Gwen Phillips: Reforming the Ktunaxa Nation Constitution: What We're Doing and Why

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Native Nations Institute
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Gwen Phillips, Director of Corporate Services and Governance Transition for the Ktunaxa Nation, discusses how Ktunaxa is using the British Columbia treaty process to reconceive and restructure its governance system from the ground up in order to revitalize Ktunaxa culture, language and core values and create a vibrant future for the Ktunaxa generations to come. 

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Native Nations
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Phillips, Gwen. "Reforming the Ktunaxa Nation Constitution: What We're Doing and Why." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

"[Ktunaxa language] Good morning everyone. My name is Gwen Phillips and I'm from the Ktunaxa Nation in the southeast corner of British Columbia, but we also extend into Montana and Idaho, and my grandmother was a Montana Ktunaxa or Kootenai as we're known down here. So I was asked to come and present on what we did with our constitutional reform, and we're actually doing a number of constitutional reforms. And you're going, "˜What?' Because we're involved in a number of different things, and so we'll get into a little bit of that as I move forward. But what we did and why we did it was sort of what we're here for today. [Singing] We don't own the land, the land owns us. We are just the keepers of a sacred trust. Sustained by the water, the land and the trees, our ancestral home for centuries. Yeah. We don't own the land, the land owns us. It's a concept that's not necessarily understood by those that we share the land with. So in our constitution making -- I was chuckling earlier that it should be reconstitution, a reconstituting because we've had constitutions in front of us -- and then I thought about the use of that word "˜reconstituted,' and then it brought me to orange juice immediately, and I wasn't quite sure about that, because we know it starts as an orange and then it turns into something and then they add, I think, it's water to turn it back to an orange, but I'm not quite sure if that's really what they're adding, and I'm not quite sure if it's really got the same nutritional value as an orange would at the end of it all. So I'm not sure about that use either. And we have to be really cautious as we use words, because words create worlds, we've come to see. And worlds are different all over the place. They're different for every one of us, the world that we come from in our immediate. So the constitutions that we create really have to be reflections of ourselves in our immediate place and space. [Ktunaxa language] Oops! Too quick with the clicker. [Ktunaxa language] This is not unfolding quite right. Anyway, there's another word on that page. It's [Ktunaxa language]. [Ktunaxa language], the word [Ktunaxa language] means something that is actually connected to the earth. The picture in the middle is some hoodoos, and in that particular region of our territory is where our creation story is said to have taken place. The very end of it, when the humans were brought to the earth. "˜We came from the dirt,' it is said, so [Ktunaxa language], the suffix of that or the root word of that one with the added suffix of [Ktunaxa language] means taking your life from the earth. [Ktunaxa language] means literally as me a human, my children, my grandchildren, my great grandchildren. So when you understand the connection of those phrases, those terms, it's immediate and it's huge. It's not saying necessarily that we own the land, that we take our lives from the land. [Ktunaxa language] -- also Ktunaxa words. The Ktunaxa language is one of the isolate languages in the world. It's not related to any other language. It's only spoken by my people. It breaks down into no further dialects. In Canada we have 11 aboriginal language families. My language is one of those 11, and it's the most critically endangered of all of those languages at this point in time. My land, my language, my people. If nothing more, our constitution has got to speak to, understand, and reflect those concepts back to ourselves.

