uniform commercial code (UCC)

Joseph P. Kalt: The Practical Issues of Business Development - Some Things to Consider: Legal Structure

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Native Nations Institute
Year

Harvard Project on American Indian Economic Development Co-Director Joseph P. Kalt discusses the types of corporations that Native nations can charter and what they should consider when deciding which type to choose.

Resource Type
Citation

Kalt, Joseph P. "The Practical Issues of Business Development - Some Things to Consider: Legal Structure." Building and Sustaining Tribal Enterprises seminar. Native Nations Institute for Leadership, Management, and Policy, Udall Center for Studies in Public Policy, University of Arizona. Tucson, Arizona. March 29, 2007. Presentation.

"They've asked me to just say a few words here to kick off this session and talk about the kinds of entities and structures that we're seeing used out there and that are working or not working in Indian Country. And I guess it's our gig at the Harvard Project and at NNI is to try to focus on what's working, but we often start with what's not working. And I want to describe two -- I won't even name the two tribes I'm about to say something about -- but it's sort of a lesson in what not to do. And here's the way they're going about economic development and development of tribal enterprises. They have an economic development committee. The economic development committee is just appointed, it's unpaid, appointed by the tribal council, has its roots in the old U.S. Department of Commerce Economic Development Administration grants. They ran out of the grant money, but they sort of kept the committee and the committee's job is to, number one, go out and find us some businesses to invest in. Number two, bring those investors to us, the tribal council, and sort of vet them and tell us whether we should invest in them. And this sort of strategy, and then the end result if they're successful, in one case one tribe actually has three enterprises, all of which are losing money rapidly and the tribe is trying to get out of [them]. If they're successful, this economic development committee, in finding a business, as if you're sort of, I don't know, looking for a four-leaf clover or something. If you're successful what happens is the tribal council basically buys a business, owns it, as if they were buying pencils for the office. It has no separate legal structure, it's just a tribal enterprise and the tribal council will appoint -- as if it were another grants program -- an enterprise manager. And again and again and again this, which is really, you can hear the way I'm telling the story, a holdover from the old grantsmanship days where getting an enterprise was just like landing a grant. You just sort of found one and then appointed someone to be the head of the grant or head of the enterprise. And time and again across Indian Country, this has been a recipe for failure.

You see at the other extreme -- and Diane Enos came in and did it, the other extreme -- which is to build the legal structures to protect yourselves, to put in place -- I thought she said it beautifully -- it's not that you're taking politics out of these enterprises, it's that you're structuring them within a rule of law. And that's critical here. There is a huge job to be performed in the management of tribal enterprises by the tribal politicians. Someone needs to sit there and filter and make those decisions. Is this the direction we want to go? Is this the strategic step we want to take with our nation's assets? But it's not the tribal council's job to go figure out who gets the contract for the pencils in the office and I've seen...it wasn't pencils in the office, it was the printing of envelopes, bring down a tribal chairman. The guy got himself impeached over the envelope contract. That is, the day-to-day meddling in the business end. The same goes for tribal administration. So there's a critical job to be played by the tribal politicians and that is to set in place the legal structures and to make the big strategic choices. Do we want -- you hear at Salt River in a beautiful way -- do we want the interior of this reservation developed or not? Or are we going to set up a nine-mile corridor out on the edge of Scottsdale? 'Oh, that makes more sense to us.' Those are the critical strategic decisions that you want your elected officials to make. We often get associated with this phrase 'get politics out of business.' Yes and no. Politics properly by the rules, setting the overall directions and it should properly stay out of the decision who gets the contracts to print the name 'Salt River Sand and Gravel' on the side of this pen. So what kind of structures are we seeing out there?

The first structure is what I mentioned, it's a failing structure, unfortunately -- many tribes are learning -- and that's just go buy a business and run it like it's a grant. The alternatives to that, there's three main families that I'll touch on briefly here. There are three main structures that we see tribes using. One is the federally chartered corporation, Section 17 typically. These are corporations chartered by the federal government and really chartered under essentially the laws of the United States Congress. These Section 17 corporations give the tribe a legal entity chartered by the federal government. There isn't an explicit waiver of sovereign immunity and indeed these entities can be subject to suit. But, you can't get at the core tribal assets of tribal land or other assets not being held outside of that entity. In fact you can hear Diane talking a little bit about this, they're not talking these so-called Section 17 federal corporations. In other words, if that corporation owns some pickup trucks, yeah, those could be taken from you in a lawsuit over these Section 17 federally chartered corporations. But the Section 17 corporation does not let that car dealer or whoever it might be get at core tribal assets away from and outside of this entity. Why do this? It's sort of weird in an era of sovereignty and either you follow the ones that Joan and others and I do, we keep saying, 'Look tribes, run it yourself, run it yourself, run it yourself.'

Why do a Section 17 federal? Well, I was sort of surprised. We had one very interesting case out there, the Blackfeet in Montana have a corporation called Siyeh Corporation, S-I-Y-E-H, it's like the name. And it's very interesting, you ask Blackfeet, 'Why'd you go have the feds set up your corporation?' And they said, 'Look, to us it was an act of sovereignty and a little bit of desperation.' Many of you have heard about some of the Blackfeet Enterprises, Blackfeet Writing Instruments, the pencils and so forth that we used to get in grade school and so forth, Blackfeet National Bank. It had trouble, it had trouble finding that balance between politics that sets direction versus politics that constitutes meddling in the daily affairs. And they said, as a community, 'Look, we're having problems with our political systems and we're a little bit unstable, but at least as a community we can agree we'd like to get these enterprises in a way that they're insulated in terms of day-to-day meddling.' And so it's very interesting. It shocked me cause I've been Mr. Pro-Sovereignty. This is a case in which a tribe said, 'As a sovereign, we're going to ask another sovereign to charter this corporation to try to give us some time to work on our own political system over here at the same time we're trying to get some enterprises going.' So it's an interesting strategy, and one that as I say it sort of shocked me because we've been so hard on this horse of charter them yourselves, set them up yourselves, etc. So there are some cases apparently where a sovereign nation, in this case the Blackfeet, might make a choice to go with a federally chartered corporation.

