Donald "Del" Laverdure: Nation Rebuilding through Constitutional Reform at Crow

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Native Nations Institute
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In this in-depth interview with NNI's Ian Record, Donald “Del” Laverdure, citizen of the Apsáalooke Nation (Crow Tribe) and former Chief Justice of the Crow Tribe Court of Appeals, discusses his nation's monumental effort to discard a constitution and system of governance that were not working and replace them with a constitution and system of governance that supported effective, informed decision making and that made sense culturally to the Crow people. He also discusses how his nation continues to work to strengthen its justice system.

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Citation

Laverdure, Donald. "Nation Rebuilding through Constitutional Reform at Crow." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 12, 2010. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host Ian Record. On today's program, I am honored to welcome Donald "Del" Laverdure. Del is Deputy Assistant for Assistant Secretary Larry Echohawk of the Bureau of Indian Affairs. He is a citizen of the Apsáalooke Nation, also known as the Crow Tribe of Montana, where he served as Chief Justice of the Crow Tribe Court of Appeals from 2002 to 2006. Welcome Del, it's good to have you here."

Donald "Del" Laverdure:

"Thank you for having me."

Ian Record:

"The bio I provided for you is just the tip of the iceberg. So I was wondering if you could just take a moment and share with us a little bit more about yourself."

Donald "Del" Laverdure:

"Okay. I was born and raised...I was born in Crow Agency at the old hospital, which is the site of the current tribal administration building, was raised by a full-blooded Crow mother and had a Chippewa father who was absorbed into the culture and became Crow himself. And both spoke fluently as did many of my relatives. And so there was dual languages always, growing up and even to this day. I went to a school just immediately off the reservation, a school called Lockwood, and we were some of the first Crows to integrate into the school. And it was quite a learning experience, to say the least, of having Crow culture and language at home, and then going to majority society. It gave many learning lessons over life that have served me well. Eventually, I ended up leaving and coming to the University of Arizona for civil engineering, and then went on to law school. After this time, some important things occurred, most importantly of which, I was given a couple of Indian names, Crow names. I'm part of the Ties-a-Bundle Clan on my mother's side, and we always introduce our self [Apsáalooke language], which is "˜I'm Crow, my name is First Stone,' which was given to me by my clan uncle Chanis (?) Whiteman. And then I was also given a second name more recently called 'Walks High' by Jerome Hugs (?), which is also another...married into our clan. Those have certainly served me well because culturally they've put me in the right context to live up to those names for the family and to try to provide for the next set of Crow generations that come after me. While all this was occurring, I did start to pursue after private practice for a couple of years as a tax attorney. I went into academia and was a [William H.] Hastie Fellow, which was fairly prestigious, to increase minorities in the teaching profession. Then I received, at the time I also taught federal Indian law, ran the Great Lakes Indian Law Center at the University of Wisconsin-Madison, and simultaneously was appointed as the chief justice of the Crow Court of Appeals. Subsequent to that, I went to Michigan State University, was an assistant professor of law, and then co-founded and directed the Indigenous Law Center. At that time, I then took a sabbatical and returned to the Crow homeland to become a general counsel for the executive branch of the Crow Tribe. That was roughly in 2006 and I served for...I resigned as a chief judge after four years, and then became general counsel, and served for three years prior to this most recent appointment with the [President Barck] Obama Administration, as the deputy assistant secretary for Indian Affairs."

Ian Record:

"Well, you've done quite a lot in your young life."

Donald "Del" Laverdure:

"Yeah, that's what people tell me, but the Indian names have accelerated that process. So I've been fortunate and Crow teachings have prepared myself for when the window of opportunity came and when I was called for service not only for the Crow Tribe, but for Indian Country in general."

Ian Record:

"Well we're here today to talk about the Crow Tribe and Indian Country as a whole, and delve into a number of topics. And the first question I want to ask you is a question I ask a lot of individuals, tribal leaders, practitioners of nation building, if you will. And that is to get your response to a quote that a Native leader once shared with us at the Native Nations Institute, which is, "˜The best defense of sovereignty is to exercise it effectively.' And I'm curious to learn from you: how do you view that statement?"

Donald "Del" Laverdure:

"I would say I absolutely agree. I think that one of the enduring lessons of federal Indian law and policy is that by not exercising that residual sovereignty that has been maintained prior to the U.S. Constitution, certainly post-constitution, as extra-constitutional sovereigns, the exercise of that is absolutely essential to protecting it. For example, because criminal jurisdiction is a maze between several governments -- tribal, state, and federal -- by exercising certain authorities in the criminal context at the tribal level, oftentimes there will be deference provided by the local governments and prosecutions sometimes, depending on the crime, will be abstained by the federal government. And that's just one example, but I'm a firm believer that if you exercise it and you exercise it with respect and continuity, then the norms of accepted tribal sovereignty will become day-to-day type of occurrence for other governments as well."

