American Indian Sovereignty and E-Commerce

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Many tribes in the U.S. have started doing business over the internet, resulting in conflicts between state, federal and tribal laws. Arizona State University’s Sandra Day O’Connor College of Law will hold a conference on tribal E-commerce and the legal issues arising from that.National Congress of American Indians chairman Brian Cladoosby and professor Robert Miller, the faculty director of the Rosette, LLC Native American Economic Development Program of the Indian Legal Program, will discuss the issue.

TED: AMERICAN INDIAN TRIBES ARE INCREASINGLY DOING BUSINESS OVER THE INTERNET, WHICH CAN RESULT IN CONFLICTS BETWEEN STATE, FEDERAL AND TRIBAL LAWS. FOR MORE ON THIS WE'RE JOINED BY NATIONAL CONGRESS OF AMERICAN INDIANS CHAIRMAN BRIAN CLADOOSBY AND ROBERT MILLER, FACULTY DIRECTOR OF THE ROSETTE, LLP NATIVE AMERICAN ECONOMIC DEVELOPMENT PROGRAM AT ASU'S INDIAN LEGAL PROGRAM. GOOD TO HAVE YOU BOTH HERE. ISSUES WITH TRIBES DOING BUSINESS ON THE INTERNET. WHAT ARE WE TALKING ABOUT HERE?

BRIAN CLADOOSBY: ONCE AGAIN, THE TRIBES ARE SLOWLY GETTING INTO THE 21ST CENTURY WITH E-COMMERCE AND ECONOMIC DEVELOPMENT. THE GILA COMMUNITY FORWARDED COMMENTS IN REGARD TO THE CENTURY LINK MERGER. PART OF THE ISSUE WE HAVE IS AFFORDABLE I.P. BROAD BAND ACCESS IN INDIAN COUNTRY. THIS MERGER AFFECTS 14 STATES AND 25% OF THE TRIBES IN THE U.S. THIS IS VERY IMPORTANT TO US.

TED: INDEED. AS FAR AS CONFLICTS BETWEEN STATE, FEDERAL AND TRIBAL LAW, A LOT OF IT GOING ON OR JUST ENOUGH TO MAKE A DIFFERENCE?

ROBERT MILLER: I THINK THERE IS A LOT OF IT GOING ON. THERE IS COMPETITION WITH MONEY. EVEN WITH INDIAN GAMING, STATES ARE FIGHTING FOR THE DOLLAR AND WORRY MONEY IS GOING ELSEWHERE. AMERICAN INDIANS ARE THE POOREST PEOPLE IN THE UNITED STATES EVEN WITH SOME OF THE VERY SUCCESSFUL CASINOS. TRIBES ARE LOOKING, AS THE CHAIRMAN SAID, FOR ALTERNATE OPPORTUNITIES AND FOR CREATING ECONOMIES ON RESERVATIONS. THERE IS COMPETITION BECAUSE OF LAW, INFRASTRUCTURE AND THE ISSUE HE MENTIONED IS A CLASSIC.

TED: YOU HAVE COMPETITION. WHAT ABOUT JURISDICTIONAL COMPLEXITIES. TALK TO US ABOUT THAT?

BRIAN CLADOOSBY: TRIBES ARE SOVEREIGN NATIONS. THROUGHOUT THE HISTORY OF THE U.S., THE FEDERAL GOVERNMENT HAS HAD A PATERNAL BEHAVIOR TOWARD TRIBES. THEY KNOW WHAT'S BEST FOR US. WE ARE WORKING WITH THE FEDERAL GOVERNMENT TO LOOK AT THE LOW HANGING FRUIT OF REGULATIONS IN PLACE FOR 150 YEARS THAT STIFLES US AND TREATS US AS A GOVERNMENT DIFFERENTLY THAN A CITY OR COUNTY OR STATE GOVERNMENT.

TED: HOW ARE THOSE COMMUNICATIONS GOING?

ROBERT MILLER: INTERESTINGLY, I TALKED -- I THOUGHT YOU WERE GOING TO ASK ME THE SAME QUESTION. THE COMPETITION IS ALSO ABOUT WHERE THE BUSINESS TAKES PLACE. SOME TRIBES ARE TRYING TO DO ONLINE GAMING. THE FEDS AND STATES ARE CONCERNED ABOUT THAT. SOME TRIBES ARE DOING ONLINE LENDING. THEY ARE TRYING TO PROVE BECAUSE THE TRIBAL BUSINESS IS THERE. STATES ARE GOING ON AND THERE ARE LAWSUIT ABOUT IS THE LENDING OCCURRING AND IS IT LEGAL? THERE IS A JURISDICTIONAL LEGAL FIGHT THAT THE TRIBES, STATES AND FEDS ARE INVOLVED IN.

TED: YET TRIBAL SOVEREIGNTY, THAT IS A BIG FACTOR, IS IT NOT?

ROBERT MILLER: THE SUPREME COURT HAS SAID THAT POWER IS JUST WITHIN THEIR OWN TERRITORY. THAT'S A DRAW BACK FOR A TRIBE WITH GAMING OVER THE INTERNET. IS IT OCCURRING AT THE HOME OF THE PLAYER OR INFRASTRUCTURE OF THE TRIBAL GOVERNMENT IS.

TED: JURISDICTIONAL BOUNDARIES IS THAT HAPPENING? IS IT IMPROVING?