The next layer down, of course, are state-chartered corporations, and for many tribes this is the quick way to get a corporation chartered. The owner of the enterprise is the tribe, but you get a corporation chartered under the laws of either Delaware, where everyone does the national corporations, or perhaps your own state. Under these state-chartered corporations typically, and I'm not a lawyer so don't take me as legal advice, but typically these state-chartered corporations do not provide for sovereign immunity but they essentially build a shell around the assets of the enterprise so that what can be sued is the enterprise, not the entire tribe. More and more tribes are moving to now a new model, after the federally chartered, the state chartered, more and more tribes are moving to a new model, which is tribally chartered corporations. And to us I think this represents the wave of the present and the future indeed, to Mike Taylor who has been very instrumental actually in developing a lot of this and that's partly what Salt River is doing. Under tribally chartered corporations, they typically involve a five-step, at least a five-step process. First, the tribe will pass a law of corporations establishing the rules, procedures, etc., under which tribes as an entity, individual tribal citizens, and even non-citizens can charter new businesses within the jurisdiction of the tribe. So just like here in the State of Arizona, if I want to go open a McDonald's or something I'll probably charter a corporation under the State of Arizona. More and more tribes are adopting the equivalent of the State of Arizona's laws of incorporation and they become Colville Tribe's laws of incorporations or Eastern Cherokee Tribe's laws of incorporation, and so forth. And that's critical because it sets down the framework, you've got to establish enterprises, but it's basically laying down all those rules, how board of directors will be created, what will their responsibilities be, what will their liabilities be, all these kinds of things.

The second layer that actually has to happen at the same time...Typically the law gets passed if you will and almost at the same time if not before tribes work on building up their own tribal court's capacities to handle business law. And so you find cases where tribes are simultaneously creating laws of incorporation and some tribes, for example, have begun to create a business court. So many tribal courts are buried as are everybody's courts with the family law cases, the juvenile cases, the drug cases, assault and so on and so forth that tribal judges just like the judges of Pima County are so often unschooled in and not ready for that really handling business law. And so you'll find tribes beginning to do things like create a tribal business court. Often it doesn't mean a whole lot other than we designate you as our business judge and we'll send you to some training, but at least you're trying to start that process of saying, 'We will adjudicate our own laws and our own laws of incorporation.'

After that there's a set of, a third, a next layer, third layer of laws. Those laws often deal with the business environment, adopting some version of a commercial code. It doesn't have to be the uniform commercial code of all, actually I think about 47 states are uniform now, but some version of laws that provide for garnishment, for the rules under 'if I need to repossess your truck, how long do I have to give you to repay?' and all of the... what are the procedures for taking you to tribal court and so forth so some form of a commercial code. In addition, as tribes create enterprises, either tribally owned or tribal member-owned corporations under their own laws, tribes find they need to do what most other governments in the world do, things like registration.

There's a very interesting case going on right now. Crow, in fact they may have done it this week, about to or just did. Crow sits there and they're trying to get some businesses going, they're going through everything I've just described, all these stages, and they look around and think, 'We need to register these corporations so they can go to court, people will know whose corporations they are.' They don't have the computer capacity right now and the record-keeping capacity. They're signing a memorandum of understanding with the State of Montana, Secretary of the State, not giving up any sovereignty, basically on a contract basis hiring the record-keeping services of the State of Montana, so that you can punch a button and call up, probably type in the word Crow, here comes all the Crow corporations. No jurisdiction at all, it's just purely the computerized record-keeping, which Crow recognizes that they need.

So there's the basic laws of incorporation, there's the strengthening of the tribal court around business law, there's then the laying in place the legal environment for businesses, the uniform codes, the recordings, etcetera. Then you get to the point of actually creating real enterprises, and we're talking enterprises, and I won't go into it today, others will and I think Joan in particular, but often this begins with the creation of a board of directors and a great deal of paperwork. It was fascinating, Diane carrying that big thick notebook that she showed you. There's a lot of paperwork that goes into just laying down, 'okay, here's how we're going to select members of the board. Here's how many can be from non-citizens of the tribe, how many citizens,' all these rules. 'What are the terms of office, terms for removal?' all of those things critical to have in place.

And then lastly once you've got the corporations created, then you're ready to actually begin to make investments. I went through this in order like this because so often I see tribes desperate...elected officials desperate for the ribbon cutting. That is for, I've got to show that I'm doing something, we've got a new business and often the cart gets way out ahead of the horse and you see tribes, 'Well, we'll buy a business and then later will pass the laws and we'll create a board of directors,' and so forth and so on and again and again and again without those structures that Diane Enos had in that notebook. That's where you see problems arise because there's no way then by which to say, 'Wait a minute, you didn't tell me you were going to wait six months to create a board and you promised me I could be on the board.' All of those problems arise without that laid in place, that infrastructure, the legal infrastructure prior to going out and buying a business. And so this has been a quick run-through, but those are the three models that we see, the federally chartered corporations, the state and the tribal. But you can't just do that, you've got to put that other infrastructure, your courts, the laws and so forth in place. So that's what we're seeing out in Indian Country, what's working."

Ron His Horse Is Thunder: The Keys to Effective Governance and Economic Development: Predictability and Sustainability

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Native Nations Institute
Year

Former Chairman of the Standing Rock Sioux Tribe Ron His Horse Is Thunder discusses why predictability and sustainability are so critical to effective Native nation governance and economic development.

Native Nations
Resource Type
Citation

His Horse Is Thunder, Ron. "The Keys to Effective Governance and Economic Development: Predictability and Sustainability." Emerging Leaders seminar, Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 11, 2007. Presentation.

"Now we are here learning about nation building and what really is nation building. You know as I sat down...I did not plan on actually taking part in listening to the sessions, but I'm glad I did. Because as I'm listening to and sometimes engaging in the sessions, I had for you, I had a prepared speech. And as I'm listening, I go, ‘That's something I can't tell them anymore. They already told them that. Okay, they told them that.' So I'm glad I listened. I hate being rhetorical. Sometimes it's good to hear things over and over again. It kind of embeds it in your mind. And so I'm going to do this off the cuff.

