Burned timber does not keep. Within a month, insects had moved into the dead and dying trees. Once the insects are in, commercial mills stop buying the wood, and the longer fire-killed timber stands, the more dangerous it becomes to recover. The tribe’s board of directors declared an emergency to speed the work. Tim Vredenburg, the tribe’s director of forestry, described it to me as a race against time.

The tribe believed its existing self-governance compact already covered the work, and it notified the Bureau of Indian Affairs (BIA) that it would begin the recovery.2 The BIA issued a cease-and-desist order. The tribe could not touch the wood until the full administrative approval process had run its course. That took eight months. Throughout the fall of 2019 and into the spring of 2020, the insects kept working while the paperwork moved along.

By the time the BIA cleared the tribe to proceed, much of the wood was past the point where any commercial mill would buy it. Cow Creek Umpqua had a way to recover it anyway. It had already entered a demonstration project, a trial run that Congress authorized in a 2016 law, the Indian Trust Asset Reform Act, or ITARA. By December 2020, its own management plan had won federal approval, giving it new authority to manage its trust forest. Using that authority, the tribe did what the delay had all but forced: it sold the insect-damaged wood to its own operation and bought a portable sawmill to process the wood that commercial mills would no longer take.

Some of that recovered wood now sits inside the Portland International Airport. In the terminal’s remodel, Cow Creek Umpqua timber became decorative lattice walls, ceilings over the retail spaces, and the linings of the privacy booths at the TSA screening area.3 A carved wooden sign on one of those lattice walls credits the tribe’s Douglas fir. That sale, Vredenburg believes, was probably the first timber sale anywhere in the country that a tribe approved on its own authority, with no federal sign-off.

The wood in the airport is the visible part of this story. What matters more is the eight months the tribe spent waiting for permission. As Vredenburg put it, even when the federal government is moving as fast as it can, it is still very slow.

I asked him where the delay had come from, back before the tribe held its own authority. Was it the BIA’s processing time, or was it the tribe’s own capacity, the staff and systems a tribe has to build to run a forest? His answer was one sentence. It was the BIA’s processing time. The agency, he said, is overworked and underfunded.

Under the older compact, the tribe could administer its forestry program, but, by his count, eighteen separate forest-management functions still required the BIA to sign off.4 In practice that meant preparing a project locally, a timber sale or a thinning plan, then sending it to the Bureau’s regional office in Portland, well to the north, for approval by staff who, in Vredenburg’s words, were not familiar with the land, the community, or the tribe’s values. That regional office carries about 48 tribes with a small staff. The bottleneck was never the tribe’s ability to manage its forest. It was the number of times someone else had to approve the managing.

There is a subtler point here, about how success itself was measured. Under the old process, Vredenburg said, what mattered was whether a program had followed the steps correctly, not what happened on the land. Under its own plan, the tribe judges success at home, by what actually happens on the land.

ITARA replaced those eighteen separate sign-offs with a single plan. A tribe writes it, gets it approved once, and then manages on its own authority.5

The difference showed quickly. George Smith, a retired BIA chief forester who has helped the tribes that entered the program, went back through the numbers for me: three months after the plan was approved, Cow Creek Umpqua had six timber sales in final preparation and had approved four of them on its own authority. Under the old process, by his estimate, those sales would have waited six months to a year for federal approval.

With that authority, the tribe has run prescribed burns and created fuel breaks, strips cleared of vegetation to stop wildfire from spreading. When another wildfire came through, those fuel breaks held, protecting not only tribal land but a nearby town. The tribe’s fuels-reduction work has guarded its neighbors and their infrastructure as much as its own ground.

The cost of getting there was real, but by Vredenburg’s account the tribe made it back fast. Whatever it spent building its plan and qualifying for the program, it recovered in the first year, he told me, in the first months, through the efficiency it gained. And this is not a story about less oversight. The work receives more environmental review than it did before, he said, not less. What changed is who does the reviewing, and how well they know the ground.

An earlier post here counted how few tribes have managed to get into this program at all. This one is about what the old approval process cost one tribe, and what changed once the tribe’s own plan took its place.

On June 22, 2026, the day the demonstration project would expire, the Interior Department extended it for ten more years, to 2036.6 That matters, because every management activity Cow Creek Umpqua has planned now runs on this authority, and a lapse would have halted that work heading into fire season.

But the extension is an administrative act, not a permanent one. A future Secretary could decline to renew it in 2036. The bill that would make the program permanent has had its hearing in the House but, as of this writing, awaits a committee vote and has no companion in the Senate.7

Smith also told me about a tribe that nearly ran out of time. It had worked through the entire process and was waiting for final approval as the June deadline arrived. More than a month later, it is still waiting: the issues have been resolved, and the plan now needs only the signature of the Assistant Secretary for Indian Affairs, a signature Smith says takes considerable time to secure. The people on both sides have been flexible and helpful, he told me, and he expects approval soon. The process is what takes the time.

Cow Creek Umpqua fought its fire twice. Once in the forest, and once in the eight months it spent waiting for permission to clean up after it. When the permission was finally the tribe’s own to give, the work moved at the speed the land demanded. The constraint was never the tribe.

Before 2013, the public offices and schools on the Colville Reservation could not do the everyday online tasks most Americans took for granted. They shared a few T1 lines, an older kind of business connection that carried about 1.5 megabits per second. At that speed, a video call would freeze, a short video would not play, and a large file could take many minutes to send. Major carriers had judged the Colville reservation, 1.4 million acres of rugged country in northeastern Washington, too costly to wire, and they declined to build.

So the tribe wired the reservation itself. To carry a signal across 2,100 square miles of ridgelines, Colville ran fiber-optic cable to three mountain summits and beamed the signal the rest of the way by radio, from one relay to the next and then down to each building. Solar panels and wind turbines powered the relay sites where the electric grid did not reach. In 2013, the first connections reached tribal offices, schools, and community centers at 100 megabits per second, more than sixty times faster than before and fast enough to run video calls, transfer records between offices, and keep dozens of people online at once.1

Prad Sharma and I set out to measure the network’s impact on the reservation’s economy.2 The hard part is that you cannot see what Colville’s economy would have done without the network. So we built a comparison.

We built that comparison from other reservations in Washington, Oregon, Idaho, and Montana, combining them in proportions chosen so that the combination tracked Colville’s income and employment almost exactly through the years before 2013, the years before the network went in. That weighted combination, which we call synthetic Colville, stands in for the Colville that never got the network. After 2013, the real Colville and synthetic Colville pulled apart, and the size of that gap is our estimate of what the network did.3

The gap is large. After the network came on, income per person among the reservation’s American Indian residents was about $5,500 higher than in synthetic Colville.4 In the same comparison and over the same period, Colville’s labor force participation rate, the share of working-age adults either working or looking for work, was 10.3 percentage points higher, and the share who actually had jobs was 6.1 points higher.

A second approach points in the same direction. Using annual tax and business records for the reservation’s communities and for nearby areas the network did not reach, we tracked how each area moved after broadband arrived. Income reported per tax return and wages both rose soon after. Paid jobs at local businesses rose too, a little more slowly.5

Where did the gains come from? Not from homes, and not from people moving to the reservation. Very few households ever got their own connection; almost everyone accessed the internet through the reservation’s public buildings. Measured home subscription bears that out, staying flat relative to comparable reservations, and Colville’s population did not grow relative to synthetic Colville.6

The evidence on where the gains came from points to those same public bodies, whose work is exactly the kind that a fast connection speeds up: coordinating across long distances, moving records, and processing applications. In the county that holds the tribal administrative center, the number of government jobs rose from about 3,850 before the rollout to about 4,266 afterward, an increase of more than 400. In contrast, the neighboring county, which does not hold the administrative center, showed no such change.7 And the share of Colville’s working residents in wage or salaried jobs was higher than in synthetic Colville, a shift away from working for oneself. With business employment rising as well, the gains were not limited to public offices alone.

Building the network cost about $3.5 million. Weigh that against the income gains, even counting those gains cautiously, and the benefits come to several times the cost.8

This is the part worth dwelling on, because it is why Colville matters beyond Colville. The gain is large and real, and it landed where the need was greatest. But that gain required something most places never manage: building the network in the first place.

Colville had the ability to design a network for terrain the carriers had refused, to pay for it, to put relays on mountaintops, to power them with sun and wind, and to put the network to work in its own offices the day it switched on. That ability was never the problem. What stood in the way was everything around the build. To lay cable and cross land, the tribe needed approvals from county, state, and federal authorities, all at once. And the basic economics were against it, the same economics that had driven the carriers off: too few customers spread across too much ground.

Colville got through all of it. In most places, those same obstacles, the stacked approvals and the thin-market math, stop the network from ever being built. The barrier is the obstacle course, not the people running it. This is one tribe, not a general estimate, but it is an unusually clean case. It points in the same direction as the other federal programs I have written about here, one on tribal [forest management](https://rulesandresults.substack.com/p/itara-ten-years-three-tribes) and one on [land leasing](https://rulesandresults.substack.com/p/why-73-of-tribes-cant-use-a-law-designed): what holds reservation economies back is the system around them, not the tribes themselves.

None of this is abstract right now, because there is new money on the table. On June 17, the National Telecommunications and Information Administration (NTIA), the federal agency that runs tribal broadband programs, opened about $790 million in new tribal broadband funding, with applications due September 17.9 That money can pay for equipment and construction. What it cannot do by itself is get past the approvals and the thin-market economics that keep these networks from being built in the first place.

Colville did not wait for any of that to change. When the phone and cable companies would not build across 2,100 square miles of mountains, the tribe secured approvals, ran fiber to the summits, and powered the relays with solar and wind. The same money will buy less than what Colville built wherever those obstacles are left standing.

Today, 73 private docks and 124 private mooring buoys cover the Tulalip shoreline. Many were built without tribal permission. Tulalip’s own Natural Resources Department documents the consequences: water quality has fallen, salmon populations have fallen, and shellfish beds have closed.

In 2019, Tulalip asked the federal government for the authority to manage their own shoreline. The federal government said no.

In 2023, they asked again. The federal government said no.

What the Statute Says

The vehicle Tulalip was trying to use is the Indian Trust Asset Reform Act of 2016 (ITARA), which established a 10-year demonstration project, a trial program meant to test whether tribes could manage their own trust assets.

Trust assets are tribal property held by the federal government on behalf of the tribe. Most tribal land, water, mineral, and forest resources fall in this category. Under federal law, most decisions about trust assets require federal approval. ITARA was passed to change that for tribes that wanted more direct authority over their own resources.

A tribe applies to participate in the demonstration project. It then drafts an Indian Trust Asset Management Plan listing the trust assets it wants to manage. Once the plan is approved, the tribe manages those assets without a case-by-case federal sign-off.1

The statute does not define what counts as a “trust asset.” The first required element of any management plan is to “identify the trust assets” that the plan will manage.2 The statute leaves the identification to the tribe.

The Department of the Interior reads the same statutory phrase, “identify the trust assets,” differently. Beginning in 2018 and remaining in effect today, the Department has told tribes that the demonstration project covers only forestry resources and surface leases, and nothing else.

That reading is the reason Tulalip was told no. Tidelands, fisheries, shellfish beds, water rights, and other trust assets that tribes hold under treaty or federal statute are not, in the Department’s view, what the program covers.

The program expires June 22, 2026, ten years to the day after it became law. The expiration matters because the statute itself, as Congress wrote it, allowed broader use than the Department has permitted. If the program ends, the broader authority Congress passed ends with it. Whatever interpretation the Department has settled on becomes final.

Three tribes have approved plans. Two more have publicly engaged, one with a pending application and one (Tulalip) rejected on scope grounds. Fifty of the fifty-five member tribes of the Intertribal Timber Council have no public record of engagement with the program.3

The Path to Approval

Approval was not automatic, even for tribes whose requests fit the Department’s narrow scope. The process took years.

ITARA was signed into law in June 2016. For more than a year, the Department did not act on the demonstration project. The Intertribal Timber Council wrote to the Secretary in October 2017, requesting action, and a formal consultation process continued for another year. The Demonstration Project was formally established in October 2018.4

A tribe seeking to participate had to complete several steps in sequence: apply for selection, develop a forest management plan, draft an Indian Trust Asset Management Plan, and develop tribal regulations governing asset management. Each step required a separate sign-off from the Department.

The Coquille Indian Tribe of Oregon was the first to complete this process. It was selected in February 2019. It submitted its plan in June 2020. The plan was approved in October 2020.5 Four years and four months had passed since ITARA became law. Part of this gap reflects Department processing time. Part reflects the cost to tribes of preparing applications and developing management plans without dedicated federal funding for the work. The cumulative effect, however, is that the demonstration project did not produce its first approved plan until more than four years after enactment.

Guy Capoeman, President of the Quinault Indian Nation, has written directly about why the early years took so long. The Bureau of Indian Affairs, the agency within the Department that handles tribal programs, “showed little interest in implementing ITARA” until tribes pushed for action. Many of the responsible federal staff, Capoeman wrote, “failed to embrace, and some even resisted” the program.6

Who Got In

The Intertribal Timber Council represents tribes with active forestry programs and trust forested lands. The Council has advocated for ITARA at multiple Congressional hearings and in formal correspondence with the Department of the Interior, including its April 29, 2026, letter to Secretary Burgum.7

In the ten years since ITARA became law, three of the Council’s fifty-five member tribes have completed an Indian Trust Asset Management Plan (ITAMP): the Coquille Indian Tribe of Oregon in October 2020, the Cow Creek Band of Umpqua Tribe of Indians in December 2020, and the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians between mid-2024 and August 2025.8 The Quinault Indian Nation sent a letter of interest in 2021. The Department took more than two years to respond. Approval to proceed arrived in 2023, and Quinault is still working through the multi-step approval cascade.9 The Tulalip Tribes were told that the trust asset they identified did not qualify. The remaining fifty tribes have no public record of engagement with the program.

The structural argument here is not that all fifty have tried and been denied. ITC’s data suggest that many of the fifty may have existing forestry management arrangements through other federal authorities, reducing their incremental need for ITARA. The argument is about the five that did engage: only three were approved, one is waiting, and at least one (Tulalip) was rejected because the Department interpreted “trust asset” narrowly enough to exclude the very resources the tribe holds under treaty.

Tribes considering ITARA faced a structural disincentive that compounded the scope problem. The Department took four years to launch the demonstration project. By the time the first plans were approved in 2020, only six years remained before the program’s June 22, 2026, sunset. A tribe deciding whether to build the institutional infrastructure ITARA requires was being asked to invest in authority that might not exist past 2026, with no public commitment from Congress or the Department that reauthorization would come.

The first two plans were approved within two months of each other. The third arrived nearly four years later.

For comparison, consider Tribal Self-Governance Compacts under Title IV of the Indian Self-Determination and Education Assistance Act (ISDEAA). These compacts let tribes administer Department of the Interior programs directly. More than 300 federally recognized tribes participate in self-governance under Title IV, covering hundreds of millions of dollars in federal program funding annually.10

ITARA rests on the same statutory tradition of tribal self-determination as Title IV. But where Title IV produced widespread engagement, ITARA produced three approved plans. The contrast is not about tribal interest. It is about whether the implementing agency’s reading of the law leaves anything for tribes to use.

The Structural Pattern

The Department’s narrow reading is the immediate cause of the bottleneck. The broader pattern is one I have written about before. Congress passes a statute authorizing tribes to manage something themselves. The implementing agency interprets the authority narrowly, underfunds the transition, or simply does not act. Few tribes use the authority Congress passed.

The pattern is general. Earlier this month, Southern Ute became the first tribe in twenty-one years to secure federal approval of a Tribal Energy Resource Agreement (TERA), a 2005 statute that allows qualified tribes to manage energy leases on tribal land without case-by-case Secretarial approval. Energy leasing covers oil and gas, coal, uranium, wind, solar, geothermal, and biomass projects on tribal trust lands. One tribe in twenty-one years.11

In March, I wrote about the HEARTH Act, which lets tribes manage surface leases on their trust lands without case-by-case federal approval.12 The statute did not appropriate funds for the administrative work tribes need to take advantage of the authority. Most tribes have not used it.

ITARA fits this pattern with a particular variant. The statute does not narrow the types of trust assets a tribe can bring into a plan. The Department of the Interior did, beginning in 2018. The statute leaves the identification to the tribe. The Department decides which identifications to accept.

Congress wrote an open authority. The Department closed it.

Who Is In, Who Is Out

The Department’s narrow reading sorts tribes by the type of asset they want to manage. Tribes whose trust assets are forestry resources or surface leases are inside the program. Tribes whose trust assets are anything else are outside.

For tribes inside the scope, ITARA extends the authority that tribes already exercise over their forests, but with a meaningful upgrade: management decisions move from a multi-step federal approval cascade to direct tribal authority. The 2023 Indian Forest Management Assessment Team (IFMAT) report found that approximately 80 percent of tribal forested trust lands are already managed by tribes themselves under self-determination contracts (Title I of P.L. 93-638), cooperative agreements, or self-governance compacts.13 ITARA removes the case-by-case BIA sign-off that those arrangements still require.

For tribes outside the scope, the question of capacity does not arise. The exclusion is not based on what tribes can do but on the Department’s view of which assets qualify. The Tulalip Tribes’ tidelands are the named case. The Intertribal Timber Council has confirmed at least one additional rejection on the same grounds. The tribe’s identity is not disclosed because ITC protects member confidentiality unless tribes themselves authorize disclosure.14

What Congress and the Secretary Can Do

H.R. 5515, the pending bipartisan bill from Representative Hurd of Colorado and Representative Randall of Washington, would do two things. First, it would make the demonstration project permanent, ending the sunset on June 22, 2026. Second, and more importantly, it would add a statutory definition of “trust asset” that explicitly includes “trust lands, natural resources, trust funds, or other assets held by the Federal Government in trust for Indian tribes.”15 This addresses the scope problem: with that definition in statute, the Department could no longer narrow the program to forestry and surface leases alone. The Department of the Interior submitted a Statement for the Record to the House Subcommittee on Indian and Insular Affairs in November 2025, supporting the bill’s intent.16 The Intertribal Timber Council submitted its own letter of support, naming in the public record that tribes have been denied participation for trust resources outside forests and surface leases.¹⁷

There is also an administrative path. Section 203(d)(2) of the existing statute authorizes the Secretary of the Interior to extend the demonstration project. The Intertribal Timber Council wrote to Secretary Burgum on April 29, 2026, requesting that he exercise this authority.17 Extension by itself does not change the scope; it preserves the program long enough for the scope question to be answered, whether by H.R. 5515 or by the Department changing its own interpretation. For tribes currently operating under approved plans, including Cow Creek, the alternative to extension is disruption: ongoing management activities authorized under ITARA would face an uncertain legal foundation.

A statute amendment is more durable and addresses both the sunset and the scope. An administrative extension can be granted by a single Cabinet decision and addresses the sunset alone. Both paths face the June 22, 2026, deadline.

The Cut

In 2016, Congress passed a law that let a tribe identify which of its trust assets it wanted to manage. The statute did not define “trust asset” or list which assets could be included. In 2018, the Department of the Interior decided that the term covered forestry resources and surface leases. Five years later, after a change of administration, the Department made the same decision. On June 22, 2026, the program expires.

Tulalip asked to bring its tidelands inside an Indian Trust Asset Management Plan. The Department said no. At least one other tribe was told the same. The tribes whose trust assets are not forestry or surface leases will not have a chance to ask before June 22, unless either H.R. 5515 becomes law or the Secretary acts under Section 203(d)(2).

Tribes whose trust assets the Department reads to qualify can use what Congress passed. Tribes whose trust assets the Department reads not to qualify cannot. That is the cut.