BRIAN CLADOOSBY: IT'S DIFFERENT ACROSS THE NATION. THERE ARE 567 NATIONS ACROSS THE U.S. SOME HAVE AN EXCELLENT WORKING RELATIONSHIP WITH STATE AND COUNTY AND OTHERS DON'T. IN THE LAST EIGHT YEARS, WORKING WITH THE OBAMA ADMINISTRATION, FCC, WE HAVE HAD A GREAT WORKING RELATIONSHIP AND WE HOPE THAT CONTINUES WITH THE TRUMP ADMINISTRATION.

TED: WHAT ARE YOU EXPECTING? IT'S A CHANGED POLITICAL LANDSCAPE OUT THERE.

ROBERT MILLER: MANY TRIBES HAVE WORKED WELL WITH THE REPUBLICAN ADMINISTRATION. RICHARD NIXON IS THE FATHER OF THE CURRENT ERA. I THINK TRIBAL PEOPLE THINK THERE IS MORE BUSINESS TO BE DONE. LET'S WORK WITH THIS ADMINISTRATION. WE ARE THE POOREST OF THE POOR. IT'S HARD TO HAVE ANY FUNCTIONING ECONOMY AND A COMMUNITY WITHOUT SOME ECONOMIC ACTIVITY.

TED: AGREE WITH THAT?

BRIAN CLADOOSBY: YES. WHEN YOU LOOK AT THE CONSERVATIVE VALUES OF A REPUBLICAN, THOSE ARE THE SAME VALUES WE HAVE, SMALL GOVERNMENT, LESS REGULATIONS FROM THE GROUND UP, OPPORTUNITIES AND THEY SEE THE NEED TO START WHITTLING AWAY AT THIS PATERNALISTIC ATTITUDE THAT THE GOVERNMENT HAS HAD. WHEN YOU LOOK AT OUR TRIBAL ISSUES, THEY ARE PRETTY MUCH NONPARTISAN. FOR EXAMPLE, WE HAD THE BILL PASSED TWO YEARS AGO IN CONGRESS, A GENERAL WELFARE EXCLUSION ACT DEALING WITH TAXATION ON INDIAN RESERVATIONS BY THE IRS. YOU WON'T HEAR ABOUT THIS IN MAINSTREAM NEWS, BUT WE HAD 100% OF REPUBLICANS AND DEMOCRATS IN THE HOUSE AND SENATE SUPPORT THIS. THAT'S AN EXAMPLE OF US WORKING WITH THE CONGRESS AND ADMINISTRATION TO GET THINGS PASSED THAT ARE PROTRIBAL AND NONPARTISAN.

TED: WITH THIS IN MIND, THE BIGGEST CHALLENGE IN E-COMMERCE AND TRIBAL SOVEREIGNTY, WHAT DO YOU SEE? WHAT'S THE BIGGEST ISSUE?

ROBERT MILLER: IT'S MONEY, INFRASTRUCTURE, HUMAN CAPITAL AND CAPITAL. WE NORMAL THINK OF IT AS MONEY. INDIANS ARE THE POOREST OF THE POOR. SOME STILL DON'T HAVE BROADBAND ACCESS. A TRIBE IN OREGON GOT IT IN 2012. IT'S NEAR PORTLAND, OREGON. DOES THE TRIBE HAVE THE INFRASTRUCTURE, THE GOVERNMENT BUSINESS IT IS. WHATEVER IT MIGHT BE, WE NEED IT.

TED: THERE ARE CYBER RISKS IN INDIAN COUNTRY, THE MISHMASH OF LAWS, YOU HAVE TO WATCH YOURSELF.

BRIAN CLADOOSBY: DEFINITELY. THE LAST ELECTION OF PROVES WITH THE HACKING OF DNC AND CANDIDATE CLINTON'S CHIEF OF STAFF, IT'S SOMETHING TRIBES HAVE TO BE AWARE OF THAT THEY HAVE TO HAVE STRONG SECURITY MEASURES IN PLACE. I'LL DO A LEAD IN FOR THE NEXT STORY, I WAS ON THE NAVAJO INDIAN RESERVATION VISITING FRIENDS AND POWER LINES ARE GOING THROUGH THE HOMELANDS BUT THE HOUSES DON'T HAVE ELECTRICITY. THAT'S ONE OF THE CONCERNS WE ARE LOOKING FORWARD TO. WITH THE TRUMP ADMINISTRATION, HE WANTS TO DO A BILLION DOLLARS IN INFRASTRUCTURE SPENDING IN THE U.S. NOBODY HAS MORE NEEDS THAN INDIAN COUNTRY. BROADBAND IS ANOTHER EXAMPLE OF WHAT WE NEED TO MAKE E-COMMERCE EFFECTIVE IN TRIBAL COUNTRY.

TED: TOMORROW, WILD HORSE PASS AND CASINO.

ROBERT MILLER: IT'S OUR CONFERENCE, 175 PEOPLE COMING, TRIBAL LEADERS FROM AROUND THE COUNTRY. TRIBES ARE LOOKING TO DIVERSIFY AND IF THEY CAN TAKE ADVANTAGE OF E-COMMERCE, THAT'S A WIN/WIN.

TED: GOOD TO HAVE YOU BOTH HERE.

BRIAN CLADOOSBY: THANK YOU.

National Congress of American Indians chairman Brian Cladoosby
professor Robert Miller, the faculty director of the Rosette LLC Native American Economic Development Program of the Indian Legal Program

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