Now we're engaged in the idea, what does it truly mean, in terms of engaging in nation building? And I want to leave you with just two words -- if you leave here with anything -- and that's predictability and sustainability. Those two words. That's truly what we're about. As tribal nations, we were once just that. And they put on these reservations, they changed our form of government, and they created these tribal councils. And the tribal council powers were very limited in the beginning when they re-created us, if you will. And so tribal councils could do everything because they didn't have much to do. Now that's changed. As our nations have grown and we have exercised more sovereignty, what we do as tribal council members, as tribal leaders, becomes overwhelming at times, especially if we're going to stay in those traditional roles -- the traditional role being what the government gave us -- if we're going to stay in that role, the things that we do on a day-to-day basis are just going to overwhelm us. Because one of the things someone said, came to me -- and I read it in the book because I actually read that book. It says, ‘My constituents think I'm an ATM machine!' Well, that's because the traditional role, again for, as federal government has reshaped us. And I keep going back to that -- it's not tradition, it's a reformed government by the federal government. What tribal councils have been able to do again is very limited and they do everything in that limited context. And so our constituents have come to us consistently as tribal leaders, consistently saying, ‘You have the answers. You have all the power. You have control of the money.' And yes, tribal councils did, again to a limited basis. Bureau of Indian Affairs still handled many of those things; they handled all the leases. There were no corporate charters; they just brought somebody else from the outside. As we start to take over those responsibilities as tribal governments, we cannot allow ourselves to operate the old way.

And so part of these sessions is how do we then, with these new powers, if you will -- always were ours -- how do we in exercising these powers of tribal governments, how in exercising our sovereignty do we get away from the day to day, ‘I need, I need, I need, I need,' from our constituents? Well, we need to put in those places -- some of the things they talked about yesterday is constitutional development, the separation of powers; and that is the judicial branch, the legislative branch, and the executive branch. I think that was a fourth concept thrown in there -- some tribes use it -- and that is an elder's council. Something I learned; I might take that home with me. My tribe hasn't gotten to that point yet. My tribe did a separation of powers about 10 years ago, 15 years ago, something like that, and they separated out the judicial side of it. But the tribal council still held the hold of the legislative and the executive authorities, which really is a pain in my butt because they want to micromanage everything. And so we're here about learning to separate those out so that our nations become predictable. Because truly, if we're going to have sustainability, we can't depend on outside resources to continually take care of all of our needs, that is money. We all need money. And so in order to have sustainability on our reservations, we need economic development as we talked about this morning.

Economic development, in order for it to grow on our reservations, in order for it to be fostered by tribal governments, we need to put in place good laws. Part of those good laws is a separation of power. And so that legislative portion just writes the laws, the judicial portion just... and I shouldn't go into this. Now I'm becoming redundant in terms of what I already told you. But in order for us to be predictable, that's truly what businesses need, that's truly what an investor needs to bring money on to your reservation, bring employment, jobs, manufacturing -- whatever -- on to your reservation. Even your entrepreneurs, your tribal entrepreneurs need that stability. We talked about a lease in our last half hour and the idea of tribal government at a whim wanted to take away a lease. In order for anybody, whether it's an outsider or tribal member wanting to do economic development on your reservation, you need predictability. That's what laws are about, all laws are about predictability, whether it's creating safety -- criminal laws -- or whether it's civil regulation, it is about predictability and sustainability, protection of rights and delivery of services to our tribal members. So we -- if you leave here with anything, that what you're doing is creating a sustainable government that is very predictable. You need to absolutely be predictable, if anything else.

Now in terms of economic development, if you do your business code, your commercial code -- your uniform commercial code is what they'll say in law school more often than not -- you absolutely need to do that. If you haven't done that, I would advise you that's one of the things you need to take home with you is creating a business code, uniform commercial code, absolutely for predictability. Somebody invests their money, they're going to want to know how they're going to get their money back should everything go belly-up. And the tribe cannot -- here's one of the things my tribe has faced for the last 15 years that I've watched them as the tribal college president, is our tribe is so worried about sovereign immunity. They're so worried about controlling every aspect of business development on our reservation. They don't want any business to locate on our reservation unless they're willing to give up 51 percent ownership so the tribe can own it. They want to own everything. And I guess that's an okay thing if that's what your tribe wants to do. But most businesses don't want to locate from the outside in and have to give up 51 percent of their operation. And so you need to ask yourself, they said there were two forms of business development. One is large business development -- tribally owned businesses -- and entrepreneurs. Well, there's really another, third category I want to pose to you and that is large businesses locating in from the outside.

When we talk about entrepreneurs, we talk about small business and we really want to talk about people already on the reservation taking care of those C-stores, etcetera, etcetera. Questions tribal councils need to ask themselves is do they want to foster business development from large corporations outside? There's always a fear of that. There's a fear because of control. A real interesting concept that we have taken on and that is, for tribal, as tribal nations, as tribal governments, we have had so little control for so long of our lives, that the Bureau of Indian Affairs have controlled almost every aspect of who we are, that as we get control, as we start to exercise that sovereignty, we jealously guard it. We absolutely do. It's an okay thing. But sometimes it gets in the way of development; it gets in the way of sustainability. Yesterday, we talked about the idea of the Nez Perce. When the Nez Perce were fighting with their county commissioners; each of them vying for sovereignty, if you will, over this piece of land. And they worked it out and said, 'You know what, we understand that we're both sovereigns, but we need to work together.' And truly, when you start taking a look at attracting businesses – if that's what you're going to do – from the outside, large businesses from the outside, you have to be willing to say, ‘Okay, I'm a sovereign, but do I need to control 51 percent ownership of this business?' That's a decision your tribal council's going to have to make. I can tell you this: most businesses are not going to want to come, they're not going to. And so if that's the mode that your tribe's in, then you truly have to take a look at, okay, just tribal businesses, large tribal businesses, and you've talked about that this morning in terms of Lance Morgan and the Ho-Chunk, how they did that.

I want to talk to you then, a little bit about entrepreneurs on your reservation. And I know that some tribes, culturally speaking, frown upon it in terms of individual businesses. But I want you to think about this. That -- and Joan said it this morning or a roundabout way of saying it -- that is we were always business people, we just didn't call ourselves 'business people.' It's a foreign word to us. It's an English word. Truly there were people who possessed all kinds of skills. And not everybody was a good bow maker. Not everybody was a good, made good pottery. Not everybody knew how to train horses. Not everybody knew how to do everything. There were skilled craftsmen amongst our people who had a gift, if you will, and they would make beautiful pottery, but that's all they could do. So they would trade with somebody else and that person would trade with somebody else. Well, that's business. That is business. The only difference is you have a currency between today. That's the only difference. So we were always business people, always. And that's something we need to teach our young people, teach them in K-12 schools, that it's okay to be in business because we always were.

