Honoring Nations: Karen Diver: Sovereignty Today
Diver, Karen. "Sovereignty Today." Honoring Nations seminar. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 16-18, 2009. Presentation.
"I am so happy to be here reconnecting with former classmates -- I was a Kennedy School grad in 2003. I'm seeing some old professors and old friends and meeting some new ones. When I was here and taking the 'Building Native Nations' class, Professor Joe Kalt said over and over, and I took it to heart, 'Aggressive assertions of sovereignty are backed by capable institutions.' The part he didn't tell me that I had to learn for myself was, that really pisses people off. We learned this after the election. Capable institutions: what did they look like? What was Fond du Lac faced with? Building decision-making processes, first and foremost. We had an insulated tribal council. I've been interested in hearing from people from the service delivery fields, because it makes you feel like the big bad tribal council who gets in their way of doing things. And you know what, it's true. And I found it to be true. And I was a staff member before I was elected and I found it to be true. And I said, 'I'm not going to be a part of one of those tribal councils.'
And so we've worked hard to also include the citizenry and the staff as we kind of change our policies and procedures and implement those capable institutions. It's also been important for us to include tribal members in that. There is great safety in including more people than you in making decisions. One example [of] that hit my second day in office: 'How much money do you make?' I answered the question. Never had they been told before how much tribal council members make. And my motivation in it is, 'Maybe you will revise your expectations of what you get out of your leadership when you know how much money they make.' They should have to earn it. And if you're paying them well, you have a right to expect a certain set of accomplishments, skills and abilities come with it. But what we also pledged to do is said that was always a tribal council decision, let's get a citizen community together and do a salary review commission. They can look at data, we'll get them a consultant, we'll talk to other tribes, we'll compare what we do to others, and we'll do something so that our salaries reflect somewhat of the market but also the fact that this should be public service as well. And we did that. And it was no longer a secret. And you can't shut that door once you open it.
So that's been kind of cool having the citizens involved in strategic planning. I am one elected official who will be there for one term, maybe more, but strategic planning is also about my grandchildren and their children and my neighbors and my family. I am one of five people -- I cannot set the direction this reservation is going -- so really doing a holistic community involvement process around determining where we're going to go. And you've all heard the saying, 'It doesn't matter which road you take if you don't know where you're going.' I need to know which roads to take. Basically it's about transparency, too. Once you have a strategic plan and some established goals and objectives that everybody knows about, you can monitor performance and decide whether or not the people you pay or the ones you elect are doing their job. If I fail at that, I deserve not to be there. But those goals and objectives are determined by our entire community and not those five as demagogues sitting on tribal councils.
Another part of what we do is identifying gaps in policies that affect our social or business issues, but also enforcing the policies that were there. And we've heard about that a little bit -- barriers, RBC [Reservation Business Committee] barriers, we're a reservation business committee is what we call our tribal council, so if I lapse into RBC you know what it is -- enforcing the policies that were there. We look at gaps in service delivery, we want to try new bottles and find out we're the biggest problem with it. We need a CDFI, community development financial institution, and I would like to do tax credits. Until I get the RBC out of the decision-making -- what I tell people is, 'If we can't make our membership pay their propane bill or pay their housing rent payment or mutual health payment, how on earth am I going to meet the regulations for a CDFI or for tax credits?' We start at the beginning. So a little political will is needed in talking to our citizenry. We would like to meet your needs that you've identified for housing, etc., what are you willing to do? Are you willing to pay your bill? You're saying you'd like to borrow money, but you owe money to the propane company. Promotion of personal responsibility and self-sufficiency. We can't just talk about it from a tribal government point of view and say we need to be self-determined without saying that the individuals who comprise our communities also have to practice self-respect, self-responsibility for community and their own self-determination. Our systems are to assist them in doing that for themselves.
