and sold, but in familial or kinship terms, reflected in the well-known concept of Mother Earth. The former Chairman and President of the Navajo Nation, Dr. Peterson Zah, summed up the tribal land ethic in these words: "On the reservation, land means everything. It touches religious beliefs and spiritual reality."4 Elders of the Fort McDowell Yavapai Nation spoke metaphorically about the value of land and money during their struggle to prevent their land being flooded by the construction of Orme Dam in the 1970’s and 1980’s: “Land is like diamonds, money like ice. The land stays forever but money melts through your fingers.”5 This long-term perspective is a core element of a tribal worldview that seeks quality of life for the tribe as a whole. Tribal leadership is expected to think about success for the tribe as a whole, not just individuals, families, or select groups. Consistent with the long-term values of tribes that have lived on their homelands for millennia and will continue to be based on their reservation lands into the future, tribes seek sustainable development that does not degrade resources for future generations. Former President Ivan Makil of the Salt River Pima-Maricopa Indian Community stated in testimony to Congress in 2002, “We are very aware that future generations of our people will live with the results of the decisions we make today. It is critical, therefore, that we make the very best decisions that we can.”6 In the 1980’s, Salt River was the first tribe to develop a major shopping center, the Pavilions, on reservation land in Arizona. This development required pulling together many tribal

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landowners (heirs of original allottees) and a developer. To manage the complex land tenure of allotted land and fractionated heirships, the Community established a realty database and a compatible geographic information system.

Tribal Development The substantial increase in tribal revenues, largely from gaming, has changed the pace of development in Indian Country. Because tribal nations are land-based, land-use planning is essential to economic development. In addition, tribes need physical, legal, and regulatory infrastructure for economic development.7 The tribal land-use plans that have been the most useful reflect values that include protecting the land, maintaining identity, and assuring the future. For example, buildings at Salt River cannot generally exceed forty feet in order to avoid blocking culturally significant mountain views. Tribes in Arizona near metropolitan Phoenix generally try to define commercial zones near borders or along key transportation routes in order to retain the rural character of the community core. The Gila River Indian Community developed a Borderlands Plan in the 1980’s that established the area adjacent to Phoenix and Chandler as the main focus for commercial growth. This is the area containing the Lone Butte Industrial Park, Wild Horse Pass Casino and Resort, and Whirlwind Golf course. Similarly, Salt River and Fort McDowell have concentrated commercial growth along Route 101 and the Beeline Highway. Salt River has nine miles of freeway frontage on a very heavily traveled road that presents an outstanding opportunity for economic development. Based on potential square footage, it is estimated that up to 70,000 jobs could be created along Route 101 at Salt River. It is likely

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that most of those jobs would go to other Valley residents, because the tribal workforce is relatively small (less than 2,000). Besides gaining the cooperation of landowners when allotted land is involved, private developers doing business on Indian land must also get the approval of tribal officials and, in many cases, the Federal Bureau of Indian Affairs. According to a developer who has successfully worked with tribes in the Valley, “It’s a significantly different business environment and culturally different. A lot of business is done on relationship and trust. You’ve got to have patience.”8 The process for development on Arizona reservations generally requires tribes, tribal landowners, and developers to obtain clearances under the National Environmental Policy Act, as well as myriad archeological protection laws, before land disturbance and construction work can begin.

Gaming Gaming is an economic engine for a number of tribes, particularly those that are near urban areas. Because tribal governments have survived over a century of severely limited revenues (few federal resources, limited or no tax revenues), gaming revenues are often used to make up for decades of lack of basic infrastructure development of all kinds: roads, housing, public safety, sanitation, education, and health. Like a number of gaming tribes, the Camp Verde Yavapai-Apache Nation initially used gaming revenues to support basic governmental and physical infrastructure for their community and members. Later, casino revenues were used to improve quality of life, provide employment, and diversify the economic base beyond gaming to ensure economic success in the long term. To ensure their

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future, tribes also use gaming funds to support education at all levels, including scholarships for higher education. A significant effect of tribal gaming and economic development, particularly in more rural areas, is on employment of both on- and off-reservation residents. In 2001, the Yavapai-Apache Nation’s casino was the largest single employer in the Verde Valley; Cliff Castle Casino employed approximately 520 people, only 10-15% of whom were tribal members.9 Many tribes, including the Gila River Indian Community, Salt River PimaMaricopa Indian Community, Hopi Tribe, Navajo Nation, the Yavapai-Apache Nation, and Fort McDowell Yavapai Nation, also have extractive industries (sand and gravel operations, coal mining) in their land-use and economic mix.

Effects of Off-Reservation Growth on Tribes in Arizona As a direct result of population growth and urban sprawl in Arizona, a number of tribes that were once relatively remote, rural communities are now surrounded by residential and commercial development. In the past decade, the Phoenix metropolitan area has leapfrogged over reservations that were once considered to be the boundaries of development. Tribal leadership has expressed consistent concerns about the impacts of offreservation development on their rural quality of life, water supply and quality, air pollution, the need for more transportation corridors, and impacts on sacred sites.

Transportation Transportation is at or near the top of crucial land uses in Arizona's future. Population growth has strained the existing transportation corridors that link one part of the

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state to another, and pressure for new or expanded rights-of-way is not expected to subside in the near future. Because of the rural nature of most reservation land and the relatively low population density on reservations, urban dwellers often assume that tribal land is ‘unused’ and a resource that should be made available for transportation and utility corridors. In the past, state and regional transportation plans may have assumed that tribal land was the least expensive and easiest to acquire for new or expanded freeways and other rights-of-way. From a tribal perspective, major transportation corridors on or near reservation land pose both opportunities and concerns. High traffic volumes bring customers to tribal enterprises and tenants to tribal business parks. At the same time, the land dedicated to transportation corridors erodes the tribal land base and is an intrusion into tribal communities. Every one of the existing interstates in Arizona crosses reservation land or comes close to it: I-8 goes through Quechan land at the border with California; I-10 runs through both the Gila River and Colorado River reservations; I-17 is adjacent to the Camp Verde reservation as it crosses the Verde Valley; I-19 runs through the San Xavier District of the Tohono O'odham reservation; and I-40 traverses miles of the Navajo reservation. In addition, smaller transportation routes from Globe to Safford and Show Low, Mesa to Payson, Lake Havasu City to Bullhead City, and Flagstaff to Page all cross tribal land. Some of the most acute tensions over the use of tribal land for transportation are found in the greater Phoenix area. Loop 202 is a major beltway for the East Valley. It also provides hope for a key link from the East Valley to the West Valley, bypassing central Phoenix. Selection of the route that 202 might follow around South Mountain highlights the critical role which tribes play in the transportation arena. One route, under study by the Arizona Department of Transportation for many years, would follow an alignment west from

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Pecos Road to the western end of South Mountain. Building 202 along that alignment would require the taking of many expensive and recently built homes. An alternative is to construct 202 further south, on land that belongs to the Gila River Indian Community. In the past, tribal members living in the area have expressed their strong opposition to building a freeway across their land. The tribe has recently agreed to discuss potential transportation developments, but has made no commitment to surrender any more land for transportation corridors. Tribal development may benefit from improved transportation and access but it is critical, if tribal approval is to be obtained, that any proposed freeway development meets tribal needs as well as regional needs. Tribes may be unwilling to lease their land for transportation corridors that result in increased traffic through reservation communities and increased emissions contributing to air pollution. Because ozone is created from the action of sunlight on pollutants as they move through the air, some of the highest ozone readings in the Valley are in or near the Salt River Pima-Maricopa Indian Community and Fort McDowell Yavapai Nation, both of which are downwind of the Phoenix metropolitan area. Much of Maricopa County is a non-attainment area (does not meet national health standards) under the Clean Air Act for ozone and particulates (dust), and the movement of these pollutants is exacerbated by increased growth, particularly sprawl that encourages more vehicle miles traveled. The US Environmental Protection Agency has designated both Salt River and Fort McDowell as non-attainment areas because of pollution that is generated in adjacent cities but transported to the tribal communities; the non-attainment designation can result in constraints on tribal economic development as well as on that of municipalities and counties.

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Table 6.1. Population and acreage of tribal reservations in Arizona.

Water and Agriculture American Indians were the first farmers in Arizona. If present trends continue, they may well be the last. Agriculture no longer dominates the economy of the state in the way that it did historically. Dramatic population growth has pushed developed urban areas into 112


what were once verdant citrus groves, cotton farms, and alfalfa fields. While agricultural land outside reservations shrinks, especially near the major metropolitan areas, it remains a major land use on many Arizona reservations. The commitment to agriculture runs deep in tribal traditions as a majority of the Arizona tribes were farming people. The ancestors of the O’odham constructed major irrigation works to water their crops; desert tribes made use of rainwater for their fields and river tribes practiced flood plain agriculture. Tribes in Arizona have longstanding rights to water under federal water law, known as reserved rights. When the United States forced tribes onto small portions of their homelands, the remaining land was supposed to sustain the tribes. In most cases, the federal government expected American Indians to farm, and because in the arid west farming generally requires irrigation, federal case law states that enough water was reserved along with reservation land to irrigate and farm. In Arizona, a number of tribes have obtained settlements determining their rights to water. However, there are several tribes that still have unresolved claims to water. Tribes currently manage 40% of surface water in the state and have claims to up to 100%. In addition, tribes have rights to the groundwater beneath their lands. From the first Anglo settlements and the construction of dams on the Salt, Colorado, and Gila Rivers, non-Indian population growth and farm development resulted in loss of water for Indian lands. The loss of water for irrigation crippled the farming economies and associated way of life for Indian communities. The lack of resolution of tribal claims to water has been a barrier to development on both tribal and non-tribal land in Arizona. Even with water settlements, many tribes do not have the built infrastructure (canals, laterals, leveled fields) to make use of their full water entitlements. The Gila River Indian

