Frank Ettawageshik: Exercising Sovereignty: The Little Traverse Bay Bands of Odawa Indians

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Indigenous Peoples' Law and Policy Program
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Frank Ettawageshik, former chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses how LTBBO has systematically built its legal infrastructure in order to fully and capably exercise the nation's sovereignty and achieve its nation-building goals. He discusses some of the specific laws and codes LTBBO developed and why, and he also stresses the importance of Native nations building relationships with other governments on their own terms and in furtherance of their strategic priorities.

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Ettawageshik, Frank. "Exercising Sovereignty: The Little Traverse Bay Bands of Odawa Indians." Indigenous Peoples' Law and Policy Program, University of Arizona. Tucson, Arizona. April 15, 2010. Presentation.

Frank Ettawageshik:

"It's really nice to be down here enjoying your nice weather and to be down here and to be working with the Native Nations Institute. I've had a lot of years, a lot of times over the years that we've been in touch with each other at different conferences and other places, but never really had a chance to be here and to work on, sort of as Ian said, reflecting and thinking about Native nation building, as we were way too busy doing it and we were working so hard on a lot of different things that it sort of boggles the mind in a way when you think about the full scope of what that means when you say 'nation building.' The first thing that a lot of tribes think about when they think of nation building is they think of economic development and they think of how does that reflect because they think you need...of course you need money for the projects and things that you do and there are some people who focus on the economic development part to a great extent. And to me, economic development is not nation building. Nation building includes a component that's economic development and you need to think of it in that way. And that's really the way that we thought about it.

As the tribal chairman, I was the one whose picture was in the paper and who got quoted all the time and things of this sort, but there was a large group of dedicated people who were of a common mind or at least common direction -- maybe not always agreeing with each other -- who worked towards trying to develop an effective tribal government and to find ways to strengthen our community. And while we were doing that, one of the important things that we think about in that process is that we had to have...we had to keep ourselves rooted in our culture. We needed to have our ceremonies. When we had a community meeting, we always made sure that we had the community eagle staff there in the carrier and we had a drum, we carried a ceremony, a pipe ceremony at the beginning of the meetings and we did things like this that would help use the best of our heritage to help strengthen what we were doing in a way that it helped bring people together of one mind and it helped add a solemn nature, a serious nature and to help use the gifts that we'd been given in our culture, traditional culture, that would help keep us focused. And we did that, that was a big part of what we would do, and of course as years went by in the development of our constitution, we made sure that we supported freedom of religion, which was that we clearly have within our tribal community we have several different methods of expressing our traditional culture with different lodges, a Bedouin lodge, a Wabeno lodge, the independent people of different sorts that are involved in the tradition, but we also have Catholics and Protestant sects of various sorts and the Native American Church, we have some Muslims, we have some atheists and as you look through this, when the government's there, the government represents all of the people. And so we have to find ways that we can honor and respect everyone at the same time, as making sure that we keep the central identity of our nation through our culture and history, keep that as part of what we were looking at.

So what I wanted to talk to you a little about today was how we went about doing that, some of the things that we think are important and ways that...things that helped me as a leader to think through these things and to keep an idea of what's important. And I'll tell you what often happened in my office. Someone would come in and they'd be running and they'd be saying, "˜Oh, my god, BLANK is happening. What are we going to do about it and how can we take care of this?' And it's just the biggest crisis in the world. Well, the way I would deal with that is I'd say, "˜Take a deep breath,' and I'd say, "˜Well, is anybody going to even care about this next week?' "˜Well, maybe next week.' 'All right, now how about if they're going to care about it in six months?' And we'd try to put it in perspective. If it's an earth-shaking thing that really is going to be big, yeah, but most of those day to day emergencies are distractions. They can get taken care of in a fairly comfortable way.

Being in the legal office, the legal office was often the center of much of this activity. As the tribal chairman at our tribe, my office was in the west wing of our tribal administration building and right next to me was the...the office just in the hallway next to me is the general counsel and the vice chair and executive assistant and other staff. But I regularly worked with the attorneys, the tribal attorneys, and I would regularly consult and talk with them, but I never forgot what one of the elders taught me and that is, "˜We don't work for the attorneys, the attorneys work for us.' And in the legal education that people get, they're going to learn a certain perspective and yet, being a member of the bar and being a member of...an officer of the court and these things, you're going to have, say of a state bar, you'll have a certain perspective on the law and there are certain things that you can ethically advise, but being a tribal leader there may be times when that line of thinking doesn't fit with the exercise of our tribal sovereignty. So I've had occasion where our tribal attorney...we were at a meeting, we were talking, the tribal attorney said, "˜Say this,' and I looked at it and thought about it for a minute and I stood up and I said exactly the opposite and then I sat down and I said, "˜Now make that work.' That's the thing that is important for tribes is to help keep that perspective, understand where the center of their reality is and for us.

There's a story that I tell about a tribe that's not in the too-distant past, had opened a casino and it was a small casino and they didn't have a vault. They had a safe that was in the back room and their one tribal police officer was there and this happened to be in a non-280 state, which is another important factor to think about. But the safe got broken into and the casino manager came in the back room and the tribal chairman was there and their one police officer who was the chief of police, he was there, and they were all looking around they were saying, "˜Ah, what are we going to do?' And the police officer said, "˜Gee, somebody better call the cops.' Where is your center of reality? Where do you think this? And in a tribe, that center is within the tribe's nationhood. That's where it needs to be. And it's in the exercise of the tribe's sovereignty. And often our own staff, sometimes their head isn't there, sometimes our own council members have a hard time with that. They'll say, "˜Gee, will they let us do that?' That's a question that I've heard often when talking about something that the Bureau wants to do or something that somebody else wants us...