The tribe was on the hook. The Indian Health Service is not authorized to treat non-Indians, and a man in tribal custody had to be treated. A third-party medical negotiator brought the billed amount down to about $10,000. The Quapaw Nation paid out of general revenue, the same fund that pays for road repair.

The medical bill is one cost of exercising what Congress calls Special Tribal Criminal Jurisdiction, the narrow authority for tribes to prosecute non-Native defendants for certain crimes. The federal government did not anticipate this category of expense. It is not covered by the $520,000 three-year grant that runs Quapaw’s program.1 It is not covered by the $3.2 million reimbursement pool that thirty-one implementing tribes share.2 Last year, Quapaw spent about $1,000 in total medical costs for non-Native defendants. The year before, ten times that on a single ER visit. “You can never budget for somebody having a heart attack in jail,” Corissa Millard, the Quapaw Nation court administrator, told me.3

I called her because no public source tells me what implementation actually costs. The BIA office that supports tribal courts conducts tribal court assessments, but those assessments belong to the tribes that commission them and are not collected centrally or published. After thirteen years of authorizing this jurisdiction, the federal government has not produced a public accounting of what tribes spend to use it.

In my last post, I argued that Congress keeps giving tribes powers they cannot afford to use. The numbers are stark: 17 tribes have implemented enhanced sentencing under the Tribal Law and Order Act (TLOA) since 2010,4 31 have implemented Violence Against Women Act (VAWA) special criminal jurisdiction over non-Native defendants since 2013,5 and 88 reservations have used the Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH)Act’s expedited leasing process since 2012.6 The numbers look small set against the 347 federally recognized tribes in the lower 48.7

This post tells the story from one tribal court’s books. It also explains who has adopted and who has not. Of the 347 federally recognized tribes in the lower 48, only one group has adopted VAWA jurisdiction in any meaningful numbers, and one group has not adopted at all. Of the 31 tribes that have adopted VAWA special jurisdiction, none are tribes subject to Public Law 280 (a 1953 statute that transferred criminal jurisdiction over many tribes to state governments). The probability of observing this split by chance is roughly three in one hundred million.8

What follows is what the practitioners told me, what the data confirm, and what the next reauthorization could fix.

What “adopting” actually means

Some background is useful here. Since the Supreme Court’s 1978 ruling in Oliphant v. Suquamish Tribe, tribes have no criminal jurisdiction over non-Indians. The default rule is that a non-Native person who commits a crime on tribal land, including assault, domestic violence, or worse, against a Native victim, can be prosecuted only by the federal government or, on Public Law 280 land, by the state. Federal prosecutors decline more than half of violent cases referred from Indian Country.9 The state alternative is no better: in the most thorough study of Public Law 280 jurisdictions to date, residents on PL 280 reservations rated state and county law enforcement as less available, slower in response time, and less responsive to community priorities than residents on non-PL 280 reservations rated their federal and tribal officers.10 Tribes have watched serious crimes against their own people go unprosecuted for nearly half a century.

Special Tribal Criminal Jurisdiction is a narrow corrective. VAWA 2013 created an exception for non-Native defendants in domestic violence cases on tribal land. VAWA 2022 expanded the exception to additional covered crimes, including child violence, sex trafficking, sexual violence, stalking, and obstruction of justice. It does not cover assault outside a domestic relationship. It does not cover property crimes. It does not cover civil matters. It is a narrow exception to the Oliphant default, and it is the only criminal authority over non-Indians that most tribes can exercise.

When a tribe adopts Special Domestic Violence Criminal Jurisdiction, it does not apply for federal approval. There is no application. There is no federal sign-off. There is no registry. The tribe posts its codes publicly, meets the federal procedural minimums, and then declares that it will exercise the jurisdiction. Prosecution follows. Whether the tribe has met the federal procedural requirements only gets tested when a defendant challenges the tribe’s authority on appeal. Compliance is what Jennifer Cross at the Bureau of Indian Affairs calls “an affirmative defense.”11 The tribe has to prove it after the fact, not before. Federal oversight stops at design. Implementation belongs to the tribe.

Millard put it directly: the legal declaration was simple, once they figured out it could be done as a tribal council resolution. “We were all just overthinking it,” she said. The hard part comes before and after: building the court system that can sustain prosecutions, and absorbing the costs the federal government does not cover.

The lack of federal oversight is also why nobody has a definitive count. The two non-federal sources that track adoption, the Tribal Law and Policy Institute and Sidorsky and Schiller, agree on 31 Special Domestic Violence Criminal Jurisdiction (STCJ) adopters and 17 TLOA implementers. Both depend on tribes voluntarily reporting, so the actual current figures are probably higher. No federal entity publishes either count.

Before a tribe can exercise the jurisdiction, the following must be in place:

An established tribal court system.

Bar-admitted, law-trained judges. What that means in practice, Millard told me, is that “you can’t have the local businessman be a judge.” The federal procedural minimums require judges who have passed a state bar.

Defense counsel willing to practice in remote tribal courts. Cross said this is one of the most common practical barriers. Non-Native defendants have a federal right to counsel. The tribe must find that counsel.

Codes drafted at attorney hourly rates to incorporate the new VAWA 2022 covered crimes, including codes for child violence, sex trafficking, and obstruction of justice.

Public access to those codes.

A jury pool that meets the federal cross-section requirement.

Each of these is achievable. Each costs money. The federal grant does not cover these costs, so the tribe pays them from general revenue, which for many tribes is small.

Seventeen tribes have built the institutional stack for TLOA-enhanced sentencing. Thirty-one have built the additional layer required for STCJ. Most tribes have built neither.

So what convinces a small tribe to take this on? Millard’s answer was direct: if the tribe does not prosecute, the question is whether anyone else will. The state may decline. The federal prosecutor may decline. A domestic violence victim whose abuser is non-Native could fall through the jurisdictional gap entirely. For some tribes, adopting STCJ is the only way to ensure that someone has the authority to act.

The hundred beds problem

VAWA 2022 raised the maximum tribal sentence to three years per offense, with sentences for multiple offenses tried together capped at nine years total. Tribal jails are short-term facilities, designed for sentences of months, not years. For anything longer, tribes rely on the federal Bureau of Prisons.

The Bureau of Prisons (BOP) allocates a total of 100 beds for all implementing tribes nationwide.12

The program is at full capacity, and the waiting list to place someone in one of those beds runs for about eighteen months.

The largest implementing tribes are Cherokee, Muscogee, and Chickasaw Nations, whose tribal court caseloads expanded sharply after the Supreme Court’s 2020 McGirt decision returned criminal jurisdiction over much of eastern Oklahoma to tribal authority. They fill those beds quickly.13 A small tribe that wins a conviction on a serious offense and sentences the defendant to three years has two options: hold him in the tribal jail at $50 per day for as long as it takes for a federal bed to open up, or release him.

Eighteen months at $50 per day is roughly $27,000 per defendant. That is the cost a tribe absorbs if it holds someone for the full federal wait. The math is what makes some tribes choose release over conviction.

The 100-bed cap shapes adoption in a less visible way as well. According to the most recent public tracking by the Tribal Law and Policy Institute, only three of the seventeen tribes that have implemented TLOA enhanced sentencing had actually placed a defendant in the Bureau of Prisons.14 The reasons are not separable from the data. Some of these tribes may not have had cases that warranted a multi-year sentence. Others probably have those cases but cannot face the wait, and have decided that long sentences are impractical to impose. Either way, the Bureau of Prisons (BOP) is not functioning as the back end that the federal design assumes. Most tribes that have built the TLOA infrastructure are not using the federal prison system to serve sentences.

Quapaw has asked the federal government to raise the cap from 100 to 300. That requires an act of Congress. Quapaw’s broader position, raised in federal tribal consultations, is that the BOP should have administrative authority to scale beds based on caseload. A federal court does not ask Congress for permission each time the docket grows. A U.S. Attorney’s office does not stop indicting because the federal prison system is full.15

The BOP bottleneck did not exist by accident. When TLOA was being negotiated in 2010, the federal government had to decide how to handle longer tribal sentences. Federal facilities were the obvious answer. Setting the bed cap at one hundred was the cost-control mechanism. It became, in practice, the adoption-control mechanism. A tribe that wants to use TLOA’s sentencing authority for serious violent offenders is on notice that the federal infrastructure to back that authority is rationed.

Charles Addington at the BIA put the federal capacity gap in stark numbers. About 200 tribal law enforcement programs serve 575 tribes. Crime scene response times in some places run four to six hours. Violent crime on reservations averages roughly twice the national rate; on the worst-affected reservations, it runs thirty to forty times higher.16 Against that background, Congress designed a fix that requires tribes to provide the prosecutorial, judicial, and detention infrastructure that the federal government, the original guarantor of public safety on those reservations, has not provided.

The medical cost trap

The heart attack story I opened with is one example of an expense category Congress did not anticipate. Non-Native defendants are not eligible for the Indian Health Service. Any medical event in tribal custody becomes a direct tribal expense: a heart attack, a dental emergency, a mental health crisis, a broken arm, a defendant in withdrawal. A single emergency room visit comes back as a five-figure bill. A negotiator can bring it down. The negotiator might not be available next time.

Special Tribal Criminal Jurisdiction is delegated federal authority, not inherent tribal sovereignty. Before VAWA 2013, tribes had zero criminal authority over non-Indians; the federal government held that authority and was supposed to exercise it. By delegating prosecutions to tribes without funding them, Congress is asking tribes to pay for work the federal government would otherwise pay for itself.

There is a mechanical fix here, not an ideological one. When Congress authorizes a tribe to prosecute a non-Native defendant, the federal government should pay for that defendant’s medical care while in tribal custody. When a state prosecutes a defendant, the state pays for prosecution, incarceration, and medical care while the defendant is in custody. When the federal government prosecutes a defendant, the federal government pays for all three. When a tribe prosecutes a non-Native defendant under federal authority that Congress restored in 2013, the tribe pays for prosecution, pays the medical costs the IHS is not authorized to cover, and competes with thirty other tribes for partial reimbursement from a $3.2 million pool. The federal government authorized the jurisdiction. The federal government did not fund it.

The funding cliff

A $520,000 STVCJ grant from the BIA, spread over three years, covers part of one prosecutor, part of Millard’s salary, and part of one additional staff position at Quapaw. The $3.2 million VAWA reimbursement pool is divided among 31 implementing tribes. Quapaw’s share is about $100,000 per year. One year of operations at Quapaw costs more than that, and Quapaw is one of the smaller adopters.

When the three-year grant expires, the tribe pays for everything from general revenue.

Tribal Justice Support funding is, as Cross described it, “one-time discretionary, requested annually.” It can be spent on judges, code development, prosecutors, defense counsel, clerks, and equipment. It cannot be spent on law enforcement officers, utilities, rent, or attorney fees. “You have to ask for it every single year.”

Congress funds federal criminal prosecution as a permanent function of the federal government. U.S. Attorney offices receive base operating appropriations. Federal courts receive indefinite appropriations. The Bureau of Prisons receives capacity that grows with conviction volume.

Tribal prosecution under federal authority is funded as a competitive grant.

Why the map looks the way it does

Cross made a point that reframed how I read my own data. The realistic pool of adoptees for STCJ is much smaller than the 347 federally recognized tribes in the lower 48.

Public Law 280, enacted in 1953, transferred criminal jurisdiction over Indian Country from the federal government to certain state governments without tribal consent. Tribes within Public Law 280 jurisdictions can technically exercise concurrent criminal jurisdiction, but most do not, because building the infrastructure to do so is, in Cross’s words, “very, very cost-prohibitive.” Among non-Public Law 280 tribes, the tribe holds primary criminal jurisdiction over its own members; among Public Law 280 tribes, the state holds it instead. Either way, neither tribe nor state has had jurisdiction over non-Indians since 1978, except where Special Tribal Criminal Jurisdiction applies.

If Cross is right about the cost barrier, the prediction is straightforward: tribes subject to Public Law 280 will adopt VAWA special jurisdiction at lower rates than tribes that already run their own criminal courts. I checked this prediction using the Sidorsky-Schiller list. The data does not show a lower rate. It shows zero.

Of the 31 tribes that have adopted VAWA special jurisdiction since 2013, none are tribes subject to Public Law 280. Out of 139 PL 280 tribes during the 2014 to 2022 opt-in period, none adopted. Of the 185 tribes never subject to Public Law 280 (or that successfully reclaimed their criminal jurisdiction from the state, in a process called retrocession that requires state agreement), 29 adopted. The remaining two adopters are tribes operating under Washington’s partial Public Law 280 regime, which left general criminal jurisdiction with the tribe. The adoption rate among tribes never subject to Public Law 280 is 16 percent. The adoption rate among tribes subject to Public Law 280 is zero.

The reason this gap matters is concrete, not theoretical. A tribe not subject to Public Law 280 already runs its own criminal court: its own judges, its own prosecutor, its own jail, its own codes. When VAWA arrives, the question facing that tribe is whether to extend its existing court to a narrow new category of defendant. The marginal cost is real but manageable. A tribe subject to Public Law 280 does not have its own criminal court. The state has handled criminal matters there since 1953. For that tribe, VAWA does not offer an extension; it offers the right to build an entire criminal justice system from scratch in order to prosecute one narrow class of cases. The federal design treats both decisions as the same opt-in.

Two-bar chart of STCJ adoption rate by Public Law 280 status.

The pattern is even more telling once you trace the VAWA adopters’ histories. Six of the 29 non-PL 280 adopters were once subject to Public Law 280, sometimes by federal mandate in 1953 and sometimes by their own consent in the years after. All six successfully retroceded out of state jurisdiction before VAWA existed. The Confederated Tribes of the Umatilla retroceded their criminal jurisdiction in 1981, built a criminal court system, and adopted VAWA jurisdiction 33 years later as a 2014 pilot tribe. Tulalip retroceded in 2000 and adopted in 2014. The Chehalis Reservation, Quinault, Suquamish, and Swinomish all retroceded between 1969 and 1989 and adopted between 2018 and 2021.

The sequence is not a coincidence. The tribes that pursued retrocession are also the tribes that built their own criminal justice systems. They were also, decades later, the tribes positioned to use VAWA’s narrow exception when it arrived. The selection works the other way as well: one former PL 280 tribe, Quileute, retroceded alongside Chehalis and Swinomish in 1989 and has an active court today, but has not adopted VAWA jurisdiction. Removing the federal-state barrier opens the possibility of adoption. It does not by itself produce it.

When the right denominator is used, the picture changes. Among the 185 lower-48 tribes that are not subject to Public Law 280, 16 percent have adopted VAWA jurisdiction. That is almost three times the rate you get if you compare against all 347 federally recognized tribes, and infinitely higher than the zero rate among the 139 tribes subject to Public Law 280. The headline “tribes are not adopting” is wrong. The structural reading is that tribes that already run their own criminal courts adopt at a meaningful rate; tribes whose criminal jurisdiction was transferred to states do not adopt at all. What this means in practice: every Public Law 280 tribe is a tribe whose members watched VAWA pass in 2013, watched 31 other tribes use it, and could not.

Public Law 280 is the structural barrier to adopting VAWA jurisdiction. Cost, defense counsel access, BOP capacity, and federal funding design are operational barriers that affect every implementing tribe. Tribes not subject to Public Law 280 face only the operational barriers. Tribes subject to Public Law 280 face the operational barriers plus a structural one: they have no criminal court system to extend in the first place. The current federal design treats both groups of tribes as facing the same choice. They are not.

There is one tribe to watch. The Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana retroceded their Public Law 280 jurisdiction in two stages, completing the full exit in 2024–25. They were the only lower-48 tribe still subject to Public Law 280 throughout the entire VAWA 2013 era. They did not adopt during that window. If Cross is right that Public Law 280 is the binding barrier, the prediction is that CSKT will adopt now.

What the next reauthorization could fix

Among tribes not subject to Public Law 280, adoption is real. Among tribes subject to Public Law 280, adoption is zero. The federal government created this gap. Public Law 280, enacted in 1953, drew the dividing line between the two groups.17 Only Congress can erase that line directly. States can also choose to return jurisdiction to the federal government, but the decision belongs to them.

The Bureau of Prisons should have administrative authority to scale beds with caseload. The 100-bed cap was set as a cost-control measure in 2010. Sixteen years on, only three of the seventeen TLOA tribes have used a federal bed. Quapaw has asked for this change in federal consultations. Allowing the BOP to expand capacity as caseload grows would let the federal prison system actually function as the back-end for tribal enhanced sentencing.

Federal medical reimbursement should follow federal authority. When Congress authorizes a tribe to prosecute a non-Native defendant, the federal government should pay for that defendant’s medical care while in tribal custody. States pay for state defendants. Counties pay for county defendants. The federal government pays for federal defendants. Only tribes prosecuting under federal authority pay for the defendants Congress assigned them.

Tribal courts exercising federal jurisdiction should receive base operating funding. Federal courts, U.S. Attorney offices, and the BOP all receive permanent appropriations. Tribal courts exercising the same federal authority receive three-year competitive grants. The disparity is structural. It is a feature of how Congress has chosen to fund tribal jurisdiction, and it is a choice that can be unmade.

Last month, I argued in Congress Keeps Giving Tribes Powers They Can’t Afford to Use that Congress keeps authorizing without funding. This post is a picture from one tribal court’s books.

The tribes that have implemented STCJ are running successful courts. They have done so often without much federal help, and in some cases under conditions where federal prosecutors and federal facilities could not keep up with the caseload.

The tribes that have not adopted are not just smaller, or poorer, or more remote. They are concentrated among the 139 tribes still subject to Public Law 280, an arrangement Congress enacted in 1953 and never repealed.

The tools Congress passed in 2010, 2013, and 2022 sit on a shelf for most tribes because they cannot afford to use them. Tools that sit on a shelf are not tools. They are expressions of intent.

Congress created two kinds of tribes in 1953. The Quapaw Nation court is doing the work that Congress’s design made possible. One hundred and thirty-nine tribes cannot afford that option.

Tribal leaders asked for expanded authority and better federal engagement. Congress heard them. What Congress delivered was something different: authority conditioned on tribes building, at their own expense, the institutional infrastructure to exercise that authority.

In 2010, the Tribal Law and Order Act told tribes they could sentence Indian offenders to up to three years in prison instead of one. For context, state judges routinely impose sentences of 10, 20, or 30 years for serious violent crimes. Federal judges can sentence offenders to life. The one-year tribal cap had no equivalent anywhere else in the American legal system.

TLOA’s increase to three years was a step, but a modest one, and the conditions attached to it were not modest at all: law-trained judges, licensed defense attorneys for indigent defendants, publicly available criminal codes. These are protections defendants deserve. But Congress did not appropriate funds to help tribes build the systems that would deliver those protections.⁵ States built their judicial infrastructure over decades, with sustained tax revenue and large budgets. Tribes were expected to achieve comparable results on their own.

Two years later, in 2012, the number of tribes exercising enhanced sentencing authority was zero.⁶

Across Indian Country, tribal judges continued sentencing violent offenders to a maximum of one year. Federal prosecutors continued declining more than half the cases referred to them.⁷

Consider what Congress was asking. For the right to impose two additional years of sentencing, a tribe had to establish or expand a public defender system, recruit licensed attorneys willing to practice in often remote locations, hire or retrain judges to meet federal standards, and formalize every rule of evidence and criminal procedure in writing. The institutional price of two additional years was enormous.

By 2015, eight tribes had adopted enhanced sentencing. Since then, the number has grown but remains small relative to the hundreds of tribes that could benefit. As of 2022, the Tribal Law and Policy Institute documented 17 tribes exercising enhanced sentencing, and additional tribes have implemented since.