Housing issues: enforcing ordinances around that would support like mortgage foreclosures. I'd like there to be more lending, I didn't have the regulatory capacity for having a Section 184 program. So developing our ordinance, it was a gap. Small claims court: how do we handle lending within the reservation and microenterprise between Natives and other Natives if there is no enforcement? They can't take it into the district court, so putting into place small claims court; looking at wellness court as another way of getting our people and their social needs met; and working on uniform commercial code. So identifying gaps is huge. And tribal government, that's one of their biggest roles I think is to look at what is your safety net? Not only for your people with service delivery, but for creating a good economic development environment? And your job is to plug those gaps. What's missing? What do we need? That only works if you clearly define roles and responsibilities. You have to make sure your systems and policies are aligned with those roles and responsibilities. Governing bodies: we set the vision along with the community and we set the policies. I've made some clear distinctions with our community. The prior councils really, it was a little bit of a crap shoot. You went in before them, you were scared about what conversation you were going to have and how it might go off of track and you certainly...I frightened one of our department heads my first week in office because he came to us with an issue that he laid out in a rather lengthy way and I had dared to ask him, 'Do you have a recommendation?' 'Ahhhhh! You want me to have an opinion?' I frightened this poor man.
You didn't express an opinion before the prior tribal council and you certainly didn't use your expertise and your skills in your field to say what should be done. Well, what the heck? I have 28 different divisions. I'm not an educator. I am not a healthcare administrator. I certainly am not an environmentalist. Why on earth wouldn't I use the expectations and the skills of my staff to inform my decision making? The accountability comes is if they get it wrong. 'Okay, you mucked that one up. Now what you going to do to fix it?' That's their role. We set policy and vision. They know what the vision is. They have to come prepared to us to own it. I am not going to take responsibility for every single bit of work that comes out of my reservation. We have 2,000 employees. How could I even think I could do that? But they did. Then they wondered why they had eight-hour meetings and never had time for people and never were able to set the vision. It's a vicious little cycle. We use our own power to keep us out of touch with our own people. And we don't hold our staff accountable because of it. Basic management principles: distinguish between decision making and what is planning; use your tribal council to plan; use what you have to under your own rules for decision making; and then let your staff do their work. Tribal members often say, 'You're micromanaging.' Staff say it all the time, 'You're micromanaging. You're micromanaging.' What I tell people is, 'You say that all the time, you don't want me micromanaging, but as soon as it's you involved or your family, you come running up here. You can't have it both ways. There's a policy for that. If what you want is me to be a manager, use the grievance policy, use the systems that are in place, use the executive director, but you don't get to have it both ways -- that when you're getting your way I'm staying out of it, but when you don't get your way then I'm micromanaging. You make a decision then. Good luck with that.' So part of it is changing the expectations of our people too about what the appropriate role of tribal government is. Do you want us to look at the big picture, the entire community holistically? But the details have to be delegated to someone else in authority -- pay them well, make sure they're educated, grow your own, build your social capital, and then let them do their job and support them doing it. The squeaky wheels can no longer get the oil in Indian Country.
So you're building your capable institutions, and how do we assert sovereignty? What is the process? And you don't really think you're doing it until you look at it hindsight and say, 'What is the context when we're making these decisions?' One of the things we did right off the bat is we had a fairly new tribal council and I know everybody in here, remember these sayings you hear come out of elected officials mouth, 'The old council, the old council did that. Oh, that wasn't me, that was the old council. Sure that sucks, but that was the old council.' Well, you know what, new council, you're owning it if you don't do anything about it. You're just perpetuating the mistake. You can't say they did it and let it continue, because now it's yours. So here's to all the new councils, own that crap, whether you had an ability...whether you did or not, it's on your plate now. 'Old council' is not an excuse to let anything you've got on your plate continue. (Alright, I'm getting some chuckles over here.)
