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Fundamentals of Contracting by and With Indian Tribes

Michael P. O'Connell, Natural Resources Development on Indian Lands (2011)

Indian tribes are governments whose status as distinct, self-governing political entities predates the United States Constitution. Indian tribes do not derive their existence, and in most respects their authority to govern or do business, from the United States. Indian tribes, no two identical, have their own forms of government. Most Indian tribes have laws, ordinances and regulations governing business transactions by and with tribal entities.

Commerce among Indian tribes predated European contact. After European contact, commerce by and with Indian tribes expanded in many different modes according to needs and opportunities of the time. On behalf of the Union, Article I, Section 8 of the United States Constitution delegates to Congress exclusive authority to regulate commerce with Indian tribes. Laws enacted by Congress in the 1790s regulating sales, leases and other conveyances of tribal land and trade with Indian tribes remain substantially in effect.2 Many treaties between the United States and Indian tribes, which like laws enacted by Congress are the law of the land under the Supremacy Clause of the Constitution, both secure and regulate trade by and with Indian tribes.3 Federal laws, regulations, executive orders, and policies too numerous to list promote and regulate commerce by and with Indian tribes. As recently December 2010, Congress enacted and the Presi