In 2013, Congress went further. The Violence Against Women Act reauthorization gave tribes the power to prosecute non-Indians who committed domestic violence on tribal land. This was not a new grant of authority. It was a partial restoration. In 1978, the Supreme Court’s decision in Oliphant v. Suquamish Indian Tribe had stripped tribal courts of criminal jurisdiction over non-Indians entirely.⁸ For 35 years, a non-Indian could assault a tribal member on her own reservation, and the tribal court could do nothing.

VAWA 2013 began to reverse that, but only for domestic violence, dating violence, and protection order violations. And only if tribes met conditions that went beyond what TLOA required. In addition to licensed defense attorneys and law-trained judges, VAWA required tribes to guarantee trial by an impartial jury drawn from a fair cross-section of the community, including non-Indians, and to notify defendants of their right to federal habeas review.

Of the 329 reservations in the lower 48, 134 have fewer than 50 non-Indian adult residents.¹⁵ Some tribes address this by drawing jury pools from non-Indian employees and others with ties to the community, not just residents. But for the most remote reservations with limited non-Indian presence of any kind, the cross-section requirement remains a significant practical challenge.

Today, 31 tribes in the lower 48 states exercise that jurisdiction.⁹

In 2012, Congress passed the HEARTH Act, allowing tribes to approve their own land leases without routing every transaction through the Bureau of Indian Affairs. Tribes had to develop their own leasing regulations, hire realty staff, and assume the liability that the federal government had previously carried. After 13 years, 27 percent of reservations in the lower 48 have adopted it.¹⁰

Three laws. Three invitations to self-governance. And in every case, the tribes that accepted the invitation were ones with institutional foundations strong enough to absorb the cost. Even among those tribes, many chose not to. The rest faced building from scratch, at their own expense, with no clear path to get there.

This is not a story about tribal capacity. It is a story about how Congress writes laws. Congress keeps handing tribes the keys to a car that is still up on blocks. And the pattern compounds: the same tribes keep showing up across every program. The rest adopt nothing. For the modest increase in sentencing authority shown above, Congress asked tribes to build an entire court system. The adoption rates tell the rest of the story.

The Price of Admission

What does it actually take for a tribe to exercise these new authorities?

For a tribe with an existing, well-funded court system, the requirements are manageable additions. For a tribe operating a judicial system on a few hundred thousand dollars a year, with part-time judges and no public defender, they are a mountain.

Consider the Pascua Yaqui Tribe in Arizona, one of the first three tribes to implement STCJ. Pascua Yaqui was better positioned than most: the tribe already employed law-trained judges, already recorded its court proceedings, and had operated a public defender’s office with four licensed attorneys since 1995. Even so, implementation required hiring additional prosecutors and public defenders, purchasing new court technology, revising the tribal criminal code, and holding public forums to notify the community. The tribe’s chief prosecutor estimated that the full annual cost of maintaining STCJ-compliant courts could easily exceed a million dollars, once you account for salaries, detention facilities, administrative staff, expert witnesses, forensic testing, and the increased complexity of multi-jurisdictional cases. After implementation, the tribe’s domestic violence caseload rose 12 percent, and operational costs for the court system increased 10 to 20 percent.¹¹

That was a tribe that already had most of the infrastructure in place. For a tribe without an existing public defender’s office, without law-trained judges, without formalized rules of evidence, the cost is not incremental. It is foundational. And for small reservation communities, assembling a jury pool that reflects a fair cross-section, including non-Indians, raises logistical challenges that larger jurisdictions never face.

The Same Tribes Keep Showing Up

The pattern across TLOA, VAWA, and HEARTH is not random. The median STCJ-adopting tribe has a population nearly six times the size of the median non-adopter. But adopters are not wealthier, and they are no more likely to operate gaming facilities. What distinguishes adopters is scale, not wealth. A tribe needs enough people to staff a court, draw a jury pool that reflects a fair cross-section, recruit licensed attorneys, and sustain the institutional overhead that Congress requires.

The overlap across programs tells the deeper story. Of the 329 reservations in the lower 48, I examined adoption patterns across five federal opt-in authorities: TLOA enhanced sentencing, VAWA special tribal criminal jurisdiction, the HEARTH Act, Title IV self-governance compacts with the Department of the Interior, and Title V self-governance compacts with the Indian Health Service.

Nearly half, 161 reservations, have not adopted any of the five. Zero. They have not opted in to enhanced sentencing, special criminal jurisdiction, independent leasing authority, or self-governance compacting of any kind. Meanwhile, 40 reservations appear on three or more of the five lists.

The pattern suggests that institutional capacity, once established, compounds. Tribes that negotiate self-governance compacts are the same tribes that adopt HEARTH leasing authority and exercise criminal jurisdiction over non-Indians. Sixty-two percent of STCJ-adopting tribes hold Title IV compacts. Forty-two percent of Title IV compact holders have also adopted the HEARTH Act, compared to 27 percent of all reservations.

Congress keeps designing opt-in reforms as if each law exists in isolation. The data say otherwise. The tribes that can navigate one complex federal framework are the same tribes that navigate all of them. The tribes that cannot navigate any are left behind by every new law Congress passes.

TLOA: The Law Nobody Used

The Tribal Law and Order Act of 2010 was supposed to address a crisis. Tribal courts had been limited to imposing maximum sentences of one year, even for serious violent crimes. Congress itself had imposed that cap in 1968.¹² The worst a tribal court could do was one year, no matter how serious the crime. Offenders knew it.

TLOA’s solution was elegant on paper. Tribes could opt in to enhanced sentencing authority, imposing up to three years per offense and up to nine years total. In exchange, tribes had to guarantee a set of due process protections for defendants.

The problem was not the principle. The problem was the cost.

By 2012, zero tribes had adopted. By 2015, eight had. Since then, the number has grown. The Tribal Law and Policy Institute documented 17 tribes exercising enhanced sentencing as of late 2022, and additional tribes have implemented since.¹³ But out of hundreds of tribes that could benefit, adoption remains in the single digits as a percentage. The law has been available for sixteen years. Congress created a tool and priced most tribes out of using it.

What Congress Gets Wrong

The pattern is consistent. Congress identifies a real problem. Tribes lack leasing authority. Tribes cannot adequately sentence violent offenders. Tribes cannot prosecute non-Indian domestic abusers. The diagnosis is correct every time.

Then Congress writes a solution that requires tribes to build institutional infrastructure comparable to what states built over decades, with sustained federal funding, large tax bases, and established legal professions to draw from. Tribes are expected to achieve the same result with a fraction of the resources, in a fraction of the time, and often with no dedicated federal appropriation to cover the cost.

The HEARTH Act expected tribes to develop leasing regulations through a multi-tiered BIA approval process, hire specialized realty staff, and accept federal liability. TLOA expected tribes to establish public defender systems and to train judges to meet federal standards. VAWA expected the same, plus jury systems that satisfy constitutional-level cross-section requirements. In each case, the legislation assumed that tribes either already had these systems or could create them on their own.

Most could not.

This is not an argument against expanding tribal authority. Tribes should have the power to manage their own land, sentence criminals appropriately, and protect their citizens from violence. The evidence consistently shows that self-governance improves outcomes.¹⁴

The argument is about design. When Congress creates an opt-in framework that only well-resourced tribes can use, it is not expanding self-governance. It is rationing it. The federal bureaucracy that tribes are trying to escape has, in effect, built the cost of escape into the exit.

But the design can be changed.

A Different Approach

The solution is not more federal spending. It is a simpler institutional design. Three questions can guide the way.

Does the policy fund implementation, or just authorize it?

The Ho-Chunk Nation in Wisconsin runs its HEARTH program with six full-time realty staff. The Pueblo of Isleta in New Mexico estimates that $77,000 per year is required for a single HEARTH specialist. The Pascua Yaqui Tribe’s chief prosecutor estimated that STCJ-compliant courts could easily cost over a million dollars annually. But the Congressional Budget Office scored the HEARTH Act at zero cost to the federal government. TLOA appropriated no funds. The sovereignty is free. The ability to exercise it is not. If Congress does impose institutional requirements, it should bear the cost of its own mandates rather than silently shifting them to tribal governments. That is not an argument for larger federal programs. It is an argument against unfunded mandates.

How many steps does a tribe have to take before it can act?

STCJ implementation could include model criminal codes, template rules of evidence, and standardized procedural frameworks that tribes adopt with minimal customization. The HEARTH Act could have included template leasing regulations. TLOA could have provided model public defender arrangements. When Congress requires institutional infrastructure, it should provide the blueprints, not just the mandate. The goal should be to make exercising new authority a manageable administrative step, not an institutional construction project. And Congress should allow tribes to phase in requirements over time rather than demanding full compliance on day one. The current design forces a binary choice: full institutional capacity or no authority at all.

Who actually ends up adopting?

Not every tribe needs its own standalone public defender office. In fact, many tribes already share courts. Small and remote tribes pool resources through inter-tribal court consortia, sharing judges, prosecutors, and court services. The Bureau of Justice Statistics documented roughly 234 tribal courts serving 574 federally recognized tribes in 2014, meaning hundreds of tribes either share a court or rely on federal CFR courts operated by the BIA. Congress could build on these existing cooperative structures rather than ignore them. Inter-tribal public defender agreements, circuit-riding defense attorneys, and shared jury pools across tribal boundaries could meet the same due process standards at a fraction of the cost of standalone systems. Congress writes these laws as if every tribe were an island. Most are not, and the ones that are need cooperative models most of all.

If only tribes that already have strong institutions can navigate the process, the policy will widen the gap between the best-resourced tribal governments and those most in need. Good policy design asks not just whether it works for the tribes that can use it, but whether it reaches the tribes that need it.

None of this requires novel legal authority. It requires Congress to stop designing reforms that assume every tribe has the administrative capacity of a midsize state, and start designing reforms that most tribes can actually use.

Data Notes

The sentencing comparison chart shows maximum sentencing authority for serious violent crimes across tribal, state, and federal courts. The adoption rates chart shows adoption across TLOA enhanced sentencing (~2% of eligible tribes), VAWA STCJ (~9%), and the HEARTH Act (27% of reservations in the lower 48). The distribution chart shows reservations by the number of federal opt-in programs adopted.

¹ Amnesty International, “Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA” (2007).

² National Congress of American Indians, resolution passed at Midyear Conference, Anchorage, Alaska (2007), calling on Congress to redirect DOJ law enforcement priorities on reservations and empower tribal government law enforcement.

³ Michael Riley, “Lawless Lands: The Crisis in Indian Country,” Denver Post (2008). The series won the American Bar Association’s Silver Gavel Award.

⁴ U.S. Department of Justice, Tribal Nations Listening Tour (October 2009). Attorney General Holder and DOJ officials met with tribal leaders who described the pressing need for federal legislation and resources to address public safety.

⁵ TLOA authorized expanded sentencing authority but included no dedicated appropriations for tribal courts to meet its requirements. See Native American Rights Fund, Tribal Law and Order Act Resources; Government Accountability Office, GAO-12-658R (2012) (96% of surveyed tribes reported funding limitations as a challenge).

⁶ Government Accountability Office, “Tribal Law and Order Act: None of the Surveyed Tribes Reported Exercising the New Sentencing Authority,” GAO-12-658R (May 2012).

⁷ FBI Legal Digest, “Indian Country and the Tribal Law and Order Act of 2010,” citing DOJ data showing 52% of violent cases and 40% of nonviolent cases declined for prosecution between 2005 and 2009.

⁸ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). The Court held that tribal courts do not have inherent criminal jurisdiction over non-Indians. VAWA 2013 partially reversed this for domestic violence, dating violence, and protection order violations.

⁹ Sidorsky and Schiller, “Special Tribal Criminal Jurisdiction,” Perspectives on Politics (2024), documenting 31 tribes exercising STCJ. The BIA maintains an internal count of approximately 35; discrepancies reflect the absence of a formal notification requirement. These figures reflect tribes in the lower 48 states; most Alaska tribes lack Indian Country jurisdiction and were excluded from the STCJ provisions of VAWA 2013 until VAWA 2022 created a separate Alaska pilot program. Cross-tabulation analysis in this post matched 29 of these tribes to reservation-level Census data; unmatched tribes have Census geographies that do not align cleanly with reservation boundaries.

¹⁰ Stratmann, “Why 73% of Tribes Can’t Use a Law Designed to Help Them,” Rules & Results (February 2026). Analysis of 329 reservations in the lower 48 states.

¹¹ Cost estimate from O.J. Flores, Chief Prosecutor, Pascua Yaqui Tribe, as reported in Tribal Justice Exchange, “Pascua Yaqui Tribe VAWA Special Domestic Violence Criminal Jurisdiction” (2018). Caseload and operational cost increases from Alfred Urbina, Pascua Yaqui Attorney General, quoted in Indian Law Resource Center, “Tribal Leaders Call for Expanded Jurisdiction” (2016). Background on Pascua Yaqui’s pre-existing infrastructure from NCAI, “SDVCJ Implementing Tribes: Pascua Yaqui Tribe.”

¹² The Indian Civil Rights Act of 1968 originally capped tribal court sentences at six months. Congress raised the limit to one year in 1986.

¹³ Tribal Law and Policy Institute, 'Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing,' revised December 2022. The original eight tribes were documented in a 2015 Senate Committee on Indian Affairs oversight hearing. TLPI tracks implementation on an ongoing basis; the current count may be higher. I am grateful to Virginia Davis for this correction.

¹⁴ See Kalt, Medford, and Taylor, “Tribal Self-Government” (preliminary draft, January 2025); Stratmann, “Reservation Economic Freedom Index,” Public Choice (2024).

¹⁵ Author's analysis of American Community Survey 5-year estimates (2019-2023). Non-Indian adults estimated as non-AIAN residential population aged 18 and over. Actual jury pools may be larger, as some tribes include non-Indian employees who work on but do not reside on the reservation.

“That’s sovereignty, that’s what we work for,” said Ho-Chunk President Jon Greendeer. “We have dramatically increased our ability to exercise our sovereignty on our own lands.”¹

The HEARTH Act is one of the clearest success stories in recent tribal policy. Passed in 2012, it allows tribes to take over surface leasing on their own trust land without seeking BIA approval for every transaction.³ The time savings are dramatic: what used to take a year and a half now takes four to six weeks.¹ Tribes can tailor regulations to their own needs, choosing whether to cover business leases, residential leases, agricultural leases, or all three.³ Lease terms extend to 75 years without the Secretary’s sign-off.³

Given these benefits, you might expect most tribes to have adopted it by now.

They haven’t. As of 2025, only 88 of 329 reservations in the lower 48, just 27 percent, have adopted HEARTH Act regulations for any lease type, whether business, residential, agricultural, or renewable energy.^4,11

That low adoption rate has real costs. In 2008, the Rosebud Sioux Tribe in South Dakota had a 30-megawatt wind project ready to build. They had two draft power purchase agreements in hand. But BIA took 18 months to approve the lease, and during that delay, both agreements with regional utilities expired.^7,8 The market moved at market speed. Indian land moved at federal speed. Years later, the tribe was still waiting to build.⁸

The question is not just why adoption is low. It’s what the pattern of adoption reveals about how Congress designs tribal reforms and why the tribes most in need are often the last to benefit.

The Cost of “Free” Sovereignty

The standard explanation is that tribes lack the administrative capacity to develop their own leasing regulations. There’s truth in this. Ho-Chunk’s Realty Division operates with six full-time employees: a director, a register of deeds, a leasing specialist dedicated to HEARTH, a lands specialist, and two GIS professionals.¹ And before a tribe can begin processing leases on its own, its proposed regulations must first pass through a four-tiered federal review: the BIA Division of Real Estate Services, the Office of the Solicitor, the Assistant Secretary of Indian Affairs, and the Secretary of the Interior.^1,2

For a tribe with a few hundred members and a handful of staff, that investment may never pay for itself. The Pueblo of Isleta in New Mexico still doesn’t have a single realty specialist to run the program. The estimated cost: $77,000 a year.⁵ “We don’t have a realty specialist,” said Sheila Herrera of Tiwa Lending Services. “We are just trying to overcome all these challenges.”⁵

But the capacity problem cuts deeper than staffing. Consider what happened at Fort Belknap in Montana.

On the Fort Belknap Reservation in Montana, 13 to 18 people live in two- and three-bedroom homes. Children sleep on floors. The housing waitlist is more than 150 families long.⁹ In August 2019, the tribal council enacted HEARTH residential leasing regulations to break the logjam. They modeled their regulations on recently approved examples. They focused narrowly on residential leasing to expedite review. They held working sessions with every relevant tribal department and the local BIA superintendent to prepare for implementation.⁹

Then they waited. Their submission was “directed or redirected to at least five different DOI employees.”⁹ The person listed as the HEARTH lead on Interior’s own website hadn’t worked at BIA for nearly three years.⁹ At the time, the entire federal government was averaging just two HEARTH approvals per year, with a backlog of 26 tribal submissions.⁹ Twenty-six tribes trying to exercise the sovereignty Congress gave them in 2012, all waiting on a process that was supposed to serve them.

As Fort Belknap Councilman Nate Mount told the Senate Committee on Indian Affairs: “Quite literally what is holding us up from solving these problems for ourselves is our wait for DOI’s permission to allow us to help ourselves.”⁹

Interior approved Fort Belknap’s regulations ten months later, in June 2020.¹⁰ Meanwhile, families kept sleeping on floors.

And if the bureaucratic delay weren’t enough, the HEARTH Act also shifts federal liability to tribes. Once a tribe takes over leasing, the federal government is relieved of responsibility for losses from those leases.⁶ The federal government created the trust system. It holds tribal land in trust precisely because it has a legal obligation to protect it. Yet the HEARTH Act tells tribes: if you want to govern your own land, you must also assume all the risk that the trustee was supposed to bear.

And then there’s the termination fear. As the Minneapolis Fed’s case study noted, “some tribal leaders believe the Act is a step toward termination because it eliminates the need for the BIA.”¹ Whether or not that concern is justified, it’s real, and it shapes decisions.

There is one more structural barrier the standard capacity story misses. Unlike self-governance compacting under 638, HEARTH is an unfunded option. Tribes that adopt it receive no federal contract funding for the administrative work they take on. The CBO scored the act as zero cost to the federal government, which means tribes absorb the full administrative burden themselves.¹² A tribe weighing HEARTH sees autonomy and speed on one side of the ledger, and uncompensated costs on the other. Market demand is the dominant predictor of adoption, but the absence of federal funding creates a headwind that suppresses adoption independently of market conditions.

So even a law designed to return sovereignty to tribes comes with a price tag that many can’t afford, a risk transfer that some don’t want, and an approval process that can take the better part of a year. The federal bureaucracy that tribes are trying to escape has, in effect, built the cost of escape into the exit.

What Actually Predicts Adoption

The stories above paint a clear picture: tribes lack the staff, the specialized expertise, and the money to navigate a process the federal government made needlessly complex. That’s the standard explanation for low HEARTH adoption, and it’s the one you’ll find in every published account of the law’s implementation.^1,5,9

It’s partly right. But when you look at the data across all 329 reservations, a different pattern emerges. The biggest factor separating adopters from non-adopters isn’t resources. It’s whether anyone wants to lease tribal trust land in the first place.

The strongest predictor of HEARTH adoption is market demand.

I constructed a composite index of market demand that captures population size, proximity to urban areas, and surrounding development pressure, and applied it across all 329 reservations in the lower 48. Reservations in high-demand locations are nearly three times more likely to adopt HEARTH.⁴ This makes intuitive sense: if no one is knocking on your door asking to lease land, there’s little reason to staff up a realty office, at $77,000 per specialist per year,⁵ and spend months developing new regulations.