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Community (GRIC) is developing the Pima-Maricopa Irrigation Project, an element of the Central Arizona Project, in order to make use of its water rights for farming. There has been a common assumption that tribes will lease their “unused� water to growing urban areas. It has met the needs of some tribes to lease water: the Ak-Chin Indian Community leased water to Del Webb for the construction of the Anthem master-planned community in northwest Phoenix. But it is critical for non-Indian communities to realize that tribal governments may also choose to use water on their own land for farming and other development. In addition, there have always been tribal concerns about wells along their borders drawing from groundwater that originates under tribal land. The potential for loss of tribal groundwater increases dramatically as non-Indian development comes closer to tribal communities. Water-quality issues from storm-water runoff and waste-water discharge also affect tribes. Natural patterns of storm-water sheeting and drainage are profoundly affected by land clearing and construction. In addition, the quality of stormwater degrades as oils, solvents, and other pollutants are picked up in urban areas. There have been several cases of private developments on tribal boundaries that have requested the ability to discharge from wastewater treatment facilities into washes and rivers that flow onto tribal land. This was the case with the Ak-Chin Indian Community when one of the many housing developments in the Maricopa area requested a permit to discharge into the Vekol Wash, which has environmental and cultural value to the tribe. Discussion among the Arizona Department of Environmental Quality, the tribe, and the developer resulted in an innovative approach in which the wastewater treatment facility will not discharge into the wash. GRIC faced a similar situation with discharge from a new development in Pinal county, up-gradient of the

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Community. GRIC negotiated an agreement in which the developer provided funds for background and ongoing water quality monitoring and agreed to meet the Community’s discharge criteria for water quality. Throughout the United States, major conflicts at the urban-rural interface occur when residential areas locate near farms. New residential growth at the boundaries of existing agricultural lands or animal feedlots is a source of conflict in a number of areas in Arizona. The challenges are particularly difficult for tribes that have farmed for millennia, and for whom farming is a core element of the culture, as well as the economy. New urban residents who have not had experience living near agricultural land may complain when they hear crop dusting planes at night and smell odors from farm lands. To help resolve these challenges, the Ak-Chin Indian Community leadership worked with the Arizona Department of Real Estate so that land descriptions on the reservation boundary include information about the proximity to tribal land. The Gila River Indian Community experienced similar problems when housing was built on its northern border adjacent to existing farms. The Gila River Department of Environmental Quality staff met with homeowners groups and provided information about the Community’s pesticide regulatory program. The program includes four full-time senior pesticide officers who regularly monitor applications in the field. This outreach effort significantly improved understanding by surrounding residents and the complaints diminished. The non-Indian farmers who were competitors for irrigation water in the past may become partners of farming tribes in trying to preserve the values of an agricultural, rural lifestyle. Arizonans will continue to be able to smell fresh cut hay in significant areas of

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Indian Country, even though between 1987 and 2002, more than 625,000 acres of farmland were lost to development in Maricopa County.10

Sacred Sites Traditional tribal religious practices and beliefs are deeply tied to tribal homelands that extend well beyond the boundaries of current reservations. As a result, tribes have profound interests in areas that are increasingly affected by off-reservation development. Tribes want to maintain free access to cultural and religious sites and generally do not want to see these areas disturbed, or access by non-Indians increased. The potential for conflict can be substantial with regard to areas where tribes are pushed to accept development but feel that there is no way to mitigate impacts on sacred sites. The plan to use treated wastewater to make snow for the Arizona Snowbowl resort on the San Francisco Peaks has generated heated opposition from northern Arizona tribes who regard the Peaks as sacred. In the most recent decision on a lawsuit filed by the tribes, the 9th Circuit Court of Appeals cited the provisions of the federal American Indian Religious Freedom Act as the basis for denying the plan.11 The Arizona Apache tribes, joined by the Hopi and Hualapai Tribes, have united to oppose a bill in Congress that would authorize a land exchange between the US Forest Service and a copper company that would mine the property. The area in question has high spiritual value to the Apache people.12 The use of several mountaintops in southern Arizona for astronomical purposes has generated controversy. For example, a 1990 resolution by the San Carlos Tribal Council put the tribe on record as opposed to the use of Mount Graham for an observatory on the grounds that the mountain has been used for generations as a site for

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healing ceremonies, the gathering of plants and animals for religious practices, and is the location of a substantial number of Apache burials.13 As seen in the Snowbowl case, federal laws protecting Native American religious freedoms can affect off-reservation land use. There are also federal (Native American Graves Protection and Repatriation Act) and Arizona laws (A.R.S. ยง41-844, 865-866) requiring consultation and repatriation (and potentially reburial) of human remains and funerary objects found during land clearing and excavation associated with construction. The federal National Environmental Policy Act, National Historic Preservation Act, and Archeological Resources Protection Act are triggered on tribal land more frequently than on privately held land off-reservation and consequently have a more substantial effect on development on reservations. Developers new to Indian Country can be frustrated by these requirements. It is also important for off-reservation developers to be aware of tribal interests in traditional homelands beyond reservation borders, as well as of the federal laws that protect them.

Opportunities Related to Growth There are increasing opportunities, benefits, and incentives for both tribes and local governments to work together on a wide range of issues, particularly those related to land use and growth. Tribes, both as governments and business owners, are interested in building relationships with neighbors. If good fences make good neighbors, mutual understanding of and respect for one another's values and perspectives make for a good neighborhood. The reality on the ground can be fairly complex because many tribes have land that lies within

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several counties, and in the case of Navajo, Zuni, Fort Mojave, Colorado River Indian Tribes and Quechan, land in more than one state. For many, the attraction of Arizona lies in its open spaces, scenic beauty, and abundant recreational opportunities. Much of the reservation land within the state remains in its natural state; it is used for ceremonies, the gathering of native plants, and as a basis for renewing cultural ties. At the same time, tribes offer non-Indian visitors opportunities for recreation. Tourism is a major source of revenue in Arizona with a huge potential for collaboration. The state of Arizona is the fourth most popular tourist destination in the US, and tourism is the second-largest industry in Arizona, with over 30 million overnight visitors to the state each year. International tourists are particularly drawn to the Southwest because of an interest in American Indians; one of the highest–ranking reasons given for visiting Arizona is to experience Native American lands and cultures. To cite one example among many, the Navajo reservation and the immediately adjacent land encompass more than a dozen national monuments, tribal parks, and historical sites, including Canyon de Chelly and Navajo National Monument. In addition, the Navajo Nation operates a number of tribal parks that include the well-known Monument Valley. This park alone draws thousands of tourists to Arizona, including many from foreign countries. Further west, the Havasupai and Hualapai Tribes provide recreational opportunities in the Grand Canyon, including the new Skywalk. Of major religious and historical significance, San Xavier del Bac Mission is located within the Tohono O'odham reservation near Tucson and has been maintained by tribal members for hundreds of years. Commercial recreational opportunities also abound on tribal land. They include world-class golf courses, a ski resort, and numerous recreational sites along the lower Colorado River.

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Cooperative ventures among tribes, nearby local governments, commercial tourism operators, and the state provide income and jobs for tribal members and nearby non-Indian residents.

Tribal Participation in Regional Planning Tribes increasingly participate in regional planning with other governments. A number of tribes are now members of or participants in their local Councils of Government, and the Inter-Tribal Council of Arizona coordinates a tribal panel at the annual meeting of the League of Cities and Towns. In addition, a number of tribes are active in local economic development councils and chambers of commerce. In recognition of the fact that pollution does not recognize political boundaries, tribes, the state, and counties increasingly coordinate on matters of environmental protection and management. Salt River, Gila River, Fort McDowell, the Arizona Department of Environmental Quality, and Maricopa and Pinal Counties work with the US Environmental Protection Agency on the Joint Air Toxics Assessment Project to understand and reduce hazardous air pollutants. As more tribes develop the planning and technical capacity to participate as full partners, and more local jurisdictions relate to tribes as governments rather than interest groups, there will be more meaningful intergovernmental collaboration. Relationships and collaboration will continue to mature as counties and municipalities approach tribes with the understanding that tribal elected officials are subject to the same pressures as elected officials everywhere to respond to the needs and concerns of their constituents. The federal Indian Gaming Regulatory Act compacts between tribes and the state, and requirements associated with Arizona Proposition 202 for tribal gaming revenue-sharing,

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provide substantial opportunity to build relationships between tribes and local governments. But, just as in relationships between individuals, there are no short-cuts to building relationships with tribal nations. Non-Indian communities will find that tribes listen to and consider their issues in making development decisions. Recently, the Gila River Indian Community listened to the concerns of neighbors about the siting of a new casino near the town of Gilbert. Tribes would appreciate consideration of their ideas and concerns from their neighbors, as well. Collaborative regional planning will be enhanced by the following: • • • • •

Regular meetings of both elected officials and staff to share information and learn about each others’ values and goals. It is always best for neighbors to get to know one another and develop working relationships outside of times of crises or conflict; Early notification by tribal and local governments of development plans (e.g., applications for development permits); the sooner governments know about plans that may affect them, the more time they have to react; Pilot projects identifying joint planning areas to develop protocols and positive precedents. It may be useful to use formal and informal agreements, such as Memoranda of Understanding, for solving complex land use issues; Addressing emerging issues through a continuous consultation process that reduces communication barriers; and Dedicating resources for mutual education and communication.

Summary Tribal governments manage 28% of the land base in Arizona, as well as a significant percentage of the water resources; tribal lands are a critical component of the future of the state. As the original peoples of the state who will continue to live here in perpetuity, Native Nations are highly committed to protecting their remaining land, water, and air quality. Tribal leaders are working hard to increase both economic opportunity and quality of life for tribal members, as well as neighboring communities, now and into the future. This effort requires on-going relationships between tribal communities and surrounding jurisdictions,

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based on respect for long-standing values, recognition of the governmental rights and responsibilities of tribes, and frequent communication and collaborative decision making.

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Legal Infrastructure for Economic Development Authored by Kevin Gover

Prepared for the Department of Interior, Office of Indian Energy and Economic Development National Congress of American Indians Policy Research Center

May 2007 __________________________________________________________

This paper was commissioned for the Department of Interior through the National Congress of American Indians Policy Research Center (Center) for the purpose of stimulating discussion at the National Native American Economic Summit (Summit) held in Phoenix, Arizona on May 15-17, 2007. The paper is not intended to be comprehensive, but to provide an introduction to relevant issues and policies about the appropriate role of federal and tribal policy-makers. The positions and opinions found within this paper are the views of the authors only and may not be representative of the views of the NCAI or the Department of the Interior.