Ian Record:

"One of the most fundamental exercises of sovereignty is constitution making. And back in 2001, the  Apsáalooke  Nation, the Crow Tribe, reformed its constitution. And I'd like to talk a little bit about that. You obviously -- being a citizen of the nation -- you have a firsthand perspective on what it was like before, what it was like during, and what it's been like since the new constitution was ratified and took effect. And before we delve into the specifics of what your nation has done in this particular area, I'm curious to get from you what your definition of what a constitution is."

Donald "Del" Laverdure:

"I view a constitution as a social contract among the citizenry, that the Crow citizens, in this case -- or any citizens for that matter come together -- form a government and set the rules for that. It doesn't necessarily need to be in a constitutional form. It can be simply written laws, codes, etc., as some nations do without a constitution. I think the constitution becomes really the guiding framework for the rules of behavior that are either to be punished or accepted and how we're going to act according to those rules as a set of citizens within that community."

Ian Record:

"In 2001, as I mentioned, the Crow Tribe ratified a new constitution and system of government. I'm curious to learn from you, what compelled your nation to take this major step and what were some of the fundamental changes made and why?"

Donald "Del" Laverdure:

"The move for a new constitution, I think it started a generation before. The proposals were there. A number of older Crow citizens who I've interacted with in my roles within the community have told me that a number of people have wanted to do this. They informed various committees, studied the issues, and I think people, in fact, at the time were concerned about how decisions were made, stability, being able to move forward as a community towards prosperity with economic development. And part of the problem of the prior constitution, which was a pure democracy, was if 100 people showed and had quorum -- and the agenda was set by the four executive officials at the time -- any and all decisions could be made according to that. And in fact, oftentimes there was vigorous public debate among other things: fighting, shaming, etc., when you go on the council floor for an agenda item, and people would have to do the role call and walk down the line and say you're either for or against someone or something. And so it made decision making very difficult. It couldn't be individuals -- it was done by groups -- and it was a significant amount of politics that was involved in almost any decision. So this new constitution, the seeds had been sown, the dissatisfaction with how decisions were made and those who had the authority, I think came to a head after a very long administration prior to that. And then there was a fresh face that came in who was largely apolitical at the time, and he had campaigned on change, much like we see in national politics today. And with that change, there was a movement to move towards that, and I think the community largely embraced the idea, and ultimately the process itself was somewhat flawed, but at the end of the day and in a short time period, a vote was made by some thousand-plus Crows and sixty percent or so said yes. And since that time, it's been a major change in the way the government's conducted."

Ian Record:

"So what are some of the ways that government, governance I should say, within Crow is different now than it was during the what some have called the ''48 constitution.' What were some of the fundamental changes that were made during this reform process?"

Donald "Del" Laverdure:

"I think, and just to step back for a minute on the history of the '48 constitution and the thought process that went into it and then to kind of highlight concrete changes, the Crow Nation has been very proud that they were a non-IRA [Indian Reorganization Act] tribe. And it's been in the history and continues to this day, even for many Crow politicians that they take great pride in the fact that they federal boilerplate constitutions and continued on their own. That was back in the mid-30s and then there was still a need for some set of rules. So groups came together had discussed a...got some help, from what I understand, from a lot of folks' parents and grandparents. Legal aid lawyers assisted them, and so you had some bylaws and a charter, essentially, on how the rules were going to go forward and it was done in this fashion for the '48 Constitution, where it was a pure democracy with the agenda and four elected officials. But the community as a whole had final say, even though those would carry the torch between early meetings or even special meetings. So the process it self, to make any decision was always a quarterly momentous decision and folks would campaign or run on those decisions. And so when you move forward on a development agreement, for example, in the '80s or '90s, coal development specifically, not even a quarter later, there'd be a group that would want to change that or withdraw it for a variety of reasons, good and bad. Today, after the post-2001 constitution -- despite the trials and tribulations of kind of understanding new roles -- a new legislative branch was created with eighteen elected members, three from each of the six districts. And what that did was profoundly change the number of elected officials per capita, per person. And so, I think what you see now is with the four reservation-wide, [at-large] elected executive branch officials, the eighteen district [representatives] in the legislative branch, you have more people with access to the voice that probably weren't heard before. And that part has been largely a success because of access to it. The other thing that occurred in that process is in the exchange or compromises of who had what say, some of the powers from the previous executive branch, the chairperson, were then put as a final say with the legislative branch, for example approvals on anything dealing with natural resources or trust resources. So anytime we worked on an economic or energy development deal, before it would just go through as an agenda item and if 100 people said yes, that's what occurred. Under the new constitution, you have to get a majority of the legislative body. And that begins in the subcommittee process, which they start prior to these quarterly meetings required by the constitution. And so you end up working with that body, through the process, address their concerns, and then there's a very vigorous floor debate on whether in fact final approval is provided or not. And so it's fairly open, transparent. The decisions carry more finality to them and -- at least in my experience there, not only as a court of appeals judge but as general counsel -- the decisions stick. There may be amendments that come afterwards, but they're largely less significant than the overall deal itself. Another thing that occurred was, another important thing is term limits. Prior to that, they were two-year terms limits, and it's probably well documented in the series that it leaves very little time for a ramp-up of experience, and then you turn around and run for re-election. So any of the changes that you get used to, the people that are there can easily be wiped out and the institutional memory is gone. Factions grow and they largely end up winning elections based on certain ideas. So the fact that those were extended to four years then gives people a real platform to learn, make decisions, govern, and then run on your record subsequent to that. So too with the legislative branch, the four-year terms are very helpful, and the fact that they're staggered, one-third of the legislative branch would be up every fourth year and then two-thirds every fourth year, so you retain that institutional memory of policies, procedures, what deals were done, why they were done, and that adds to the, I think, the strength of the decision making and the fact that they don't change very quickly. Final thing is, under Article X of the new constitution, the Crow court system was recognized, albeit with some caveats on some issues that have occurred since then. But the fact that it was constitutionally recognized was extremely helpful as a kind of third-party decision maker on important issues of day-to-day things, from small criminal issues to civil issues, and also in the commercial context as well."