Now, we have to grapple with this concept of capitalism because businesses are associated with the word 'capitalism,' making profit, making huge profits, if you can. And I'm going to dive, I do this all the time, I go off into a tangent. We as Indian people don't grow up thinking, ‘I want to be a millionaire.' Rarely, rarely, rarely do you find an Indian who says that, ‘I want to be a millionaire.' And in high school says, ‘I want to be a millionaire.' In college says, ‘I want to be a millionaire.' And they go out and they start businesses to make lots of money. Most Indian business people don't have that mindset. Non-Indians, on the other hand, they have that mindset. That's the difference between us. But capitalism truly is the trades of goods and services for money and accumulation of wealth. So capitalism amongst Indians has a negative connotation to it. And therefore, businesses have a negative connotation to it. See, for so long, we have been shut out of business as Indian people. The only people that own businesses were non-Indians. And so when we look at business owners, ‘Oh, that's what white people do,' because we forgot that we were business people. Again, the only thing we need to grapple with is this idea of capitalism, that word, and that is the accumulation of wealth.

Well, I can almost guarantee you that in almost every Indian society, every Native culture, there were wealthy people and there were poor people. Tell me I'm wrong. Tell me I'm wrong. But we had a way, we had a mechanism of dealing with it, and that is if you wanted to be tribal chairman or you wanted to be a politician, councilperson, you had to share your wealth; you had to share it. Taxation is a foreign concept to us. Why? Because our leaders provided for those people who didn't have, and there were always people who didn't have. So that's the only thing that we need to grapple with as entrepreneurs, is how do we become successful business people without having people label us as being greedy. That's something that you have to deal with as an entrepreneur. But understand truly, we were business people. There were rich people. There were poor people. One of the differences, and an old concept of doing things, again, the business people who were rich would have given out of their own pocket.

There is one...times change. Where we live changes, what's around us changes. One of the things that has changed, and we need to come to grips with this when we talk about business and capitalism, is that we, at one point in time, had unlimited resources. That as tribes, we defined our boundaries as being very expansive. Our boundaries [were] as far as we protect them. And every resource in it, in our territory, was ours. And so we, in essence, had unlimited resources and people could then acquire goods, lots of horses, have plenty of places to hunt and fish. And so our resources were unlimited. Having unlimited resources gave us unlimited wealth, only according to a person's ability was what limited our wealth, your abilities. Not resources, because they were all there. And that was how a businessperson was able to give it away because there was always more resources. Today they've confined us in a limited box called reservations and our sources  therefore ar, limited. And for a businessperson, to demand that a businessperson give all their wealth away is unrealistic, given limited resources.

And so we don't elect our officials to government anymore based on the amount they give away. We elect our leaders slightly differently now. Can they operate in this world around us? Can they deal with the state government? Can they deal with the federal government? Not can they accumulate wealth to give away to people, but can they effectively deal with county, state, federal governments? Can they do that? I spent all my life now going to school and learning how to deal with governments, etcetera, and have not ever gone into business. I don't have the resources now to give to all my tribal members. And so the tribe has to develop those resources to take the place of business people in the past who gave away their wealth. That truly needs to be the new model. And you need to teach that to your people. It's not the business people who must give away. Not to the point where they're broke or give everything else [away]. I would suggest that you, as you talk to people, talk to your entrepreneurs, tell them that they should give some of it away, because that's who we are. But we expect them to give everything away and they can't. They can't.

So we need to teach our people one, that we were always business people, we need to teach our people that entrepreneurs can't give everything away. As tribal governments, we need to develop laws and regulations that sustain, encourage, foster economic development for our people, and encourage businesses to come in from the outside as well, too, if that's what you want. You can tell them stay away and let the tribal government do all of that for you, that is the large businesses. But in terms of entrepreneurs, we need to foster that. The tribal government, as you've talked about this morning, really should...any small businesses they get into is going to compete against another tribal member or they're going to fail because they're too small of a business. You cannot run a country store 24 hours a day, seven days a week with a tribal government because you're going to have to pay someone overtime, comp time. An entrepreneur works 20 hours a day in order to make it succeed, and they don't get comp time, they don't get overtime, they don't get holiday pay. And so if you expect for small businesses to work, the only people you can really depend on is entrepreneurs. You can't depend on small business to be run by tribal government. It just won't work. And you've seen it fail many times on your own reservations. So you must encourage --if you're going to have this revolving money within your community and that's what you need to be sustainable. It's not just big businesses locating -- whether individual or privately owned or tribally owned -- not just big businesses but you need the entrepreneurs to make that money revolve. Because what will happen if you don't have the small entrepreneurs, what you're going to have is big businesses where everyone gets a paycheck and still runs off the reservation to spend all their money. That's what you're going to have. And as soon as the big business downsizes, you're going to lose all those jobs, you're going to have huge unemployment again, and you're not going to have any way of capturing the dollars that are already there.

One of the things I like to tell tribal governments is this: is you have millions of dollars on your reservation right now without doing any major industrial development, period. You do. Our problem is that we don't capture the dollars that are there. You don't necessarily have to bring a huge industry to have sustainable economies. You just have to capture the dollars that are there is what you need to do. BIA [Bureau of Indian Affairs], Indian Health Service, tribal government, public schools, all have capital coming in and dumping it on the table and employing people, and we don't capture it. And until you do that, you'll never have a sustainable economy. Never. You can bring in all the big business you want.

One of the cautions I have to you about bringing in businesses from the outside is, do not sell cheap labor and do not sell natural resources with the ideal that it's going to sustain your economy forever. It won't. Look at Kentucky who had lots of natural coal. That was a huge industry. They have massive unemployment in Kentucky. In Mississippi, they had huge labor pools. All those businesses are located offshore now because they can get their labor cheaper some place else. And so do not try to attract big business with the idea of cheap labor. They can find cheap labor someplace else, or natural resources. Again, sustainable economies on natural resources. Yes, you can use your natural resource. Yes, you can. But the ideal of sustainable economies for generations to come, sooner or later those resources run out and the jobs are gone and you have no sustainability. So that's what you're looking at from large industry, don't bank on it for generations. Back to the entrepreneur.

