Implementing the Federal Endangered Species Act in Indian Country: The Promise and Reality of Secretarial Order 3206
by Marren Sanders
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The federal Endangered Species Act (ESA) is nearly silent regarding its potential application in Indian Country. But by the mid-1990s, the ESA had proven to be a source of serious concern for Indian tribes. In 1997, as the culmination of months of negotiations between agency officials and tribal representatives, the Secretaries of the Interior and of Commerce jointly issued Secretarial Order 3206 (SO 3206), entitled “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.” The order sought to harmonize the federal trust responsibility to tribes and the statutory missions of the Departments of the Interior and Commerce in implementing the ESA. This paper considers whether the order has lived up to its promise of true bilateralism between the United States and sovereign tribal governments regarding their rights vís-a-vís the ESA process. It reviews the key requirements of the ESA, pertinent executive orders, and SO 3206 itself.  It analyzes government-to-government relations in several cases of “final rule” critical habitat designation and through a review of scholarly literature. Further, it discusses the difference tribes can make by creating and implementing their own habitat management plans, as alternatives to designation of critical habitat on Indian lands, and by actively partnering with the U.S. Fish and Wildlife Service and National Marine Conservation Service. The author concludes that while SO 3206 has not yet lived up to its full promise, it is making a difference by assisting federal land managers and sovereign tribal governments in building stronger working relationships while protecting the environment.

JOPNA No. 2007-01    52pp.

Indigenous Peoples, Poverty, and Self-Determination in Australia, New Zealand, Canada, and the United States
by Stephen Cornell
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Australia, New Zealand, Canada, and the United States share certain characteristics. All four are predominantly European-settler societies. All are English-speaking. Their legal and political systems, while different, share a primarily English heritage. They also share a particular pattern of relationships with indigenous peoples. In all four, European settlement dispossessed — often violently — indigenous peoples of their lands. But in all four, remnant indigenous peoples remain today on remnant lands, and in all four, those peoples are engaged to one degree or another in movements for indigenous self-determination. There is another commonality among these countries: In all four, central governments have tended to be more willing to address issues of indigenous poverty than issues of indigenous self-determination. But what if the two are connected? This paper argues that there is strong evidence from the United States that effective solutions to indigenous poverty depend on, among other things, indigenous self-determination. After making the case for comparative analysis among these four settings, it summarizes the U.S. evidence and considers its applicability to the situations of indigenous peoples in the other three countries. It also argues that while indigenous self-determination and self-governance are keys to positive economic change, self-determined indigenous governance in these countries is likely to be diverse, and that a single form of self-governance is unlikely to work across groups or across countries.

JOPNA No. 2006-02    44pp.

What Makes First Nations Enterprises Successful? Lessons from the Harvard Project
by Stephen Cornell
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Indigenous economic development takes multiple forms. One of the most common ways that indigenous peoples attempt to meet needs for revenue, employment, and services is through nation-owned enterprises. These are hugely diverse, ranging from timber companies and gaming operations to telecommunications enterprises and convenience stores. The record of such efforts is mixed: as with businesses everywhere, some succeed and others don't. This paper examines how the actions of Native nations themselves can either undermine or strengthen their own enterprises, drawing on extensive research carried out by the Harvard Project on American Indian Economic Development at Harvard University and the Native Nations Institute for Leadership, Management, and Policy at the University of Arizona. Of course many of the things that determine business outcomes lie beyond the control of the nations that own the businesses. The paper focuses on five factors that indigenous nations can control but that sometimes are ignored in the effort to build successful, nation-owned businesses: clarity about enterprise goals; effective management of the politics-business connection; the purpose, power, and composition of enterprise boards of directors; independent and reliable resolution of disputes; and the need to educate the community about enterprise goals and activity. Using real-world cases, the paper explores how the actions by indigenous nations in each of these areas can have a significant impact on business performance.

JOPNA No. 2006-01    24pp.