And what I have focused on throughout my career and as I've come to understand -- bringing all together teachings from various elders and from other people that I've spoken with over the years and other tribal chairman that I learned from over nearly 20 years in office -- the way I've come to understand it is that you're either sovereign or you aren't. You're not three-quarters sovereign or a little bit sovereign. Somebody can't make you a little bit more sovereign or somebody can't make you a little less sovereign; you either are or you aren't. And as a nation, as a tribal nation, expressing that sovereignty and exercising that sovereignty is really what your task is and functionally every sovereign is negotiating the exercise of their sovereignty with the other sovereigns around them. The United States just signed an arms treaty with Russia. It's an exercise on the limits of their sovereignty with each other, just signed. It's got to go before legislative bodies for approval, but that's an exercise of sovereignty. About three years ago, the Sioux St. Marie Tribe of Chippewa Indians, the Bay Mills Indian Community, both on the United States side of the St. Mary's River at Sioux St. Marie, Michigan and Sioux St. Marie, Ontario, and the Batchewana First Nation and the Garden River First Nation that are on the Canadian side of that river, the four of them signed a treaty. Now, the United States does not recognize our authority to sign treaties and yet these tribes have signed a treaty called the St. Mary's River Treaty and they formed the Anishinabek Joint Commission to work on cleaning up the river that they live on that has gotten so polluted that at times they have an advisory against touching the water -- not just not drinking it and not just not swimming in it, but touching it. There were people who were getting sick just having a picnic in their yard next to the river and this was the Native people who used to swim, used to drink the water, felt that it was important to work with each other. They signed a treaty with each other to do this. It's an exercise of sovereignty; it's an exercise of how they're going to be working together on things. So I think that this whole concept of dealing with sovereignty is something that people have a hard time getting their heads around often.

So I ask this question: we get interns that would come to the tribe, we have a couple legal interns every year who would come to the tribe to work, and when they came I'd bring them in my office. They'd be introduced to the chairman and I'd say, "˜I've got a question for you and I want you to think about it and come back and answer me next week.' I'd say, "˜When the Supreme Court of the United States issues a ruling that limits tribal sovereignty, I want you to explain to me how that limits our sovereignty.' Of course the answer is, "˜It doesn't limit our sovereignty in any way at all.' We're either sovereign or we aren't sovereign and the Supreme Court cannot take our sovereignty away like that, but the Supreme Court can make it so that the federal government and all of the political subdivisions of it all the way down to the counties and the townships around us that they have a harder time recognizing our sovereignty and they can make it really difficult for us to exercise our sovereignty. And that is the trick, that's the key thing that we have to think about as tribes is how do we and what do we do that protects the exercise of our sovereignty and that in doing so, how does that actually build our nation?

So we thought about a lot of this and one of the things that we did is we worked on lawmaking as a big central focus. One of the first laws we passed was a legislative procedures statute. We passed that because we wanted to lay out the process under which we would develop laws and it required that we...this required a posting period so that we'd have to post them so we couldn't just move into a meeting, put something on the agenda and pass it and 20 minutes later the whole law of the land, of the nation had changed. We needed some transparency, we needed the population of our tribal nation to have access to the process and to have input and so we wanted to slow things down a little bit. So we passed a legislative procedures statute. We passed a resolutions and regulations procedures statute. We did a number of different things that would help lay out how we would function within the confines of a constitution. We had...in doing this, we also realized that it wasn't just enough for us to be exercising our sovereignty in these ways internally, but we also needed to have ways that we dealt externally with those people around us. We had to deal with counties and townships, had to deal with the local sheriffs, we had to deal with the State of Michigan, we dealt with the...our international policy dealt with all of the tribes around us as well as these other governments and we had to find ways to...in which to sort of regulate or set these things up, how we would work. From the early days, we had a constitution that had been recognized. And I guess I should digress a minute here and let you know that our tribe had not been on the list of federally recognized tribes. We spent about 120 years in a legal battle with the United States over trying to figure out our existence. We felt we existed, they weren't so sure about it, and we spent a lot of time dealing with this. And in 1994, after several legislative attempts and other type court cases and other things, Public Law 103-324 was signed by the President and that reaffirmed our tribe's federal relationship. It didn't grant recognition, which would have implied that we never had it, it didn't restore it, which would have implied that maybe we had it and they took it away, but it's a reaffirmation act. It reaffirmed that we'd always had it, which was our position and that's the way the Congress passed that law.

Two tribes, Little Traverse and the Little River Band of Ottawa Indians just about a couple... about three hours south of us down along the Lake Michigan shoreline, we were both on the same bill. And when that bill passed we had an interim constitution in place. It was not really the regular IRA boilerplate constitution, but it was a constitution that had all of the authority in a single body and that the tribal council, the tribal chairman was a member of the council. The tribal chairman voted on everything that came before the council, as well as chaired the meetings, and between meetings, the tribal chairman was the chief executive officer of the tribe and implemented all the actions of the council. As long as you had a good tribal chairman, there wasn't an issue with that, but if you were to not have that or have somebody who wanted to abuse the authority, that's a lot of authority in one place. And there were no real checks and balances. The chairman controlled the gavel during discussions and could either lengthen or shorten discussion on things, could help set the agenda and so it worked pretty well, but the possibility of problems was great.