One of the examples I liked that Joan used was this. And that was, the lease that takes twelve months to get and then the tribal chairman has to sign it in the end -- I know because I have to sign every one of those darn things. And I keep telling myself, ‘Why am I wasting my time signing this? Hasn't somebody looked over this and looked over this and looked over this? And what am I supposed to do, double-check everything? No. I sign it.' Well that was an extra two days, because it sat in my inbox for two days before I ever got to it. But you should have a department that takes care of that, is what you need instead of the tribal council having to. First it has to go to the Econ Committee, they have to approve it. That took two weeks before it got on their agenda. Then it has to wait for the next month for the tribal council to handle it. 'Well, I don't like that person,' so send it back. Then it comes back to tribal council again, they approve it. Well then it has to be a resolution, recorder has to record it, write up a resolution, takes two weeks, gets on my desk, sits there for another two days, I sign it. Then it has to go to the Bureau of Indian Affairs. How long does it take them to get anything done?

So when you're talking about sustainability, you have to make it simplistic as well, too. And so we talked yesterday about the idea of the Swinomish, I believe it was, and the county and having to work out the land management plan and having both of those sovereigns have applications. And who do they use? Swinomish, because it was simpler, took less time. So as you take a look at developing laws for business development on your reservation, putting in the predictability portion of that -- that's what your laws are, your laws are the predictability portion of it. When you put in your predictability, make them simple. Otherwise, business will go some place else.

How many of you have TERO [Tribal Employment Rights Office] offices? Almost everybody should have a TERO office. You know, I never knew what the heck the TERO office did before I took tribal office. And then I find out that I'm also the chairman of the TERO commission. And I found out what TERO means. TERO is: To Employ Relatives Only. It's not supposed to mean that. It's not. Truly, it is about enforcement of our rights, hiring our people, and it is about sustainability. That is, you take that tax dollars, that TERO fee, and it shouldn't just sustain the TERO officers themselves, but also provide some training. So that those contractors, when they come in, can hire trained people; is what it's supposed to be about. I found out that we had a million dollars in TERO fees that were sitting there and tribal council members were giving it to Housing Improvement because their aunt had an application there. And that's how they were using the money. They were using it as a slush fund. They would take a little bit of that money and they would give it to a program when one of their friends, relatives, constituents complained about something. They'd say, ‘I just stuck $10,000 in there. Go over there and get some of that money.'

And then I found out that they all got paid stipend, a hundred dollar stipend for every meeting that they had. And I'm the chairman. So first thing I say is this, ‘No more stipends.' I missed the next meeting and I missed the next meeting after that and they paid themselves stipends. ‘Well,' they said, ‘the rules, the regulations say that we get stipends. So even though the chairman said we can't get it, we're going to get it because the rules say we can. By the way, we make the rules.' And I'm the only person on that TERO commission who's never accepted a stipend. I won't, but they all do. And then the other thing they were doing is really interesting. They were calling all kinds of special meetings and I wasn't notified. So finally I called the director and I said, ‘When are we supposed to have meetings?' ‘The first Monday of every month, Mr. Chairman.' I said, ‘okay. Let me know ahead of time. You've told me when it is, write everybody.' I said, ‘Nobody calls a special meeting unless it has my signature on it.' So far that's working. But I understood why they were calling all these special meetings. You get a hundred dollars every meeting and mileage. So they would meet for half an hour, half an hour, one issue. The next week, they'd do it again. And the next week they'd do it again.

So yeah, some of these things that come into play in terms of why do council people like to sit on boards. And so rules like that need to change and you need to put in it some predictability -- that once-a-month thing, only the chairman calls a meeting, etcetera. I want to get the heck off of it, I really do. I've got other things I need to do. But if you leave here with anything, remember that what you're here for and what you really should be trying to do at your home, is to change the laws so that you can have stable economies that are predictable so that you can protect the rights of your people and your nation and better serve your members. Thank you."

Native Nation Building TV: "Promoting Tribal Citizen Entrepreneurs"

Producer
Native Nations Institute
Year

Guests Joan Timeche and Elsie Meeks examine the pivotal role that citizen entrepreneurs can play in a Native nation's overarching effort to achieve sustainable community and economic development. It looks at the many different ways that Native nation governments actively and passively hinder citizen entrepreneurship, and the innovative approaches some Native nations are taking to cultivate citizen-owned businesses.

Citation

Native Nations Institute. "Promoting Tribal Citizen Entrepreneurs" (Episode 5). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. 2006. Television program.

Mary Kim Titla: "Welcome to Native Nation Building. I'm your host Mary Kim Titla. Contemporary Native nations face many daunting challenges including building effective governments, developing strong economies, solving difficult social problems and balancing cultural integrity and change. Native Nation Building explores these complex challenges and the ways Native nations are working to overcome them as they seek to make community and economic development a reality. Don't miss Native Nation Building next."

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Mary Kim Titla: "Often when the subject of economic development in Native communities comes up, people think first of businesses owned and operated by Native Nations themselves. But there is another important economic force at work on reservations: businesses owned and operated by Native entrepreneurs. Today's program examines the state of citizen entrepreneurship across Indian Country, including some common obstacles standing in the way of small businesses, as well as the importance of creating an environment for success. With me today to discuss small business development in Native communities are Elsie Meeks and Joan Timeche. Elsie Meeks, an enrolled citizen of the Oglala Lakota Tribe is Executive Director of First Nations Oweesta Corporation, a subsidiary of First Nations Development Institute. She also serves as Chair of the Lakota Fund, a small business development loan fund on the Pine Ridge Reservation in South Dakota. Joan Timeche, a citizen of the Hopi Tribe, is Assistant Director of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. She also serves as a board member with the Tohono O'odham Economic Development Authority and the Hopi Tribe's Economic Development Corporation. Welcome and thanks for being with us today. Can you first talk about citizen entrepreneurship and what that really means?"