Ian Record:

"I'm curious, you've already...you've touched on this a little bit, but I'm curious if you can paint a picture for folks of what exactly decision making looked like prior to the 2001 constitution taking effect. It was a general council system as you mentioned. Can you kind of paint for folks what the typical meeting, how it transpired, what went down?

Donald "Del" Laverdure:

"There would be a lot of informal meetings among families, clans, others. Usually there was kind of a regular system of politicians, if you will, and they would talk with the elected leaders or however they got their jobs in the government, and then they would work together to set an agenda. And setting the agenda is half the battle. And the fact that you would either get something on the agenda for a vote, or delay, or not have something on the agenda, carried particular force. And so even that part was very political. The notices or announcements would go out that a tribal council meeting would be held on whatever the agenda items were. People would go in and you'd sit in a round hall with bleachers, everyone would sit around. Then the chair would preside over those meetings with a variety of people that worked with them. Then discussion would be had, people would have debate, and people would either walk in knowing they had a certain vote or not, and they call it "˜walking through the line.' They would be made public on what issue they stood for or not. And there were all sorts of issues associated with that: shame, embarrassment, public fights. People I think...people who liked confrontation and who liked to be in the middle of the big debates enjoyed it, but I think for the average citizen who may not know exactly what was going on, it was a very arduous and difficult process. So not as many participated, as they say, as they do today."

Ian Record:

"And then, from what you're saying, from what you've shared already about the new system, there seems to be, as you mentioned, much more finality with the decision making, that the decisions that are made can then be built upon by other decisions that advance the nation forward, where it sounds as before there was a lot of difficulty generating much less sustaining momentum.

Donald "Del" Laverdure:

"Yeah, I would say that's accurate. The fact that there was these quarterly council meetings, decisions would be reversed very quickly. Major corporations who had invested in, say for example, drilling commitments on oil, gas, coal bed methane, or coal, then would say, they would hear a story from two or three of those companies, and then they would say, "˜Crow Nation is not somebody you can deal with because there's no stability, and we're willing to invest millions and be a partner here, but we don't want to continue forward based on that experience. So through the new constitution, the fact that the rules are out there, they're in public just like the '48 constitution, but in a way they know the process, it's different. You've got to go through various levels of approval from cutting a deal with the executive branch and their attorneys, to the subcommittee, and then the legislative process. And ultimately, then Bureau [of Indian Affairs] approval if there's trust assets involved. But it has been a marked change.

Ian Record:

"I'm curious: you've achieved reform, your nation has achieved reform, what sort of challenges did your nation encounter during the reform process, and how did it overcome those challenges?"

Donald "Del" Laverdure:

"Well, there's been a number of cases that have been litigated over the constitution itself, from voting rights of off-reservation Crows, to the process, the votes, the fact that there was only a thousand despite having some 10,000 enrolled citizens. And almost universally, all those cases have not stood the test in the federal court system. Some of them have been remanded into the internal tribal court system because it is an internal tribal sovereignty issue. Those were kind of some of the news flashes of what had occurred. The other thing was after the constitution went in, there was now going to be a vote on who was going to be the new chairman of this newly elected body and there was supposed to be a grandfathering in of the existing, but then there was an indictment that came down. The chairman resigned, the vice chairman stood in, so there was a new election and that was just six months after the constitution had been passed. And so you had this dynamic of political parties saying they were either for or against this change, and it was a very close vote. In fact, I think it was 100 votes out of 4,300 people and ultimately, Chairman Carl Venne won over the then-vice chairman Goes Ahead. That was significant because the existing vice chair, sitting chair had campaigned on continuing with the change, and he narrowly lost. The challenger, Carl Venne was [saying], "˜Go back to the old constitution.' And the irony of it all is at that point when he came in, because I am one of his clan nephews, he asked me to do an assessment. And so I worked with him very closely, and what I stressed to him as an educator at the time, before I was appointed to the bench, was that this was largely a very good thing to go forward with and that he still maintains certain authorities, but they had to go through approval processes and transparency was also a very good thing. And over time, his views softened and he learned to work within a system and ultimately accepted it. And I think that was significant in our contemporary history because somebody who campaigned against the very change that was there learned to accept the change of reform. And then we then started to develop and work very closely with the legislative branch after my judicial experience. And ultimately, it's still in a process of change. But the other area that we had many problems with was our court system. We had popularly elected judges at the time with an appointed court of appeals. With the new constitution passing, the administration at the time then removed all the judges and put in several appointed judges with legal experience, because these were non-legal, tribal Crow judges who were fluent in the language, often times former police officers, and there was a battle between what is the appropriate role of the court with this new constitution. I sat on the...I was appointed shortly after, and I sat on the judicial ethics board of the chairman, and we developed a set of rules on how we would test whether somebody was legitimately removed or not. At the end of the day, we did reinstate the formerly elected judges, who then later were subject to recall. We had a series of hearings, and then why in one case to resign, and another case we removed, and yet in another case there was a court case that I think went to settlement more recently. And so the fact that the tribal court it self was subject of the political branches and we needed to determine exactly where the judicial system sat. And at that time, I'm actually pleased to say I was part of trying to bring a stable process to how we select judges and move forward as a nation."

