Abstract
How do you drive economic enterprise in a financial desert? Indian tribes, academics, economists, and policy makers have considered the means and methods for energizing economic growth for forty years. Efforts such as the creation and promotion of the Model Tribal Secured Transactions Act (“MTSTA”) promise much towards creating conditions that would gather financial opportunity to tribal regions that experience poverty at the strikingly higher rate than any other place in the U.S. And yet, while the law has been available for more than ten years, tribes have been reticent to adopt it. This article fills the vacuum in the literature around the promise of uniform laws in Indian Country by describing the inherent tension that exists between down-scaling uniform laws into tribal contexts and the local-ism that seeks to preserve localized values. This Article argues that tribal choices to accept uniformity or reject uniformity in these areas are built around a combination of formal associations and organic relationships designed to create “institutional thickness” in the face of other scarce resources.
Highlights
In the last twenty years, economic activity in Indian tribes has fostered a greater interest in creating and facilitating resources that trickle down to tribal members
Sixty-two Indian tribes have a secured transactions law. These laws fit into one of five broad categories: (1) tribes that have incorporated the Uniform Commercial Code (UCC) adopted by the state where they are located; (2) tribes that have adopted the Uniform Law Commission (ULC) version of the UCC; (3) tribes that have adopted the Model Tribal Secured Transactions Act (MTSTA); (4) tribes that have adopted uniform provisions relating to the sales of accounts or chattel paper; or (5) tribes that have adopted a non-uniform law governing the creation of security interests within their tribal territories
The creation of secured transactions laws was a bet that financial institutions would come to Indian tribes to fill the financial lending gap
Summary
In the last twenty years, economic activity in Indian tribes has fostered a greater interest in creating and facilitating resources that trickle down to tribal members. While the adoption of uniform tribal laws sets the conditions for potential growth for Indian tribes, it does not alleviate other structural barriers that may exist which continue to thwart economic activity. When efforts to stimulate economic growth appear too far, tribes may assert localism factors that reshape the regime to the tribe’s particular vision for self-determinacy In this way, a legal geography approach can be useful for explaining how tribes have approached the ULC’s MTSTA and other secured transactions laws. In Part II of this Article, I begin to unpack some of the impacts that scaling and scale-making have in the context of these laws In this Part, I point to various ways that tribes seek to further their economic interests, including such methods as uniformity, relationship creation, and networking. This approach offers unique opportunities to better understand barriers of receptivity experienced by Indian communities toward commercial law adoptions
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