Tribes near cities, where land values are higher, developers are more active, and commercial leasing opportunities are real, experience the BIA bottleneck as a daily frustration. Remote tribes with fewer leasing inquiries feel the same bottleneck less often, making the investment in HEARTH harder to justify. Figure 1 shows the pattern: blue dots (adopters) cluster near major urban centers, while the Great Plains and Mountain West sit largely gray.

FIGURE 1:

Gaming operations also predict adoption, but not in the way you might expect. Having *any* casino doubles the odds of adoption. But the *size* of gaming operations, measured by employment intensity, has zero additional effect.⁴ The smallest casino provides the same boost as the largest.

The likely reason is institutional, not financial. A tribe that operates even a modest casino has already built the organizational infrastructure that makes HEARTH a smaller lift: legal counsel on retainer or in-house, staff experienced with federal regulatory compliance, familiarity with complex approval processes like IGRA compacts and NIGC oversight, and a general orientation toward commercial development. HEARTH is one more regulatory system for a team that already navigates several. A tribe without gaming has to build all of that from scratch. The jump from zero institutional capacity to “enough” is the hard part. After that, adding HEARTH is incremental.

This also helps explain why the gaming effect weakens after accounting for market demand.⁴ Gaming tribes tend to be closer to cities where leasing demand is highest. Part of what gaming captures is simply a favorable location, and part is that gaming tribes have already built the administrative machinery to handle one more federal process.

The third predictor is something that hasn’t appeared in previous research: whether a tribe manages trust land in multiple locations.

Reservations whose Census definition includes off-reservation trust holdings are more than twice as likely to have adopted HEARTH.⁴ This effect actually *strengthens* after accounting for population, income, and acreage, because tribes with off-reservation trust holdings tend to be smaller than average. What they have is governance sophistication. Three-quarters of them hold Title IV self-governance compacts. They’ve already navigated the fee-to-trust process, managed land across jurisdictions, and built the administrative relationships with BIA that make HEARTH adoption a natural next step. And unlike the gaming effect, this one isn’t explained by location: tribes with off-reservation trust land are no closer to urban areas than those without.⁴

The Surprising Finding: More Land Doesn’t Mean More Adoption

If you had to guess which reservations would benefit most from streamlined leasing, you’d probably point to those with the most trust land. More acreage means more potential leases, more revenue at stake, and more frustration with BIA delays.

The data says otherwise. Trust land acreage does not predict HEARTH adoption. In the full sample, it’s statistically insignificant. In restricted samples of larger reservations, it’s actually weakly *negative*: more land, slightly *less* likely to adopt.⁴

This is the most policy-relevant finding in the analysis, because it exposes a structural problem.

Large land-based reservations, think Pine Ridge, Crow, Fort Peck, manage enormous acreages with relatively small populations. They already juggle grazing permits, timber management, mineral leases, infrastructure easements, and rights-of-way. Their realty offices are stretched thin. Adding HEARTH means one more regulatory system to administer, one more set of staff to hire, one more liability to assume, on top of everything else. This is why more land does not mean more adoption.

The tribes with the most land to lease are often the least able to take on the administrative burden of leasing it themselves.

Standard economic indicators tell the same story from a different angle. Household income, poverty rates, employment levels, and economic diversity tell us nothing about who adopts.⁴ HEARTH is about *commercial opportunity*, not economic need. A poor tribe near a city has more reason to adopt than a prosperous tribe in a remote location.

FIGURE 2:

The pattern in Figure 2 is telling. Adoption rises from the smallest reservations (18%) to mid-sized ones (31%), then falls back for the largest (27%). The smallest tribes lack the capacity to adopt. The largest, managing over three times more land per person than mid-sized reservations, appear to have their administrative capacity already fully committed.⁴ The mid-sized reservations, large enough to have staff but not so large that HEARTH becomes one burden too many, are the ones most likely to act.

What Would Actually Increase Adoption

The solution is not more programs. It is less regulatory burden. None of the following reforms require new spending. All of them require the federal government to demand less of tribes that are trying to govern themselves.

1. Simplify the process itself. If adopting HEARTH requires six specialized staff and months of legal drafting, the problem isn’t that tribes lack capacity. The problem is that the process demands too much. BIA should provide standardized, template-based regulations that tribes can adopt with minimal customization. The goal is to make HEARTH adoption a weeks-long administrative step, not a years-long institutional project.

2. Allow regional consortia for shared administration. If a six-person realty office is too expensive for one tribe, let three to five neighboring tribes share one. The Pacific region alone has 76 reservations, mostly small rancherias, that could pool administrative resources voluntarily. This is how rural counties handle specialized services. There’s no reason tribes can’t organize the same way.

3. Create a simplified regulatory track for low-volume reservations. Full HEARTH implementation is overkill for a tribe processing five leases per year. A streamlined track, with shorter template-based regulations, minimal staffing requirements, and expedited BIA approval, would make adoption cost-effective for dozens of additional tribes. Not every reservation needs the same regulatory infrastructure as Ho-Chunk.

4. Stop punishing self-governance with liability shifts. The current structure presents tribes with a perverse choice: accept BIA oversight and retain federal liability protection, or exercise sovereignty and assume all the risk. Congress passed HEARTH to promote self-determination, but the liability design undermines that goal. At minimum, the liability framework should not create an incentive to stay dependent on BIA approval.

5. Focus outreach where governance capacity already exists. Tribes with off-reservation trust holdings are more than twice as likely to hold Title IV self-governance compacts as those without, yet many still haven’t adopted HEARTH. These non-adopters already have the governance infrastructure. Their smaller size suggests what’s missing is staff and technical support, not the willingness to self-govern.⁴ Connecting them with existing adopters for peer learning would cost little and could move the needle.

What This Tells Us About Reform Design

The HEARTH Act is good policy. The data confirms it delivers real benefits to tribes that adopt. But the adoption pattern reveals a structural flaw in how Congress designs tribal reforms.

Federal legislation that requires tribes to opt in, develop their own regulations, hire specialized staff, and assume new liabilities will be adopted by tribes that already have sophisticated governments and active markets. It will be ignored by tribes that lack capacity, face limited demand, or can’t afford the risk. The result is that the tribes most in need of reform are the least likely to benefit from it.

The legal scholarship identified this problem early. Writing in 2013, Elizabeth Ann Kronk Warner characterized HEARTH adoption as “independently rational, but collectively deficient.”⁶ A description the adoption data a decade later confirms.

This is not an argument for more federal spending. It is an argument for simpler federal rules. When the regulatory cost of self-governance is high, only the most resourced tribes will self-govern. When the cost is low, more will. The barrier to tribal sovereignty should not be the federal government’s own paperwork.

This matters for every tribal policy reform on the table: ISDEAA (Indian Self-Determination and Education Assistance Act) expansion, land-into-trust modernization, probate reform, and broadband deployment. If Congress wants these programs to reach beyond the usual early adopters, simplicity needs to be built into the legislation itself. Make the default simple. Make opt-in easy. Don’t penalize sovereignty.

The right question is not whether HEARTH works. It does. The right question is: why don’t all tribes use it? The answer is that sovereignty, even when Congress offers it back, has a price tag. Making that price affordable is the difference between a reform that works for 88 tribes and one that works for 329.

Data Notes

• HEARTH adopters: 88 reservations (26.7%) as of 2025, for any lease type

• Method: Logistic regression with robust standard errors

• Full regression output available upon request

Sources

1. Federal Reserve Bank of Minneapolis, Center for Indian Country Development, “Case Study: HEARTH Act Implementation, Ho-Chunk Nation Realty Division”. Tribal Leaders Handbook on Homeownership.

2. Bureau of Indian Affairs, Division of Real Estate Services, “HEARTH Act Leasing”. Describes the multi-tiered approval process for tribal leasing regulations.

3. Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012, Pub. L. 112-151, 25 U.S.C. § 415. Codified lease types, terms, and tribal authority.

4. Author’s analysis of 329 American Indian reservations (corrected for geographic mapping errors) using 2020 Census data, BIA trust land records, and tribal governance indicators. Logistic regression with robust standard errors. Full results available upon request.

5. Mark Fogarty, “HEARTH Act provides boost for tribes to take over leasing,” *Tribal Business News*, May 2, 2022. Citing Sheila Herrera, Tiwa Lending Services, Pueblo of Isleta.

6. 1. Josephine Foo, “The HEARTH Act of 2012 and the Navajo Leasing Act of 2000: Financial and Self-Determination Issues,” ABA Native American Resources Committee, January 3, 2019. See also Elizabeth Ann Kronk Warner, “Tribal Renewable Energy Development Under the HEARTH Act: An Independently Rational, But Collectively Deficient, Option,” Arizona Law Review 55, no. 4 (2013): 1031.

7. Patricia Douville, Rosebud Sioux Tribe, testimony before the House Natural Resources Subcommittee (April 5, 2011), describing BIA’s 18-month review and expired power purchase agreements. PDF.

8. Joshua Zaffos, “Renewable energy on tribal lands stalls out,” *High Country News*, July 3, 2015, reporting that BIA’s 18-month delay caused two agreements with regional utilities to expire.

9. Nathaniel “Nate” Mount, Councilman, Fort Belknap Indian Community, written statement before the Senate Committee on Indian Affairs, “Lending Opportunities: Opening the Door to Homeownership in Indian Country” (October 16, 2019). Documenting overcrowding (13-18 people per home), housing waitlist (150+ families), HEARTH enactment (August 5, 2019), DOI bottleneck (backlog of 26 tribal submissions, averaging two approvals per year), and quote: “Quite literally what is holding us up from solving these problems for ourselves is our wait for DOI’s permission to allow us to help ourselves.”

10. Bureau of Indian Affairs, “Assistant Secretary Sweeney Announces Approval of the Fort Belknap Indian Community’s HEARTH Act Regulations” (June 29, 2020). See also Federal Register, Vol. 85, No. 125, HEARTH Act Approval of Fort Belknap Indian Community (June 29, 2020), noting BIA approval date of June 12, 2020.

11. Alaska is excluded because most Alaska Native land is held by regional and village corporations under the Alaska Native Claims Settlement Act (ANCSA), not in federal trust. The land tenure system is fundamentally differenthearth-act-adoption-why-most-tribes-cant-use-it from that of reservations in the lower 48.

12. Congressional Budget Office, Cost Estimate for H.R. 205, Helping Expedite and Advance Responsible Tribal Homeownership Act of 2011, December 16, 2011, www.cbo.gov/publication/42796.

Thomas Stratmann is Distinguished University Professor of Economics at George Mason University and Senior Research Fellow at the Mercatus Center. His Reservation Economic Freedom Index (REFI) measures institutional quality across 123 tribal nations.

Nevada’s Pyramid Lake Paiute Tribe shuttered its museum and visitors center, parks and recreation, and higher education. Chairman Steven Wadsworth said the closures were necessary to preserve funding for the food bank, police, and emergency medical services.

But some reservations scaled back far less than others. New data reveal why: institutional quality and local self-governance made the difference.

Measuring Shutdown Resilience Across 118 Reservations

I built a daily continuity index tracking service status across 118 reservations during the shutdown’s first month. I monitored eight categories: Indian Health Service care, WIC nutrition benefits, Impact Aid for schools, Bureau of Indian Affairs program operations, Bureau of Indian Education schooling, core tribal government operations, public safety, and utilities.

Figure 1: Institutional Quality and Shutdown Resilience

Individual observations scatter because service continuity depends on many factors beyond institutional quality, and scores cluster within a narrow band. The relationship is positive, though the statistical evidence is suggestive rather than definitive at conventional significance levels.

The pattern is striking. I linked this continuity data to the Reservation Economic Freedom Index (REFI)—published in the peer-reviewed journal Public Choice, which scores institutional quality across reservations based on property rights, regulatory clarity, judicial independence, and self-governance authority. I updated REFI to version 2.0 ??? last week, expanding coverage to 123 tribal nations.

The relationship between overall REFI and service continuity is positive: a 10-percent higher REFI score corresponds to about 1 percentage point higher service continuity during the shutdown. The REFI measures broad institutional quality, including judicial independence, commercial codes, and legislative transparency, not all of which directly relate to government operations during a shutdown. The relationship likely reflects the fact that institutional quality tends to come as a package: tribes with better courts and clearer codes also tend to have more efficient governance and greater authority over self-determination.

For tribal members, that 1 percentage point translates to after-school programs continuing, late buses still running, and clinic pharmacies staying open all week instead of closing early twice. These differences matter where poverty is widespread, and alternatives are scarce.

Reservations with clearer institutional frameworks and more local authority kept more services running. Not because they’re insulated from Washington, but because better-defined rules let leaders adapt when federal offices go dark.

While the overall REFI relationship is positive, one component stands out with a particularly clear signal: self-governance compacting.

Why Self-Governance Made the Difference

When federal offices close and federal staff are furloughed, tribes with stronger institutional frameworks can adapt more effectively. Modern commercial codes and efficient procurement systems let councils reallocate available resources to priority needs without navigating layers of federal bureaucracy. When tribal governments have clear authority and transparent processes, leaders can respond to crises by shifting funds, prioritizing essentials, and maintaining core operations despite federal constraints.

One specific component of institutional quality stands out: self-governance authority under the Indian Self-Determination and Education Assistance Act (ISDEAA). This 1975 law allows tribes to take over federal programs and run them locally. Under self-governance compacts (Titles IV and V of ISDEAA), the broadest form of ISDEAA authority, tribes can redesign programs, consolidate funding streams, and manage operations with maximum flexibility. Instead of waiting for distant federal offices to administer programs, tribes with self-governance compacts continue delivering services because they're already running the programs themselves.

Federal furloughs were less disruptive for tribes with self-governance authority. When federal staff is furloughed, tribes operating under self-governance compacts continue delivering services because they're already running the programs themselves: hiring their own staff, managing their own budgets, and making their own operational decisions. The result: more continuity, less chaos.

Figure 2: Self-Governance and Service Continuity

The data show self-governance matters. Reservations operating under self-governance compacts maintained service continuity averaging 81.5 percent, compared to 80.5 percent for reservations without self-governance authority. The 1 percentage point difference is modest but meaningful. It represents services staying open longer, programs maintaining fuller schedules, and fewer disruptions to essential services like nutrition programs and clinic access. Over a month-long shutdown affecting thousands of tribal members, these small margins accumulate to a substantial impact.

The Federal Choke Points Remain

This doesn’t mean institutional quality eliminates federal dependency. Even high-REFI reservations hit bottlenecks they cannot control.

WIC and nutrition programs: Despite tribal authority to administer these programs in some cases, federal processing delays affected nearly all reservations. When federal disbursement systems pause, local institutions can’t solve the problem.

Previously awarded grants: Tribes couldn’t draw down grant funds that had already been approved and allocated to them. This created artificial bottlenecks even for money Congress had already appropriated for specific tribal programs—requiring new federal approvals to access funds that agencies had already awarded.

IHS administrative challenges: Even with advance appropriations protecting IHS budgets, the shutdown created administrative complications that affected some tribal health programs.

BIA approvals frozen: Leases, rights-of-way, and land transactions requiring BIA sign-off sat frozen. No local institutional quality can override federal approval requirements when federal statutes mandate them.

These constraints affect all tribes. But tribes with stronger local institutions weathered them better because better rules enabled adaptation around the constraints they faced. Economic freedom and self-governance don’t eliminate exposure to Washington. They cushion it. When authority and responsibility live closer to the people affected, leaders can respond.

What Congress Should Do

The Senate Committee on Indian Affairs examined shutdown-driven disruptions at its October 29 hearing. Witnesses detailed impacts on nutrition programs, education, grant processing, and economic development. Analysts warn that current funding structures leave tribes unusually exposed, even though advance IHS appropriations helped many clinics avoid immediate closures.

My findings add reservation-level evidence: tribes with stronger institutions handled the shutdown better. That’s precisely why Congress should fix the choke points that matter most while enabling more self-governance.

Three reforms would help immediately:

First, extend advance appropriations beyond IHS clinics. Year-ahead funding for core tribal programs would provide the same protection IHS received. The IHS example shows why: advance appropriations insulated many clinics from immediate shutdown shocks. Congress should extend this logic. Lock in next year’s program budgets for education, nutrition, and other essential services so they continue even during shutdowns, insulating tribes from yearly budget spectacles.

Second, create automatic continuity safeguards. When appropriations lapse, baseline nutrition benefits should continue flowing automatically. Tribes should retain access to already-awarded grants without needing new federal approvals. Pair this with automatic no-cost extensions and temporary waivers for minor procedural requirements. These safeguards don’t increase spending. Instead, they stop process failures from interrupting essential local governance.

Third, streamline and scale ISDEAA contracting and compacting for willing tribes. The data show that tribes operating programs under self-governance compacts maintained higher service continuity. Standard terms and faster timelines would let willing tribes run programs without spending months chasing approvals.

Some may worry that flexibility reduces federal oversight. The opposite tends to be true. Accountability improves when authority and responsibility sit in the same place. The alternative, accountability diffused across a faraway bureaucracy enduring furloughs, produces the opposite result.

Self-Governance as Resilience

The evidence from this shutdown demonstrates a fundamental principle: governance works best when authority and responsibility sit close to the people affected. This isn’t just economic theory. It’s practical reality proven during crisis.

Tribes running their own programs adapted when federal bureaucracy froze. Local leaders made hard choices about priorities when distant offices couldn’t respond. Self-governance didn’t eliminate federal dependency, but it created space for tribal governments to act.

The policy implications extend beyond shutdowns. If local authority enables better crisis response, it likely enables better governance generally. These institutional foundations matter in normal times and abnormal ones alike: clear rules, reliable procedures, enforceable contracts, and the authority to make decisions without distant approvals.

Shutdowns shouldn’t force tribes to relive the same disruption each time. Strengthening institutional quality and expanding self-governance authority is the surest way to keep the lights on when Washington goes dark.

Data & Methods

Continuity Index Methodology: Daily tracking of eight service categories across 118 reservations from October 1-31, 2025. Data collection used AI-assisted classification of publicly available tribal communications, news reports, and service status updates. I provided AI with service categories (Indian Health Service care, WIC nutrition benefits, Impact Aid for schools, Bureau of Indian Affairs program operations, Bureau of Indian Education schooling, core tribal government operations, public safety, and utilities) and scoring criteria; AI classified service status based on available information for each reservation-day observation.

I scored services as fully operational (1.0), partially operational (0.5), or closed/suspended (0.0). The continuity index is the average across the eight categories for each reservation over the 31-day period. Most reservations scored between 0.76 and 0.84, reflecting the reality that federal bottlenecks (like delayed Impact Aid processing) affected all tribes, while most kept essential services like clinics and public safety operating.

REFI Scores: Based on Reservation Economic Freedom Index 2.0, which I published earlier this month on this Substack, expanding the original REFI published in Public Choice (2024). REFI 2.0 covers 123 reservations in the lower 48 states. The current analysis uses 118 of these reservations for which both REFI scores and shutdown continuity data are available.

Statistical Relationship: Linear regression of continuity index on REFI score shows a positive relationship with coefficient of 0.0012 (p = 0.068). A 10-point REFI increase (on the 0-13 scale) corresponds to about 1.2 percentage points higher service continuity, or about 0.12 percentage points per REFI point. While the overall REFI relationship is suggestive, the effect is modest and does not reach conventional statistical significance thresholds.

Self-governance compacts show a much stronger and statistically significant effect: tribes with self-governance compacts averaged 81.5% continuity versus 80.5% for non-self-governance tribes (difference = 1.0 percentage point, t = 3.27, p = 0.0014). This suggests that self-governance authority, a key component of REFI, drives much of the institutional quality effect on shutdown resilience.

REFI Components: The index measures 13 dimensions of institutional quality. For detailed component descriptions and methodology, see my previous Substack post “Why Some Reservations Prosper While Others Struggle: The Data” or the original Public Choice paper.