Elsie Meeks: "Currently, a lot of tribes themselves, the tribal government actually starts a business and runs it whereas in this case individual members of the tribe start their own businesses."

Mary Kim Titla: "And can you give some examples of that?"

Joan Timeche: "They range from very small to very large types of businesses. They are often what we call the underground economy that exists, the tailgaters, the people who sell food. These are people who are selling firewood, making tamales, all the way to the storefronts where you actually have a building, you have...maybe it's a gas station, maybe a video store, which is very common in rural, small communities. To ones -- as we're seeing our tribal economies become a little bit more sophisticated -- we're seeing things like individual owners, individual citizens who are building hotels and the bigger kinds of businesses that you find common...that are common in more of the metro areas."

Mary Kim Titla: "Really, this term 'entrepreneur' is something that we talk about today, but it really existed even before there were reservations. Can you explain that?"

Elsie Meeks: "Yeah, 'entrepreneur' is, for me, a term that means survival, that people figure out ways to survive. And we were always survivors, and we always made use of opportunities that were at hand. And today, that means we start our own businesses to figure out how we become self-sufficient. And so I think that really the concept -- we always were entrepreneurial-spirited. We may not have understood the principles of a formal business, but that's just the next step."

Mary Kim Titla: "So it's part of our traditions. But Joan, you say that, when we were talking earlier, that really this idea isn't common in all tribes."

Joan Timeche: "Yeah, I think the culture pays a lot of attention to whether or not an individual can be successful and whether it's acceptable within communities. There are cultures where it's more common, more acceptable for a community, and an individual maybe can't perhaps rise and although they may be a contributing member to the overall survival of the Nation or of that community, maybe perhaps it's not acceptable for him to go off and become -- in today's modern terms -- to become that business owner and accumulate personal wealth. So I think that plays a big difference. I believe that Elsie and I both come from communities and cultures where individual success is celebrated, we're taught to be self-sustaining members of the community. Across my reservation on Hopi, you'll see a lot of artisans, we have a lot of people who if they don't have a storefront, they have a portion of their living room that's dedicated to selling arts and crafts or whatever it may be that they're making. It varies across, but I know that there are tribes where that's not often the case, where they look to the chief, to the chair, to the government to be able to provide that kind of assistance and the services back out into the community. So I think culture plays a big role in determining whether entrepreneurship might be acceptable within a community."

Elsie Meeks: "But I think also -- culture aside -- I think some tribes have thought that economic development meant that they started their own business, and a lot of them haven't been successful even, and what's happened then is individuals have to find some way to make a living, so of course they start doing things like making and selling arts and crafts or selling goods or providing services. And so there is sometimes a tension between the tribe doing their business and the entrepreneur, and I can think of a lot of examples of where both have been done."

Mary Kim Titla: "What about just how critical these businesses are to helping their own communities thrive economically?"

Joan Timeche: "Well, for one thing, they provide a service or they can provide a product that is in demand at the local level. Another thing that they do -- which I think is very critical along the lines that Elsie was talking about -- is that it's no longer just the tribe that's doing the development. It also involves a greater number of people, because if you live in large communities like from where we both come from on expansive reservations, you know numbers count from one end of the reservation to the other, so it does that -- helps to keep the money on the reservation because as we all know...I think here in Arizona 80 cents of every dollar goes off the reservation. And so it's helping to keep that dollar to stay within the community."

Elsie Meeks: "Well, in particular at Pine Ridge, because we're very remote, and in truth the tribe has not done a good job at managing businesses...Businesses in my experience can't be run from a political viewpoint. They have to be run as a business. And I think we found that out in the Soviet Union. The whole economy failed because of the government being the one that ran the businesses. And so at Pine Ridge, really not one single [tribally owned] business has succeeded except the casino, and so individuals are the ones that are starting this tire repair shop or grocery store. Instead, before we were running a hundred miles to Rapid City and so it was very not efficient, it really got into our pocketbooks having to go outside. And so as you create one business and then another then you're keeping that flow of dollars in the community."

Joan Timeche: "And I think one other thing that we should probably add is that when tribes get into economic development, they're looking at job creation, jobs and dollars staying within the community, and this is what small businesses are good at, even if it's just a mom-and-pop store that's employing the husband and the wife -- that's two more jobs that have been created outside of federal dollars coming into the tribal government, transfer dollars. So I think that's the biggest asset to having a private sector within a reservation is the jobs that it can create over the long term."

Elsie Meeks: "Yeah, but I think there's also one other issue there that when the tribe creates a business and their main objective is to provide employment, we always hear our tribe at least saying, 'We have to do something to get jobs going.' You can provide a low-income job to an individual, but what does that really teach them? It may teach them how to work or whatever, but when you allow someone to get into business and manage their own business and reap the consequences for good decisions and for bad decisions, it teaches something about management and leadership and decision-making that just providing a low income job, which is what most of these businesses the tribes start do, that it really allows...I've seen people change completely at Pine Ridge when they had this ability to manage their own business, and that to me is the real key and the real reason why I believe that individual entrepreneurship, citizen entrepreneurship is the most important development tool we have at Pine Ridge."

Mary Kim Titla: "It's part of the American dream, right? Be your own boss, work for yourself and work hard at it. And of course, there's this whole learning process involved, and what we're talking about what's going on at Pine Ridge, this whole, in recent years anyway, this hotbed of small businesses and the development of that. Can you talk about what's been happening there and what do you think the key to success there has been?"

Elsie Meeks: "Well, in the first place it isn't so recent. We've been at this for 20 years at the Lakota Fund, and we really started with micro loans that allowed people to expand their businesses a little, buy more material for arts and crafts or buy a chain saw so they can cut firewood and sell to the Energy Assistance Program. So things like that is where it started, but as time has gone on and people have become more sophisticated about businesses and have sometimes failed, had to pay back loans when their business didn't work so well, but now they're at this point where they really are understanding. There's a group of people, enough, getting to be enough mass of people that understand that the only way they're going to make a living at Pine Ridge is to start their own business and for it to be successful, and that it's okay. I think that's a key thing, too, is that because there hadn't been a lot of businesses owned by tribal members, people really didn't know whether this was culturally appropriate or not, and I think people see now that we're all entrepreneurs and that if we can be successful, our families are going to be supported, too. So as a result of these 20 years, I don't think that there is, on Pine Ridge, I don't believe that there's not one non-Indian contractor for example on Pine Ridge, because they [the Oglala people] have understood that they can do this themselves."