And when the bill passed, we had the interim constitution and it called for the creation of a new constitution or for us to have a vote on a constitution. We started a committee. It took us nearly 10 years in the development of a constitution when we adopted [it] and I had printed in this little booklet form. The constitution for the tribe was adopted on February 1st, 2005. And this constitution is a separation of powers constitution: it divides the executive, legislative and judicial into separate branches and talks about how they're going to interact with each other. But right up front in the document is something that makes it, I think, is the thing that really makes it more us as our nation. And that is, it directs the government through opening directives, it says that we are to promote our Indian language and our Indian culture at every...every law we pass is supposed to do that. All the ways that we set up programs and everything, we're supposed to be looking at this, at governance through that lens and that says right in the constitution. The other thing it says is that we recognize that our right of self-governance is inherent in a sovereign people and we also recognize that there are other sovereigns and we pledge to recognize them as they recognize us. It's the essence of a state department or a secretary of state or something that is a way of acknowledging the other sovereigns around us in what we do. And the constitution goes on to spell out a lot of other things, how things work, but it's been a really solid document to help us through, help us in our growth. And my personal belief is that it's a good constitution and that it really moves the concept of nationhood ahead in a very positive way.

There's a website at [www.]ltbbodawa-nsn.gov. It's our tribal website and on there we have a thing called the Odawa Register and in that we have, each branch of government has a section and we have all of our tribal code on there. We have our constitution, we have our regulations, we have pending regulations and pending statutes. All of this stuff is posted for us and our tribal citizens and the rest of the world for that matter to look at and to give input on. And the local newspaper has discovered this site and is now readily making use of it in writing articles about the tribe, which some of the tribal citizens are a little upset about thinking, "˜This is our business, why are they writing about it?' but actually, I welcome it because I think that it...what happens to the tribe is so important to what happens to the community around us that reads this paper that it's important for them to be aware of the proceedings of our meetings; the laws that we're considering, what laws we pass and things of that sort. So that's a little about the constitution and sort of how we brought that into being and the fact that we did things within the constitution; we also lay out a territory.

And our territory, just like us, was not on the list of federally acknowledged territories. In other words, if you go...if you look up reservations, you'll find that we do have a reservation, but it's only about 500 of the acres that we own. We own around...between 700 and 800 acres of a 216,000-acre reservation. This is the tip of the lower peninsula of Michigan here, this little map and this is just on the Lake Michigan side. There's a red line right here that outlines our reservation and this is the blow-up of that. If you notice, this is just like a state map. We got a regular map printed to help show our territory and to talk about the things that were important. And we pass these out to the local police and other people, even though it's not on the list of federally recognized reservations, we have asserted that in our constitution and we assert that in our laws and we believe that eventually this will come to pass, that it will be on the list of federally recognized reservations. It came from the Treaty of 1855, this particular boundary. So we printed something that actually shows where our territory is.

Some of the laws that we've passed are important. We have a criminal code, we have an Indian child welfare code, we have a lot of the things that are the everyday sort of meat of what it takes to be the government in Indian Country, the things that we work on, but we also have a lot of other laws that we've done. One of them is we passed corporation codes for the creation of corporations under tribal law and we have our own department of commerce and within that we have the ability under our corporation codes to create tribally chartered corporations that are owned by the tribe, individual tribal members can create corporations under our law, and we can create non-profit corporations under our law and we've done all three so far. And we have a tribal corporation called Waganakising Odawa Development and I'm the president of that board. And that's a tribally owned corporation that was created under our law. We also have a couple of tribal member corporations, one of which is a dessert business, another one is an IT business. These are individual members who have gotten...have functioning businesses under the tribal law. We also have a non-profit corporation under our law that is the Northern Shores Loan Fund. It's a CDFI, community development financial institution, through a program with the Department of Treasury and it's a revolving loan fund to help people be involved in business. And these are things that we've created. It has a 501(c)3 tax exempt status from the IRS and is set up for working to help people with business plans and do things to help them get into businesses. That's one of the laws that we passed. Of course, when you're doing all of that, you need something else -- this is like a jigsaw puzzle. The next thing we needed was we needed the comprehensive commercial codes and what we needed the most was article IX, Secured Transactions. And with that, we've adopted that. We have plans in the future for others, but we needed to have that as we were getting more and more into business and we've adopted that, but then we also did some other things.