Commissioned for the NCAI Policy Research Center by Kevin Gover

Legal Infrastructure for Economic Development By Kevin Gover1 Introduction Investors, entrepreneurs, and other business actors need rules for their activities, rules that permit them to achieve their legitimate goals at the least expense. Thus, for tribes to compete with other jurisdictions, the tribal legal system should establish rules that permit business owners and lenders to make decisions quickly; to calculate their risks and act accordingly; to allow them to protect their interests through governmental processes (but not so much process that decisions are stymied); to carry out their business in a fair and honest manner; and to obey the law without exposing themselves to corrupt or incompetent government agencies. Law is the means of providing these rules. The impact of legal reforms in encouraging economic development is a relatively new field of study. The literature on the subject relates primarily to economic development in developing countries. Although there are undoubtedly lessons that may be drawn from the developing world, they cannot simply be lifted from that context and applied in Indian Country for a variety of reasons. First, there are few examples of law reform that have been studied sufficiently to permit reliable models to be developed. Second, the studies that do exist share an important conclusion: law reforms that work in one context do not necessarily work in another. Countries, their cultures, their forms of government, their legal customs, and their physical circumstances are so different that any law reforms undertaken must be tailored to the country. The diversity of Indian Country is vast, and reforms that might work—and even those that have worked—for one tribe may tell very little about what will work for another tribe. Third, and most tellingly, unlike the nations of the developing world, tribes do not have unfettered sovereignty over their territories. A nation-state may make and apply its laws without having to contend with other sovereigns imposing their laws. Indian tribes, on the other hand, must contend with state encroachment into their jurisdiction because states have authority over non-Indians on the reservations in many circumstances. Further, a broad overlay of federal laws governing many aspects of tribal life and tribal property can render tribal laws ineffective. In short, tribes often are deprived of the traditional tools of law reform—tax policy and regulatory policy—that other governments rely upon to encourage economic development. Still, the law reform literature discusses concepts around which tribal efforts can be organized. While the specific application of these concepts will vary from tribe to tribe, they do provide a framework for tribal consideration of how tribal law can be used to encourage reservation development.

1

Kevin Gover is a Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University.

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Rule of Law and Economic Development A primary thesis of experts in economic development might be called the “good governance” or “Rule of Law” thesis. The idea, of course, is that if a country is to develop, government cannot behave arbitrarily, selfishly, or worst of all, corruptly.2 Law is the regulator, encompassing both rules of conduct and forums for the enforcement of those rules. The rules should be clear and understandable, and they should be readily available to the public. The rules should rarely be retroactive, they should not be contradictory, and they should not require conduct that is beyond the capabilities of the regulated community. The rules should be relatively constant and stable over time. Finally, the acts of the tribe itself must comply with the rules. The Rule of Law is necessary for the development of a vibrant private sector. Investors and entrepreneurs can thrive only where law defines and enforces their rights. But the Rule of Law is equally necessary in the common circumstance that a tribe is the primary business owner—perhaps even the only business owner—on the reservation. Decisions made by the tribe as a proprietor, just like decisions made by the tribe as a government, should be principled and consistent, not arbitrary and ad hoc. Further, as is discussed in more detail below, when the tribe is the primary business owner on the reservation, the risk is great that inefficiencies and reduced profits will result from the tribe’s monopolistic status. The more a tribe can encourage its businesses to compete with each other and with the private sector within the boundaries of established rules of conduct, the more entrepreneurial, efficient, and profitable both tribal and private enterprises will be. Thus, tribes should make laws governing the conduct of their own enterprises, not just the enterprises of individual business owners and lenders. For tribal law reform efforts to be successful, the tribe must embrace certain objectives as guiding principles in the reform. The following are a few of such objectives. Transparency Transparency in government is widely acknowledged as an element in guaranteeing that government acts properly—“sunshine is the best disinfectant.” Thus the federal government and many states have laws and traditions requiring that government bodies meet in public. These are generally known as “Sunshine” laws. Their purpose is to prevent public bodies from operating in secret. The theory is that, if public bodies must make their decisions in public and explain the reasons for their decisions in public, the chances of government acting arbitrarily or corruptly are reduced. Tribal practices in this regard vary widely. Some tribes have Council meetings in public; other Council meetings are closed to the public. Some tribes permit only tribal members to attend Council meetings. Still others do only some of their business in public. Tribes are unlike other governments, however, in an important respect. Not only do tribes exercise governmental power, but they also are important property owners on most reservations and usually are the primary business owners, as well. This means that they have a broader range of proprietary—and 2

See P. Brietzke, the Politics of Legal Reform, 3 Wash. U. Global Studies L. Rev. 1 (2004).

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legitimately confidential—business than do other governments. Clearly tribes must establish rules that distinguish clearly and predictably between those matters that are the legitimate business of persons subject to governmental regulation, and those matters that are proprietary and therefore legitimately confidential. Public Participation Closely related to transparency is the notion of public participation in government decision making. Public participation brings a number of benefits to governmental process. First, interested persons may bring to decision makers information and ideas that have not previously been considered. Public hearings may yield testimony that decision makers need to improve their lawmaking. Second, like the benefits of “Sunshine” laws, public hearings and other participatory processes reduce the opportunity for arbitrary decisions. Decision makers cannot simply ignore credible information brought before them in a public process, but instead must account for that information in a rational way. Third, the willingness of people to abide by laws is affected by whether they believe that the law is substantively fair and was adopted through a fair process.3 In the case of lenders and entrepreneurs, they have the option of lending and doing business elsewhere. Thus, it is especially important that they believe that the tribal process of making law is a fair one. Participation in the law making process is an important way to cultivate not just the perception of fairness, but also the reality. Accountability Governmental accountability is critical to the establishment of an environment conducive to entrepreneurship. A tribe might have a perfect set of laws to promote development, but if those laws are poorly implemented, the benefits of having perfect laws are lost. Accountability requires that there be a system that reviews the government’s implementation of the law. Accountability requires that the tribe submit its decisions to impartial review by a forum with appropriate expertise. The United States, for example, routinely submits to federal court review of decisions by federal agencies.4 Federal courts review agency action to make certain that agency decisions are not arbitrary; that they are consistent with federal statutes and the constitution; and that they were reached through appropriate procedures. In 1946, Congress passed the Administrative Procedure Act (“APA”)5, waiving sovereign immunity and authorizing federal courts to hear cases against federal agencies.

3

See, B. Tamahana, On the Rule of Law: History, Politics, Theory (Cambridge 2004).

4

See, Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706 (“APA”).

5

Id., 5 U.S.C. § 702.

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As tribes develop more tax and regulatory laws, it will become increasingly important that tribal agencies implementing those laws be made accountable for their actions. This is done through specific tribal waivers permitting such suits and by establishing qualified forums for hearing and resolving such suits. In other words, tribes will need tribal APAs and tribal judges trained to enforce them. Tribal court enhancement is discussed more fully below. Predictability The point of every reform is to attract entrepreneurs and lenders to the reservation. What these investors need most in deciding where to spend their money and effort is the ability to predict to the extent possible the risks they are accepting. They cannot accurately predict risks without understanding the tribal laws that will apply to their business. Nor can they predict risk when the outcomes in tribal legal systems are unpredictable. For example, if tax rates fluctuate drastically, businesses cannot predict their likely tax liability and therefore cannot determine where to set their prices, what amount of profit they will make, or whether the enterprise is economically feasible at all. External Factors If the establishment of a tribal legal infrastructure for development is to have the desired effects, tribal lawmakers will have to try to address external factors that undermine the tax and regulatory environment and the organizational structures that the tribes attempt to establish. As noted above, tribal tax and regulatory policy is undermined by the application of state tax and regulatory laws to reservation businesses, and by federal laws that limit tribal discretion in the use of tribal property. External interference is not unique to tribes. States’ tax and regulatory policies are limited by federal laws that tax and regulate many enterprises. So long as the federal government has constitutional authority to tax and regulate a particular enterprise—and it most usually does—the federal laws apply whether or not a state is taxing and regulating the same enterprise. The states may usually add their own regulatory requirements to the federal requirements, and they can pile their own taxes on top of the federal taxes. Thus, a facility seeking to discharge pollution into navigable waters must meet the federal minimum standards prescribed by the Environmental Protection Agency as well as any additional requirements imposed by state laws.6 Businesses that pay federal income and excise taxes also pay state income and excise taxes. The same is true of course for tribes in regulating and taxing business activities on the reservations. Tribal regulation and taxation is in addition to any applicable federal taxes and regulations. These federal requirements do not by themselves put the tribes at a disadvantage. Because these federal requirements generally apply everywhere in the country, businesses in any given state and on any given Indian reservation are subject to the same rules. In the case of Indian reservations, though, businesses often face additional burdens. This is because, in addition to the federal and tribal tax and regulatory laws that apply to them, these 6

See, Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (“Clean Water Act”).

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businesses may be subject to a third set of requirements—those imposed by the states. This fact alone makes the establishment of effective tax and regulatory policy a unique challenge for tribal governments. In addition, tribes must contend with another body of law that singles out tribes for special treatment. These are the laws arising from the federal trust responsibility that govern transactions involving Indian land. The application of these laws has contributed historically to the tribes’ inability to maximize income from their resources. State Regulation and Taxation In general, states may not tax or regulate Indians on Indian reservations without explicit federal consent.7 Matters become more complex, though, if the Indian transacts business with non-Indians because, though the state may lack authority over Indians, the state generally does have authority over non-Indians, even on reservations.8 Thus, states may impose nondiscriminatory sales taxes on sales by Indian vendors to non-Indians, even though they may not tax sales to Indians.9 Similarly, states may impose their severance taxes on oil and gas produced on Indian lands, even though the tribe also taxes that production.10 Tribal efforts are further complicated by the fact that tribal jurisdiction over non-Indians is limited. Over the last 25 years, the Supreme Court has steadily whittled away the scope of tribal jurisdiction over non-Indians. However, tribes do have civil jurisdiction over non-Indians who engage in consensual commercial transactions with a tribe or individual Indian on a reservation.11 Where states have jurisdiction over those same non-Indians, though, the combined burden of tribal and state taxes puts the Indian-owned business at a disadvantage. There are strategies for addressing this problem. First, while the Supreme Court has upheld state taxes on sales by Indian vendors to non-Indian buyers, this rule only clearly applies when the Indian seller has simply imported items from off the reservation and resold them on the reservation (e.g., cigarettes).12 The Court has indicated that where the Indian seller “adds value” to the product on the reservation—either by producing it there or altering or supplementing the product in some meaningful way—the state may not be able to tax sales of the product, even sales to non-Indians.13 Thus, to the extent tribal policy encourages such “value adding” activities, it is encouraging transactions that the state cannot tax but that the tribe can. Tribal tax policy might, for example, create incentives for manufacturers of products on the reservation in hopes of higher tax revenues from sales of the product on the reservation.