Ian Record:

"How has the judicial system at Crow changed or been strengthened by the new constitution?"

Donald "Del" Laverdure:

"To be honest, this is a difficult subject. I think the other branches and the delineation and the scope of the roles and duties, responsibilities is much more clearly spelled out in the constitution and what's expected. The judicial one, I think, is very thin because it's only four or five sentences in Article X. All it says is there will be a Crow [court system], however it did say that they would be subject to the Crow Law and Order Code, which is part of the tribal statutes that's subject to changes by the two elected branches. So I think there's an inherent weakness in the structure of the court. However, having gone through all the processes I mentioned, I think there was a long learning curve of, that the tribal court is an indispensible part of our government, and that it has to exist, and it has to set rules fairly and act upon them in a consistent manner in order for us to be legitimate and accepted by the outside world, and also to be the third party when the two political branches disagree. And we did have court cases on this and ultimately, we did come to an agreement. However, the tribal court system remains underfunded and is not completely independent, but I think it is fairly strong considering the circumstances."

Ian Record:

"So what sort of, and you touched on some of the growing pains that you've... you've already touched on some of the growing pains that the Apsáalooke Nation, the Crow Tribe has experienced since 2001 when the new constitution was ratified. It's interesting: we've talked with a number of tribal leaders across Indian Country whose nations have gone through reform. And there's kind of this stark reality that reform is only the beginning of change that you have to continue on with the process of change. Particularly, in many cases, you have nations and communities where all they know is the old system, and it's hard to change that overnight."

Donald "Del" Laverdure:

"I couldn't agree more. A famous writer said, "˜Be careful not of the wishes that have gone by or the prayers that have been unanswered, but be careful of the prayers that are answered.' And I think [in] Crow's case, maybe it was answered, and now reform and change is very difficult. And to change people's understanding of how we govern ourselves and how we view ourselves takes not only a lot of education, but just experience and building up in trust, expectations, and then ultimately confidence, and that their government works and that it serves the people, all the people, all the Crow citizenry, not just a few. And having gone through that process, I think we've made a march toward progress, but by no means is that change even near completion, and it's going to require a lot more hard work for another generation, I would imagine."

Ian Record:

"Both you and I were participants today in an executive forum on constitutions and constitutional reform in Indian Country. One of the topics that was discussed in great detail today was this issue of legitimacy and specifically ensuring that a nation's constitution is culturally appropriate. Can you speak to that issue relative to your nation?"

Donald "Del" Laverdure:

"Yeah definitely. I think the fact that the new constitution expressly cites our treaties of Fort Laramie -- which is really the foundation of the Crow's relationship to the federal government and then everything else flows from that -- we have an 1851, 1868 cite and do recognize that there is federal law which is debatable on whether it should've been in the constitution or not. But nevertheless, saying that we're Apsáalooke people, have our name said and listed in Crow, and that we list all the districts according to how we understand them. For example, Lodge Grass is in Crow '[Crow language],' which is the word for "˜Valley of the Chiefs.' Many chiefs were there historically. And having those types of things in there is important to our identity, our culture, and the future aspirations of where we want to be as governing not only Crows, but anyone within the territory and boundaries of the Crow Nation. In addition, one of the things I think has been, may have been a missed opportunity, could be subject to further amendments in the future, is the centrality of language for the Crow people. Some two-thirds are fluent, whether that be oral or verbal, and I think a nod to who we are as a people could've included some references to how the language is so important to who we are as a people. And so many fluent speakers, and we're having a generational change now where we have a lot who understand but don't speak as fluently as those 35 and older, and that we somehow incorporate and expect that from our officials. And I'm proud as a Crow person to say that many of the day-to-day governing things that occur, from business permitting to discussions with committees to phone calls back and forth are conducted in the Crow language. And the vast majority, super majority of all officials speak it and they speak it to each other when we conduct meetings. And we'll utilize English at times, but that's more the lawyers than it is the Crow politicians. And I think just that the essence of who we are as Crows does revolve around the treaties, the land, the language, and our clan system. And all of those things are critical to understanding and having legitimacy for all the Crow people."