Data Limitations: Continuity tracking relies on publicly available information. Some service disruptions may not have been publicly reported. REFI 2.0 scores reflect institutional data collected in 2025; institutional changes after data collection are not captured. While the mechanism, that local authority and clear institutional frameworks enable faster adaptation to disruptions, is theoretically sound and consistent with institutional economics literature, the statistical relationship reflects association rather than definitive causation.

Continuity index data: Available upon request at tstratma@gmu.edu

Thomas Stratmann is University Professor of Economics and Law at George Mason University and Senior Research Fellow at the Mercatus Center. He created the Reservation Economic Freedom Index.

Contact: tstratma@gmu.edu | Subscribe: rulesandresults.substack.com

This isn’t random. It’s the inevitable result of federal policy that’s been failing for 138 years.

What Fractionation Is

“Fractionation” describes what happens when Indian trust land passes through generations without being physically divided. Each heir receives an undivided percentage interest. Not a specific acre, but a share of the whole tract.

The Bureau of Indian Affairs explains it this way: if you own a 1/16 fractional interest in an 80-acre tract, “you do not own a specific 5-acre area within the tract. Instead, you share ownership in the entire tract with the other fifteen co-owners.”[1]

As allotments pass to heirs, the number of undivided interests grows exponentially. The federal government now manages 100,000+ fractionated tracts containing 2.4 million fractional interests across 5.6 million acres, affecting approximately 150 reservations.[1]

A simple example from Oklahoma shows why: If an allottee in 1900 had three children, and each child had three children, within six generations (approximately 120 years, or roughly today), there would be 243 heirs and potential co-owners of that original parcel.[9]

Figure 1 illustrates this exponential subdivision and its economic impact. Assuming three children per generation, by the sixth generation, an heir’s annual income from the land has declined from $1,000 to just $4.12.

Figure 1: How One Allotment Subdivides Across Six Generations – Without physical division of the land, each generation of heirs receives progressively smaller undivided percentage interests. Starting with a 160-acre parcel earning $1,000 annually, by the sixth generation an individual heir’s share has declined to just 1/243 of the tract, earning $4.12 per year. (Source: Indian Land Tenure Foundation, reproduced in Russ & Stratmann 2016).

The Economic Cost: Two Examples

Tract 1305 (U.S. Supreme Court, 1987)

In Hodel v. Irving, the Supreme Court described a 40-acre tract generating $1,080 annually, valued at $8,000, with 439 owners:[7]

• One-third of owners received under $0.05 annually

• Two-thirds received under $1.00 annually

• “The smallest heir receives $.01 every 177 years”

• BIA administrative costs: $17,560 per year. That is sixteen times the land’s annual production

Standing Rock

By 2010, one tract at Standing Rock Reservation had 1,077 individual owners, the most fractionated parcel documented in my study with Jacob Russ.[12] Our research showed:

• Seven of twelve reservations studied had tracts with 500+ owners by 201(compared to only one reservation in 1992)

• Number of tracts with 300+ owners increased 1,000% (from 26 to 289 tracts)

• One Blackfeet tribal member owns interests in 210 different tracts (213 separate ownership records)

• Total ownership records nearly doubled: 1.06 million (1992) to 2.11 million (2010)

• Annual recordkeeping costs: $575 million nationwide (based on BIA’s $40-50 per record estimate applied to 4.6 million records)

Figure 2 shows this acceleration across all twelve reservations studied. The problem isn’t stabilizing, it’s spiraling.

Figure 2: The Acceleration of Fractionation, 1992-2010 - The number of highly fractionated tracts more than doubled in just 18 years across twelve reservations. Most dramatic: tracts with over 300 owners increased from 26 to 289—an eleven-fold increase. The problem is not stabilizing; it's spiraling. (Source: Russ & Stratmann 2016, based on BIA TAAMS data).

Why Development Becomes Impossible

The Consent Problem

Federal regulations require varying consent thresholds based on the number of owners (25 CFR § 162.012):[3]

• 1-5 owners: 90% consent required

• 6-10 owners: 80% consent

• 11-19 owners: 60% consent

• 20+ owners: majority consent

• Alaska: 100% consent (all owners)

The Department of Interior’s Office of Inspector General connects these consent requirements directly to economic outcomes: “This need for approval has essentially stopped economic development on some tracts of land.”[4]

As the number of co-owners grows, coordinating their consent becomes increasingly difficult. The BIA notes: On highly fractionated land, “it can be impossible to obtain the level of consent necessary to lease or grant a right of way,” and so “much Indian land lies idle.”[1]

Real-World Impact: The Homesite Problem

Chairman Ryman LeBeau of Cheyenne River Sioux Tribe provided a concrete example in January 2024 Congressional testimony:[8]

A tribal member may own a 5% undivided interest in a 160-acre parcel (conceptually equivalent to 8 acres). But “BIA typically requires all landowners to agree to partition (divide) Indian allotted lands,” making it extremely difficult to secure a homesite without “a huge transactional effort.”

Chairman LeBeau concluded: “Fractionation of Indian lands is especially a problem for economic development.”

The Administrative Burden

A 2010 GAO study found that BIA estimated that maintaining each land ownership record costs $40-50 per year. Applying this to the twelve heavily fractionated reservations studied yielded $40-50 million annually just for recordkeeping. This estimate excluded judicial and probate costs.[5]

By fiscal year 2023, BIA had accumulated a backlog of more than 32,000 inheritance cases, according to Rep. Teresa Leger Fernandez at the January 2024 Congressional hearing.[10]

The Department of Interior’s 2017 congressional testimony explained that a portion of the BIA’s annual budget for Realty, Leasing, Land Title and Records, Probate, Forestry, and Natural Resources ($126.8 million for FY 2017) relates to managing trust resources for individual landowners. DOI noted many fractionated tracts are “under-utilized, unoccupied, or unavailable for any purpose.”[11]

Why a $1.9 Billion Program Wasn’t Enough

The Land Buy-Back Program for Tribal Nations (2012-2022) was funded through the Cobell settlement with $1.9 billion to purchase fractional interests from willing sellers and consolidate them into tribal ownership.

Program Results

Over ten years, the program:[9]

• Purchased 1.1 million fractional interests

• Paid $1.69 billion to individual landowners

• Increased tribal ownership in more than 50,000 tracts

• Fully consolidated nearly 2,000 tracts under tribal control

Why It Failed to Solve the Problem

According to the Department of Interior, without sustained funding, fractionation levels will return to pre-Cobell levels by 2038.[6]

The reason: The program bought out existing fractional interests and consolidated them under tribal ownership, but did nothing to stop new fractionation from continuing to occur through inheritance among individually-owned parcels. My research with Jacob Russ shows that fractionation was growing at a rate of 44,500 new interests per year as of 2010.[12]

Despite ongoing fractionation, federal funding for land consolidation has declined dramatically: from $1.9 billion for the Cobell program to just $8 million for the current Indian Land Consolidation Program.”[10]

Marvin Weatherwax, Jr., Blackfeet Tribal Business Council member and Coalition of Large Tribes chairman, testified in January 2024: “The fractionation just spirals unless you can stop it.” He called current funding levels “dribs and drabs” insufficient to meet the need, saying: “Funding of land buy-back program should be tailored to what is needed to actually achieve the objective, not keep us on the hamster wheel of the same number as last year.”[10]

The Root Cause: Federal Trust Restrictions

Fractionation isn’t just about inheritance. It’s about the interaction between inheritance rules and federal restrictions that make voluntary consolidation difficult.

Trust land cannot be sold without BIA approval. Rights-of-way require BIA approval. Leasing requires BIA approval and complex consent thresholds. While Indian landowners can devise their interests to a single heir through a will, many die without wills, causing their land to pass through intestate succession rules that divide interests among multiple heirs.

The checkerboard ownership pattern (intermixed trust, fee, and tribal lands) creates jurisdictional challenges that complicate economic development and infrastructure projects.[2][6]

What Would Actually Work

The problem requires removing federal barriers to voluntary consolidation, not just funding temporary buy-back programs:

1. Create a Functioning Market for Fractional Interests

Remove all BIA approval requirements for voluntary transfers of trust interests among Indians and make fractional interests freely tradeable like corporate stock. This market-based approach, similar to how tradable permits solved pollution allocation problems, would create liquidity, enable price discovery, and allow voluntary consolidation through transparent exchange. Individuals could buy, sell, and consolidate interests without federal permission, whether to co-owners, other tribal members, or the Tribe.

2. Allow Individual Partition Without Unanimous Consent

As Chairman LeBeau testified, current BIA rules typically require all landowners to agree before physically dividing (partitioning) fractionated land. This means a tribal member who owns a 5% interest in a 160-acre parcel, conceptually equivalent to 8 acres, cannot obtain an actual 8-acre homesite without getting every co-owner to consent. The transaction costs of locating and obtaining consent from dozens or hundreds of co-owners often make this impossible.

Reform should allow individual owners to partition their proportional share without requiring unanimous consent from all co-owners. If you own 5% of 160 acres, you should be able to request a survey and partition to receive your 8 acres as a separate, physically identifiable parcel, enabling homesite development, agricultural use, or sale without coordinating with dozens or hundreds of co-owners.

3. Fund Tribal Purchase Programs

Provide sustained funding ($400 million annually, as proposed by Cheyenne River Sioux Tribe)[8] for Tribes to purchase fractional interests and fee lands for consolidation, but pair this funding with structural reforms that prevent new fractionation from occurring.

These solutions respect tribal sovereignty while removing federal barriers that prevent efficient land use. They’re consistent with free-market principles: voluntary exchange, reduced transaction costs, and empowering property owners to make their own decisions.

These solutions respect tribal sovereignty while removing federal barriers that prevent efficient land use. They’re consistent with free-market principles: voluntary exchange, reduced transaction costs, and empowering property owners to make their own decisions.

Why This Matters for the REFI

In developing the Reservation Economic Freedom Index 2.0, I found that institutional quality correlates strongly with prosperity. Fractionation is an institutional failure. A costly, federally imposed barrier to property use that undermines economic development.

The REFI measures these kinds of institutional barriers. Reservations with better institutions, including clearer property rights and more efficient land use processes, show measurably higher median household incomes.

Fractionation represents the opposite: federal policy that fragments property rights, raises transaction costs, and makes productive land use nearly impossible. It’s exactly the kind of institutional dysfunction that REFI was designed to measure, and policymakers should work to eliminate.

The Bottom Line

Fractionation isn’t an accident. It’s the predictable result of three federal policies:

1. Allotment (dividing tribal land into individual parcels)

2. Trust restrictions (preventing free alienation and requiring BIA approval)

3. Undivided inheritance (interests pass to heirs as percentages rather than physically divided parcels, and BIA restrictions make partition difficult)

Congress has attempted to address fractionation through various reforms and programs. The $1.9 billion Cobell program achieved significant temporary consolidation. But without removing the underlying restrictions that make voluntary consolidation difficult, the problem will return to pre-Cobell levels by 2038.

As Marvin Weatherwax testified: “The fractionation just spirals unless you can stop it.”[10]

The solution isn’t more buy-back funding alone. It’s removing federal barriers so Tribes and individual owners can consolidate land through voluntary transactions. That’s what would actually solve the problem.

References

[1] Bureau of Indian Affairs, “What is Fractionation?” https://www.bia.gov/bia/ots/dtlc/fractionation

[2] U.S. Department of the Interior, Land Buy-Back Program for Tribal Nations, “Fractionation.” https://www.doi.gov/buybackprogram/fractionation

[3] 25 C.F.R. § 162.012, “What are the consent requirements for a lease?” https://www.law.cornell.edu/cfr/text/25/162.012

[4] U.S. Department of the Interior, Office of Inspector General, Coordination of Efforts to Address Indian Land Fractionation, Report No. WR-EV-BIA-0002-2010 (Jan. 2011). https://www.doioig.gov/sites/default/files/2021-migration/WR-EV-BIA-0002-2010Public.pdf

[5] U.S. Government Accountability Office, Indian Programs: Profile of Land Ownership at 12 Reservations, GAO/RCED-92-96BR (Feb. 10, 1992). https://www.gao.gov/assets/rced-92-96br.pdf

[6] Congressional Research Service, Tribal Lands: Overview and Issues for Congress, R48360 (Jan. 16, 2025). https://www.congress.gov/crs_external_products/R/PDF/R48360/R48360.2.pdf

[7] Hodel v. Irving, 481 U.S. 704 (1987). https://tile.loc.gov/storage-services/service/ll/usrep/usrep481/usrep481704/usrep481704.pdf

[8] Testimony of Chairman Ryman LeBeau, Cheyenne River Sioux Tribe, House Committee on Natural Resources, Subcommittee on Indian and Insular Affairs, “Examining the Opportunities and Challenges of Land Consolidation in Indian Country” (Jan. 30, 2024). https://docs.house.gov/meetings/II/II24/20240130/116695/HHRG-118-II24-Wstate-LeBeauR-20240130.pdf

[9] Conor P. Cleary, “Fractionation or Consolidation? The Land Buy-Back Program for Tribal Nations (2012-2022),” Oklahoma Bar Journal, April 2024. https://www.okbar.org/barjournal/april-2024/fractionation-or-consolidation/

[10] “’Fractionation just spirals unless you stop it’: Tribes call for more land consolidation funding,” Indianz.Com (Feb. 1, 2024). https://indianz.com/News/2024/01/31/fractionation-just-spirals-unless-you-stop-it-tribes-call-for-more-land-consolidation-funding/

[11] Statement of James Cason, Acting Deputy Secretary, U.S. Department of the Interior, House Subcommittee on Indian, Insular and Alaska Native Affairs, “Status and Future of the Cobell Land Consolidation Program” (May 23, 2017). https://www.doi.gov/ocl/land-consolidation-program

[12] Jacob W. Russ and Thomas Stratmann, “Divided Interests: The Increasing Detrimental Fractionation of Indian Land Ownership,” in Unlocking the Wealth of Indian Nations, ed. Terry L. Anderson (Lanham, MD: Lexington Books, 2016). https://www.barnesandnoble.com/w/unlocking-the-wealth-of-indian-nations-terry-l-anderson/1123885118

Why?

The common assumption: casino revenue. The data show otherwise. Gaming, natural resources, and location explain some variation. But they don’t explain most of it. What does? Institutional quality.

The Reservation Economic Freedom Index 2.0 measures how property rights, regulatory clarity, governance, and economic freedom vary across tribal nations. The correlation with prosperity is clear, consistent, and statistically significant. A 1-point improvement in REFI, on a 0-to-13 scale, correlates with approximately $1,800 higher median household income. A 10-point improvement? Nearly $18,000 more per household.

This isn’t theory. This is what the data from 123 reservations show: when institutions work, when property rights are clear, regulations are predictable, governance is accountable, and economic freedom is high, prosperity follows.

The Pattern Across Reservations

The correlation between institutional quality and prosperity is clear. Figure 1 shows the relationship for median household income. (Household income data are available for 121 of the 123 reservations in REFI 2.0; two reservations lack sufficient American Community Survey sample sizes for reliable household income estimates.)

Each dot represents one reservation. The chart shows 120 reservations of the 121 reservations with household income data. One with exceptionally high income (above $110,000) was excluded to demonstrate the relationship holds across typical income ranges. The upward slope shows that institutional quality correlates with prosperity. The relationship is statistically significant (p = 0.004) and economically meaningful: each additional point on the REFI scale associates with $1,783 higher median household income for Native American residents.

The pattern isn’t driven by extreme cases. Including all 121 observations (with the high-income outlier) yields similar findings (coefficient = $1,600, p = 0.011). The pattern also holds for per capita income measured across all 123 reservations and in log specifications measuring percentage changes, confirming the relationship is robust across different income measures and model specifications.

What REFI 2.0 Measures

The Reservation Economic Freedom Index captures institutional features that economic research consistently links to prosperity. Ten components combine into a single 0-to-13 scale:

Governance and Accountability:

• Constitutional structure that separates powers and limits executive discretion

• Competitive general elections for leadership positions

Property Rights and Legal Framework:

• Percentage of reservation land held in fee simple (not trust status)

• Adoption of Uniform Commercial Code for secured transactions

• Modern land codes governing property use and transfer

• Clear tax codes defining tribal revenue authority

Openness and Transparency:

• Absence of blood quantum requirements for membership

• Public access to tribal codes and regulations

Federal Relationship:

• Self-governance compacts reducing BIA oversight

• Jurisdictional framework (including PL 280 status and tribal-federal agreements)

• Tribal law enforcement authority under federal cooperation agreements

Judicial Quality:

• Published tribal codes and court procedures

• Separate court system (independent judicial branch, not combined with executive)

• Professional judiciary with law degrees and experience

• Judge term lengths that balance independence with accountability

This isn’t a checklist where more is always better. It’s a framework for identifying which institutional features correlate most strongly with economic outcomes. Some components matter more than others. REFI 2.0’s expansion to 123 tribes allows for more precise identification of which reforms drive prosperity.

Building on REFI 1.0

REFI 1.0, published in Public Choice and hosted by Renewing Indigenous Economies at the Hoover Institution, covered 89 tribal nations and established the basic relationship between institutional quality and prosperity. Terry Anderson and the RIE team recognized early that quantifying institutional variation across reservations could inform policy discussions; and the initial results confirmed that intuition.

REFI 2.0 expands coverage to 123 tribal nations and refines measurement of several institutional components based on updated data and tribal policy developments. The core methodology remains consistent while improvements in data collection allow for more precise institutional comparisons across a broader sample of tribal governments.

The expanded coverage reveals the same fundamental pattern REFI 1.0 identified: institutional quality correlates with prosperity. But with 34 additional tribal nations and updated data through 2023, we can now identify these relationships with greater confidence and examine variation across more diverse governance structures.

What the Numbers Show

The statistical relationship between REFI 2.0 and income is clear across multiple measures:

Median household income (Native American residents): Analyzing 121 reservations with available household income data, each 1-point REFI increase correlates with $1,783 higher income (statistically significant at p = 0.004). This result is based on 120 observations after excluding three reservations with exceptionally high incomes; including all 121 observations yields similar findings (coefficient = $1,600, p = 0.011).

Per capita income (Native American residents): The pattern holds here as well, with each REFI point associating with roughly $900 higher per capita income (p < 0.001).

Percentage terms: In log specifications measuring proportional changes, a 1-point REFI improvement associates with approximately 3.5% higher household income—confirming the relationship holds across different income levels.

Consistency matters. The pattern appears regardless of how we measure income (household vs. per capita), how we specify the model (levels vs. logs), or which observations we include. That consistency suggests we’re measuring something real: institutional quality shapes economic outcomes.

To put these numbers in perspective: a 3-point institutional improvement, say, moving from weak property rights enforcement to clear, enforceable titles, or from discretionary permitting to rule-based processes, correlates with over $5,000 higher median household income. Moving from the bottom quartile to the top quartile of institutional quality? The data suggest a difference of tens of thousands of dollars per household.

What This Means for Policy

These correlations don’t prove that changing any single institutional feature will automatically raise incomes. Causation is more complicated; better institutions may attract different residents, enable different economic activities, or reflect other unobserved factors that also drive prosperity. Research using natural experiments and institutional changes over time (work my colleagues and I continue to pursue) provides stronger causal evidence.

But correlation still tells us something useful for policy: institutional quality and prosperity move together. Reservations with clear property rights, predictable regulations, strong courts, and high economic freedom systematically have higher household incomes than those with ambiguous ownership, discretionary processes, and constrained economic activity.

The policy implication: reforms that improve institutional quality, clearer property rights, more predictable regulatory processes, stronger judicial independence, and reduced federal oversight where tribes can self-govern effectively, are worth pursuing. The data can’t tell us the exact causal effect of any single reform, but they can identify which margins show the strongest associations with prosperity.