7

McClanahan v. State Tax Commission of Arizona, 411 U.S. 164 (1973).

8

Nevada v. Hicks, 533 U.S. 353 (2001).

9

Confederated Tribes of the Colville Indian Reservation v. Washington, 447 U.S. 134 (1980) (“Colville”).

10

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 193 (1989).

11

Montana v. United States, 450 U.S. 544 (1981).

12

See, Colville, supra, n. 9.

13

E.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

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A second strategy for defeating state jurisdiction involves federal pre-emption. In essence, where state taxation or regulation of an activity would interfere with federal policies for Indians, the state action is pre-empted by the federal policy.14 Thus, the more the federal government is involved in a particular enterprise or transaction, the more likely state taxation or regulation will be pre-empted. For example, if an enterprise receives a federally-guaranteed loan under the Indian Financing Act, or is on trust land and requires some federal approval, state regulation interfering with the enterprise may be pre-empted because it interferes with the federal objective.15 The problem with the federal pre-emption strategy is that it creates transaction costs that may outweigh the costs of state taxation or regulation. Meeting the myriad federal regulations that accompany federal assistance and approvals create both direct expenses and costs resulting from delays and missed opportunities. Further, none of these strategies bring certainty as to whether state taxation and regulation will be permitted. Federal pre-emption is a well-established doctrine, but because it involves balancing federal, tribal, and state interests in a particular enterprise and is applied on a case-by-case basis,16 the outcome in any particular case can be difficult to predict. Similarly, just how much of a product’s value needs to be created on the reservation in order to defeat state taxation of sales of the product is hard to know. Thus, one key objective of law reform— predictability—is not possible to achieve just through changes in tribal law. Federal Law Limitations on Tribal Law Reform Federal Tax and Regulatory Laws As noted above, the federal government imposes a variety of tax and regulatory requirements on business throughout the country. The federal government imposes a variety of excise taxes that apply to businesses owned by individuals on the reservations, some of which apply to the tribes themselves. (Tribes enjoy exemptions from certain federal excise taxes under certain circumstances.).17 Income tax laws apply to individual business owners on the reservations, but not to the income of the tribes themselves. Thus, tribal tax policies must be made with an understanding of the federal tax burdens that businesses already face. Too great a tribal tax applied on top of a federal tax obviously discourages development. Federal environmental regulatory laws have a broad reach, and all businesses on reservations, including those owned by the tribes, must meet standards established by the

14

Id.

15

Id., and see Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Central Machinery Company v. Arizona State Tax Commission, 448 U.S. 160 (1980).

16

Id.

17

See, Indian Tribal Governmental Tax Status Act, 26 U.S.C. § 7871.

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Environmental Protection Agency for air and water quality, pesticides and other toxins, and the disposal of solid and hazardous wastes. In the case of the Federal Water Pollution Control Act (the Clean Water Act)18 and the Clean Air Act,19 Congress has provided for tribes to take primary responsibility for implementation, just as the states may. Other statutes have not been so amended. Whether or not the federal statutes have been amended to provide for tribal participation, tribes have inherent authority to adopt and implement environmental laws (though the jurisdictional reach of those laws is uncertain as to non-Indian lands and non-Indian activities). However, to the extent tribal law is more permissive than federal law, federal statutes and regulations pre-empt the tribal laws. Thus, federal law limits tribal discretion in setting and implementing environmental standards. An area of growing concern for tribes is federal labor and workplace safety laws. For example, while tribes had long been thought exempt from the National Labor Relations Act,20 recent actions of the National Labor Relations Board have imposed the requirements of the NLRA on tribal businesses.21 Tribes also must comply with the Occupational Safety and Health Act22 and provide safe workplaces in tribal enterprises. As with environmental regulation, tribes may enact their own laws on these subjects and apply them to persons and activities within their jurisdiction. However, tribal laws are pre-empted by federal laws to the extent they conflict, so tribes are not free to set their policies without regard to these federal statutes. To the extent federal tax and regulatory laws are enforced and implemented on the reservations in the same manner that they are off-reservation, they do not put tribes at any particular competitive disadvantage. However, statutes such as the Resource Conservation and Recovery Act23 and the Occupational Safety and Health Act create roles for state laws and state agencies that are not available to tribes. Thus, rather than creating laws of their own to customize environmental and workplace regulation to the circumstances, tribes are left to deal with federal agencies implementing and enforcing these laws. Whatever good intentions these agencies may have, their work cannot be as responsive and sensitive to the needs of tribal businesses as the tribes themselves.

18

Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (“Clean Water Act”).

19

42 U.S.C. §§ 7401-7671q.

20

29 U.S.C. §§ 151-169.

21

See, San Manuel Indian Bingo and Casino v. national Labor Relations Board, 475 F. 3d 1306 (D.C. Cir. 2007).

22

29 U.S.C. §§ 651-678.

23

42 U.S.C. §§ 6901 et seq.

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Federal Trust Responsibility Under the trust, Indian resources often have been administered inefficiently and largely for the benefit of outsiders rather than the tribes themselves.24 Further, the trust creates structural impediments to maximizing income that even the best administrative practices will not overcome. A primary finance tool of most local governments is a tax on the value of real property. Individually owned Indian trust land--11 million acres in all--cannot practically be taxed by the Tribes due to fractionated ownership and the generally low income of reservation Indians. As for tribal land, there would obviously be little point in Tribes taxing themselves. Further, trust land is not easily used as collateral for capital loans. Tribal trust land, for example, cannot be mortgaged. While many Tribes have been able to finance enterprises through leasehold mortgages, the leasehold lacks the security and marketability of title to the land. Thus, the Tribes can borrow only a fraction of the value of the land, and then only at the premium interest rate that lenders apply to higher risk loans. There are also problems in administration of the trust that further devalue trust resources. The Interior Department must approve every transaction conveying an interest in trust land. Tribes constantly complain about the delay involved in this process, and with good reason. Even after a tribe has negotiated the terms of a transaction, the Interior Department, acting through the Bureau of Indian Affairs and the Office of the Special Trustee, enters the process and redoes all of the tasks the tribe has just completed. The Department finally decides the value of the land and whether the Indian party to the transaction has received fair value.25 The Department conducts its own appraisal of the property and makes its own evaluation of the economic benefit to the Tribe or individual owner. The Department may or not agree with the tribe as to whether applicable regulatory requirements are met. The Department might find that the parties have adequately documented the transaction, or it might not. The Department may ask for amendments to the lease, requiring another round of negotiation and drafting by the parties. This process takes time, and the Department rarely binds itself to a deadline for its review.26 Consider further that BIA realty officers may be handling dozens of other transactions at the same time and that the Tribe has no ability to set the priorities of the federal employees reviewing the transaction. Thus, the multi-million dollar transaction may be arbitrarily made to wait behind lesser transactions depending upon the discretion of a federal employee. Finally, under the National Environmental Policy Act,27 Interior’s approval of leases, especially for larger, non-agricultural enterprises, often require the creation of an Environmental Assessment or Environmental Impact Statement. Such studies obviously add to both the cost of transactions and the time it takes to approve them.

24

In his Handbook of Federal Indian Law, Felix Cohen observed that the early 20th Century legislation governing the trust was concerned “almost entirely in the problem of how Indian lands or interests therein may be transferred from Indian tribe to individual Indian or from individual Indian to individual white man.”

25

25 C.F.R. § 162.604 (2005).

26

No deadlines for review and approval of business leases, for example, appear in the regulations. See id. at § §162.600-621.

27

42 U.S.C. §§ 4321-4347.

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The Tribes can shorten this path somewhat by assuming responsibility for the federal realty program under the Indian Self-Determination Act.28 Thus, a tribe might be able to improve administration of the program by taking over these functions. In the end, though, final approval authority still rests with the Interior Department.29 Further, current reform efforts threaten to make these problems worse. The Department has chosen to establish duplicative reviews of tribal trust transactions by having OST officials review the work of BIA officials.30 This approach should result in fewer errors in the approval process, but is most unlikely to improve the Department’s speed in acting on leases. Under current law, Indian owners of trust lands can do little to expedite the process, except to remove the lands from trust. If they do so, however, they may be inviting state taxation and regulation on the land,31 and no tribe will be willing to permit that. Thus, the trust laws as currently written constitute an external factor that well could undermine tribal efforts at law reform. The effects of past trust administration must also be considered. The fractionation of allotted land among heirs drastically reduces the land’s value. Gaining the approval of the many owners of allotments can be a Herculean task, and the Interior Department is no Hercules. The likelihood of allotted lands being leased for commercial purposes is remote. Instead, the Department renews agricultural (mostly grazing) leases year after year rather than seeking out opportunities for more profitable uses. For the same reasons, most allottees cannot use what is usually their only asset—their land—as collateral for loans. A partial owner of an allotment can seek partition, but the Department rarely grants a partition request. All of the owners could agree to a mortgage, but that is unlikely. This deprives Indian country of one of the primary financing mechanisms for small businesses. Many small business owners off reservations obtain initial financing for their businesses by mortgaging their homes. Fractionation devalues the ownership interests of allottees and prevents them from using their land to build a home, develop equity in their home, and borrow against that equity to start small businesses. Federal Limitations on Tribal Authority Perhaps the most problematic aspect of federal intrusion is the limitation on tribal authorities over non-Indians. Tribes do not have criminal jurisdiction over non-Indians.32 Tribes do not have civil regulatory jurisdiction over non-Indians on fee lands within the reservations,

28

25 U.S.C. §§ 450f et seq.

29

25 C.F.R. § 162.110 (2005).

30

See Department of the Interior, Comprehensive Trust Management Plan (Mar. 28, 2003) at Chapter 4, available at http://www.doi.gov/indiantrust/pdf/doi_trust_management_plan.pdf.

