White Tape and Indian Wards: Removing the Federal Bureaucracy to Empower Tribal Economies and Self-Government

Abstract

American Indians have the highest poverty rate in the United States, and dire poverty ensnares many reservations. With no private sector and abysmal infrastructure, reservations are frequently likened to third-world countries. Present-day Indian poverty is a direct consequence of present-day federal Indian law and policy. Two-hundred-year-old laws premised on Indian incompetency remain a part of the U.S. legal system; accordingly, Indian country is bound by heaps of federal regulations that apply nowhere else in the United States. The federal regulatory structure impedes tribal economic development and prevents tribes from controlling their own resources. This Article asserts the federal regulatory “white tape” is unconstitutional. By focusing on restraints upon trust land and Indian trader laws, this Article demonstrates that contemporary federal regulations impeding tribal economic development are based upon flagrantly racist ideas. This Article explores the unique relationship between Indians and the Constitution and concludes that restrictions on tribal trust land and Indian trader laws should be subjected to strict scrutiny rather than the usual rational basis review applied to legislation relating to Indians. These regulations cannot survive strict scrutiny. Once tribes are liberated from these antiquated regulations, this Article proposes that tribes be able to craft their own land use and economic policies without federal approval.