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Cooperative Development: Managing and Operating Issues

Michael P. O'Connell, Energy and Mineral Development in Indian Country

IV. Indian Tribe - Business Partner with Sovereign Regulatory Powers

In the Old Model, Indian tribes were passive business partners. In many quarters, in business as well as in federal and state governments, the existence of Indian tribes as distinct sovereigns with tax and other governmental powers was an afterthought and when thought of was actively resisted.

In 1934, DOI Solicitor Margold issued in an opinion regarding “all powers vested in any Indian tribe or tribal council by existing law” referenced in section 16 of the IRA, recodified in 25 U.S.C. § 476(e). He observed that it was possible “on the basis of the reported cases, the written opinions of the various executive departments, and those statutes of Congress which are of general import, to define the powers which heretofore have been recognized as lawfully within the jurisdiction of an Indian tribe.”15 On the ultimate issue, Solicitor Marigold opined:

Perhaps the most basic principle of all Indian law, supported by a host of decisions hereinafter analyzed, is the principle that those powers which generally are lawfully vested in an Indian tribe are not, in general, delegated powers by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been [14-9] extinguished. Each Indian tribe begins its relationship with the Federal Government as a sovereign