Ian Record:

"Yeah, I mean, incorporating things like the districts as Crow people see them, that sends an unmistakable message to the people that "˜this is our constitution,' does it not?"

Donald "Del" Laverdure:

"It does. And perhaps in the future, through the legislative process that we would return more control at the local level, which I think it was historically through clan systems in certain areas, and the fact that we have those six districts and now we have three from each of those districts represented in Crow agency, the capitol, interacting with the executive branch I think does send the message that it is uniquely Crow and it is under our own rules."

Ian Record:

"I want to turn to another topic now and that's tribal justice systems. As I mentioned in the open, you served for four years as the chief justice of the Crow Tribe Court of Appeals. And I'm curious -- we've touched on this issue a little bit already -- but I'd like to get more of a thought from you on this topic of what roles can the tribal justice systems play in the rebuilding of Native nations."

Donald "Del" Laverdure:

"Well, I think they are as important as the political branches, the executive and legislative in this case. I think the court is the institution that enforces law. And we're going to have this new constitution, this reform, this change, and all that flows from it, the new dynamics, personalities, recognition of culture in many ways at the court, in and of it self has to be viewed as a legitimate branch of government that should be fully funded, and applies the Crow law or organic law to all the situations that are there, and that they interpret the Crow constitution from a Crow perspective. And that is absolutely critical, not only most importantly for our own Crow citizens, that they in fact feel safe and secure in their homeland and all the rules are the same, applied equally to everybody in similar situations. And then also to the outside world -- that we do have a system that is a check on the other branches, that if there's a commercial deal that is legitimate and lawful, that that continue and be enforced. And I think that all of those things become absolutely critical just in the social functioning of our society. And having some 4,000-plus cases per year go through that court system is very significant, and so it's a player in everyone's day-to-day life."

Ian Record:

"So I'm curious, it sounds like from what you've been saying that Crow is moving towards having one day a fully independent, strong, robust court system, that you're kind of on your way. And I'm curious to learn from you, what in your view, in your experience, does a strong independent tribal system look like and what does it need? What does it need to have?"

Donald "Del" Laverdure:

"I think it needs independent decision-making authority without political interference, first and foremost. Secondly, I think it needs to be fully funded. My experience among tribal justice systems -- and I have served on a handful and also helped create a number -- is that they need the funding to have the staff, the clerks, the recorders, the people keeping track of the files. It's absolutely critical for all of the day-to-day functioning. The third thing, I think, for them is to apply that nation's law according to how they view it. And I think the Navajo Nation really has emerged as a leader in fundamental or Diné law in their statutes, interpretation of those, and it's widely accepted by the community. I think we're making steps there. It's always two steps forward, one step back. And I think if we have all of those markers, then it'll be the institution that we need to be independent and stable. Certainly, having good serving people looking out for the public. And the other part, kind of those hallmarks of what we view as independent, stable judiciaries is I think in the tribal context, the least, I think it applies in a number, but at least at Crow, they have to be from the community, and they have to have compassion, because you're dealing with peoples' children and grandchildren, and you have to be a part of that community in order to have the reputation as a '[Apsáalooke language]' -- a good person -- and that you work with people and you're there to help them. You're not there just to sit as a third-party judge in another system where society is anonymous, whereas in our society, everyone is known and there are clan rules and clan systems in place. And if that judge can integrate all of those things in addition to those, then I think we'll be where we want to be as a Crow Nation judicial system."

Ian Record:

"You mentioned as the first key to an effective tribal judiciary, the insulation from political interference. What does political interference do? And I guess...let me back up here. What happens when politics do interfere in tribal court jurisprudence?"

Donald "Del" Laverdure:

"I think it delegitimizes the tribal court, number one. Number two, I think it creates a corrosive effect internally to the tribal court, the personnel itself, that when they make a decision, they're going to be overruled, and it could be for arbitrary reasons or favoritism, familial connection, kinship, etc., and that kills morale for folks working hard trying to make the standards the same for everybody. And so those two things more than anything, I think, are the effect of political interference."

Ian Record:

"And doesn't it send a pretty clear message to investors? And when I say investors, I'm not just talking about folks with dollars to invest in the nation. I'm talking about citizens of the nation who are considering a career working on the reservation, whether it be as a teacher, within tribal government and that sort of thing, all kinds of investment."

Donald "Del" Laverdure:

"Yeah. I think investment in the larger sense, not just third-party dollars for energy deals, but peoples' investment of human capital in themselves to a community. I think it does send a very poor message that this isn't a place where you want to put your life and your family and to contribute all that you have to make the governing system work well, efficiently, and be representative of uniquely Crow values. So I do agree that it would have a very harmful effect."

Ian Record:

"So I want to back up a little bit and talk about what Crow governance was like prior to colonization, prior to the establishment of the Crow reservation, the Crow agency. What did it look like prior to that time?"