31

See, e.g., County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992); Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998).

32

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

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save in limited circumstances.33 Nor may tribes tax non-Indians for their activities on fee lands within the reservations.34 These limitations, along with the federal government’s policy of permitting state jurisdiction over non-Indians on the reservations, not only undermine tribal efforts, they create incentives for tribes not to reform their laws and not to develop a vibrant private sector. Professor Jacob T. Levy recently wrote of the “Perversities of Indian Law.”35 First, he notes that economic activities that create an influx of non-Indians actually have the effect of reducing a tribe’s ability to provide the basic protections of law. The influx of a population largely immune from tribal law, especially tribal criminal laws, actually reduces a tribe’s ability to provide a safe and secure environment. Second, the development of a stable and vibrant local economy ordinarily leads to an influx of businesses, workers, and residents seeking economic opportunity. “Ordinarily local jurisdictions have incentives to provide good policies, uncorrupt government, stable laws, and prosperity-encouraging fiscal arrangements, because those will lead to an inflow of residents and firms, increasing the jurisdiction's tax revenue.”36 But because tribes have limited regulatory and tax authority over non-Indians, especially if the non-Indians seek to buy land, the influx of firms, workers, and residents actually diminish the tribe’s jurisdiction and its tax base. Third, to avoid intrusive state jurisdiction, tribes have every incentive to focus on triballyowned businesses rather than private sector businesses. Certain federal tax preferences are available only to tribes, and immunities from state and local regulation and taxation are more certain to be upheld for tribes than for individuals. Tribally-owned business, like any government-owned enterprise, “impair the economic development that is supposed to be a central goal of Indian policy; political connections and short-term success at serving as de facto jobs programs become more important than productivity or efficiency to a firms' survival.”37 I would add a fourth perversity to Professor Levy’s list. The greatest protection from state intrusion into reservation economies, and especially into the economic activities of non-Indians, arises from the federal pre-emption doctrine. Thus, only by inviting increased federal regulation of tribal decision-making may the tribes insulate their policies from state interference. These ironic repercussions of federal law and policy clearly discourage tribes from inviting non-Indians into the reservations, regardless of the value of non-Indian investment and entrepreneurialism. The importation of non-member capital, expertise, and experience comes at the price of creating a class of reservation actors over whom tribal authority is quite limited. Further, they discourage tribes from creating a class of individual Indian business owners in

33

Montana v. United States, 450 U.S. 544 (1981); Nevada v. Hicks, 533 U.S. 353 (2001).

34

Atkinson Trading Co., v. Shirley, 532 U.S. 645 (2001).

35

Levy, Jacob T., "Three Perversities of Indian Law" (July 31 2006).

36

Id. Paper and abstract available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=921470.

37

Id.

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favor of tribally-owned enterprises. Finally, they encourage tribes to invite federal supervision over tribal activities, thus retarding the maturation of tribal government and business institutions. These factors explain in part why tribal gaming has been a successful economic development strategy where other strategies have failed. But, as Professor Levy points out, the development of tribal economies centered on gaming inhibit tribal institutional development and the growth of an expansive private sector. Further, because tribal gaming relies almost entirely on non-Indian funds from outside the reservation, the gaming-based economy does not necessarily result in internal wealth creation or economic productivity. Further, tribal gaming funds usually are under the control of a small political leadership which, like any political and economic elite, is prone to rent-seeking and corruption. Scholars of developing economic systems note that this centralization of economic power in the government has been fed by World Bank policies that result in loans to governments rather than private entrepreneurs. Similarly, federal implementation of the Indian Financing Act, federal tax laws that favor tribal enterprises but not individual Indian enterprises, and—in the case of the Indian Gaming Regulatory Act—laws that require tribal ownership of enterprises have done little to create private sector economic activity on the reservations. Rather, economic power on the reservation rests in the tribe alone. Economists refer to this phenomenon as “the resource curse,” pointing to economies such as in the Arabian Gulf states, where natural resources have created fabulous wealth in an elite class. As oil reserves dwindle, the failure of these countries to spread the wealth throughout the population and create an entrepreneurial class threatens eventually to leave them destitute and unstable. Recommended Reforms to Federal Law The problem, of course, is that reforming tribal law does nothing to resolve these problems. Instead, it is reform in federal law that the tribes must seek. Looking first to the general federal laws regulating economic conduct, tribes should seek amendments that permit tribes the same regulatory roles over activities on the reservations that states currently have in their territories. This does not eliminate the impact of federal regulation and taxation, but it at least helps to insure that tribes are at no unintentional disadvantage. Turning next to the impact of trust administration, as noted above, tribes can use selfdetermination contracting and self-governance compacting to take primary responsibility for most trust administration activities. Further, tribes should seek changes in the applicable leasing regulations to maximize tribal discretion in the management of Indian lands. However, because some of the limitations on tribal discretion arise from statutes, tribes clearly will have to seek changes in the trust statutes to gain maximum control. There are some recent examples of tribes seeking specific changes to the trust laws to expand tribal control of trust resources and reduce the discretion of the Interior Department. The National Indian Forest Resources Management Act38 specifies Interior’s duties with regard to Indian timber resources, and puts the tribes in charge of decision making regarding the resource, even requiring the Department to assist in the implementation of tribal laws. Another example is the Navajo Nation Trust Land Leasing Act of

38

25 U.S.C. §§ 3101-3120.

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2000.39 Under this law, the Navajo Nation developed a process for the approval of non-mineral leases of tribal land. With Interior’s approval of the tribal process, the Navajo Nation itself now provides the final approval for the lease. This combination of federal and tribal law reform gives the Navajo Nation far greater control of its primary economic asset—its land. Even broader reforms in federal trust statutes may be desirable. Many tribes clearly have reached the point that they are better able to administer their lands than the Interior Department. Under current law, though, their only option for removing the Department from its role in administering their lands is to remove the land from trust. However, doing so would subject Indian lands to state taxation and regulation, and tribes should not remove lands from trust. Instead, tribes should seek legislation that would permit them to take full administrative authority over their lands while preserving the advantages of immunities from state tax and regulatory laws. Finally, there is the matter of federal limitations on tribal authority. Tribes face challenging problems, yet lack many of the authorities that state, local, and federal governments employ to address such problems. Certainly situations will arise in which a tribe will consider asking Congress to restore jurisdiction over particular classes of persons or activities within the reservations. Yet every time a tribe seeks such legislation, and every time Congress grants such a request, they run a considerable risk that the restoration will be deemed illegal by the Supreme Court. Although the Supreme Court has upheld a restoration of tribal authority over non-member Indians,40 the opinion was narrow and dissents in the case were rife with warning that broader restorations, especially of authority over non-Indians, would not be approved by the Court. Further, Justice O’Connor and Chief Justice Rehnquist voted to uphold Congress’s power to restore tribal authorities, but they have been replaced by Justices whose views on the issue are unknown. Given that the Court is diffident at best about restorations of tribal power, this is not a time to pursue restoration of tribal power “as a matter of principle.” Further, the response of Congress to tribal proposals in the aftermath of the decision in Nevada v. Hicks,41 (or rather, Congress’s lack of response to the proposal) suggests that broad restorations will not find political support in Congress. The “Hicks fix” contained too many provisions that would have prevented even those members of Congress that have been most favorable to the tribes from supporting the legislation. It seemed to be asking much to expect a member of Congress to empower a small minority of her constituents at the expense of this vast majority. Further, members of Congress have genuine concerns aside from electoral politics. For example, many tribal judges, particularly at the trial level, are not law school graduates. That alone is hardly disqualifying, of course. America has thousands of lay judges in state and local judicial systems. The difference, though, is that none of these exercises the expansive jurisdiction that tribal judges would exercise under the Hicks fix.

39

25 U.S.C. § 415(e).

40

United States v. Lara, 541 U.S. 193 (2004).

41

533 U.S. 353 (2001).

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In addition, rules of procedure—especially criminal procedure—in tribal courts need not meet constitutional standards. Despite passage of the Indian Civil Rights Act,42 tribes do not have to provide free representation to criminal defendants, and tribal procedures need not include grand juries. One can readily understand the reluctance of policy makers to expand the authority of these courts while these conditions exist. Finally, despite the Supreme Court’s expectation in Santa Clara Pueblo v. Martinez43 that tribal forums would enforce the Indian Civil Rights Act, tribal sovereign immunity still prevents tribal court review of tribal action in many circumstances. It is not for nothing that the Hicks fix would have proscribed federal court review of tribal election disputes and controversies over tribal membership. Such issues are constantly being reported in the media, and tribes have steadfastly refused to permit neutral review of such matters. Thus, tribes should seek restorations only in certain circumstances. First, the tribes should seek restorations only to address discrete problems having serious impacts in their communities. Second, tribes should choose circumstances in which federal and state authorities demonstrably lack either the authority or the willingness to address the problem, or where federal and state authority has actually served to undermine legitimate tribal interests. In Public Law 280 states, for example, some tribes complain that their law enforcement needs are low priorities for state and county law enforcement. If this is true—and the tribes should be prepared to prove that it is true—then it may be appropriate to restore some measure of law enforcement authority to the tribes and limit that of the states. Third, tribes should demonstrate that they have made earnest efforts to address the problem with tribal authorities that already exist, and that the lack of the requested authority prevents the success of the tribal efforts. Fourth and corollary to the third consideration, there should be a strong likelihood that tribal efforts will be more effective if authority is expanded. If the tribes cannot demonstrate that they have already tried to solve the problem, and that the restoration of certain authorities is necessary to succeed in solving the problem, then there is little reason for members of Congress to agree to the restoration. Last, but hardly least, the issue of consent must be considered. Congress will be most wary of any effort by tribes to assert authority over those who have no voice in tribal government and have not in any way indicated a willingness to be subject to tribal authority. Subjects for Tribal Law Reform The magnitude of the challenges tribes would face in getting Congress to enact these reforms is daunting, and it is most unlikely that Congress would respond promptly, or perhaps respond at all, to all of these tribal requests. Thus, even as tribes press the Congress to enact these reforms, the tribes also must focus on changes to their own laws to address as much of the problem as they reasonably can. Because most tribal legal systems remain relatively undeveloped, there are many subjects that may require the attention of tribes that set out to