Mary Kim Titla: "And Joan, you've worked with a lot of small businesses. Can you tell me about some of your experiences and what the trends have been lately?"

Joan Timeche: "It really builds self-esteem and self-confidence. I think that's one of the best outcomes out of individuals owning and operating their own business. Not only do they gain the management skills, but I've just seen, worked with individuals...I happened to be visiting the Warm Springs Reservation recently and we were looking at their small business development program and visited with a couple of entrepreneurs who had started their business underneath the program, and this young lady was a single mother and she had entered in the program and she was running a thrift shop and the pride that this woman had. Her business wasn't making millions and not even hundreds of dollars, but that pride that she had, that here she is an individual mother who can then contribute to her own family situation, to the children, and was providing a service within her community. It was just tremendous, and that's I think one other thing that I've been able to see out there. But some of the trends that we've been seeing as we've talked about is -- and Elsie eluded to them already -- you've gone from those who are doing it on a part-time basis who then decide that, 'I can do this, I can really do this, and maybe I need to expand beyond my living room, beyond my garage. Maybe I can start moving out.' But there are risks that are taken in here and some people get burned and they pull back a little bit and then they try again."

Elsie Meeks: "But that's part of life."

Joan Timeche: "Yeah, it is all part of life. But they're moving forward. So we're seeing greater services, but there's still a lot of work to be done out there."

Mary Kim Titla: "So you learn from your mistakes."

Joan Timeche: "Yes."

Mary Kim Titla: "A lot of people who are entrepreneurs and are successful now had very humble beginnings at some point, right?"

Elsie Meeks: "The one thing that I think people...because I was with the Lakota Fund for so many years and they say, 'Well, how many people failed?' And to me, that was not really the cas. That no one failed. They talk about successful people across the nation. How many times were they in a failed business? I think it was something like three-and-a-half times or something on average, and so you learn from your mistakes and you keep moving. I can think of one man at Pine Ridge who -- his first loan with the Lakota Fund was to buy a belly dump gravel truck and he had the money somehow, he had already bought the semi tractor. And so he just started out hauling gravel for the housing authority or whoever and now, I think the last I heard he was...his gross revenue was like over $2 million, he'd become AA certified. So it's just a matter of process and a matter of learning and pursuing this."

Mary Kim Titla: "There are going to be people out there listening to this and watching this wondering, 'Okay, I want to become an entrepreneur.' What are some obstacles they're going to face? I know that the business plan is a very important part of that process and a lot of people maybe don't always think that through, but in your experiences what have you seen?"

Elsie Meeks: "Well, because I was a lender at the Lakota Fund and I think I learned a lot about what really does create a failure and that is, it's management. And so the better you can be prepared to be committed to that business and learn from your mistakes. The business plan is important, but I myself started a business and I can tell you that the business plan is just a guess and it's once you get in business, businesses are about a thousand details and every detail you don't attend to costs you money. And so you have to be prepared to make as small a mistake as possible and dig deep every time. It just requires so much commitment. We've learned at the Lakota Fund that we actually have to know how committed that person is before we'll even give them a loan. The business plan -- almost any business there will work because there aren't many businesses. It's really in whether someone manages it well enough to make it work."

Mary Kim Titla: "And if they have a passion for it. They have to believe in what they're doing. Otherwise how are you going to convince potential clients, right?"

Elsie Meeks: "Right. And I don't want to hog the conversation, but I know when we first started the Lakota Fund, because people hadn't even had a chance to work in a business let alone run one, is people's concept of business was really, 'Oh, I can work for myself so I can work whatever hours I want, yeah, I'll have cash in my pocket.'"

Mary Kim Titla: "Flexibility, yeah."

Elsie Meeks: "That's right, and there isn't any flexibility and there isn't a lot of money. In fact some people would get out of business saying, 'I have more free time at a job than I do at a business and I make more money,' and that's especially true in the first three to five years. So it's helping to teach people those concepts and those principles that business isn't easy, it's just something that, it can get you, it can help you be self-sufficient and some people really do like working for themselves."

Joan Timeche: "I worked for eight years or actually ten years at Northern Arizona University, and I ran the Center for American Indian Economic Development there and one of my jobs was to help tribal citizens who were thinking about starting a business go through that whole process of -- basically I was a technical assistance provider, helping them -- matching them up with potential loans or banks who might be able to lend to them. Well, what I found was that people, one, didn't fully understand what it was that they were getting into, so you have to do this education process about, 'Are you really, do you really understand what starting a business means?' But the other was understanding the tribal political environment and the tribal processes. Where do you go to start? And if you live in communities where it's decentralized and the power's at the local level -- like on Hopi, on Navajo, on Tohono O'odham, and I would imagine on Oglala Reservation as well -- you have local controls and approvals that you have to go through. If you have clan systems like in my community, we have clan holdings so now we have to get approval from our clan matriarchs and patriarchs, we've got to go to our village, before the tribal government even comes into play. So processes is one, understanding that and if you have...I know of one tribe in Arizona that has more than 100 steps to even start a business and it takes, it was taking my clients an average of two years. You could get through in one year but an average was about two years to even start a business and that just is outrageous. Then the other thing, the obstacle that they had to overcome was securing a land base, particularly if they were going to start a storefront [business]. And this is why people opt to go to doing the vending type of businesses where it's mobile and you don't have to worry about land base. Well, again, if you come from traditional families like I do, we have clans to go through first again. Navajo, it's chapters, on Tohono O'odham, it's district approvals and all of the land is tied up and very few communities have land-use plans in existence. They practiced it traditionally, but they don't have it on paper, which is now required for all of the right-of-ways that you have to get for electrical, infrastructure and all that. Then the next problem they had was, well, we're on raw land in many cases, so then you have the infrastructure issues to have to deal with, which can double the cost of starting a business. Those are just some of the basic obstacles that I think entrepreneurs have to face on the reservations. Then when they get to the loans, then they're on federal trust land and you can't encumber the loan, your area, you can't leverage it."