We did...it's my belief that we're the first tribe in the country to have a notary public law. Now you don't need notary publics very often, most people go through their lives and need one...maybe once or twice, tribal government maybe needs it a little more often, a few times a month, where you have something...but people think that it's not something that's really...that is every day for people. But if every time you notarize a tribal document you go and do it under the authority of the state that you're within, through a state-licensed notary, somehow that detracts from the assertion of nationhood and the exercise of sovereignty. And so when you have a right to govern yourself, you also have a responsibility to govern yourself and responsibilities are not always easily met. Sometimes they're difficult. And it took several years to develop this notary public law and it got passed. I had a six-month time period within which to implement the law. So we called up an insurance company and said, "˜We're going to need to get insurance,' the surety bonds for notaries. And they said, "˜No problem, we do that all the time.' And I said, "˜Well, it's the tribe calling.' And they said, "˜Oh, no problem. We can do that.' So we didn't worry about that. Then we started trying to get someone to print our stamps and the embossers for us for doing notary. Well, we went to several companies and once they found out it was the tribe doing it, they couldn't do it. And we went...I spent about two or three months looking for companies. And finally we found one who we talked into doing it and they said, "˜Now how many tribes are there?' We said, "˜There's over 500.' He said, "˜You know, maybe we could do this.' And this was one of the smaller companies that does this and I think they're thinking there's a lot of business out there. And so we got that agreed.

So then we went to get the insurance for the people who'd applied, the surety bonds, and even the large Indian companies couldn't do it because all the product that they had was for state-authorized surety bonds for state-authorized notaries. And we spent months trying to figure this out. And finally we...one of our tribal members is married to a woman who's an insurance agent who specializes in hard-to-insure things and she...took her about 17 hours to come up with somebody who thought they could do it. Ironically, it's a company called First American, it's in Boston and it's not Indian, but they have an Indian in headdress as their logo, but this company had...some of the executives had just been to a seminar somewhere and at that seminar they had talked about tribal sovereignty and they got real interested in that. And then a phone call came and gave them an opportunity to work on it. They were real excited about it. And so we worked out over about another two months, worked out all the forms and all the things that were necessary to create this product. And we now have tribal notaries. We have 10 notaries, I believe, at the tribe. And while we were doing this, we didn't just sneak this in under the radar, we had meetings at the governor's office and with the governor and her deputy legal advisor who is the liaison to Indian Country, we told them what we were doing and said, "˜This is what we're doing, it's what we're working on and we're going to have this in place in a few months.' So we didn't just sort of try to blindside anybody with it and we now have this law. How often is it used? I don't know how often it's used, but I can tell you that this kind of work is not the big, sexy exercising tribal sovereignty kind of things where you're going to the Supreme Court and winning a big case or you're off doing the fishing rights or hunting rights or some big thing with this. This is one of those little grunt-level things that happens that just...it's a part of the everyday exercise of sovereignty that's important in nationhood.

Some of the other things that we have, I have some copies of regulations. These regulations have the force of law under our law and these regulations were promulgated by our natural resource commission and they are hunting and fishing regulations in response to a consent decree that we have in a lawsuit U.S. vs. Michigan hunting and fishing rights case that has been an ongoing case for years. The Great Lakes portion had been settled and there's a limited time consent decree. The first one was 15 years, the next one is 20, in how we exercise our rights. In court, we won the fact that the right existed on the Great Lakes. Then there's a...court has continuing jurisdiction through consent decrees on how we're going to exercise those rights. On the inland portion, that hadn't gone to trial and it started to heat up just a little just a few years ago and we decided that...we were on our way to court, we were doing depositions and everything, but we decided for one last round of negotiations to see if we could settle it. Lo and behold, we actually settled it. In the discussions for this major case, it was one of the major rights cases across the country, we anted up in the discussions by agreeing to not put gill nets in inland lakes and streams and we agreed to not commercialize our inland harvest. We weren't going to shoot deer for sale on the market. The state anted up with a stipulation. They agreed to stipulate that our right existed forever and be a permanent consent decree. So we put that stuff on the table and then we started to talk and we talked for a long time. There was 30, 40 of us in a room at a time and the tribes and plus the...we have a very unique animal in this case that's called litigating amicae. They haven't joined the case, but they have this special status and it's the Michigan United Conservation Clubs and Upper Peninsula White Tails and the various sport groups around the state that had an interest in this, and they had this special status in this case. Well, they had representatives in the room as well and we, at any one time during the long negotiation we had, there were times when one or another party was the one that left the room all red faced and in a huff over something and eventually we just kept talking and we gradually worked it through to where in the end, there were certain things that we had given up. Both the state and the tribe had given things up, but we also each won way more than we would have won if this had gone to court. And the problem with court is you have absolutely no idea how it's going to come out. You make your best case, you do your best shot and you don't know for sure what the judge is going to say or what a jury's going to say, and plus you don't know how it's going to go on appeal because almost every one of these cases that goes to court ends up running up to the Supreme Court and frankly, tribes have not actually had a real good experience in the Supreme Court lately.

So those are some of the things that we worked on. We worked on these regulations, we did all this, we passed laws and we worked on the implementation and enforcement of those laws. Another law we passed was a law against patenting, patents. Let's just say this right, I got my tongue tied here. But against patenting genetic material. Now, why would we do that? Because we heard all these...the various stories that have occurred around with Indigenous people and their genes, personally their own genes as well as the genes from our traditional foods. The wild rice case up in Minnesota was one that just really raised our concern because there had been strains domesticated and were being grown in paddies and those genes were drifting off into the wild and when people were selling wild rice somebody was, they started to want a cut of that sale from the wild rice because it had those genes in it from the patented versions. We felt that this was a danger to our traditional foods and so what we did is we passed this law. Now our jurisdiction is fairly small. In many ways in the grand scheme of things it's more of a show of intent and an exercise of sovereignty than it actually has effect because very few people are going to be patenting genetic material, but it also prohibits our government from cooperating in any venture where there will be a patent issued from our territory and our jurisdiction. So those are...that's another way that we went about working on things with our laws.