42

25 U.S.C. §§ 1301-1303.

43

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

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reform their laws to facilitate economic development. Following is a brief discussion of some of the more likely areas for tribal law reform. Constitutional/Structural Reform A first step in tribal law reform is to examine the structure of the tribe’s governance and business organizations. Much has been written on the necessity of separating business and governmental functions, and it will not be repeated here. I do, however, encourage tribes to think not so much in terms of separation of powers, but rather in terms of distribution of powers, accompanied by real accountability. For example, most tribes are much too small to adopt American style separation of powers. The establishment of a judiciary with life tenure and the power of constitutional review is likely to make despots of the judges in small communities with intertwining family relations. Similarly, too complete a separation of the tribe’s business from its governmental processes could well over-empower the business wing, resulting in corruption and overreaching. Thus, tribal councils must be willing to make major delegations of authority and to abide by their decisions to delegate power to a court, to the tribal executive, or to a tribal corporation. This means that the tribal council does not involve itself in the day-to-day financial, managerial, and personnel decisions of tribal businesses, just as they must not interfere in decision making by the tribe’s courts. However, the tribal council may not thereby abdicate its responsibility to oversee both the business and governance of the tribe. Thus, a tribal corporate board that is not effectively running the tribal business or is micro-managing the enterprise should be called to account, made to change its ways, or dismissed. A tribal judge who is not efficiently dealing with the cases that come to him likewise should be called to account. It is a question of balance. The balance will be different from tribe to tribe, and a tribe may find it necessary to experiment with different distributions of powers and manners of holding its subunits accountable. In this regard, tribes that adopted IRA constitutions face a difficult chore. Those constitutions, often created more by the Interior Department than by the tribes, are difficult to amend, especially when the tribal membership is apathetic, because they can only be amended by referendum. Nevertheless, through a careful process of community involvement in the constitutional revision process, the tribe can establish new institutions for business and governance, and have those institutions legitimized by the community through the referendum process. Sovereign Immunity As tribes have become more active in credit markets, waivers of sovereign immunity have become common. Many tribes now routinely grant such waivers, as they must if they are going to borrow money for economic enterprises. What is often missing, though, is a consistent, published policy on when and how the tribe will waive its immunity. Such a law provides several advantages. The most important is that tribal decisions regarding waivers will no longer be made ad hoc. Rather, both the tribe and its creditors will know early in the process the scope of the waiver that tribal policy permits. This means, of course, that the tribe should involve lenders in the development of the tribal policy. There is little point to enacting a policy that no lender finds Page 29 of 39


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adequate to secure its interests. By satisfying lender concerns in an enacted policy, the tribe eliminates uncertainty in the lending community as to sovereign immunity issues and eliminates transaction costs arising from negotiating separate waivers in each transaction in which it engages. General Commercial Laws Establishing the legal environment for economic development requires that investors, creditors, entrepreneurs, suppliers, merchants, and customers be secure in their rights as they make their transactions. Uncertainty as to those rights discourages economic activity; certainty encourages it. Thus, tribes should adopt an array of laws that govern basic commercial activities on the reservations. Debtor/Creditor Virtually every business must borrow at times. Consumers borrow as well. Such borrowing and lending is governed by a number of federal laws, but more importantly, every state has laws governing lending transactions and the collection of debts. Such laws establish both substantive rules of law and the procedures for the execution of those laws. A tribe must enact laws that are fair to the consumer by protecting them from oppressive lending practices. At the same time, they must be fair to lenders by allowing them prompt collection of valid debts. The states have broad experience and well-tested laws governing debtor-creditor matters, and tribes should draw on those laws in devising their own. A strong tribal code will address such matters as whether to permit self-help repossession of personal property on the reservation, or whether such matters must be submitted to the tribal court and repossession carried out by tribal law enforcement. Similarly, tribal law should spell out whether and how the wages of tribal employees and others employed on the reservation may be garnished. Finally, tribes should clear and reliable processes for recognizing and enforcing foreign judgments, such as those from state courts. Mortgages and Secured Transactions Laws governing secured debt (debt in which the item purchased in pledged as security) is a special category of debtor/creditor law. Looking first to mortgages, because land is often the primary asset of individual tribal members, it is also the most likely security for loans to raise capital for business ventures. Thus, a tribe should have laws governing mortgages and accommodate tribal members who wish to borrow against their land. (If the mortgage involves trust land, the transaction must also be in a form and on such terms as are approved by the Bureau of Indian Affairs.) Tribes should specify by ordinance how mortgages are documented and recorded. The tribes should feel free to rely on BIA Land Titles and Records Offices, as well as on County Recorder Offices. (Most mortgage lenders are likely to insist on recording the mortgage in both systems.) A tribe might wish to set up a duplicate system of recording in order to keep track of the status of mortgages of reservation lands. In some circumstances, tribal courts may have Page 30 of 39


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jurisdiction over foreclosure actions against tribal members. The tribe should have specific rules governing foreclosure and whether and how borrowers may reinstate mortgages and prevent foreclosure. Finally, tribes should consider how property will be sold at foreclosure sales, perhaps establishing a first purchase option for the tribe in order to maintain Indian ownership of reservation lands. For transactions involving personal property, the National Conference of Commissioners on Uniform State Laws (NCCUSL) has prepared a recommended Model Tribal Secured Transactions Act. The Model Act addresses the creation and perfection of security interests in personal property. It is essentially a simplified version of the provisions of the Uniform Commercial Code governing secured transactions. The Model Act addresses enforcement of security interests and specifies consequences for failure to abide by the Act. It also addresses potentially difficult issues of how to record security interests by encouraging cross-jurisdictional agreements between tribes, states and counties. Tribes wishing to encourage retail transactions, banking, and other transfers of personal property on the reservation should consider enacting the Model Act. Tribal Commercial Codes All of the states have enacted versions of the Uniform Commercial Code created by the National Conference of Commissioners on Uniform State Laws. The UCC governs sales and leases of personal property; commercial paper and its electronic equivalents; letters of credit; bulk sales; investment securities; and secured transactions. Few tribes will need all nine articles of the UCC, but most tribes should consider enacting both the Model Tribal Secured Transactions Act and some version of the provisions relating to sales and leases of personal property. As is true of all commercial laws, the more tribal laws are consistent with the laws of surrounding states, the more comfortable business owners will be with transacting on the reservation. In addition to the UCC, the NCCUSL has written a number of other uniform codes and model acts on subjects relating to business. These include the Consumer Leases Act, the DebtManagement Services Act, the Enforcement of Foreign Judgments Act, the Model Consumer Credit Code, the Residential Mortgage Satisfaction Act, and the Trade Secrets Act. Tribes should not simply comb through the various uniform laws and enact all of them. Rather, tribes should simply be aware of the existence of these model codes. As economic activity on the reservations expands and matures, the tribes can enact versions of these codes as needed to meet circumstances on the reservations. Corporation Codes Modern business is conducted in many legal forms. Many business owners create a fictitious entity to carry out the business, such as a corporation or limited liability company. Tribes are familiar both with tribally-chartered corporations and with the federally-chartered corporations established pursuant to the Indian Reorganization Act.44 44

25 U.S.C. §§ 461-479.

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Rather than granting corporate charters on a case-by-case basis, tribes should consider establishing a code and administrative process for the establishment of corporations, whether those corporations are owned by the tribe or by individuals. As noted above, it is important that tribes follow the same rules of business as it imposes on others. In addition, tribes should authorize the establishment of other forms of business organizations and specify the rights and responsibilities of those entities and the individuals who own them. The NCCUSL has created model codes governing, for example, partnerships and limited liability companies. The increased flexibility as to the forms reservation businesses can take will encourage entrepreneurs to start businesses and will make lenders more willing to lend to such businesses. Taxation For most jurisdictions, be they countries, states, counties, or municipalities, tax policy is essential to economic development. Taxes provide revenue that permits governments to create the basic infrastructure to support economic development. Roads and water and sewer systems are financed by tax revenues, as are basic services such as police, fire protection, and schools. In addition, non-Indian jurisdictions use taxes to create revenue streams that permit them to borrow money through bond issues. In the Phoenix area, for example, municipal tax revenues support not only common municipal services, but also the construction of stadiums, convention centers, and university buildings. Finally, non-Indian jurisdictions use tax concessions to attract key businesses. Tribes face numerous obstacles in attempting to generate revenues through taxation. First, because unemployment is high on many reservations, income taxes will not generate adequate revenues to support infrastructure development. Similarly, because most land on the reservation is owned by the tribes, and because much of what remains is allotted, highly fractionated, and therefore of minimal value, property taxes are not a viable option. In addition, because there is no infrastructure, there are few private retail businesses, and sales or valueadded taxes are unlikely to generate meaningful revenues. Finally, as discussed above, because states can tax the sales and profits of non-Indian businesses on the reservations in many circumstances, tribes are prevented as a practical matter from imposing such taxes, even when the tribes have the legal authority to do so. Still, a well-considered tribal tax policy is worthwhile. First, the reservations are experiencing increasing economic development, and while the tax bases remain inadequate, they are growing and will one day generate meaningful tax revenues. Further, in order to make the case to Congress that the state tax jurisdiction issue must be addressed, tribes must show that they are doing the best they can with their tax programs. Finally, tribes can experiment with their tax programs to determine what activities, persons, and properties are most likely to generate needed revenues. A strong tribal tax program will have a number of characteristics. First, it will clearly define the reach of the taxes it imposes; that is, the tribe’s jurisdiction to tax will be well-defined in the tax statutes themselves. The persons, property, and activities to be taxed should be Page 32 of 39


