Congress has spent decades creating new pathways for tribal self-governance, giving tribal nations greater authority over land leasing, energy development, public safety and other functions long overseen by the federal government. Yet many of those authorities remain underused.
Thomas Stratmann, a George Mason University economics and law professor, believes the problem often is not a lack of tribal interest or capacity. After studying federal policies ranging from the HEARTH Act and Violence Against Women Act to tribal energy authorities, he began asking why some self-governance authorities gain traction while others do not.
On his “Rules and Results” Substack, Stratmann explores how laws and institutions shape economic outcomes. In this interview with Tribal Business News, he discusses why some self-governance authorities gain traction while others do not, why adoption is not simply a matter of tribal capacity and what policymakers can do to improve future programs.
This interview has been edited for clarity and brevity.
Your research and commentary project is called “Rules and Results.” What's the central idea?
The theme is that if you design good rules, you will get good economic results. If you have rules that govern society, human interactions and business activities, and those rules are not well designed, then you will have poor economic outcomes.
It's not that outcomes or poverty exist because people are bad. Outcomes are not necessarily driven by individual behavior. It's often because the institutions are not there to properly incentivize behavior. That's the basic idea behind Rules and Results.
You’re an economist by training. How did you become interested in tribal governance and federal Indian policy?
I did my dissertation in an area called public choice, which is political economy — the way economists think about politics.
I continued to be interested in these topics, and later I read Michael Heller's work on the “tragedy of the anticommons,” which discussed ownership fractionation in Indian Country. He gave an example that if you have many owners and each owner has a veto right, you're going to get less development.
That got me looking at these issues again. Initially, it was an academic interest, but I also became struck by the history and by the federal paternalism that continues to shape legislation today. I saw poverty on some reservations, while others were doing quite well, and I wanted to understand why some tribes do better than others. I wanted to apply what I'd learned about institutions and economic development to those questions.
Across these different programs you’ve studied, what pattern are you seeing?
The pattern I see is that Congress passes self-governance authority, and then that authority gets limited during implementation.
For example, with Tribal Energy Resource Agreements, the Department of the Interior reads trust assets very narrowly. The statute says tribes can define what the trust assets are, but the Solicitor's Office determined that trust assets should be defined very narrowly and excluded everything except resources and surface leases.
With the HEARTH Act, the statute says tribes can opt in and administer their own leasing programs. But the act does not fund the administrative work tribes need to run those programs. One tribe I mentioned has nine people on staff to administer the program.
With the Violence Against Women Act, tribes can exercise special criminal jurisdiction over certain non-Native offenders. But many tribes need court infrastructure to take advantage of that authority.
So Congress creates the authority, but not always the conditions to make the authority usable?
Yes. The design failure is (a constant). The statute assumes something that the program does not deliver.
Congress often presents these authorities as expansions of tribal self-governance. What's missing from that conversation?
It sounds great for Congress to say, “You can opt in.” But the design of these statutes is often not well thought out. So the question is whether tribes can realistically take advantage of the authority Congress is offering.
If these authorities can be beneficial, why don't more tribes adopt them?
What's interesting is that tribes that adopt these authorities are not necessarily wealthier tribes or larger tribes. So it's not simply a question of tribal capacity.
When tribes look at whether they want to adopt one of these authorities, they do a cost-benefit analysis. They look at the staffing requirements, administrative burden, legal requirements and expected benefits.
For example, under the Violence Against Women Act, a tribe may need to significantly upgrade its court system to exercise a relatively narrow jurisdictional authority. With other programs, tribes may need additional staff or administrative systems.
Sometimes tribes conclude the benefits outweigh the costs. Sometimes they rationally decide not to adopt the option.
So this isn't just a funding issue?
No. I don't think this is necessarily a money issue.
What needs to change?
Congress has to design better laws. It should define the scope in the statute and not leave it entirely to agency interpretation.
And when Congress says, “You can do this,” it also needs to think about the institutional infrastructure required to make that authority meaningful.
There are also opportunities to build around how tribes already operate. Tribes cooperate with one another in many areas. Federal laws often assume every tribe is operating independently, when that's not always how things work on the ground.
If lawmakers want tribes to exercise a particular authority, they should make sure the authority, the administrative requirements and the supporting infrastructure all align.
None of this necessarily requires large new spending. It's really design discipline that's required.
After studying these programs, are you optimistic or pessimistic?
I'm optimistic.
I think there is movement toward honoring the idea that tribes are sovereign nations and that self-governance should continue to expand.
What gives me optimism is that these problems are not mysterious. They're often questions of policy design. If policymakers pay closer attention to implementation, tribes can make fuller use of authorities that already exist.