One of the more interesting laws that we passed -- this came from one of our council members Fred Harrington who...this was very good and it's called the Application of Foreign Law. Now if you've looked at Indian law and you've looked at various issues and you look at how there's a chart that's published by the Department of Justice that has which law and which person and which jurisdiction and all of these things and it's a great big chart on whose, which law applies to whom and what part of Indian Country and who's got...I mean it's really complicated. And there are clearly times when within our own jurisdiction, for us, there are people who aren't under our jurisdiction and yet we have to deal with them. And we've actually been working on a cross-deputization agreement with the local county, but we wanted our officers to be working under our law not just working with the county law or county authority. And so we passed this law that said, 'Anybody who's physically within our jurisdiction who isn't subject to our law has to follow state and federal law, and therefore our officers can enforce that law following our own law. It's a subtle point, but I think it's really important and that is an example of the kind of things that our government has put forth. We're a...I think about the kind of issues as we work toward things and we're taught to consider the consequences of our actions through a time period long enough to encompass seven generations. Now that's something that...I first started talking with people from the office of the governor and they were talking about things and they talked about a long-term plan that was seven years. And I said, "˜Well, you know, we've got something to tell you. Our long-term plan is generational, multi-generational and we're to think about that and to have that long view.' Well, the other part of that is that each one of us is someone's seventh generation. What did they do that got us, for instance, us in this room? What did they do that got us here? What things...where did they move, what did they study, what kind of things...where's our propensity for understanding things, for higher education, what are the things that got us to this room and what are we doing that seven generations from now will be echoing down through the generations for people at that point? So we're sort of in the middle of this continuum.

We talk in Indian Country a lot about balance. And we have balance in the medicine wheel and the four directions and we try to make sure that we maintain ourselves in balance, balance and harmony. And we try to make sure that a substantial amount of what we do restores harmony, restores that balance. Well, we're also in balance between the past and the future and we need to keep a balance there. If we just look...I was out at Sabino Canyon here last...just last weekend and I got to looking at the mountains and it was just...oh, they were incredible and I tripped on a stone in the path. You've got to be looking ahead of you, but at the same time you've got to be looking up. If you just look ahead of you, you miss everything, all you see is a path. And so we have to be careful how we do these things in terms of how we balance our vision. If we just look to the past and all of our answers and our salvation's in our past, we miss what's happening right in front of us as the world's unfolding and if we just look at what's unfolding without any comprehension of where we've been, we also miss the richness of our own sense of place within that past and future, within the four directions, within our, the growth in our communities and all of those things. So it's very important to have this vision and what I look at is in a vision is that what...the vision for tribes is to be a healthy community with healthy individuals and have healthy institutions and to be at peace and to be at harmony and that's the goal, that's the center, that's where we try to go to and that all of these documents, all of these things I've talked about, the regulations, the constitution, the maps and all these things, these are all tools to help us achieve that, but by themselves they don't achieve it. We have to balance ourselves between these different things that have a tendency to pull us and distract us in different ways.

I've had sort of a general talk here about things and I had one other document I didn't hold up and that's a U.S. Constitution. As a tribal chairman, I virtually always carried one of these because too few people who are in Congress and in other places in government, they've never read it looking at it through, "˜What does this mean to an Indian? What does it mean to the Indian nations?' The Commerce Clause, Article VIII, things that are really fairly, that are fundamental to the U.S. federal Indian law and how it relates to tribes and that relationship. Very few people actually understand that, even ones who you would think would need to. So I carried one of these, I carried our tribal constitution, I carried maps with me, all of these are things that help outwardly show people what it is. When I handed somebody one of these, what did it say to them? It says we're a constitutional government, and that means a lot in terms of people understanding things. So I'll be glad to take questions and discussion here and I'll do my best at what I can answer."

Audience member:

"Do you have any provisions under your corporate codes that allow you to take trust, to take land into trust under a corporate status for the tribe?"

Frank Ettawageshik:

"No, not specifically. We talk about taking land into trust through the constitution and that...we don't take it into trust, but we put land in trust. But we have never...we don't have something that allows the tribe to hold things in trust and that's something that we don't have in there. There's been a lot of talk about land and land reform in Indian Country. The fact...one of our big problems in growth is the lack of inter-generational transfer of wealth, which most often is done through property in non-Indian society and that's something that is a big problem in Indian Country. We're missing that step because we don't have a private sector economy for the most part in Indian Country, but there's a lot of talk about how we might look at that and change that. I talked a lot with a number of individuals over the years and the Indian Land Tenure Foundation has done some work in this regard. I know there's a lot of people thinking about it. Maybe that's something that the folks in this room might work on some day and help us resolve."

Audience Member:

"If you're a federally recognized reservation, are you subject to the Major Crimes Act?"