Commissioned for the NCAI Policy Research Center by Kevin Gover

identified clearly in the statute, and the procedures for paying taxes spelled out. Needless to say, taxes should apply equally to all persons within the tribe’s jurisdiction without regard to tribal membership. Second, the program will be predictable for taxpayers. Tax rates will not change drastically from year to year. Rates will reflect the prevailing rates of other jurisdictions in the area so as not to discourage investment on the reservation. The public will have access to decision makers through public hearings before tax laws, tax rates, and tax procedures are changed. Tax laws will be readily available to give taxpayers the opportunity to comply without formal process. Finally, the tax program will be administered professionally by civil servants who are properly trained. Further, the decisions of the tax administrators can be reviewed by impartial hearing officers and judges. Civil Regulatory Laws Zoning and Land Use Tribes should have a comprehensive plan for the development of the reservation. The planning process should be inclusive and thorough. Economic development inevitably will involve commitments of the primary resource of the tribe—land—to uses that cannot be changed easily. Thus, before developing or permitting the development of an enterprise in a particular location, a tribe should consider the project in the context of an overall plan. For many reservations, tribal jurisdiction to zone non-Indian fee lands is questionable. Although the Supreme Court has upheld tribal authority to zone in areas of a reservation that are predominantly Indian in population and land ownership, the Court has limited tribal power in areas where non-Indian residents and lands are more prevalent.45 To be effective, tribal zoning codes and the administration of those codes must be predictable and uniform. Potential developers of enterprises should be able to predict, from looking at the code and at prior decisions of the tribal zoning authority, what is the likely outcome of any given land use application. An effective system will be public; hearings should be held and decisions made in open session. Further, the decision of the zoning authority should be subject to review in tribal court to insure that the decision of the authority is in compliance with the code. Environmental Regulation As noted above, federal law imposes a variety of environmental requirements on businesses on reservations. Tribes can best make sure that environmental standards reflect tribal priorities by taking responsibility for the implementation of federal laws themselves. As noted

45

Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989).

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above, the Clean Water Act,46 Clean Air Act,47 and Safe Drinking Water Act48 have been amended to permit tribes to assume primary responsibility for the implementation of those laws on the reservations. All tribes should set as a goal to take over the responsibility for setting standards under the Clean Water Act and Clean Air Act for lands on their reservations. In addition, the U.S. Environmental Protection Agency has policies that permit tribal participation in the implementation of the Resource Conservation and Recovery Act49 and the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”),50 among others. In addition to implementing federal laws, tribes may also wish to make environmental and conservation laws of their own. As discussed above, tribal civil regulatory jurisdiction, even over non-Indians and non-Indian lands, has been consistently upheld in the context of environmental regulation. The more closely a tribal environmental law can be connected to the health and welfare of the tribe, the more likely tribal power will be upheld. Moreover, in the area of environmental regulation, federal courts are consistently finding that states have no authority within the reservations due to the need for a single set of rules to govern environmental protection. Labor and Workers Rights In the area of workers rights and health and safety in the workplace, federal law dominates. Tribes are free to legislate in areas where federal law is silent, but the most important issues have been resolved by the federal government. For example, the National Labor Relations Act51 grants workers the right to organize and bargain collectively on the terms and conditions of employment. Further, employers are prohibited from engaging in “unfair labor practices” that might deprive workers of the opportunity to organize. While the policy of the National Labor Relations Board has long been that tribes are not covered by the NLRA, the Board recently changed its position and applied the NLRA to a tribally-owned casino.52 The Board’s decision has been upheld on appeal.53 Tribes, like states, do have the authority to enact “right-to-work” laws.54 Regulation of occupational safety and health also is largely pre-empted by federal law. The Occupational Safety and Health Agency has broad authority to set and enforce standards for workplace safety. While the OSHA’s work has been focused primarily on industrial workplaces,

46

Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387.

47

42 U.S.C. §§ 7401-7671q.

48

42 U.S.C. §§ 300f-300j-25.

49

42 U.S.C. §§ 6901 et seq.

50

7 U.S.C. §§ 136-136y.

51

29 U.S.C. §§ 151-169.

52

See, San Manuel Indian Bingo and Casino v. national Labor Relations Board, 475 F. 3d 1306 (D.C. Cir. 2007).

53

Id.

54

National Labor Relations Board v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002).

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Commissioned for the NCAI Policy Research Center by Kevin Gover

any tribally-owned business with a substantial number of employees could find itself dealing with federal inspectors. To the extent federal laws are insufficient to meet tribal objectives, tribes are free to set higher standards than the OSHA and to set standards for certain workplaces even in the absence of federal standards. Certainly any enterprise employing substantial numbers of reservation residents should be supervised by tribal regulators enforcing tribal standards. Workers Compensation An area that requires tribal attention is that of workplace injuries. Every state—and, as to certain categories of workers, the federal government—has established a system of compensating injured workers. Tribes generally do not have such laws, and tribally-owned enterprises generally do not participate in state workers compensation systems. As tribal and Indian owned businesses on the reservations employ more and more workers, pressure will grow to establish a system of workers compensation. State systems work by having employers pay into an insurance pool that is used to compensate injured workers. It will be very difficult for most tribes to establish equivalent systems of their own, because few reservations will have a sufficient number of employees to create the economies of scale enjoyed by the state system. Thus, some tribes have opted to join the state systems, paying their premiums into the state fund. In some states there may be state law impediments to tribal participation in the workers compensation system. To the extent that is true, tribal law reform efforts should be directed to state legislatures to encourage changes to state law to permit tribes to compensate reservation workers the same as workers in the general population. Land Tenure As discussed earlier. Tribal communities often are unable to leverage their primary asset, land, into working capital for economic enterprises. The trust status of tribal land and the fractionation of allotted lands make such leveraging difficult if not impossible. There are a few steps tribes can take to improve the marketability of lands to encourage individual entrepreneurship on the reservations. First, tribes should enact probate laws that reduce, and eventually reverse, fractionation of allotted lands. The American Indian Probate Reform Act55 provides for the application of tribal probate laws to probate of Indian trust estates, and tribes should enact such laws. Second, because most tribal members do not own parcels of property that can readily be developed due to fractionation or because all lands are owned by the tribe. Some tribes have made tribal lands available to individual tribal members through lease arrangements or through “assignments” of tribal lands. To be effective in permitting tribal members to borrow against assigned lands, the tribal member’s rights must be clearly and irrevocably defined so that lenders 55

25 U.S.C. §§ 2201 et seq.

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will know the exact ownership rights that are securing any given loan. The emergence of a private entrepreneurial class is essential to the development of self-sufficient reservation economies, and tribes must find some means of making land available to individual entrepreneurs. Third, tribes should consider making use of Indian Reorganization Act Section 17 corporations to lease tribal lands. These corporations can be granted rights to tribal lands and can, in turn, transfer those rights to individual tribal members for economic enterprises. Obviously, tribes must have aggressive standards for determining when an assignment or lease of tribal land should be made, but those standards should be based on business considerations, not political ones. In many circumstances a tribe will do better by assigning responsibility for such decisions to a business entity like a Section 17 corporation rather than requiring the political arms of tribal government to make such decisions. Lastly, the tribes should be encouraging the federal government to accelerate and expand its efforts to address fractionation. While the consolidation program contained in the AIPRA is a big step in the right direction, appropriations have been meager when compared with the scale of the problem. In short, unless fractionated lands move rapidly toward more consolidated ownership, their value will continue to be diminished and they will remain essentially unusable by individual Indian entrepreneurs. Establishment of Tribal Forums Needless to say, a tribe can have the best set of commercial laws in the world, yet they will have no meaningful effect if they are not implemented and enforced by capable institutions. The laws described above are complex; lawyers with years of training still work to deepen their understanding of them. If tribal laws are to be effective, their enforcement must be entrusted to people trained to interpret and apply them. Tribal courts come in many forms. There are traditional tribal courts enforcing laws and customs of the tribes. There are Courts of Indian Offenses or “CFR Courts” that are federallycreated and supported. The courts are holdovers from the allotment and assimilation policy days when the Bureau of Indian Affairs was trying to teach “civilization” to Indians. I focus here on true tribal courts—courts established under the written laws of the tribes and applying written tribal laws in their decision making. Tribal courts come in two basic forms: (1) courts established in the tribe’s constitution or other organic document; and (2) courts created by tribal governing bodies pursuant to authority granted to the governing body in the tribal constitution. In general, it matters little whether a tribal court is constitutional or statutory, so long as the court has independence in deciding the cases that come before it. This means that the tribal legislative and executive bodies must leave the court alone when it comes to deciding particular cases. Attempts to influence court decisions through means other than the public judicial process are by definition corrupt and undermine the credibility of tribal government. If a tribal council is unwilling to delegate enforcement of tribal law to the courts and to live with that delegation, the council should not bother with law reform.

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No reform of law can overcome the failure to give tribunals the freedom to decide cases as they see fit. One option the tribes have is to assign commercial matters to their standing courts. Tribal courts tend to be courts of general jurisdiction, meaning that they hear cases of all types arising under tribal law. Like state trial courts, tribal courts of general jurisdiction hear a range of matters, civil and criminal, and are often the only forum in which a case may be brought. If complex commercial matters are to be brought before a tribal court of general jurisdiction, it is essential that the judges of the court be qualified to interpret and apply commercial laws. For tribes that have lay judges, those judges will require a great deal of experience and specialized training to have the ability to properly modern commercial laws. Only if the tribal court is staffed with such judges should commercial matters be assigned to tribal courts of general jurisdiction. An important alternative is for a tribe to establish a court whose jurisdiction is limited to commercial matters. A tribe may prefer the sort of common sense and community based justice that lay judges provide when it comes to matters affecting only tribal members. In commercial matters involving outsiders, however, it may be better to establish a specialized court staffed by judges with specialized knowledge and experience. If a tribe is to attract private investment and entrepreneurship to the reservation, it is essential that prospective investors and entrepreneurs have confidence that their rights will be enforced by a court capable of rendering fair and proper decisions in complex commercial matters. Thus, tribes should consider establishing specialized Commercial Courts for such matters. The judges of such courts should be law-trained attorneys experienced in the interpretation and application of complex commercial and regulatory laws. As noted above, tribes should also consider establishing specialized administrative agencies to implement certain of its laws. Federal and state governments rely heavily on agencies, believing that the establishment of agencies staffed by experts will improve governmental decision making. As a practical matter, Congress and state legislatures could not begin to address every policy issue that arises in the complex modern economy. By the same token, elected tribal officials face increasing work loads, and as reservation economies continue to expand, they undoubtedly will have to delegate some decision making authority to subordinate agencies. In order to protect the integrity of agency decision making and allow qualified, expert tribal staff to do their work free from politics, tribes should consider enacting personnel rules that, like federal and state civil service laws, protect agency employees from arbitrary or retaliatory personnel actions. Tribes should also consider establishing specialized forums to hear appeals from decisions of tribal administrative agencies. Tribal regulatory laws will be implemented primarily by career professionals employed by agencies of the tribe. To insure the accuracy and lawfulness of the decisions made by these agency professionals, their decisions should be subject to review by a neutral body. As noted above, state and federal governments have administrative procedures acts that supply substantive rules for agency conduct and permit court review of agency actions. Tribal forums for reviewing administrative actions do not necessarily have to be courts as such. Special administrative review boards or Administrative Law Judges can hear such matters, and unless a tribe’s constitution establishes a tribal court and calls for separation of powers, the decision of administrative forum can be final and binding. Page 37 of 39