Donald "Del" Laverdure:

"As far as my relatives and older folks in our clan system, what I've been told anyway, is that we did function as the original clan system, born on your mother's side and you're a child of your father's side. And just to get into specifics about roles, of how that looked because it does go into governance of how you live as a community and as a family and survive and prosper. On the mother's side, you would have the other folks on you mother's side have the right to...they usually brag you up, make you feel better, bring your ego up. And then you have the balancing act on your father's side, which is to tease you, to shame you, and to bring your humility back into check. And you have these checks and balances of the family. There would be, within the clan system, usually a clan elder who largely was respected among the family connections. They're typically the ones to speak and lead. In fact, in Crow culture, which has a fair degree of existence today, is the right to speak in public even with those systems, and there are rules and responsibilities that go with the clan system in there. And you're not to violate those. The enforcement mechanisms have probably disintegrated a bit -- you know, the American government bringing in different rules and breaking up the families –- but before it would be, the expectations were [that] you're to follow these rules and that everyone had a role. And these older individuals would then conduct ceremonies, they would decide family disputes, or pick people. They would always go by consensus decision-making, which was really important –- as opposed to top-down, vertical -– and always were viewed as people that were very good listeners. You can hear something, but you may not listen, and to listen is to learn and to share information about resolving these disputes. So it was really this family nucleus, kind of, at its core. And these families then would follow certain band chiefs, and we had band chiefs throughout our historic homeland. And the band chiefs were [Apsáalooke language], you know sub-chiefs, whatever, they were good men. And groups of families would follow them and they would largely –- if that person continued to conduct themselves in a good way, treat people with respect, listen, make good decisions, be thoughtful, etc., have patience, wisdom -– groups would follow them and they would live as a community in various parts and survive together. And if they didn't perform or if they weren't the type of leader they thought they were, then people would leave and go elsewhere. So that structure was always based on locations within the Crow Nation's territory, and so you would have pockets of this. And law and order was kept as such, the women ran the camp, the kids were to follow them, etc., etc. And so I think it was more of an understanding based on our traditional culture and clan system and then it would break into further roles for scouts and warriors, etc."

Ian Record:

"And so how, just speaking generally, how did colonialism impact that system?"

Donald "Del" Laverdure:

"I would say that certain parts of it have been corroded or negatively affected. Many people do still follow clans in some ways. But with the creation of the first agency out in Livingston, because the rations were given and following up on the treaties, many families were broken up, and they would take jobs or try to get the rations, so they would settle in new areas, and it broke up that family-clan unit that used to govern itself. And then it was changed to Crow Agency, the present-day capitol of the Crow Nation, Crow Agency. And so a number of people came there, and of course through the larger federal policy, were made into farmers, enticed them to do things and settle and have homesteads and break up the tribal land base. And all of those things had the corrosive effect of really disintegrating the clan leaders, the sub-chiefs, and it still existed to a large degree, even through this...and the language is fading a bit, but it's still fairly strong, the clan system is still respected, some of the societies have also disintegrated. There are some that are still active. And so, our culture, I think, has evolved in reaction to all this schism of internal conflicts of federal policy. One minute, let's try to help the Indian and we know better paternalism to, "˜Let's make them into '[Apsáalooke language],' which we say is "˜white.' So all of those issues have created what we've seen in the past, which is –- and continues today -- is high unemployment rates, mental health issues. We've got a checkerboard land jurisdiction, so everyone's fighting over authority to decide. And, ultimately, through a lot of this, there's a lot of passive lessee, lessor-lessee relationships, where other people have gotten wealthy off the great landholdings of the Crow. And so it's really up to us to try to get the healing back. It starts with the constitution and other things, and then reintroducing the culture, education, set roles and responsibilities back. But there has to be the healing, to get us back to where we were before."

Ian Record:

"I want to finish up with a brief discussion of an arena in which you're directly involved in in your current position, and that's intergovernmental relations, federal-tribal relations. And this is a...it's interesting, over the past 30 years or so, particularly with the advent of the Indian Self-Determination Act, we've seen this exponential growth in this area, where Native nations across Indian Country are engaging to a greater degree than ever before in formal relationship building with other governments, with other jurisdictions, with federal agencies, with state agencies, with local municipalities, with private interests even. And I'm curious to get your view of that arena of tribal sovereignty, if you will, of tribal governance and kind of where you see it at currently and where you see it headed."