Frank Ettawageshik:

"Well, our 216,000 acres is not acknowledged as a reservation, but our trust land, which is the smaller ones, are acknowledged as that. So we are subject to the Major Crimes Act when it comes to that, when it comes to the casino, the tribal administration building, tribal housing, the various parcels. We're buying our reservation back one little piece at a time as we work on things, but we are subject to Major Crimes and so...but we have something unique also in our district in that the U.S. Attorney has developed a misdemeanor docket for non-Indian offenders on trust land and this is throughout the whole western district of Michigan, which includes a lot of tribes and our casinos and so we...someone commits a crime that wouldn't have risen to the level of federal prosecution, but it's clearly a crime, urinating in the parking lot for instance at the casino, which is something that people bring up, but all kinds of different things that fall into this. We now have a way to write them a ticket that they can pay a fine through this, as opposed to having to go and appear in federal court for these, if they choose. If they want to fight it, they've got to drive three-and-a-half hours to the closest federal court and go to court. So we have...this is sort of a...not every area has this and our U.S. attorney who is one of the ones that was fired, by the way, of that group that was fired, Margaret Chiara, she really worked hard to put this together. Other questions?"

Audience member:

"You talked about when you tried to develop the notary public and you talked to the governor and they seemed to be pretty receptive to that, but can you talk about some of the strategies you and your government went into when you came up against factions or individuals in state or local government that seemed to be opposed to y'all expanding sovereignty or exercising that sovereignty?"

Frank Ettawageshik:

"We've done some real interesting intergovernmental relations over the years in Michigan, one of which is under the previous governor. This current governor is nearing the end; she's in her last year of two four-year terms. And actually -- Jennifer Granholm's the governor -- she's on that short list of people that is being looked at as a potential Supreme Court Justice, but she's...yeah, which reminds me. I've got a letter here from the Native American Bar Association that was written to the President, this is a copy of it, informing him about the lack of Native people in the federal court system as court clerks in the Supreme Court or as Supreme Court justices and it's very well written and hopefully it will be well received, but I thought it would be good since I was coming here today to pass that out. But some of the things we did is we passed a tribal-state accord with the governor. All the tribes in the state signed this along with the governor and it acknowledged the sovereignty of the tribes pledged to work together and pledged to create a tribal-state forum, which was a monthly staff level phone call at which things could be worked out so that any issue...It's basically a safety valve in case there are any issues.

So anyway, that's the first thing that we did. And then, through those monthly calls, we were able to head off a lot of issues like the ones you're talking about. Probably one of the big issues was that we had game wardens in the state who really didn't like the fact that Indians had "˜special' rights. And so any time they could, they would push the envelope. Well, we'd reached an agreement with the governor's office and through the director for the [Michigan] Department of Natural Resources that, while we were working on the U.S. v. Michigan case, it was a government-to-government issue and they weren't going to pop individuals who were hunting with proper licenses from the tribes. So I got a call. A 14-year-old hunting deer for the first time with his dad got his first deer and the game warden took the deer, took his rifle and they were all upset. Well, I had a phone number. I called it and it was the phone number of the liaison to Indian Country that was through the Department of Natural Resources. He was on his deer blind in his mom's back 40 up in the Upper Peninsula and I called him. I said, "˜Jim, this is what just happened. We've got a problem.' Jim said, "˜Okay, just a sec.' And he got off the phone and he made a couple phone calls and he called me back and said, "˜Don't worry, it's all taken care of.' The guy got his deer back; he got his rifle back. It took a couple days, but they had gutted the deer and they kept it refrigerated, they'd done all the things that they needed to, but we were able to deal with things like that and we built these safety valves in.

There's a liaison to Indian Country in every single department in the state. The list is published, these phone numbers are available to people on the state website. If you go to Michigan.gov and you go to the governments, there's a bunch of different things there, but go to governments and on the state government page there's a link to tribal governments. And as the page opens up, there's a link to all the tribal websites and all of the agreements that we have done with the state are on there, which includes the Tribal-State Accord, a water accord on how we're going to mete [out] unshared water resources, an economic development accord and addendum to the initial economic development accord that was done the next year. Each of these are the results of a summit meeting with the governor that happens annually where we all get together. And as usual in summit meetings, we don't actually do the work at the summit meeting. It's done all year and the summit meeting is, we're all together, the chairman and the governor sign the document and there's photographers and we share pens and all this stuff. It's a photo op and it ices the cake, but the cake's already baked, is basically what we're talking about here. But all of these agreements are there including the most recent one, which is an accord on climate change issues that we signed nearly a year ago now. And this one, they create meetings like with the...the water accord created a meeting that happens twice a year with the tribal...at the staff level between the tribe and the state on how to deal with shared water issues. And we are meeting at the end of this month with the Michigan Economic Development Corporation, as furtherance of the economic development accord that we passed. We've had the director come to speak to the United Tribes of Michigan meetings. We have a variety of things where we're working together and we've just tried to establish how do we do this. And what happens when we have people that don't agree, we try to make a political climate in which it is more difficult to disagree than it is to sit back because they're there still...but they're not the ones that are leading the discussion. And we also do our very best to convert them to the fact that...I say to, and unfortunately, I don't know if anybody here's from Ohio, but I pick on Ohio quite a bit. I say, "˜Poor, Ohio. Every time they have to do anything environmentally and stuff, they've got to go to the EPA all by themselves.' Michigan has 12 federally recognized tribes, so 13 of us go to EPA together to work on the issues. And the tribes have access to resources that the state doesn't and vice versa. Together we can really get a lot of stuff done.