Early relationships. Well, this is really important to us in British Columbia. For those who don't know, British Columbia is actually just in treaty negotiations right now. So when Canada was being born a way back when, and King George was laying down his Royal Proclamations in 1763, it was a very different circumstance we were experiencing in Canada than what was going on in the United States. In the United States, and I watched movies about Indian wars, it was kind of strange for us, because we had King George actually saying in his gentlemanly way, "˜Yes, we know this is your land, but we're coming to get it, so we'll take it for a bead and a feather.' Basically, there's treaties that have been established in Canada right from Royal Proclamation days forward. So in 1763 there were treaties established. Anybody here from those treaty nation areas around that neck of the woods in 1763? Guess where those treaty areas were? Right along the St. Lawrence Seaway. Why? Because they wanted access to those lands so that they could get in there and get the furs and the riches that were held inland. So King George laid off this beautiful statement back there in 1763, but none of us understood English back then, so we weren't quite sure what was going on. We really have what's called unextinguished title in British Columbia right now. It's kind of a strange place to be in, in that we know we have rights to govern, we know we've been subject to other people's interpretation of what those rights might be, but we are in a place where we're actually defining what they are through negotiations. It's interesting though, I heard somebody say about the assertion of their responsibility to govern over their people when they're not on their own territory. Well, of course we would. Why wouldn't we? The provincial government of British Columbia and the federal government of Canada seem to think that our jurisdiction only relates with Indians on their land, and if ya'll come on my land, I can tell you what to do, too. But as soon as I step off that land, I'm not an Indian anymore. I'm not Ktunaxa anymore. Well, that's just crazy for us. Crazy! And in fact, they followed that thinking along with policy and then they've created bureaucracy, and then da, da, da, da, da. So we have on and off reserve, status and non-status, aboriginal and not. We have this crazy place in Canada, it's unbelievable. So we're educating them about concepts around jurisdiction. The jurisdiction can take the forms of territorial jurisdiction as well as personal jurisdiction. We have a phenomena in Canada that we use a term "˜aboriginal people.' We have to use that term because we as Indigenous people, inherent right, First Nations people and the Inuit people up north, are what we call Indigenous people, and then we have this other group of aboriginal people called Métis people. Somebody was speaking French to me on the break. French people in meeting peoples that they met and in becoming Métis people are not subject to the same inherent right that we have. The reason I say that is because the concept upon which our inherent right is sort of figured out is about nations that existed prior to contact. So prior to contact, did we exist as a nation and occupy territory, etc.? And yeah, we did. And so in a funny, humorous way, when I'm teaching people about these subtleties I say, "˜What's the difference between the inherent right and the aboriginal right?' About nine months. Because we have that inherent right to govern which brings us both territorial and personal jurisdiction. Métis people do not have territorial jurisdiction. They have the personal jurisdiction, and so what we have been doing is trying to reconcile those understandings with the other governments, and trying to get them to see that, the government can delegate a certain perspective or a certain part of their responsibilities to all aboriginal people, but they can't delegate to us as Indigenous, inherent right people because they don't own something to delegate to us. So we're at this reconciliation place right now where we're trying to say, these are our rights, these are our interests, this is what we're wanting to do, and trying to reconcile it with them. And we have different concepts. Something so simple as, we should have the right under a democratic, democratic, democratic -- I love that term -- philosophy to select what we want for our government. But they're telling us, "˜No, you have to have an election.' And we're going, "˜But if our people want to select you because you're the best person, we can't do that?' "˜No, that's not a democratic process.' Isn't democracy supposed to be of the people, for the people, by the people or something like that? So if our people want something, they should be able to do that. So here we are at this treaty negotiation table taking ten years to actually come up with an understanding of what we're going to do as far as getting our people at the table to govern for us. And we still haven't got some resolution over certain concepts, because they can't get their head around some of these concepts, because they only use their head. In my language, the word "˜to think' means you use your heart. If it feels right with your heart. Doesn't mean about the head. So when I talk about governance, I liken it to the human body, the head being the govern, or the governance, in that you have eyes to see, ears to hear and listen, you have a nose to smell what don't smell right, and you only have one mouth. So that you should be doing twice as much listening, twice as much looking, and not quite as much talking, as the governors, as the leaders. Government on the other hand is like the body. It's the arms and the legs that do it, and they connect up where? On the trunk of ourselves where our heart is. So if we do good work in creation of governance theory, philosophy, concepts, instruments, then hopefully our government can do what it needs to do to get us to the place we want to be.

So constitutional reform for us has been a multiple [shivers] process, because as a nation we are not acknowledged by the government of Canada. They do not acknowledge in the Indian Act nations, even though King George in his Royal Proclamation did. The Canadian government recognizes Indian bands and an Indian band is a legally defined term in the Indian Act, and so that's the people they want to talk to, the Indian bands. That's not the Ktunaxa Nation. We are a nation as we govern. So again, we have to operate as a nation under non-profit Society [Act] legislation, which is about the bottom-basement governing authority you can have in all of the constructs of governance, other than an association. But we operate under this non-profit society construct and we have to have a Society Act constitution and by-laws. Try using the term "˜sovereign' in that level of instrument. Provincial government regulates that stuff and they don't want to see that word "˜sovereign' in there. "˜No, you're no different than the hockey club down the road.' That's how they look at us as a nation.