Commissioned for the NCAI Policy Research Center by Kevin Gover

Conclusion: The Process of Law Reform There is little doubt that the establishment of tribal legal systems that provide fair and efficient rules and processes for governing businesses will assist economic development on the reservations. There is a considerable danger, however, that law reform results in “too much law.� Unless undertaken with care, law reform can lead to the enactment of laws the tribe simply does not need or, worse, laws that are so contrary to customary practices that they are simply ignored. Therefore, the wholesale importation of state commercial laws, for example, is unwise. Rather, law reform is a process that takes many years and a great deal of experimentation as tribes seeks to balance the various interests of the business community, consumers, workers, and the tribe itself. Tribes must first take inventory of the business activity on the reservation and determine whether additional laws are needed to properly regulate those activities. The answer will often be that no further law is needed. For example, tribes with gaming operations likely have considerable experience with regulating gaming, and while tribal gaming laws should be reviewed regularly, existing laws will be largely adequate. Greater challenges arise, though, as a tribe undertakes economic planning and determines that it wishes to attract certain new forms of business. As new opportunities are identified, tribes should take care to develop tax, regulatory, and transactional laws to lay the legal infrastructure for the new business. A manufacturing enterprise, for example, should be preceded by careful consideration of the environmental and workplace safety laws needed to encourage profitable, safe, and healthy operation of the factory. It is unwise to wait for problems to arise before enacting such laws. Thus, tribal leaders face challenges in trying to anticipate what laws will be needed and the likely impacts of the laws they pass. The best way to anticipate problems and to avoid unintended consequences from the laws they pass is to involve the public at every step in the process. The initial inventory of reservation business, the planning of future development and the formulation of the law itself will be done better through the participation of tribal members, prospective entrepreneurs, lenders, tribal regulators, tribal judges, and outside experts, when necessary. Not only will the substantive laws that result from the process be improved, but the process itself will also encourage compliance by the business community, because the business community will have confidence that its concerns were heard and considered. On the other hand, laws made in haste or in secret will almost surely cause unanticipated problems, and the business community is more likely to evade laws it played no role in creating. The rules of law are of no value if they are not accompanied by empowered tribal courts and agencies. Tribes must consider various options in determining where to assign the power to implement and enforce laws. Further, tribal courts and agencies must have sufficient personnel, equipment, training, and financial resources if the laws are to have their intended effect. If a tribe is unwilling or unable to invest in such institutions, but still wants to create a legal regime that encourages development, it must consider alternatives such as permitting state courts to hear reservation disputes.

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The tribes of course have the option of not seeking additional development of the reservations. To some degree, all new laws displace existing customs and understandings among the people. That is to say, law can reflect culture, and it can also change culture. This is an especially important consideration for tribes, who are deeply mindful of the effect of their decisions on the maintenance of tribal culture. It is a perfectly respectable stance for tribal leadership to decide that the impacts on tribal culture of further economic development are not acceptable. Such a stance means that the tribe will forego at least some economic opportunities, of course, but tribes regularly reject economic proposals that do not conform to tribal objectives and tribal culture. Finally, tribes must remember always that lawmaking is an iterative process. Lawmakers rarely pass perfect laws, and tribes should be willing to revisit and amend laws that are not working as they had hoped. Further, a law that works well in a given time and place will not necessarily work as well in the future, as the economy grows and business practices change. Technological advances in the past twenty years, for example, have required wholesale changes in certain state commercial laws. So law will change periodically, and tribes should have procedures for regularly reviewing their commercial laws to insure their continuing effectiveness.

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A R I Z O N A S TAT E U N I V E R S I T Y

On-Site Voter Registration!

NAVAJO NATION GOVERNMENT FORUM W I T H N A V A J O P R E S I D E N T : J O E S H I R L E Y

N A T I O N J R .

Discuss issues and policies that are important to you!

Legislative Branch Leonard Tsosie - Council Delegate for Whitehorse Lake/ Torreon/ Pueblo Pintado Chapters. (Judicial Committee Member) Jonathan Nez - Council Delegate for Shonto Chapter (Budget and Finance Committee Member) Navajo County Board of Supervisors Kee Allen Begay - Council Delegate for Many Farms/ Round Rock Chapters. (Judicial Committee Chairperson)

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Indian legal program

American Indian Policy

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support services

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Multicultural student services.

ASU Navajo Students For Politics Committee

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American Indian Council

When : Wednesday October 28, 2009 5:30pm to 8:30pm. Where : Sandra Day O’Connor College of Law “Great Hall” Lecture Room, ASU.

For More Information Please Contact: Kate Rosier (480) 965-6204


ASU Libraries

Labriola National American Indian Data Center Newsletter Vol. XVI No. 1

Gila River Elders Visit ASU and the Labriola Center

Labriola Spring Services •

The Labriola Center is open from 95 Monday – Friday

Coming soon the Labriola Center will have a new web page to host all the course and subject guides the Center creates to help students research American Indian topics at ASU

Spring 2008

Joyce Martin, Curator

The Labriola Center along with the American Indian Policy Institute and the American Indian Studies Department hosted a group of over fifteen elders from the Gila River Indian Community at ASU on October23rd.

Inside this issue: Gila River Elders Visit ASU and the Labriola Center

1

Labriola Center Open House

2

New Arrivals by Ann Leonard

2

Enemy Slayer: A Navajo Oratorio

3

Mobile Library Reference Services by Melanie To.ledo

3

Everyone Loves a Slice of Hot, Cheesy Pizza!! By Rhonda Singer

4

The visit included a tour of the Agriculture Building which holds the American Indian Studies Department, the American Indian Student Support Services, the American Indian Policy Institute and the Office of the Special Advisor to the President on American Indian Affairs. Additionally they visited the Labriola National American Indian Data Center.

nix, Arizona. It was donated to the Labriola National American Data Center on August 8, 2000, by his son, LeRoy Cameron. Mr. Cameron discusses education at both Phoenix Indian School and

Navajo Nation

Gila River Elders tour

LO-1:1-7 Among those attending this visit was Mr. Cameron’s widow and the experience of listening to Ralph Cameron’s voice seemed to be quite emotional for several participants.

The Ralph Cameron Collection had recently been preserved through digitization and part of a larger project and is a collection the Labriola Center American Indian Programs conference room is very proud to house. While in the LabMr. Cameron spoke in the riola Center the elders indigenous language of Sherman Institute in Rivwere able to listen to the erside, California, World Maricopa for a portion of Ralph Cameron Oral HisWar military exploits, the tapes. tory Collection. The community activities, Ralph Cameron Oral HisDr. Peterson Zah and speaking to his grandchiltory Collection contains various American Indian dren, and children’s stoseven audio tapes reStudies faculty met with ries. Transcripts are corded by Mr. Cameron the Elders during a available for tapes 1-4. (Pima-Maricopa) of Phoeluncheon held at the ASU The call number is LAB Memorial Union.


ASU Libraries

Labriola National American Indian Data Center Newsletter Vol. XV No. 1

Joyce Martin, Acting Curator

ASU Library Channel • http://www.asu.edu/lib/ librarychannel/index.html • IPod Compatible download available on ASU on iTunes U • ASU Libraries Podcasts • ASU Streaming Video • ASU Libraries News • Subscribe Now

Inside this issue: Navajo Nation Presidential Debate

1

Native Voices Podcast

2

American Indian Studies Conference

2

Audio Visual Resources

3

New Manuscript Collections

3

ASU American Indian Programs Retreat

3

ASU Homecoming 2006

4

Spring 2007

Navajo Nation Presidential Debate on the ASU Library Channel During a planning meeting of American Indian Programs at ASU in September 2006 the possibility of ASU hosting a debate between the top two candidates in the then upcoming November 7th Navajo Nation election was proposed. Right away Associate Dean Dr. John Howard saw an opportunity for the Library to get involved; he suggested the Labriola Center could house the DVD of the debate and offer the debate on the ASU Libraries web site as a streaming video. Due to scheduling conflicts, the debate was cancelled and then much to our surprise was back on just five days before the event was to occur. By this time the PBS crew scheduled to film the debate were already obligated to other events, so the Labriola Center and the University Library offered to record the event. With the technical expertise of Matthew Harp, Matt Trobaugh, and Rob

Fidler, assisted by the College of Law Instructional Technology department, the library was able to produce a professional quality recording of this historic event, which will now be archived in digital and hard copy form in the ASU University Library. On Tuesday, Oct. 3, 2006 the two Navajo Nation presidential candidates – President Joe Shirley, Jr., and Lynda Lovejoy – participated in a moderated discussion with questions from four panelist and additional audience questions. The debate was held in Armstrong Hall at the Sandra Day O’Connor College of Law and hosted by the Phoenix Indian Center, Arizona State University American Indian Policy and Leadership Development Center, and the Indian Legal Program, Sandra Day O'Connor College of Law. Patricia Hibbeler, CEO of the Phoenix Indian Center,

Navajo Nation

moderated the event. You are invited to view the Navajo Nation Presidential Debate on the ASU Library Channel. http://www.asu.edu/lib/li brarychannel/ All videos are in the Quicktime format and will require the latest installed version. A DVD of the event is available for viewing in the Labriola National American Indian Data Center on the second floor of Hayden Library on the ASU Tempe campus from 11AM - 5PM Monday - Friday.



Catalouge of Accomplishments