And so actually, this idea has not only taken root within the people that we deal with in our communities, but they actually come to us now. We had a local governmental entity come to us and inquire about us putting a piece of land in trust because they wanted to do something with the land that they couldn't do under their law, but they thought maybe we could. We couldn't do it either, but nevertheless it was such an amazing turn about that I was blown over by that. But those are some interesting things in the working relationship with other governments around us. Other questions?"

Raymond Austin:

"Could you talk a little bit about you as a customary law, customs, traditions and tribal government operations not necessarily in court decision making, but the overall structure of the government itself? That's one. And two, can you say something about attorneys working with Indian tribes? What are their responsibilities, duties and all that to not only the tribal council, but the chairman, the president or whoever and what their roles would be? Sometimes you have general counsels that are overbearing, they come up with policies or they draft laws on their own and then they give it to the tribal council. The tribal council merely rubber-stamps those things, that type of thing. How should attorneys work with tribes in your view?"

Frank Ettawageshik:

"Well, let me answer that last, second question first in that I reiterate what I said initially, is that the attorneys work for us, we don't work for them. And that's a difficult thing for some people to think through, but the other one is that we have to when we're passing laws and you're thinking about sovereignty, the attorneys may be the drafters, but they're not the ones...they make the draft or they find the words to make happen what their bosses, the legislators have said. "˜We want it to say this.' They might not be able to find the right words to say it, but then the attorney's job is to help draft it so it says that. And as you said, there are...we worry about activist judges. Well, there are activist attorneys as well who really work hard at trying to get certain points of view across and at times there are a number of things that you get a tribal council of lay people who sort of get awed by the attorney and say, "˜Well, the attorney said this. It must be true.' Well, attorneys are trained to argue either for or against a particular point and they may or may not believe that point, but the job is to do the best you can with what you've got to win the case whether you agree with it or not. I used to be a debater in high school and we debated on the affirmative for the first half of the year and then we'd switch and we'd be the negative and we'd switch that in the middle of the year because we'd heard all the good arguments from the other side and now we could argue that side pretty well. I learned that.

That's the problem we have a lot of places is we don't, people aren't...what they really don't understand, and this is the thing I think that happens a lot for the tribes is that the elected officials and perhaps the citizenry don't have a really good understanding of how their government works. And one of the projects I've been working on here is developing a good strong outline for civics education for tribes, sort of a subheading of "˜How to Get the Most out of Your Elected Officials,' some way to help people understand what the roles are so that they know better what their powers are and how they can be expected to act. And I think that in the absence of people knowing that, it leaves room for attorneys to actually take those actions as you described and I've seen it happen some places. I've had...I don't, as you might hear or suspect, I really have not had that problem because I wouldn't tolerate it. I knew what we needed, I knew what I would want and I would argue quite strongly for it without letting someone just write something that we rubber stamped. I was sort of dealing with the second question first, but I've forgotten the first one."

Raymond Austin:

"Culture in governance?"

Frank Ettawageshik:

"Oh okay, yes. To me, one of the ways that I deal with culture and how it relates to governance is I've worn a ribbon shirt almost every day of my adult life. I've worn a ribbon shirt when I was the only one and out of a thousand people in the room that was wearing a ribbon shirt. When I mow my lawn, I wear an old ribbon shirt because I've got to wear them out. And the thing is that I've always tried to make sure that I let people know that I was Native and that I was proud of it and that this was an important part of the things that we did. When we meet with the governor, the State of Michigan does not allow prayers before their meetings, but every single meeting that they have with Indian people starts with a prayer. They concede to us to do an opening prayer and we do that because we feel that that's an important part of us all being in the room, we need to come together as a mind. We feed people. This is part of our culture. You get a bunch of us together, we always eat. Well, we make sure that if the state or the other agencies, these people love to come visit us and have the meeting because we feed them. When we go to there, they're so embarrassed that they'll personally go out and buy some donuts and coffee just so they'll have something because the state will not spring for any of those, any refreshments or anything at their meetings. And so we make sure that they understand these elements of our culture and understand these elements of protocol.

I think it's important to sort of let people understand that we try not to make rash decisions, we try not to jump into things real quickly, and it's impolite actually to do so. It sort of implies that we're not actually giving careful consideration to the thoughts of the other side. So sometimes it takes a longer time in dealing with us and we've done some trying to understand that culture, understand how we bring that into our governance. I mentioned that we start our meetings, our community meetings with the drum, with songs, with the eagle staff being brought in, with our tribal flags, with the pipe ceremony and that this is something that we do in those big community meetings. But we also, when I was the chairman, I carried my personal bundle with me into the room even though I didn't open it in the council meeting [on] a regular basis, but I had it with me because to me it was sort of something that helped root me where we were.