So we have this Society Act constitution that went through a whole bunch of reform and was adopted in 2008 as sort of an in-between place because we have other things we need to do. We need to celebrate and protect our identity. We need to incorporate our vision and our values. "˜Your what, you say?' "˜Our values.' We heard this morning about core values and how important they are. We want to re-establish an internal economy. Why? When I was the director of education for my nation, we did a full psych-ed assessment of our school-aged population, and we had over 40% fetal alcohol affected individuals. Forty percent. That's now our working-age population, and don't think that that is a high statistic, because in some of the more rural and remote communities, they have even higher indexes. What does that mean? Well, when we talk to the federal government they go, "˜Oh, my god, that's terrible.' And we go, "˜No. That's reality.' Is your cup half empty or is it half full? Change the size of the cup, people. You might even flow it over for awhile, more than you need, because you develop expectations based on what your reality is. So when we talk about an internal economy, I'm not talking about being wealthy like the big oil companies. I'm talking about being able to take care of ourselves again, because something in our vision speaks to that. We're also interested in revenue sharing. Before we asserted ourselves as a nation and they looked at an Indian band on a reserve, they said, "˜Whatever, you're a federal liability.' But as soon as we walk off the reserve, we're in their face. Then we're everybody's liability, and then it becomes in their interest to relate to us. And there's actually been federal policy passed around consultation and accommodation. Because of our ability and our right to govern, more so our responsibility, when the government is doing something major that will impact our inherent right, they have to consult with us and potentially accommodate our interests. And if they can't accommodate our interests, then we go into sharing some revenues and mitigation and all those other things.

We want to give our government purpose again, and more importantly we want to rebuild our citizens' trust. In the 20 years that I've been involved in constitutional reform and nation rebuilding, that's the thing that comes up and bites me every time. "˜We don't trust, we don't trust.' Most of us in Indian Country don't even trust ourselves anymore, let alone the neighbor or the guy down the road. "˜We're going to give them our life? No.' So that to us is key. How do we rebuild trust? And I know I'm not supposed to talk about process, but sometimes process is more important than product, and that's all I'm going to say about process. But the environment we're in is not a lovely place to be. Now if I could just go and think and dream and develop constitutions that would be lovely. But you know what it's like working in Indian Country, don't you? It's like the tennis-ball launcher has been madly turned on, and there you are in the morning with a broken hockey stick trying to do something. It's crazy. They throw more at us and more at us and more at us. So right now I feel privileged, or maybe it's not privileged, maybe it's the dream that turned into the nightmare, to be part of the national government's exercise to look at all of the authorities that the federal government has in place that deal with Indians. They're trying to reduce those authorities cause we're in a fiscal-restraint process. So the axe is swinging in Ottawa and I went, "˜Please give me the handle of that axe.' So I'm the only Indian involved in this big old committee that's doing this work, because I want to make sure if the axe is swinging it ain't gonna hit the jugular vein. And I've actually got them already within three weeks to see the light about on reserve, off reserve, extra bureaucracy, extra costs. Aah! "˜Yeah, you can save me some money?' "˜Yeah, we can save you some money, and we will.'

And somebody said something about root causes. Well, that's what we're really trying to do, because we see a vision, and that song that I started singing is our vision song. Strong, healthy citizens in communities speaking our languages and celebrating who we are and our history and our ancestral homelands, working together, managing our lands and resources as self-sufficient, self-governing nation. Key, key – self-sufficiency. It does not say wealthy. And every time I ask my people about money cause they always want economic development to bring in money. I say, "˜Why?' "˜Cause we need things.' "˜Well, tell me what you need.' "˜Well, we need money.' "˜No, no, no, no. Next time I come I'm going to dump a big pile of money in the foyer of the Band office. What you going to spend it on?' Aah! "˜We don't know.'