For tribal leaders evaluating reform priorities, REFI 2.0 provides a framework: which institutional features show the strongest correlation with economic outcomes? For federal policymakers considering legislative changes, the data suggest: removing barriers to tribal institutional development, such as trust status restrictions, overlapping jurisdictions, and regulatory uncertainty, would likely support prosperity.

The Federal Barrier Question

Many low-REFI features aren’t tribal choices; they’re federal impositions. Trust status prevents land from being used as collateral. Overlapping federal-state-tribal jurisdiction creates regulatory uncertainty. BIA approval requirements add months or years to routine transactions. Complex jurisdictional frameworks can deter investment when the rules governing business activity, dispute resolution, and enforcement remain unclear.

When REFI scores are low, it often reflects federal constraints on tribal sovereignty, not tribal governance failures. The correlation between REFI and prosperity, therefore, suggests that removing federal barriers to tribal self-governance could support economic development. This aligns with decades of research by the Harvard Project on American Indian Economic Development showing that genuine self-determination, not federal administration, drives reservation prosperity.

The challenge is that improving REFI scores requires either federal legislative reform (to remove barriers like trust status or jurisdictional complexity) or tribal institutional development within existing constraints (adopting modern codes, strengthening courts, increasing transparency). Both paths are available; both show up in the data as associated with higher incomes.

What Comes Next

REFI 2.0 is a measurement tool, not a policy prescription. It shows which institutional features correlate with prosperity across 123 tribal nations. The question for tribal leaders and federal policymakers is: which reforms are feasible, which are most urgent, and which would deliver the greatest benefit?

That’s where the research goes next. Identifying causal effects through natural experiments. Examining which specific institutional changes drive the strongest income gains. Understanding how different components interact. Does judicial quality matter more when property rights are already clear? Do regulatory reforms work better with or without federal oversight?

The data are available for researchers, tribal governments, and policymakers who want to examine specific questions. REFI 2.0 provides the baseline measurement. The policy work—figuring out which reforms to pursue and how to implement them—is where institutional economics meets the practical challenges of governance in Indian Country.

For tribal nations considering institutional reforms, the message is straightforward: institutional quality matters. Not in theory, not in abstract economic models, but in measurable household incomes across 123 reservations. The data show it. The question is what to do about it.

Data and Methods Note

REFI 2.0 institutional data were collected in early 2025. Income data come from the American Community Survey 2019-2023 five-year estimates for Native American residents on reservations. The sample includes 123 federally recognized tribal nations in the lower 48 states with sufficient ACS sample sizes for reliable income estimates.

The relationship holds in both level and log specifications, for both household and per capita income measures, and across different sample compositions. Correlation does not establish causation. These results show that institutional quality and prosperity move together across reservations. Causal identification requires additional empirical strategies, such as difference-in-differences analysis of institutional changes, instrumental variables approaches, or natural experiments, remain active areas of research.

A Note on Collaboration

REFI 1.0 benefited from support by the Mercatus Center, the Public Choice Center, and Renewing Indigenous Economies at the Hoover Institution. Terry Anderson and the RIE team recognized early that quantifying institutional variation across reservations could inform policy discussions, while Mercatus and the Public Choice Center at George Mason University supported the work as part of their research programs on institutions and prosperity.

REFI 2.0 received support from the Institute for Humane Studies at George Mason University. I’m grateful to all four organizations for their support of this research program and committed to making REFI as useful as possible for tribal leaders evaluating reform options and for federal policymakers considering legislative changes.

REFI 2.0 builds on the REFI 1.0 foundation while expanding reach to policymakers and practitioners through this platform. If your organization works on tribal economic policy, and these data would be useful, I’m happy to discuss collaboration. If you’re a tribal leader with questions about your nation’s REFI score or the methodology, reach out. If you’re a Congressional staffer working on Indian Affairs legislation and this analysis would inform your work, I’m available for background conversations.

The goal is impact, not publication metrics. Institutional economics should serve the people and communities it studies.

Where to Find More

• REFI 1.0 methodology and findings: Stratmann (2023), “A Reservation Economic Freedom Index,” Public Choice. https://doi.org/10.1007/s11127-023-01088-3

• Renewing Indigenous Economies at Hoover: https://www.hoover.org/renewing-indigenous-economies

• Previous Rules & Results posts on tribal economics: Thirty Years for Tax Clarity, When Tribal Courts Gain Jurisdiction, What Waiting Looks Like

This post isolates contributions under $500 to examine the breadth of participation, not just dollars raised. The midterm advantage for the non-president party, documented in Part 1, is stronger among small donors and peaks in "wave" cycles—1994, 2006, 2010, and 2018—when national conditions create many competitive districts.

Why donor counts matter

Donor counts capture participation breadth. Each person who contributes, regardless of the amount, has taken a costly action that signals engagement. Small-donor counts correlate with volunteer pipelines, grassroots energy, and sustained attention. They don't require inflation adjustments, and when small donors rally behind challengers and open seats, it's often an early signal that races will tighten.

Definitions

• Small-dollar donor: A distinct individual who gave less than $500 total to House candidates in a two-year cycle, counted once per cycle, even if they gave multiple times or to numerous candidates.

• Non-president party: The party not holding the White House at the cycle’s end.

What the data show

Figure 1 tracks small-dollar donors to House candidates by party from 1989 to 2024. Each tick shows a midterm year, and indicates the party that held the presidency (e.g., “2018-R”). Dashed vertical lines mark widely recognized wave midterms.

Presidential election years show smaller gaps or mixed patterns, with two exceptions: 2008 and 2016 tilted Democratic, while 2020 showed very high, nearly equal counts for both parties.

Figure 2 shows the gap in small-dollar donor participation between parties. Values above zero indicate the non-president party attracted more small donors than the president's party.

Most midterms show positive values (above zero), meaning the non-president party attracted more small donors. The largest gaps appear in wave years: 1994, 2006, 2010, and 2018.

Small donors versus all donors

The midterm pattern is more evident among small donors than among all donors. Figure 3 compares the non-president party's share of donors in presidential years versus midterm years, showing both small-dollar donors and all donors.

In presidential years (Panel A), the two shares converge; sometimes the small-donor share tilts Democratic (2008, 2016), other times toward parity (2020). In midterms (Panel B), the small-donor share consistently exceeds the all-donor share, with the largest gaps appearing in wave years.

The challenger-incumbent gap compresses

Among small donors, incumbents usually lead in participation, but the incumbent-challenger gap compresses sharply in midterms. In 2018, challengers overtook incumbents—a rare inversion. Open-seat participation spikes in retirement-heavy, competitive cycles when many districts lack an incumbent.

The numbers tell a consistent story: small-dollar participation responds more to midterm dynamics than overall donor participation does. The swing is larger, the gaps are wider, and in extreme wave cycles like 2018, established patterns flip.

Why this happens

Online tools lowered transaction costs for giving. As small-dollar infrastructure matured through the 2000s and 2010s, it became easier for individuals to find candidates, store payment details, and respond to timely appeals. The timing in the figures aligns with this story: Democratic small-donor participation rises notably in 2008 and 2016; Republican participation catches up and reaches near-parity at high levels in 2020.

Digital platforms amplify the midterm participation rule and wave-cycle dynamics—they don’t replace them. The underlying pattern predates modern fundraising technology; the technology accelerates and broadens it.

Statistical note

A regression check using party-by-cycle panel data with party fixed effects and a midterm-by-non-president interaction confirms the pattern’s direction: the interaction coefficient is positive for both log and level specifications. With only 36 observations across 18 cycles and two parties, the estimates are imprecise (wide confidence intervals), but they align with what the figures show. The visual evidence and the small-versus-all comparison convey the practical magnitude more clearly than regression output.

Policy and practical implications

Recent research finds that the individual-donor incumbency advantage has weakened over time, while corporate PAC support remains more stable for incumbents. The small-donor patterns here fit that shift: as individual giving has nationalized and moved with midterm dynamics, challengers and open seats attract broader small-donor participation in wave cycles.

For policy design aimed at protecting participation without restricting lawful giving, the most useful steps remain neutral transparency, clear consent for recurring gifts, and sender authentication for solicitations. Small-donor mobilization reflects genuine grassroots energy; regulation should focus on preventing fraud and ensuring disclosure, not dampening participation.

Conclusion

Among House campaign donors, the midterm advantage for the non-president party is stronger among small donors than among all donors. The pattern peaks in wave elections and shows most clearly in candidate-status comparisons, where the incumbent-challenger gap compresses and even reverses. Because giving is costly, sustained gains in small-donor counts—especially for challengers and open seats—often foreshadow where electoral margins will tighten.

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A note on this publication’s direction

This concludes the campaign finance series. Going forward, Rules & Results will focus primarily on Native American economic policy and institutional reform, with occasional posts on broader institutional economics questions—property rights, regulatory complexity, rule of law, and how institutional quality affects prosperity.

My research centers on how institutions shape economic outcomes. Reservation economies offer a particularly clear lens for examining these questions: How do property rights regimes affect investment? What happens when jurisdictional complexity raises transaction costs? How do regulatory barriers constrain entrepreneurship? Recent posts on tribal tax regulations, HEARTH Act implementation timelines, and VAWA’s impact on tribal court jurisdiction reflect this institutional approach applied to Indian Country.

The work ahead will concentrate on removing institutional barriers that constrain prosperity on tribal lands. If you subscribed primarily for campaign finance analysis, thank you for reading these two posts. If you’re interested in how institutions affect economic outcomes—particularly in reservation economies—you’re in the right place. The next post returns to tribal economic policy.

The tribal leaders quoted in the announcement are right to celebrate. These rules matter. But the story they tell isn’t primarily one of progress. It’s a case study in how regulatory uncertainty quietly strangles economic development—and how the federal system that governs Indian Country makes that uncertainty almost inevitable.

The Real Story Is the Timeline

Consider what we’re actually celebrating: the IRS has finally, after roughly 30 years of tribal advocacy—dating back to the early 1990s—confirmed in writing what the underlying legal principles arguably required all along. (See “Key Milestones” below for the whole timeline.)

During those three decades, tribes structured deals defensively, paid higher borrowing costs, delayed projects, and sometimes paid federal taxes they may not have owed—all because Washington couldn’t produce clear guidance. As the Treasury Department acknowledged, the uncertainty “created a significant barrier to economic development,” “impact[ed] access to capital,” and forced tribes to guess “the cost of financing” rather than focus on growth.

Congress passed the Tribal General Welfare Exclusion Act in 2014. It took eleven years to finalize the implementing regulation.

This isn’t a story about government working. It’s a story about how government-created ambiguity imposes real costs on real communities, year after year, while the bureaucratic process grinds forward at its own pace. Research consistently shows that institutional complexity—overlapping jurisdictions, unclear rules, unpredictable enforcement—depresses investment and economic activity. (For more on how institutional quality correlates with reservation incomes, see my earlier post on the Reservation Economic Freedom Index, based on my paper in Public Choice.) A 30-year wait for tax clarity is a 30-year period during which capital that could have flowed into reservation economies went elsewhere or never materialized.

Regulatory Clarity Is Good—But It’s Still Regulation

Treasury Secretary Bessent framed the announcement as part of “the administration’s pro-growth and deregulatory agenda.” The characterization deserves scrutiny.

What happened last week is that the federal government finally wrote down rules clarifying how it will apply its taxing power. That’s welcome. It reduces uncertainty. But the underlying framework remains: tribes needed federal permission—or at a minimum, federal confirmation—to know how their own welfare programs and business entities would be treated.

Under the final regulations, tribes have “sole discretion” to determine whether a benefit promotes general welfare, and the IRS will defer to that determination. Benefits can be provided regardless of financial need and may be distributed uniformly to all eligible tribal members. This is coherent: tribes are governments, and the regulations appropriately recognize their authority to define welfare under their own laws and customs. States don’t need IRS permission to confirm that their welfare programs aren’t taxable to recipients—that’s inherent in state sovereignty. Tribes shouldn’t need it either.

But consider what this deference required: a decade of advocacy after Congress acted, extensive tribal consultation, 41 public comments, and a 28-page Federal Register notice. Tribes now have clearer rules to follow. They don’t have fewer rules. The compliance apparatus remains; it’s just better documented.

Competitive Questions Worth Considering

The regulations raise an implication worth thinking through: tribal enterprises that are wholly owned and chartered under tribal law are now clearly exempt from federal income tax. They compete in markets alongside businesses that pay that tax.

This isn’t an argument against tribal sovereignty. Tribes are governments, and governments generally don’t pay income tax to other governments. But the economic logic of government-owned enterprises competing in private markets is worth examining regardless of the government in question.

When governments run businesses—whether states, municipalities, or tribes—they often enjoy advantages that private competitors don’t: tax exemptions, implicit subsidies, and access to sovereign borrowing. Economists call this state capitalism, and the competitive distortions it can create are well-documented. The question for reservation economies is whether tribal prosperity is best served by tribes acting as business operators or by tribes creating the institutional conditions—clear property rights, predictable courts, limited regulation—that allow private enterprise, including tribally owned private enterprise, to flourish.

What Would Real Progress Look Like?

The celebration around these regulations is understandable. After 30 years, you take the wins you can get. But it’s worth asking what a genuinely pro-development, pro-sovereignty framework would look like.

It probably wouldn’t require tribes to wait three decades for the IRS to confirm their legal status. It wouldn’t treat federal “guidance” as a prerequisite for tribal self-governance. And it would address the deeper structural barriers that research has identified as impediments to reservation prosperity: fractionated land ownership that makes economic use of land nearly impossible; trust status that prevents land from being used as collateral; checkerboard jurisdiction that raises transaction costs for any development project; and regulatory complexity that deters outside investment and constrains tribal decision-making. (On fractionation specifically, see Russ and Stratmann 2016; on property rights and development more broadly, see the work of Cornell and Kalt at the Harvard Project on American Indian Economic Development.)

The Treasury announcement is a modest improvement within a system that remains resistant to economic dynamism in Indian Country. Tribal leaders know this, which is why the same announcement included requests for further guidance on partially-owned enterprises that could undermine implementation of the very rules just finalized.

The bureaucracy giveth, and the bureaucracy taketh away.

Tribal communities deserve better than a system where “progress” means federal agencies finally doing what Congress told them to do a decade ago. They deserve a framework that respects genuine sovereignty—not sovereignty-as-administered-by-Washington, but the real thing: the freedom to govern, build, and prosper without perpetual dependence on federal permission slips.

These new rules are better than the ones that came before. That’s a low bar, and everyone involved knows it.

Key Milestones: 30 Years to Tax Clarity

Early 1990s — Tribal governments begin requesting written guidance from Treasury and the Internal Revenue Service (IRS) on the tax treatment of general welfare benefits and tribally-owned business entities. Without clear rules, tribes face audit risk and structure programs defensively.

June 3, 2014 — The IRS issues Revenue Procedure 2014-35, creating interim “safe harbors” that allow certain tribal general welfare benefits to be excluded from taxable income. This reduces immediate audit uncertainty but is not a permanent solution.

September 26, 2014 — Congress passes the Tribal General Welfare Exclusion Act, adding Section 139E to the Internal Revenue Code. The law codifies that qualifying tribal general welfare benefits are not taxable and directs the IRS to defer to tribal program determinations. It also mandates creation of a Treasury Tribal Advisory Committee (TTAC).

February 10, 2015 — The TTAC is formally established to advise Treasury on tribal tax matters and help develop regulations implementing the 2014 Act.

April 16, 2015 — The IRS issues Notice 2015-34, clarifying that taxpayers may continue relying on the 2014 safe harbors while permanent regulations are developed.

June 20, 2019 — The TTAC holds its first public meeting—more than four years after its formal establishment. The committee begins substantive work on regulatory recommendations.

September 17, 2024 — Treasury publishes a Notice of Proposed Rulemaking on Section 139E, translating the 2014 statute into binding regulations. Public and tribal comment periods follow.

October 9, 2024 — Treasury publishes a separate proposed rule on the federal income tax classification of entities wholly owned by tribal governments—addressing the 30-year-old question of whether tribally-chartered corporations share their tribe’s tax-exempt status.

November–December 2024 — Treasury conducts formal government-to-government consultations with tribal leaders on both proposed rules.

December 16, 2025 — Final regulations on both tribal general welfare benefits and tribally-owned entities are published in the Federal Register, concluding a regulatory process that spanned three decades.

To my knowledge, no published analysis documents this pattern using counts of donors to U.S. House candidates across cycles. Prior work emphasized dollars or donor composition. I focus on how many people give.

Data and method

I show data over two-year federal election cycles. The outcome is the number of unique individual contributors to U.S. House candidates in each cycle. For every cycle, I count the number of donors to any candidate and, then separately, donors to incumbents, challengers, and open-seat candidates. The series runs from the 1989-1990 through the 2023–2024 cycle.

House elections happen in even-numbered years (1990, 1992, …, 2024). The 1990 midterm election is associated with the “1989–1990” cycle, the 1992 election with the “1991–1992” cycle, and so on.

In the graphs, I plot the second (even) year—the end year— of an election cycle on the x-axis because that’s the election year. Then I look up who was president during that election. That tells me which party the president belongs to in that cycle.

For each cycle, I have two party series: Democrats and Republicans. I then relabel the parties by role in that cycle:

The party in the White House that year → the party holding the presidency

The other party → The party other than the one holding the presidency (the “out party”)

• 1994 (Clinton was president, Democrat) → the party holding the presidency = Democrats. The party other than the one holding the presidency = Republicans.

• 2006 (George W. Bush was president, Republican) → the party holding the presidency = Republicans. The party other than the one holding the presidency = Democrats.

• 2018 (Trump was president, Republican) → the party holding the presidency = Republicans. The party other than the one holding the presidency = Democrats.

• 2022 (Biden was president, Democrat) → the party holding the presidency = Democrats. The party other than the one holding the presidency = Republicans.

• 2024 (Biden was president, Democrat) → the party holding the presidency = Democrats. The party other than the one holding the presidency = Republicans.

Figure 1. Donors by party over time. Totals are much higher in recent cycles than in the early 1990s.

X‑axis: Ticks for midterm years only. Each tick label shows the president’s party for that midterm (e.g., “1994‑D,” “2006‑R”). Dashed vertical lines mark “wave” midterms. Y-axis: Counts of donors.

Figure 1 shows that the number of people donating to House candidates has risen sharply over the period. The blue line shows donors to Democratic House candidates. The red line shows donors to Republican House candidates. Across the two parties combined, there were about 128,000 donors in 1990, about 654,000 in 2018, and about 782,000 in 2022. The midterm pattern I describe next sits atop this broad rise in participation.

Why donors rather than dollars

Donor counts measure the breadth of financial engagement (dollars measure the depth). Donor counts tell us how many people chose to give at least once during a cycle, regardless of the size of their gifts. Total dollars combine two forces — the number of donors and the average gift — so dollar totals can rise even when participation is narrow, for example, if a few very large contributions increase. Average gift focuses on intensity among those who already give, but it does not reveal how widely that intensity is shared. Donor counts, therefore, capture the extensive margin of political participation and, because contributing is costly, provide an early signal of preference intensity that is distinct from how much money was raised.

This post measures participation. A donor count tells us how many people chose to engage financially with a campaign, regardless of how much they gave. That breadth matters for politics: parties can build volunteers, attention, and momentum from a wide base of small givers. Counts are not driven by a few very large gifts, and they do not require inflation adjustments. Dollars are important, but they address a different question, how much money was raised. Donor counts indicate how many citizens put money behind their preferences and, because contributing is costly, they provide an early signal of preference intensity.