We have an opening at the meetings for a smudge. We try to do everything that we can in our, within our community to...let's look at this way: in the architecture of our tribal administration building, we incorporated our culture. And in doing so, what it is, you walk in...even though the driveway comes in from the south and at most big buildings you'd turn the building so that it would face the driveway, we faced the building east because that for us is the direction we need to face with the building. And, there's a big octagon center that's got a big vaulted ceiling in it. And in the center of that is a circular area that has a fire pit in the center that's right on the earth. The architect said, "˜Oh, we'll just build some concrete, we'll fill it with sand.' We said, "˜No, we won't. We're going to have undisturbed earth right there where we can build a fire and that's going to be the center of this building.' And there are no offices in this big center building. It's open. We have a kitchen, we have a receptionist and we have a little meeting room and bathrooms and other facilities and things, but this is a commons area in which we meet, it's the center of the people, it's ceremonial and then off the north facet we have a two-story office building in which there are our tribal police, our environmental services laboratory and offices, the computer lab and the education department, the archives and records and the accounting department and the tribal administrator. All these are in this north wing. In the south wing is the tribal, first of all, the tribal council and tribal court chambers, we share it. And then all the court offices and the probation officer and all that are in that south wing. The west wing of the building built on the west facet of this octagon is on the south side of the building are all the executive offices for our government. The north side are all the legislative offices. And this building, as you walk in it, it's an education in the way our government functions and it's an education in our traditions in that around that fire pit we have tile in the floor that are the four colors for the four directions.

We've had meetings in there where we had a gathering of the eagle staffs from throughout the Great Lakes Basin and there were 17 staffs and 21 pipe bundles that were all in there in that circle as part of the ceremony. We've had the Attorney General of the United States come in and we had a meeting where we hosted him in Indian Country in Michigan. We've had the Governor's Interstate Indian Conference with all the different state governors and their staff of places where they have tribes in their states, they have this organization that they meet, they came and met. We've had the Kiwanis and the Rotary that come and meet from the community in this place, but this building itself lets them understand elements of our culture. Every time they see it, we get a chance to explain it and every time a staff member walks from one wing to the other, they come to the heart of the community on their way through. Other thoughts?"

Stephen Cornell:

"I was just wondering how these assertions of nationhood and of sovereignty have been received at the sort of level of local publics. You're in an area of the country where there at times have been a great deal of tension between local constituencies and you've mentioned the state, but I was wondering what have these, how have these been received by local people, including the people, you're in an area of mixed population. I'm just wondering what impact this has had in your relations?"

Frank Ettawageshik:

"Well, we're in an area where there -- within my lifetime -- there were signs "˜No Indians' in some of the bars and there were places that we really couldn't go. Nobody would have thought that they were being discriminatory, but we certainly have lived within this knowing that there were things that they couldn't do. Early in my tenure, an Indian student came to the school in Petoskey drunk and they pulled all the Indian kids out of class and breathalyzed all of them. So a couple of people and I went into the school to the superintendent and said, "˜Listen, either you and us are going to get to know each other really well as we go to the Supreme Court and we sue you and seize all of your assets or you're never going to do this again,' and they've never done it again. They straightened out and they realized they shouldn't. So we managed to go through that, but we have had those certain kinds of tension.

One of the initial parts of tension in this is I got...early on in our, after the reaffirmation bill was signed in 1994, I'd say about '95, maybe '96 or so, I got a letter from a local prosecutor who said, "˜Dear Frank, this is to inform you that your police officers are impersonating police officers. It's illegal for them to be on the road with lights and with emblems on their car. It's illegal for them to...' Most importantly, he said, "˜It was illegal for them to have the chip in the radio that allowed them to pick up police frequencies.' And so he said, "˜You have 10 days to deliver those to me.' So I wrote him back a letter, "˜Dear Bob, you know where those cars are and you're welcome to come get those chips anytime you want, just be prepared for a visit from the U.S. Attorney as soon as you're done.' And so he called the U.S. Attorney and within several months actually, he had signed off on a limited deputization with our officers, but before long we actually had a full cross-deputization [agreement] where the sheriff and the deputies from two different counties had came before me in our tribal courtroom and took an oath to uphold the tribal constitution and all of our laws, and our officers were sworn in as deputies with the county so that we had seamless law enforcement. So that's one way that things have happened.

We gave people the map and we've showed them the constitution and a lot of them didn't realize that we were a constitutional government. And there are tensions, but we've also done some tremendous things. One of the things that we did that...we are either the only tribe or one of just two or three that got the "˜The Great Read,' "˜The Big Read.' There's a program through the Humanities Councils and the Arts, I forget. It's through the...it was some agency through the National Endowment for the Arts on 'The Big Read' and we got a grant for it. Some of the other recipients were like Maryland Public Radio got one of the grants and things like that. Well, our tribe got one and we worked with the Great Lakes, the Little Traverse Symphony, we worked with the library in town, the college and various other people and we put together this thing where we all read To Kill A Mockingbird. And we had programs throughout every place and the tribe was the lead agency on this working with the others in terms of comparing what our situation was with the situation in To Kill A Mockingbird and the story from that. And these are the kind of things that we've done with the other agencies in town to help people understand where we're at; it helps to get rid of a lot of the tension. And those are things that we've done both in big and small ways that have tried to deal with that tension. It still exists and we have individuals who would be a great detriment to us if they were the one in charge, but nevertheless this thing works quite well. I think my time has arisen; actually the timekeeper has risen from his seat. And so with that I want to thank you all for the opportunity to speak with you today."

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Frank Ettawageshik, former chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses how LTBBO has set a solid foundation upon which to engage in nation rebuilding through its development and ratification of a new constitution and governance system that is culturally appropriate…

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Frank Ettawageshik, former chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses the critical role that intergovernmental relationship building plays in the practical exercise of sovereignty and the rebuilding of Native nations. He shares several compelling examples of how…