I watched about 20 school children's vision statement -- pictures, art -- one time and I got sick to my stomach, because every child's vision statement said, I see a future where there's no more fighting, I see a future where there's no more drinking, I see a future where there's no more, no more future. Really, what they saw was an eradication of ugly things, and that's not good enough for us. We want a picture of good things. We want to know what's good about ourselves. So as we put that vision statement in front of us we said, "˜Holy cow, if that's where we're trying to go, and that's the car we're driving via our constitution and regulations, etc., we ain't never gonna get there.' So we had to say, "˜Okay, we need a new vehicle. What is it going to be, a Ferrari, a four-wheel drive? No, let's just get the horse and buggy, cause that worked the best in our territory.' We want to rebuild our nation, but what is a nation? Can you smell, touch, taste a nation? No. You feel it in your heart, that place where you think from. But what is a nation? It's a whole bunch of communities, and in our case we've got five in Canada, one in Montana, and one in Idaho. So a nation is a whole bunch of individual semi-sovereign entities. But what is a community? Well, in our understandings, it was an extended family group living in a particular locale. When it got too big to be supported in that locale, they broke apart and another band was formed. So we have a whole bunch of families. And by the way, our governance structures included family. But the only real change agent in any of this is about the individual citizen. You can't change the family unless you change the people in it. You can't change the community unless you change the people in the families that live there. So our whole nation rebuilding is about rebuilding our nation one person at a time. And why are we doing that? On a basis of values and principles, traditional values and principles. Not rights and freedoms. Not rights and freedoms, but responsibilities and privileges. And so strong, healthy citizens speaking our language and celebrating who we are -- it's all part of our reorganization, our structures. So that vision statement turned into regulation and instruments and restructure within our nation, the way we do business.

So we have sitting councils in those four areas and we have an executive body that ensures that they're doing what they're supposed to be doing to ensure that we can fulfill our responsibilities and continue to access our privileges. Not rights and freedoms -- responsibilities and privileges, people. The only right I have in the morning is opening my eyes, and everything else after that is a responsibility to achieve a privilege.

So we've taken a strategic approach. Hey, hey, I've heard this term before. Building strong healthy people, not just getting rid of problems. Not just getting rid of problems. Don't focus on problems, focus on the good things you have. Implementing value-based governance, not just adopting the status quo. Balancing interest across the sectors. In our communities, we get lots of money for social programs and none for language. So we've got to make sure that we're the ones that are divvying out the dollars, not them. That we have ecosystem-based land use planning, not just resource development. That we manage an economy, and not just economic development. That's the only way you can ensure that your own people are alive and well and working and engaged and that you can [achieve] your vision statement. Clarifying relations to the people and the land. Again, not just looking at the absence of negatives. What we want is a presence of positives.

And so where are we? We've developed our vision, and that was a two-year exercise. So when somebody says, "˜It might take two or three years to do your constitution.' Hey, it might take two or three generations, and it might be the good one that you have that'll last for the next 20, 30, 50 generations. Vision, values, guiding principles. Done, done, done. That's ten years work, ten years work. But those things became alive as soon as they were done. It just didn't stop and wait for it. They've been permeating every aspect of what we have, because we're not just buying a new car, we're trying the car, putting on different wheels, we're trying a new... We're trying it out as we're driving it, because we want something that's going to work for us.

So this is where we are right now, defining standards for ourselves again across the board. What are our own standards, and that informs our law, and then we'll know what institutions we need. And I'll tell you right now, we've already said that one of the major institutional changes that has to happen is within the education system, because if we're dealing with all of this ill health, then why are we not using the human capital-building machine to address those issues. And I included along the side a few little concepts that we heard somewhere. Cultural fit, de facto sovereignty, strategic approach. I recognize those things from somewhere.

So our constitution, yes, it's been reformed a couple of times, we're working on a self-government constitution right now, which is really interesting. We have gone through I guess the process of putting ourself back into the picture. Now we have to get to the point where we actually can cut the strings from those other guys, because we're not quite there yet. But what we're saying is that we will have the responsibility for things like preserving, promoting and protecting our cultural heritage, language, identity; protecting and preserving ecological and environmental integrity of the lands, etc., etc., etc. But, as we do this, we acknowledge there's a lot of resources that [are] required, strategic investments. So we've gone away from using terms like "˜development' and using terms like "˜investment,' so we expect to see something coming back. And we're looking at things as independent variables. The government likes to talk in terms of capacity building, but they don't want to give us tools, they don't want us to have document management systems and things that they have that allow them to function effectively. So we're doing this work, we're actually sitting down and defining the full complete picture of what we'll need all across the board to govern effectively, right from competency to capacity, tools and instruments all the way along, because we have a vision and we want to achieve that vision. [Ktunaxa language]"

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Frank Ettawageshik, former Chairman of the Little Traverse Bay Bands of Odawa Indians, and Gwen Phillips, Ktunaxa Nation Director of Corporate Services and Governance Transition, field questions from the audience about their presentations detailing how their nations either reformed or are in the…