Donald "Del" Laverdure:

"First from the tribal perspective, then I can probably speak more from the limited federal, in a year. From the tribal perspective, I think it varies on the community and the leadership and their expectations. In some cases, intergovernmental agreements don't work, or they view them as a denigration of sovereignty, giving away sovereignty. I think for the most part, at least in my personal experience, has been that they've been beneficial, by and large. For example, in the tax area, we have to deal with federal Indian law where state and local governments have been given more and more say to tax value on the reservation that's been generated and move it off the reservation. By having intergovernmental agreements, you can have kind of a unified view of who has what piece of the pie, and you can divide it up however it's going to be subject to negotiation. But you have that one for a duration of time, and then you can use that to move forward on development or other things because oftentimes, uncertainty is the key to kill a financial deal. So that's one aspect. I think law enforcement's another at least in, again, speaking from the Crow tribal perspective -- and there are differing views of this -- but I think with scarce resources, underfunding, the number of police per capita is much lower than it is almost anywhere else, some rural areas with an exception, sometimes one third as many for an area that's very significant. In our case, it's two-and-a-half million acres. Not enough cops -– sometimes one or two at night -- and that's a frightening proposition. So law enforcement makes sense, but there are passionate views about that. In terms of kind of intergovernmental agreements in general and the diversity of them, I do see them growing substantially across the nation. And I think to deal with the federal Indian law and the rules that keep changing -– you know, we talk about rules in governance, but the U.S. Supreme Court, as anti-tribal as it is in the last 30 years, they're changing the rules constantly. And so tribes are almost forced into intergovernmental agreements to deal with all these changing rules so that they can have a set of rules, whether it's, you know, law enforcement or tax or any number of subjects. And so I think it's a healthy way to deal with it. Some people view it –- you know, you've got to have the fight, the bloody fight and go down swinging for pure tribal sovereignty -- but I think at the end of the day, citizens expect services, and they want accountability, and this helps bring that for many. One of the caveats more recently in the Midwest, for example, is those deals that were struck before –- water, sewer, trash service -– these intergovernmental agreements that were so good for tribal sovereignty and worked, many of those governments are now rethinking them because they're reacting to new case law that's coming out. And so it's turning into litigation, instead of two sovereigns coming together and working on a deal for the benefit of the larger community. So we're starting to see an added wrinkle in all that and people rethinking relationships and it's unfortunate because of the instability largely created by the federal court system. So I can't really blame people depending on the scenario that they have. Either they have a trustworthy other government partner or they don't, and that's the key to intergovernmental agreements is confidence that once you sit down, negotiate, make the tough compromise, that you're going to stick to your end of the deal and you're going to hold your word. And that is important, not only at the tribal-state level and tribal-other government level, but ultimately, where the origin of the relationship is the tribal-federal level. We have to do and say...we mean what we say and we do what we mean. And that's critical for relationships with Indian nations. Speaking now from a federal relationship for a minute, and I'd like to say in my current role as an Obama appointee is we have two roles. If the tribe wants us there, under the trust responsibility and this historic federal-tribal relationship, we should be there and we should bring the resources to bear. If tribes, as they are now are becoming more sophisticated, that they have figured out the rules of the game, if they don't change, and they become very good and adept them and very creative and entrepreneurial as they progress and move forward and they don't need us and they say you need to get out of the way, then I think that's our job, is to get out of the way and to cut the bureaucracy and second-guess even decision making from the federal perspective for Indian nations and let them become truly self-governing, sovereign entities. And so, you can see that it's a somewhat convoluted answer, but it depends on the perspective you're speaking from and it makes a significant difference, I think, in the entire tribal-federal relationship."

Ian Record:

"You mentioned this new wrinkle that where essentially, some other governments, some other jurisdictions are rethinking their relationships with Native nations, or abandoning those relationships altogether because of the emergence of new case law that I guess maybe tilts the game more in their favor. Don't these, making sure that these intergovernmental relationships, whether they take the form of an IGA [intergovernmental agreement] or some other form, don't they require essentially ongoing, constant maintenance to account for those sorts of developments, to account for political turnover, for instance?"

Donald "Del" Laverdure:

"I think they do, at least if folks are thinking long-term. You have, whether it's now today, gaming compacts for example. Ten, twenty [years], some of them no duration time period, that they expect these rule to be in place and for this part of the revenue to be shared, and they expect state and other governments to hold their end of the bargain. So too with gas tax agreements, tobacco agreements, should tribes be subject...want to enter into them and negotiate them, that period of years, regardless of decisions, of federal court decisions, should continue for the duration of the term and then they can sit down as partners and renegotiate, should there be a change in circumstances. So I still think they have a critical function. And Indian nations' role vis-í -vis all other American governments...at the end of the day, they should be the ones driving those relationships and what they expect of them, and that the relationship can then take on a view of being reciprocal, as opposed to one-sided."

Ian Record:

"Now you mentioned this perspective on the part of some tribal leaders, some tribal citizens perhaps, that when you engage other governments -- particularly governments other than the federal government -- in any sort of formal partnership, formal relationship, that you're somehow denigrating your sovereignty or somehow giving up your sovereignty. It's been our experience that we're seeing that perspective less and less. That replacing that perspective is a perspective that when we engage in these relationships, it's an act of sovereignty because we make the sovereign choice to engage with those other governments on terms that are acceptable to us in order to advance our goals. Are you seeing more of that dynamic at play in recent years?"

