To function as nations, tribes require territorial jurisdiction. That is, tribes must be able to determine the rules governing their lands and apply the rules to all persons on their land. Much of Indian country’s land is held in trust, and trust status is blamed for many of tribes’ economic woes. Trust land should be replaced with tribal property rights regimes. That is, tribes themselves should be free to determine whether they would like to allow private property ownership. In addition to granting tribes greater authority over their land, tribes need jurisdiction over all persons on their land to function as nations. Land status – fee or trust – should be irrelevant to the equation as should Indian status. For example, outside of Indian country, police do not inquire into the citizenship of the parties prior to making an arrest. Though various rationales are offered to justify denying tribes jurisdiction over non-Indians, the reasons do not hold up to scrutiny. Furthermore, tribes’ lack of jurisdiction over non-Indians is indistinguishable from the long-refuted imperial doctrine of extraterritoriality.

Nearly fifty years have passed since the federal government adopted its policy of tribal self-determination, and tribes remain subject to extensive federal regulations. For example, the United States still holds land in trust for tribes. The federal government holds title to trust land, so tribes and Indians cannot engage in activities on trust land without prior federal approval. Obtaining the requisite federal approval can take more than a year. Apart from the bureaucracy, trust land is inalienable, making it difficult to use for collateral. Indian trader laws are another uniquely Indian country regulation. The laws were originally enacted in 1790 on the theory Indians were too incompetent to trade with whites. To this day, the laws forbid “white persons” from trading with an Indian without first obtaining federal permission. The federal regulations extend to virtually all economic activity in Indian country, from natural resource development to Indian gaming.