What counts as a donor

In these figures, a donor is a distinct individual who gave at least once to a U.S. House candidate in a given two-year cycle. Each person is counted once per cycle, even if they give multiple times or to multiple candidates. The graphs in this post cover individuals only; contributions from political action committees (PACs) and other organized entities are not included in the donor counts.

Figure 1 also shows which party has more donors in each election cycle. Look for the distance between the two lines. The line for the party other than the one holding the presidency (the party not holding the White House in that election) tends to sit above the party holding the presidency in midterm years. In presidential years, the lines move closer together. In several well-known midterms, the gap is large. Think of 1994, 2006, 2010, and 2018. The pattern shows that when the White House is held by Party A, more people donate to House candidates from Party B in the midterm that follows.

A few examples from Figure 1

• 1994 — Democrat in the White House. House candidates from the other party (Republicans) drew 110,537 donors versus 101,133 for Democrats — +9,404.

• 2006 — Republican in the White House. The other party (Democrats) drew 198,498 donors versus 181,739 for Republicans — +16,759.

• 2010 — Democrat in the White House. The other party (Republicans) drew 244,478 donors versus 213,027 for Democrats — +31,451.

• 2018 — Republican in the White House. The other party (Democrats) drew 414,512 donors versus 239,628 for Republicans — +174,884.

• Nuance: 2002 (Republican in the White House) and 2022 (Democrat in the White House) buck the pattern slightly, with small differences in the opposite direction.

The bottom line is that in Midterm elections, there is a broad increase in the number of contributors to the party not holding the presidency.

Figure 2 confirms the conclusions reached in Figure 1, with a one-line difference. The line measures the number of contributors to House candidates from the party other than the one holding the presidency, minus the number of contributors to House candidates from the party holding the presidency. Values above zero mean the party other than the one holding the presidency has more donors in that cycle.

Figure 2: Difference in donors (other party minus party holding the presidency.

X‑axis: Midterm years only, labeled by the president’s party. Values above zero indicate more donors for the non‑president party in that cycle; dashed lines mark wave midterms. Y-axis: Donors to House candidates from the other party minus donors to House candidates from the party holding the presidency.

Notice how the line rises in midterms. In presidential years, it moves back toward zero. In a few cycles, it dips, but the dominant pattern is midterm peaks in the number of donors for the party not holding the presidency.

Two examples from Figure 2

• Peak midterm example: 2018 — line far above zero, reflecting +174,884 more donors for candidates from the party other than the one holding the presidency.

• Near-zero/exception example: 2022 — line sits near zero/slightly below, reflecting about −4,391 donors relative to the party holding the presidency.

Figure 3. Donors by candidate status (incumbents, challengers, open seats).

X‑axis: Midterm years only, labeled by president’s party. Incumbents usually lead, but in midterms the incumbent–challenger gap often narrows and open seats can spike; dashed lines flag wave midterms. Y-axis: Number of donors.

Figure 3 shows how this pattern appears across race types: incumbents, challengers, and open seats. This figure groups all donors and splits them across incumbents, challengers, and open-seat candidates. Incumbents usually attract the most unique donors. Two midterm features stand out:

• The number of contributors to challengers rises in midterms. In one of the strongest midterm surges (2018), challengers attracted unusually high levels of participation, and the incumbent–challenger gap narrowed.

• There are relatively few open seats in any cycle, yet they attract donor activity on a scale comparable to all challengers combined. That is only partly because there are two candidates for an open seat. The bigger drivers are competitiveness and uncertainty, which draws national recruitment, media, and donors. When retirements or redistricting increase the number of open seats, donor counts climb, as in 2018. The effect is strongest in midterms.

Take-away

The figures document a donor participation rule rather than a dollar story. Across cycles, midterms draw more people to donate to House candidates from the party other than the one holding the presidency. In presidential years, the gap is smaller but visible. The difference is largest in wave midterms, and the pattern remains even as overall participation rises over time.

Donor counts are an early indicator of preference intensity. If the party not in the White House gains donors to challengers across many districts, that is an early sign that more races could become competitive. Watching how participation shifts by cycle, and where challenger and open-seat giving concentrates, can foreshadow where margins are likely to widen or narrow before ballots are cast.

Next in the series: I will look at small-dollar donors and ask whether the midterm rule looks the same when we focus on gifts under $500.

Then: I will turn to dollars, not just counts, to see how participation relates to fundraising totals and candidate types.

Update (November 6, 2025). Clarified what “covered” leases are under HEARTH (surface leases such as residential, business, agricultural, and renewable energy; not mineral or rights-of-way). Tightened the Ho-Chunk example. Added plain-English NEPA timing and fixed HUD Section 184 links. Defined “banked” and “unbanked.”

Thanks: Hat tip to a colleague for comments that improved clarity.

This post follows last week’s chart. It lets the facts speak. It uses plain numbers. Readers can see what waiting looks like.

Figure. Annual count of self governing leasing approvals.

The vertical line marks 2012, when the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH ACT) became law. Bars are calendar year counts of lease approvals under three regulatory regimes: Acts of Congress; 25 U.S.C. § 415; HEARTH Act. This figure shows correlation in timing. It does not claim causation.

What the figure shows

Each bar represents the number of approvals in that year. Before 2012, approvals were sparse and irregular. After 2012, approvals were higher and appeared in more years.

What changed in 2012

Context: Reservation land is legally distinct. Much of it is held by the United States in trust for tribes or for individual Native owners. Trust status means many actions need federal review and documentation before they take effect. That layering of approvals adds time and uncertainty to project schedules.

The HEARTH Act: The Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 created a path for tribes to approve certain surface leases on trust or restricted land — namely, residential, business, agricultural, and renewable-energy leases —under their own regulations once the United States Department of the Interior approves the tribe’s leasing code. This moves day-to-day leasing authority to qualified tribal governments. It does not change title to trust land, and it does not apply to mineral leases or rights-of-way.

Before 2012, most approvals came through narrow routes, such as tribe-specific legislation or negotiated arrangements under 25 U.S.C. § 415. For readers who want the law itself, see Public Law 112-151 on GovInfo.gov.

What the change looks like in practice

A case study by the Federal Reserve Bank of Minneapolis documents reported processing times in the Ho-Chunk Nation. Before HEARTH, a lease could take up to 18 months to be reviewed by federal offices. After the Nation adopted HEARTH regulations and received direct approval authority, the Nation’s Realty Division reported typical processing times of about four to six weeks. You can see the difference in schedules: approvals are issued sooner, construction and renewals start earlier, and fewer projects sit in the queue. This Ho-Chunk example is about lease approvals, not bank lending.

A familiar benchmark for time outside Indian Country

Most readers know the steps for a home loan: apply, wait for approval, then close. The wait shapes practical plans, from moving dates to school enrollment. Even short delays can mean another month of rent or a lost interest rate. For scale, mortgage technology reports show typical timelines measured in weeks, not years.

For example, the Intercontinental Exchange Mortgage Technology reports that in January 2024, the average time from loan application to closing was about 44 days, and from the time the interest rate was locked to closing was about 31 days. It is important to note that mortgage closings are not the same as reservation lease approvals. The comparison illustrates how much longer it takes to obtain on-reservation lease approval than for typical bank loans.

Environmental review timelines

Lease approvals are one clock. Some larger projects face a second clock when a federal decision is involved, for example, a federal permit, funding, or a right-of-way. In those cases, the National Environmental Policy Act (NEPA) can require a full Environmental Impact Statement (EIS).

Here is what the EIS clock looks like. The Notice of Intent is the formal start. The final EIS is the completed study. The Record of Decision is the agency’s decision at the end. The Council on Environmental Quality reports that for final EISs issued in 2024, the nationwide median time from Notice of Intent to the final EIS was about 2.2 years. For 2019–2024, the median was about 2.8 years. The median time from the final EIS to the Record of Decision was about 2.8 months. These numbers are not specific to HEARTH. They show how long a federal review can add to a schedule when it applies.

Frictions that slow projects today

The items below document timing gaps on trust land, with off-reservation benchmarks where those benchmarks are available. The common thread is time.

• BIA Real Estate Services: The United States Government Accountability Office found that the Bureau of Indian Affairs met the 20-day leasehold mortgage decision deadline about 72 percent of the time in fiscal years 2021 and 2022. The review identified gaps in timing data for other transactions.

• Title Status Reports and trailing documents in HUD’s Section 184 program: “Trailing documents” are post-closing items that arrive after funding, such as a county-recorded mortgage or leasehold mortgage, a certified Title Status Report (TSR), and the final title policy. HUD’s FY24 progress update reports that delays in these items impede issuance of the HUD guarantee and slow lenders’ ability to sell Section 184 loans in the secondary market. HUD now allows issuing the guarantee before trailing documents if the lender indemnifies HUD. Progress Update: FY24 Progress on Section 184 Loan Processing, March 2025. Improvements memo: Improvements to Section 184, May 2024.

• Dual Taxation: The Treasury Tribal Advisory Committee describes how concurrent state and tribal taxes can deter investment. The Cotton Petroleum decision allows certain concurrent state taxes on reservations alongside tribal taxes.

• Fractionated Ownership: The United States Department of the Interior explains that fractionation and checkerboard ownership patterns complicate land use. Fractionation overview and consent thresholds for fractionated tracts range from 90 percent for one to five owners, 80 percent for six to ten owners, 60 percent for eleven to nineteen owners, and a majority for twenty or more owners. See 25 C.F.R. § 162.012.

• Rights of Way for Utilities and Roads: In 2015, DOI rewrote 25 C.F.R. part 169 with the stated aim of streamlining approvals and aligning requirements with leasing rules. That signaled that process-complexity mattered. Agencies do not publish consistent time series on days to approval for rights of way, so treat this as a watch item: track the median days to decision under part 169 going forward. See 80 Federal Register 72472 and 25 C.F.R. part 169.

• Land into Trust Processing: DOI’s final rule sets a 120-day decision window once an application is completed. Recent performance updates report median decision times near 779 days in late fiscal year 2023, down from roughly 985 days in prior years. That is about two years from start to decision. See the final rule and Agency Priority Goal updates.

• Banking access context: The Federal Deposit Insurance Corporation defines a “banked” household as one with a checking or savings account at a bank or credit union. In 2023, about 96 percent of U.S. households were banked. The FDIC’s executive summary reports that American Indian or Alaska Native households had an unbanked rate of about 12.2 percent. This matters for everyday transactions. Many closings, payments, and deposits run through bank accounts, so households without accounts face more steps, higher costs, and longer timelines.

Methods and data limits

Public sources let us count approvals and track timelines. They do not report a comprehensive denial rate for trust-land actions. See HEARTH approvals, 25 C.F.R. parts 162 and 169 for approval/disapproval authority, and IBIA decisions.

The Department of the Interior lists approved HEARTH regulations. Rules confirm that leases and rights-of-way can be approved or disapproved; see 25 C.F.R. part 162 and 25 C.F.R. part 169, and the Interior Board of Indian Appeals publishes decisions on appeals of denials; see IBIA decisions. But there is no single public roll-up of denial percentages today.

Conclusion

The figure marks a timing shift. After 2012, annual approval counts are higher and appear in more years. Case material shows what shorter queues look like on the ground: a lease that once took many months under federal processing was reported at four to six weeks once a tribe had direct approval authority under Interior-approved regulations. Outside Indian Country, everyday transactions close in a matter of weeks. When a project triggers a federal action, environmental review can add years.

HEARTH improves some timelines by moving day-to-day leasing decisions to tribes under Interior-approved codes. Many other delays remain. Elsewhere in the United States, routine transactions tend to close in weeks, not years. When federal review applies, it can add years. Waiting shows up as later starts and later income. Some projects never begin. People give up. Plans are shelved, capital is directed elsewhere, and expected income does not materialize. The losses are concrete. They appear as empty lots, closed doors, and household budgets under strain.

What to watch

• Approvals: HEARTH approvals per year.

• On trust land: BIA real-estate processing time (GAO); deadlines for leasehold mortgages are 20 days under 25 C.F.R. § 162.359 and § 162.459; fee-to-trust timing is tracked in DOI’s APG update under 25 C.F.R. part 151.

• Benchmark: Average days to close a mortgage elsewhere in the United States.

• If agencies begin publishing decision outcomes (approved/denied/returned) alongside median days, that would allow tracking both the pace and the share of denials over time. GAO has already flagged data gaps that make this hard today. Government Accountability Office

Sources

• United States Department of the Interior, Bureau of Indian Affairs, HEARTH overview and list of approved regulations: https://www.bia.gov/service/HEARTH-Act

• United States. Public Law 112-151, July 30, 2012. 112th Cong., 2nd Sess: https://www.govinfo.gov/content/pkg/PLAW-112publ151/pdf/PLAW-112publ151.pdf

• Federal Reserve Bank of Minneapolis, Center for Indian Country Development, HEARTH case study for the Ho Chunk Nation: https://www.minneapolisfed.org/indiancountry/resources/tribal-leaders-handbook-on-homeownership/case-study-hearth-act-implementation

• Council on Environmental Quality, Environmental Impact Statement Timelines 2010 to 2024, dated January 13, 2025: https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Report_2025-1-13.pdf

• United States Government Accountability Office, GAO 24 105875, Tribal Issues, Bureau of Indian Affairs real estate services timing: https://www.gao.gov/products/gao-24-105875

• U.S. Department of Housing and Urban Development, FY24 Progress on Section 184 Loan Processing (Apr. 2025): https://www.hud.gov/sites/default/files/PIH/documents/FY24-Progress-On-Section-184-Loan-Processing.pdf

• U.S. Department of Housing and Urban Development, Improvements to the Section 184 Loan Guarantee Program (May 2024): https://www.hud.gov/sites/dfiles/PIH/documents/Improvements_Section_184_Loan_Guarantee_Program.pdf

• United States Department of the Treasury, Treasury Tribal Advisory Committee, Subcommittee on Dual Taxation Report, dated December 9, 2020: https://home.treasury.gov/system/files/136/TTAC-Subcommittee-on-Dual-Taxation-Report-1292020.pdf

• United States Supreme Court, Cotton Petroleum Corporation v. New Mexico, 490 United States 163, decided 1989: https://supreme.justia.com/cases/federal/us/490/163/

• United States Department of the Interior, fractionation overview: https://www.doi.gov/buybackprogram/fractionation

• Electronic Code of Federal Regulations, 25 C.F.R. § 162.012: https://www.ecfr.gov/current/title-25/part-162/section-162.012

• U.S. Code of Federal Regulations. Land Acquisitions, 25 C.F.R. Part 151: https://www.ecfr.gov/current/title-25/chapter-I/subchapter-H/part-151

• Federal Register, Rights of Way on Indian Land, 80 Federal Register 72472, dated November 19, 2015: https://www.govinfo.gov/content/pkg/FR-2015-11-19/pdf/2015-28548.pdf

• Electronic Code of Federal Regulations, 25 C.F.R. part 169: https://www.ecfr.gov/current/title-25/chapter-I/subchapter-H/part-169

• Federal Register, Land Acquisitions final rule, dated December 12, 2023: https://www.govinfo.gov/content/pkg/FR-2023-12-12/pdf/2023-27077.pdf

• Performance.gov, Improve Tribal Land into Trust Processing, Agency Priority Goal updates: https://assets.performance.gov/APG/files/2024/january/FY2024_January_DOI_Progress_Improve_Tribal_Land_into_Trust_Processing.pdf

• Intercontinental Exchange Mortgage Technology, Mortgage Monitor, March 2024: https://static.icemortgagetechnology.com/data-reports/mm/mm-march-2024/March-Mortgage-Monitor-report.pdf

• Federal Deposit Insurance Corporation, 2023 National Survey of Unbanked and Underbanked Households executive summary: https://www.fdic.gov/household-survey/2023-fdic-national-survey-unbanked-and-underbanked-households-executive-summary

• Djankov, S., La Porta, R., Lopez-De Silanes, F., & Shleifer, A. (2002). The Regulation of Entry. Quarterly Journal of Economics, 117(1), 1-37: https://academic.oup.com/qje/article-abstract/117/1/1/1851750?redirectedFrom=fulltext&login=false

• World Bank. (2020). Doing Business 2020: Comparing Business Regulation in 190 Economies. Washington, DC: World Bank: https://documents1.worldbank.org/curated/en/688761571934946384/pdf/Doing-Business-2020-Comparing-Business-Regulation-in-190-Economies.pdf

The HEARTH Act of 2012 fundamentally changed how tribes manage their own lands and the data shows it. For decades, only a handful of tribes per decade could secure self-governing leasing authority, usually after years of lobbying Congress at enormous expense. But as the graph below shows, anannual approvals rise to dozens per year after 2012. Dozens of tribes per year began obtaining self-governing arrangements through a straightforward regulatory process.

Rules Pre-HEARTH Act

In Indian Country, the process of leasing land has long been governed by the Bureau of Indian Affairs (BIA). Most reservation land is held in federal trust; the BIA is required to review and approve any lease. This system, while designed to safeguard Native interests, often imposed long delays.

A simple residential lease could take more than a year to clear federal channels, discouraging investment and slowing development on tribal lands. The alternative is self-governance. Self-governance in tribal leasing means tribes can approve leases on their trust lands without waiting for case-by-case Bureau of Indian Affairs review.

Before 2012, obtaining self-governance leasing authority required tribes to lobby Congress for tribe-specific legislation, a tremendously costly process. Alternatively, tribes could negotiate case-by-case agreements with the BIA under existing statutes like 25 U.S.C. § 415, though these still required extensive federal approval.

These arrangements represented early experiments in local governance, but they were case-by-case and rarely extended beyond a few tribes.

The HEARTH Framework

The 2012 Helping Expedite and Advance Responsible Tribal Home-ownership (HEARTH) Act changed this. It established a general framework through which any federally recognized tribe could develop its own leasing regulations and, once approved by the BIA, issue leases directly without further federal sign-off.

The Graph shows total changes to leasing authorities processed through the Bureau of Indian Affairs by year.

This graph shows the amount of tribes approved for some form of self governing arrangement each year. The X-Axis being the year of approval, and the Y-Axis being the amount of self governing arrangements approved (VIA Congress, 25 U.S.C. § 415, or HEARTH).

Tribes are using the HEARTH Act

As the chart shows, the 2012 HEARTH Act marked a turning point in tribal leasing and self-governance. Before its passage, only a few tribes each decade secured congressional or BIA-approved authority to manage their own leases. But by 2012 and the passing of the HEARTH act led to 70+ tribes taking advantage of this program.

When Tribes Approve Their Own Leases, Activity Follows

This shift was not just administrative. The Federal Reserve Bank of Minneapolis found that in the Ho-Chunk Nation — a lease could take up to 18 months to move through the Bureau of Indian Affairs. After adoption, the Nation reduced processing times to four to six weeks, as its own Realty Division gained direct approval authority.

In short the HEARTH Act lowered transaction cost. That efficiency meant faster home construction, smoother business expansion, and a stronger sense of sovereignty in local land management.

Environmental Regulations

Part of the approval process for a lease may require an environmental Impact Statement (EIS). Federal environmental reviews can take years for projects that trigger them. According to the Council on Environmental Quality (2025), EIS timelines across federal agencies can extend up to 4.5 years, with an average of 2.2 years to complete.

Under the HEARTH Act, however, tribes that have approved leasing regulations conduct their own environmental review process for covered leases. This streamlines the process and increases business certainty.

Takeaway

The HEARTH Act’s success isn’t just about faster approvals, it’s about sovereignty. Before 2012, tribes seeking leasing authority faced years of lobbying Congress and hundreds of thousands of dollars in expenses, with no guarantee of success. Only the most politically connected tribes could navigate that gauntlet.

HEARTH swept that barrier away, replacing political favoritism with a clear regulatory pathway available to every federally recognized tribe. When tribes control their own leasing processes, they’re not just cutting red tape; they’re exercising the self-governance.

Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012, Pub. L. 112-151 (July 30, 2012). GovInfo+2Congress.gov+2

Council on Environmental Quality. (2025, January 13). Environmental Impact Statement Timelines (2010–2024). Executive Office of the President. https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Report_2025-1-13.pdf

Federal Reserve Bank of Minneapolis, Center for Indian Country Development. (n.d.). Case Study: HEARTH Act Implementation. Retrieved [date you accessed it], from https://www.minneapolisfed.org/indiancountry/resources/tribal-leaders-handbook-on-homeownership/case-study-hearth-act-implementation?utm_source=

A few days ago, the Markets & Society Conference, my co-author, Prad Sharma, my former GMU RA and now a PhD candidate, presented our new paper, Digital Infrastructure in Thin Markets: Economic Returns to Broadband on a Tribal Reservation. Here is one number and one picture from the talk: after broadband arrived, per-capita income on the reservation rose by about $4,000 relative to a synthetic control.

We’ll post the full working paper soon. For now, here’s the graph we showed.

Background

Tribal geography and permitting set both the map and the calendar for access. To span steep country, the team built a hybrid system, fiber backhaul into three summit relays, then fixed-wireless hops from repurposed fire-watch towers, so signals could travel by clear line-of-sight over ridges and valleys. Off-grid solar and wind kept the sites live, and a triangular microwave mesh provided redundant paths. This inventive workaround overcame terrain limits, with the first areas switching on in 2013 and additional zones following once the southern relay came online in 2014.

What changed on the ground?

The rollout was tribal-led and sequenced by engineering and permitting realities, ridge lines, power, rights-of-way, rather than short-run income trends. That makes timing plausibly exogenous and helps interpret the graph.

Why would income move this much? Think transaction costs. With working broadband, job search widens, coordination is easier, and local administration gets faster: permits, records, and inter-office communication. Those frictions are exactly where thin-market places pay a penalty; cut them, and choices expand, resulting in higher per capita incomes for Native Americans.

We’ll unpack mechanisms, cover data construction, and perform robustness checks in the paper. For now, keep the scale in view: a durable $4,000 per-capita gain in a high-friction environment after access arrives.

Thanks and shout-outs

This session

was a treat. Adam Crepelle, Bob Miller, and Nick Parker presented excellent work and sharpened our thinking. And thanks to Prad for a crisp talk.

Working paper link coming soon; I’ll update this post when it’s live. If you’d like the figure as a standalone image for teaching or briefing, reply here and I’ll share it.

Content note: this post mentions sexual assault.

Imagine a visitor commits a sexual assault in your town. The police know who it is, the victim is willing to testify, and yet your local court is barred from filing charges because of the offender’s legal status. Once he crosses the county boundary, your court has no jurisdiction, and you have to hope a distant office takes the case.

For decades, that wasn’t a thought experiment on many reservations; it was the rule after Oliphant v. Suquamish (1978). In 2013, Congress carved out a narrow fix: VAWA’s special domestic-violence criminal jurisdiction (SDVCJ) for tribes that adopt strict due-process safeguards, including law-trained judges, defense counsel, published codes, recorded proceedings, and representative juries.

Scope note: Oliphant still governs elsewhere. Unless a tribe opts into SDVCJ with the required safeguards, tribal courts generally lack criminal jurisdiction over non-Indian offenders.

This post draws on my law-review article with Adam Crepelle, published in the Arizona State Law Journal. It examines the changes on the ground when two Arizona tribes adopted SDVCJ.

VAWA’s special domestic-violence criminal jurisdiction (SDVCJ) wasn’t written as economic policy. Yet adopting it—judges, defense, published codes, recorded proceedings—makes courts predictable. Predictable courts change behavior; that shows up in paychecks.

The reform wasn’t marketed as an economic policy. But credible, legitimate courts change behavior; behavior shows up in work, investment, and income.

There’s also an institutional side effect worth naming.

To participate, VAWA-adopting tribes didn’t just bolt on a criminal provision; many also upgraded court quality, such as clarifying civil procedure, posting codes, recording proceedings, and tightening timelines. That reduces uncertainty for households and firms. Contracts get safer. Collateral gets clearer. More plans cross the break-even line.

Here’s the simple design.

Using ACS 5-year median family income, 2012 vs. 2019 (i.e., 2008–2012 vs. 2015–2019), we compare two adopters to nearby non-adopters: Pascua Yaqui (adopted 2014) vs. Tohono O’odham (non-adopter in this window), and Gila River (adopted 2018) vs. Salt River (adopted after this window). Put plainly, I track median family income (2019 dollars) for American Indian households and ask—did it climb more on adopters than on nearby non-adopters?

Timeline (“Observation window and adoption”)

Using ACS five-year data (2012 vs. 2019), we compare two adopters with nearby non-adopters in the same window: Pascua Yaqui (adopted 2014) vs. Tohono O’odham (non-adopter in the window), and Gila River (adopted 2018) vs. Salt River (adopted after the window). These are case-study comparisons, clean enough to ask whether adopters gained ground on income relative to a close neighbor who didn’t (yet).

What do the numbers say? In both pairs, incomes on the adopting reservation rose faster than on the nearby non-adopter. The difference-in-differences estimates are on the order of +$9,880 for Pascua Yaqui versus Tohono O’odham and +$5,337 for Gila River versus Salt River (2019 dollars, median family income for American Indian households). Different pairs; same direction.

Why would a narrow criminal-jurisdiction reform show up in paychecks? Start with safety and continuity: closing a well-known enforcement gap for domestic violence means fewer stops and starts in work and school. Add credibility: published codes, recorded proceedings, and law-trained judges signal that disputes will be handled fairly. With that signal, lenders and partners say yes more often; small clinics, service firms, and contractors choose to invest.

The public-safety piece isn’t speculative. Early reports out of Pascua Yaqui showed roughly twenty SDVCJ cases in the initial period; a 2015 update listed 21 arrests involving 16 defendants with a mix of guilty pleas, a jury acquittal, federal referrals, and dismissals. This is evidence that cases were handled and sorted, not rubber-stamped.

More broadly, the five-year report on SDVCJ noted no federal habeas corpus petitions filed challenging these prosecutions. And that, despite defendants being explicitly informed of that right, indicates that adopting courts have operated with real attention to fairness. Communities report increased safety and accountability as implementation spreads. Walking on Common Ground

Timing fits the story. Pascua Yaqui adopted mid-window, allowing more time for effects to appear; Gila River adopted later, but still pulls ahead of its neighbor. The earlier reform simply had longer to work.

Zooming out: Indexes like REFI are useful for the big picture, but they’re composites. Here, we have an institutional change: who can prosecute which cases, under which safeguards, and how it impacts measurable outcomes.

Looking forward, Adam Crepelle and Alex Taylor (a former RA of mine, now Assistant Professor at the University of Evansville) are working on a systematic study designed to identify the causal effects of VAWA adoption beyond these two Arizona adopters. That broader work will test timing and persistence across many tribes and years.

If you work in a council or court, the practical lesson isn’t “adopt and riches arrive.” It’s simpler. Publish the rulebook. Make the clocks real and visible. Treat the safeguards as an investment signal, not just compliance. Tighten the business side so having collateralizable leases and searchable filings. Coordinate across boundaries so handoffs don’t drop cases.

Measure and report: filings, dispositions, pending cases, median days to decision, and procedural changes. Predictability is the product.

Bottom line: the Oliphant gap created an enforcement vacuum; VAWA’s SDVCJ lets tribes reclaim a slice of jurisdiction, with demanding safeguards. Where adoption occurred, incomes improved relative to nearby non-adopters, and early implementation experience indicates greater safety and a fair process.

This post draws on: Adam Crepelle & Thomas Stratmann, “Does Expanding Tribal Jurisdiction Improve Tribal Economies: Lessons from Arizona,” Arizona State Law Journal 55(1): 211–236 (2023).

Further reading on SDVCJ implementation and fairness: NCAI Five-Year Report (arrests, outcomes, and no habeas petitions) and early Pascua Yaqui reports on case handling. NNI Database+3NCAI+3NCAI+3

Better Rules, More Firms, Less Poverty

What does better institutional quality look like on the ground? Across the REFI sample of 90 federally recognized reservations in the lower 48, higher scores line up with two regularities: more incorporated businesses and fewer people living below 124 percent of the federal poverty line.

Why incorporation? It’s a simple, visible choice. Incorporation reduces personal risk, expands credit channels, and simplifies contracting. When titles and leases can back a loan, when a permit checklist is posted with a real clock, and when there is a forum that enforces agreements, more people try.

What I measured and how

I look at three outcomes: incorporated businesses per person; incorporated businesses per labor-force participant; and the share of individuals below 124 percent of the federal poverty line. Each outcome is related to the REFI index using robust regression, which down-weights high-leverage observations rather than dropping them. (Uintah & Ouray, with very low REFI and unusually high incorporation, is a good test of whether results hinge on a single point—they don’t.)

Results

A one-point rise in REFI is associated with about 0.1 percentage points more incorporated businesses per person. Against a mean near 0.72 percent, that’s roughly 14 percent of the mean.

Scatter of per-capita incorporation vs. REFI with an upward trend.

You’ll see one dot far left on REFI yet high on incorporation: Uintah and Ouray Indian Reservation (UT). Its position in the Uinta Basin oil-and-gas economy creates numerous small vendors, including trucking, well services, and environmental work, where incorporation is expected for contracting and insurance purposes, resulting in an unusually high incorporation rate, even with a low institutional score. Cross-jurisdictional work, including off-reservation trust areas, is likely to encourage firms to incorporate further.

When I scale by the labor force instead of the total population, the slope is about 0.2 percentage points; against a mean of nearly 1.75 percent, that’s roughly 11 percent of the mean.

Scatter of incorporation per labor force vs. REFI with an upward trend.

Same outlier as Figure A - The Uintah and Ouray Indian Reservation.

On poverty, a one-point rise in REFI is associated with 1.9 percentage points fewer people below 124 percent of the federal poverty line—about 6 to 7 percent of the mean.Why this lines up in both charts

REFI tracks practical margins: whether a lease or title can back a loan; whether the permit clock is posted and credible; whether agreements can be enforced. Those details change expected payoffs for people already making work decisions, so the association appears even when I divide by the labor force—the set of people who could plausibly start or join a firm this year.

There’s also a useful signal in the labor-force specification. If higher REFI only raised participation, “incorporated businesses per labor force” would be flat. It isn’t. The ratio rises, meaning incorporation grows faster than the labor force as REFI improves. In plain terms: when the rulebook becomes legible and enforceable, more working-age residents actually choose to incorporate. That looks like pent-up projects crossing the break-even line as uncertainty and waiting costs fall. The per-capita result points the same way (and is slightly larger relative to its mean), suggesting the community context improves too—people stay, return, or participate more as rules get clearer.

What the poverty figure means

In people rather than percentages: on a community of 10,000, a change of this size corresponds to about 190 fewer individuals living near poverty; on 5,000, about 95. This is a cross-sectional association, not a forecast, but the scale is concrete enough to matter for families and councils. It is also consistent with a rules-based story: lower time and uncertainty costs show up in steadier work and enterprise, and in community conditions—participation, return migration, reliable contracting—that raise household income even when not everyone is working full-time.

Policy implications

The takeaway is not that everyone should incorporate. It is that predictable processes—published timelines, enforceable agreements, collateralizable leases—unlock viable projects at the margin. Moving an approval from “maybe in six months” to “decision in 60 days” changes the break-even for a two-chair dental clinic, a small construction firm, or a retail co-op. That is the mechanism the slopes are picking up.

Robustness and limits

A median (quantile) fit shows the same direction and statistical significance. Labor-force shares and age structure differ across reservations, and REFI could correlate with both; in posted specifications I will condition on participation and check sector mix. These are associations, not causal estimates by themselves. In upcoming posts I’ll line up before-and-after rule changes to test timing and persistence, and I’ll post code so others can check and refine the work.

Bottom line

Better rules on paper show up in the choices people make. On reservations with higher REFI, more people choose incorporation, and fewer live near poverty.

Scatter of poverty share vs. REFI with a downward trend.

Why this lines up in both charts

REFI tracks practical margins: whether a lease or title can back a loan; whether the permit clock is posted and credible; whether agreements can be enforced. Those details change expected payoffs for people already making work decisions, so the association appears even when I divide by the labor force—the set of people who could plausibly start or join a firm this year.

There’s also a useful signal in the labor-force specification. If higher REFI only raised participation, “incorporated businesses per labor force” would be flat. It isn’t. The ratio rises, meaning incorporation grows faster than the labor force as REFI improves. In plain terms: when the rulebook becomes legible and enforceable, more working-age residents actually choose to incorporate. That looks like pent-up projects crossing the break-even line as uncertainty and waiting costs fall. The per-capita result points the same way (and is slightly larger relative to its mean), suggesting the community context improves too—people stay, return, or participate more as rules get clearer.

What the poverty figure means

In people rather than percentages: on a community of 10,000, a change of this size corresponds to about 190 fewer individuals living near poverty; on 5,000, about 95. This is a cross-sectional association, not a forecast, but the scale is concrete enough to matter for families and councils. It is also consistent with a rules-based story: lower time and uncertainty costs show up in steadier work and enterprise, and in community conditions—participation, return migration, reliable contracting—that raise household income even when not everyone is working full-time.

Policy implications

The takeaway is not that everyone should incorporate. It is that predictable processes—published timelines, enforceable agreements, collateralizable leases—unlock viable projects at the margin. Moving an approval from “maybe in six months” to “decision in 60 days” changes the break-even for a two-chair dental clinic, a small construction firm, or a retail co-op. That is the mechanism the slopes are picking up.

Robustness and limits

A median (quantile) fit shows the same direction and statistical significance. Labor-force shares and age structure differ across reservations, and REFI could correlate with both; in posted specifications I will condition on participation and check sector mix. These are associations, not causal estimates by themselves. In upcoming posts I’ll line up before-and-after rule changes to test timing and persistence, and I’ll post code so others can check and refine the work.

Bottom line

Better rules on paper show up in the choices people make. On reservations with higher REFI, more people choose incorporation, and fewer live near poverty.

What changes when case-by-case “need” tests are replaced by rule-based licensing?

If you want to open an ambulatory surgical center in many states, you still need a government permission slip to compete. That permission is called certificate of need (CON). A board decides whether your community “needs” the facility, often after hearing from incumbents. This review is discretionary and separate from ordinary licensing. Degrees, training, and safety rules still apply. The question is whether you may enter at all.

One concern you will hear is cream skimming. The claim goes like this: ASCs take profitable cases, hospitals lose the margin that supports unprofitable services, and rural access suffers. Our research tests this claim with data from states that repealed ASC-specific CON.

First, the simple fact. After repeal, ASCs per person rise. Statewide, the level increases by roughly forty-five percent on average. In rural counties, the increase is close to a doubling. The growth does not happen overnight; it builds for years and then flattens out around a decade after repeal.

Second, what does that mean for hospitals? The cream-skimming story predicts closures or service cuts in rural areas. We do not find evidence of rural hospital closures linked to repeal. In some specifications, we see fewer service reductions. This is consistent with a complementary channel we discuss in the paper: many physicians who work in ASCs also hold hospital privileges. An ASC can make local practice more attractive, keep surgeons nearby, and in some places raise the hospital’s effective capacity for the cases it is best at.

Before the figures, one line on what “rule-based licensing” means here. It is not anything goes. It is meet posted health and safety standards and operate. No separate economic-need gate.

Figure 1. Statewide event study: ASCs per 100,000 people relative to repeal (seven estimators)

What to see: the series sit near zero before repeal (no upward drift). After year 0, effects rise year by year and begin to plateau around years 10–12. Different modern difference-in-differences estimators tell the same story.

Alt text: Statewide event-study with multiple estimator series. Pre-period ≈ 0; post-repeal effects climb and then flatten.

Figure 2. Rural event study: ASCs per 100,000 people relative to repeal (seven estimators)

What to see: larger gains in rural counties. The lines trend up for many years after repeal and settle into a higher level. Uncertainty bands widen, as they should in smaller places, but the pattern holds across estimators.

Alt text: Rural event-study with sustained increases after repeal; estimates cluster across methods.

Why the rise after repeal? Three channels.

1. Entry becomes predictable. Discretionary “need” review adds delay and uncertainty. Lenders hesitate when they cannot time approvals. With rule-based licensing, criteria are posted, and timelines are known. Financing clears. Projects start. That is why the lines climb for years and then level off as the backlog clears.

2. Hospitals and ASCs can be complements. The cream-skimming story predicts rural closures. We do not see that. In some models, we see fewer service reductions. One reason is complementarity: Many ASC surgeons also practice at the local hospital. The ASC handles routine cases, while the hospital focuses on complex care and retains physicians practicing in the community.

3. Cost and steerage, even when patients are insulated. Medicare fee-for-service patients often face little at the point of use, so they do not drive site choice by price. However, the people who send cases and pay the bills do care, namely, commercial insurers, Medicare Advantage plans, Medicaid managed care organizations, self-insured employers, and referral networks. When ASCs exist, these payers and networks steer routine cases to the lower-cost site when quality is comparable. Surgeons also value faster turnarounds and scheduling control, enabling them to handle a greater number of cases safely in a day. Those two forces—payer steerage and surgeon efficiency—support the business case for new ASCs once entry risk falls. Supply grows.

A note on scope. These figures summarize a causal design and show the timing of the response. Estimates vary by method and setting; the direction is consistent.

Sources:

Southern Economic Journal (Stratmann, Bjoerkheim, Koopman)

Regulation (Stratmann, Bjoerkheim, Koopman)

The figures above are from those articles.

Thank you for reading,

Thomas Stratmann

“Economic freedom is the soil. Prosperity is the harvest.”

What happens when rules lower the friction of daily life? People start projects. Capital shows up. Incomes rise. Not always, not everywhere, not at the same speed. Often enough to matter.

I built the Reservation Economic Freedom Index to make that pattern visible. REFI turns a set of institutional features into a single score. Titles that can be used as collateral. Permits that take weeks, not months. Forums that resolve disputes on a calendar you can plan around. The index is not magic. It is a tool that allows us to compare places in a way that a busy judge or council member can use on Monday morning.

Figure 1. Median reservation household income by REFI quartile

Bar chart of median Native American household income by REFI quartile (Q1 least free to Q4 most free). Bars rise from Q1 to Q4.

Takeaway 1. Higher REFI scores align with higher household incomes in a clear, monotone pattern. The distance from the first bar to the fourth is not a rounding error. It is a difference people feel in rent money, in savings, in the choice to buy a truck for a small business.

Figure 2. REFI and median household income, reservation by reservation

Scatter of median Native American household income on the vertical axis against REFI on the horizontal axis, with a positive fitted trend.

Takeaway 2. The slope is positive. A point increase in REFI is associated with a $1,900 increase in median Native American household income.

Takeaway 3. The results are similar when considering the overall median reservation household income.

The scatter plot does not prove causation on its own, and I would not claim that here. It does support a familiar idea in economics. Better rules tend to coincide with better outcomes.

What REFI measures, in plain terms:

Ownership you can trust, so assets become collateral rather than paperweights.

Business entry that is rule-based, so an application has a path and a clock.

Enforceable agreements: clear forums, predictable timelines, and remedies that can be collected.

Governance that publishes the rulebook and follows it.

Openness to exchange and information, the oxygen of enterprise.

What this post does and does not claim
This is descriptive. It shows how REFI lines up with income. It does not establish causation. It points to margins where reform may pay. I will cover the causal work in a follow-up.

Sources

• Full study: Public Choice, 2024. Reservation Economic Freedom Index (REFI)

• Further discussion: Anderson & Stratmann (2025)