Elsie Meeks: "Which is, I think, almost on any reservation, land will be probably the number-one obstacle, but the next I think is financing because a lot of the people that we work with at Pine Ridge -- and First Nations Oweesta Corporation is now helping 70-plus tribes start organizations like the Lakota Fund to allow entrepreneurs to get financing. You can't finance someone if they don't have the experience in a business, and so that's where community development financial institutions like the Lakota Fund had come about, is that they're willing to take that risk. But financing is the second key issue for an entrepreneur and then these policy issues around land. So at Pine Ridge we actually, we've had 20 years at this now to kind of solve some problems or at least understand the process for solving them, is how do you build that capacity with the entrepreneur? And we started Wawokiye Business Institute, which is really client-centered. It just focuses completely on the entrepreneur and Oglala Lakota College has been a partner in that. And then they started the Pine Ridge Area Chamber of Commerce, which try to work with the tribe in dealing with some of these land issues and some other tribal policies and then the Lakota Fund for the financing. So it's, I think, looking at it in a sort of systematic way and that's what we've begun to do at Pine Ridge. After 20 years, I think we've finally figured this out a little bit. But the obstacles are hard to get through and it takes a lot of effort from a lot of people and I think entrepreneurship really is in the beginning stages."

Mary Kim Titla: "You really have to persevere. I guess you could look at it as an outsider. It's very unique in that there are a lot of similar situations to a non-Native trying to start a business, but you have also unique circumstances that you have to deal with. So I appreciate you sharing all of that. You talked about as long as a year to two years starting a business on a reservation. But really tribal governments want to see you succeed, right? So why don't we talk about that a little bit, what some tribal governments are doing to try to help private citizens become successful."

Joan Timeche: "What we're beginning to see and hear a lot more about are tribes who've taken this two-pronged approach to development. One, where it's not just a -- Elsie talked about this earlier -- where it's tribal enterprises that are owned and operated by the nation itself and then there's private sector development, citizen entrepreneurship. But it requires some things, things like making sure you have sensible regulation, even having a standard process, a basic process of, if you want to start a business on our reservation, here are the steps, here's where you start at, here are some forms you need to know about, here are the rules within which you have to learn. We have a code that addresses maybe signage. We have a code that addresses land use and the process and so on, codes there and making sure that they have a uniform commercial code in existence. There are very few nations across the country that have that, because then it levels that playing ground for outside investors to be able to come in to help finance. If you don't have your own local CDFI [community development financial institution], then you're going to look to outside investors. Things like making sure infrastructure is addressed as well. And again because that's an insurmountable cost that has to be borne by an individual, sometimes it's a whole lot easier if the nation itself can -- in its land use plan -- set aside pieces of property that can be designated for commercial development, and then it's easy for the government to go after those grants to then build the water, the wastewater, the electrical, all of those things, even to do the paving of it and so on, and so all they're doing is then leasing out space to individual entrepreneurs."

Elsie Meeks: "When the Lakota Fund was started, we weren't started by the tribe. We were started by a group of tribal members, tribal citizens. But now there are a number of tribes that have actually helped to form these community development financial institutions like Cheyenne River in South Dakota, Gila River is working on this in Arizona. At Cheyenne River, they funded that to get that started, they provided the funding, but then they spun it off as an independent entity, because financing entities really need to be independent from the tribal government so they can be free to make good loan decisions and all of that and bring in outside money. So there's a number of tribes that are now seeing entrepreneurship as an important tool in economic development, that they don't have to do it all, that individuals can play a role."

Joan Timeche: "There's one other thing, too, that I think is real critical as your tribes begin to get into development at the private sector and it's making sure that you have this efficient and effective dispute resolution mechanism in place, whether it's through traditional courts or through a formal court or whatever, because there are surely going to be more business types of court decisions that have to be made or disputes that have to be addressed and you don't want to always be in court all of the time. So there has to be a mechanism in place and that's something that the government can help set up and create, to create this conducive environment."

Elsie Meeks: "And many of the tribes' court systems really are not efficient and they're not separated from the executive board or whatever. And at Pine Ridge that's true. There are plenty of obstacles at Pine Ridge. Entrepreneurs find a way to deal with that usually but I do think -- through all the businesses that are getting started -- they see now that the tribal court system isn't adequate and so now they're really at this point where they're starting to address that and talk to the judicial committee about that. And it hasn't changed yet, but I absolutely think it will over time and it's because of these businesses and the effect that the current system has on their businesses. So I think it's had a real good practical outcome."

Mary Kim Titla: "And creating a business environment is really crucial I think to the success of entrepreneurship on Indian reservations. I know that at least on the San Carlos [Apache] Reservation, the tribe built a strip mall with the idea of private individuals coming in to lease these spaces, office spaces or retail spaces, which I thought was very smart because a lot of people...just starting up a business is hard enough and then to have to create and build your own building makes it, I think, even more challenging. So I think that with tribes trying to do that more helps that whole positive environment. Are you seeing that more?"

Elsie Meeks: "Yes, absolutely. And the businesses at Pine Ridge helped to start the Pine Ridge Area Chamber of Commerce as I said. To date when we start a business, we lease a piece of ground, we put the water and sewer on it and build the building, even though the tribe may own the piece of ground. So over the last few years, there's been a lot of businesses start on tribal ground and the tribe decided it was time to look at what their commercial rates were, which was fine except that they based it on something that was totally on a per-square[-foot] lease rate in Rapid City and it was totally...it would raise people's rates 1,500 percent or something, and because these businesses, through the Chamber of Commerce then went to work and lobbied their council members, when it came to the council floor, the council members got up and said, 'This is really anti-business.' And so that was just a wonderful outcome of the businesses themselves making, addressing some of those barriers."

Mary Kim Titla: "We really appreciate you joining us today. We've gone through some I think wonderful examples of what's out there and given a little bit of advice and some tips to people who might be wanting to start their own businesses. Thank you so much for being with us today, appreciate again your being here and your thoughts. I'm sure that it was helpful to a lot of people who are listening. Elsie Meeks and Joan Timeche, I'd like to thank you once again for appearing on today's edition of Native Nation Building. Native Nation Building is a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Native Nation Building and the issues discussed on today's program, please visit the Native Nation's Institute's website at www.nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."