Donald "Del" Laverdure:

"I think I have seen that not only from prior academic life, but on the ground. That I think, just by virtue of exercising that authority, that they are asserting their sovereignty. That's the camp that I'm in, but there are other purists, the treaty folks who have their societies, and they view any other agreement with any other government as violating fundamental treaty law. And so they're going to have, there's going to always be at least that in the Plains area, where I know there are many treaty folks, and up in the Midwest. But I definitely -– there is that element -- but we argued exactly what you have just summarized. And at the end of the day, some of the agreements did go through and some of them didn't and it just, it depended on the subject matter. But I think across Indian Country as a whole, I think that view is becoming much more prevalent and being exercised."

Ian Record:

"You mentioned the Supreme Court as a very uncertain arena, and that's putting it mildly. A very uncertain arena to, I guess, resolve disputes between jurisdictions, resolve disputes between governments. Given the current composition of the court and essentially how long that composition will continue to exist, doesn't it make it incumbent upon tribes to think negotiation first, to think relationship building first before litigation because of litigation's uncertain outcome?"

Donald "Del" Laverdure:

"That's...it's a complicated...I'll give you a complicated answer. It depends. That's something everyone hates to hear, especially tribal citizens from their lawyers. I used to think that. And even as a general counsel, I use to believe that, but now having seen such a diversity of hundreds of government's interactions, litigation forces positions and you can...and very few cases ever make it up to the U.S. Supreme Court; it's a tiny fraction of a percentage. And so the real question to me is, is this happening at the Circuit Court of Appeals and the lower federal court levels? And that's a judge-by-judge selection on whether they're knowledgeable about tribal sovereignty or not. And if they are knowledgeable, then I think in some cases it's still, it would be appropriate to the community, but litigation is leverage against other governments. And if you win a lower court ruling, more often than not, that's going to be settled. And so going straight into it, if you have a partner who's favorable, who's knowledgeable about Indian nation sovereignty, and they're willing to truly compromise, and it's something they can accept on behalf of their community, that makes sense. If they're not, and in those other situations where they take account of those other factors, the intangibles, the biases, etc., then I would say it would behoove you to take less if you can proceed forward in a situation that makes sense. And I've seen that in a number of contexts, especially at the federal level. So my view is a little bit different than it was previously."

Ian Record:

"And we've seen a lot of tribes that we've worked with who hedge their bets and do both simultaneously. They're going the litigation route, but then they're also trying to work out a negotiated settlement to...because often litigation takes years to unfold. It's interesting, Billy Frank, well-known leader up in the Pacific Northwest, he tried to capture this, I guess this challenge, if you will, by saying, "˜We need to be peacemakers when we can and warriors when we must.' And I'm curious to get your thoughts on that perspective."

Donald "Del" Laverdure:

"That's a really good description, and I certainly would defer to his having lived through and experienced all the fights of the Boldt litigation and the aftermath, and now having seen him come up to D.C. quite a bit and advocate for their intertribal organization, co-management of fisheries, and usual accustomed places. I think that's correct. And I think peacemaking has its function not only from an intergovernmental standpoint, also internal disputes. Peacemaking makes a lot of sense, and I hope to see a return of that from the judicial context and something that I helped some communities with. And then the warrior part, which is you've got to stand toe-to-toe and give it your all and even if you lose, just waging the fight is going to create that confidence from the people who are at home, who don't have the voice or the resources or the background to wage that fight themselves, but they feel it. They know it, they've experienced it, and they like to see people who would take that position so they can feel good and confident that they did assert themselves, and somebody who understands them move forward on that basis."

Ian Record:

"I had one final wrap-up question and that is based upon your vast experience in a number of different areas that are critical to tribal sovereignty, critical to tribal governance, what do you see as the future to tribal sovereignty and tribal governance?"

Donald "Del" Laverdure:

"I think the future looks good to be honest. I am more than hopeful that the change that we are seeing in the diversity of those rethinking, questioning, wanting to instill their own values and culture into how they have to conduct their lives everyday I think is going to continue and is going to continue at a very rapid pace. And I say that because having been through the university structures that I have, I was in school for nine-and-a-half years formerly, then taught and then getting into politics, the trend that I see is that more and more Native youth who are becoming trained and educated, not just educated in the Western sense. It's fine to have a degree and accomplish something and to kind of have a Western view of what life is about in a four-month period and then you wrap those all up in a number of courses, but to have understood the teachings of where you come from. And when you combine that and that is the center of your universe is where you are from, where your teaching is centered, and that you are that Indian nation citizen first, Indian second, and a student third, in that order. I see unlimited possibilities for the rebirth of and reformulation of Indian Country as we know it. There are just more and more youth coming out like that, which I think is the key not only for this next generation, but for all the future generations of Indian country. I'm simply one dot in the sand of the ocean and I happen to have tried to make a contribution and a difference and I think many others are going to be like that coming forward."

Ian Record:

"Well Del, we really appreciate your time. We've run out of time unfortunately, I feel like we've just scratched the surface of your wisdom and your experience and we thank you for joining us."

Donald "Del" Laverdure:

"Thank you for having me."

Ian Record:

"Well, that is it for today's program of Leading Native Nations. To learn more about Leading Native Nations please visit the Native Nations Institute's website at nni.arizona.edu. Thank you for joining us. Copyright 2010. Arizona Board of Regents."

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