We have a new council, really five newly elected people. So some of us were tribal administrators and a couple came from the community but were not in tribal staff. And so one of the things we started doing was legal counsel administrators start putting together the books: 'What are our main projects, our main issues going on? And I want a review, I want a little binder, I want every ordinance involved, every federal law, every contract. Take us from beginning to end. So because of this thing we don't like now, help us understand how we got here.' Some of them you say, 'That stinks but we're in it, we'll make the best of it.' But some of them, oddly enough we found out, perhaps we had a foot to stand on to revisit those. If it was a 20-year-old agreement, think of the differences in federal law that have happened between 20 years ago and today. We've got court cases that talk about tribes not being able to waive sovereign immunity in many cases, [because] we all know the dreaded limited waiver of sovereign immunity. We've all done it at some point despite the fact we don't like it, but sometimes you need it to get something done. Well, you don't always get to give it away. Even though you say you did, it may not be enforceable. It's worth looking into. It's worth looking into, because there's been a lot of case law since then and interpretations -- look at what's happened since when you did it and now and see if there's room for your tribe to move. You have nothing to lose by trying it. It is an aggressive assertion of sovereignty. Certainly the people on the other side will be pissed off, but they didn't elect you. You've got to look out for your own. So make sure what the standard and what is the regulations for the issue you're dealing with, the federal regulations, the ones that do apply. Where do they give you room to move?
The other issue around aggressive assertion of sovereignty is the partners that come out of the woodwork. I have translated that into 'Now that you might have a little money to work with, let's see how we can work together, so I can stick my hand in your pocketbook.' These aren't the ones who were here while we were building from nothing and when we had nothing. They weren't the ones who respected our capabilities as a government. They're opportunistic in many ways. But tribes set the baseline for those discussions and we forget. I had a rather obnoxious fellow that I remember learning from but he said some cool, smart things that stuck in my mind. One of the obnoxious things he used to say is, 'The golden rule actually means he who has the gold makes the rules.' Well, tribes really never had any gold. Funny, you do now or you have access to it. You get to make the rules and it starts with your own jurisdiction, your own authority, your own regulatory capabilities. Nobody brings you a deal without you setting the table first. Do you have the regulations in place to handle it and they meet at your table? Let me give you some examples.
We were dealing with a pipeline, doing an expansion. The last time they negotiated was so long ago, the BIA [Bureau of Indian Affairs] was handling our leases with them. The BIA actually gave them leases longer than they had authority to do so and -- yeah, it was a terrible thing. They had exceeded rights away, they had lapsed rights of way and they come to the table and, 'These pesky little tribes. We've got this billion-dollar project and you're just kind of in our way.' It's okay to get a little snotty once in awhile. Fuel yourself with some righteous indignation. They said, 'Well, you know, Karen, some of our pipeline is okay.' And I said, 'Well, it's a pipe. You only need this much not to work. Start talking, boys.' So they put an offer on the table and this is where the snotty comes in. I asked them, I said sweetly to them, 'Will you throw in wampum with that?' See, Indians laugh when I tell that story. I got nothing out of that crowd with it. We were cracking ourselves up, we got nothing. So basically what we told them is, 'Here's how it's going to be. You're going to follow our environmental standards. You're going to pay us enough that we build our regulatory and our environmental capacity to make sure you're not polluting us. Don't even think about going around us because we have treatment-as-a-state over air and water quality and there's some sensitive areas around our border, so you're not going to get those permits. So start playing nice boys or bring your shovels next time and dig your shit up.' [applause] 'But it's your job to counter now.' I said, 'White people wrote that book. Here's what I want. When you get there, we're done negotiating.' It took a year and a half, we got where we wanted. It was fun.
You set the table. You set the table, but you also have to know what you're talking about. I don't know anything about pipelines or I didn't. I know a whole lot more now. I had to hire an energy economist to tell me how you value what goes through a pipe. I had to bring in some more regulatory people [because] our environment people, despite our treatment as a state, they never had to deal with it. They had to build their own capacity. Invest in your community and if you don't have the help within your community, ask other tribal agencies, ask the feds, hire it if you need to, but you have to operate from a position of strength. Your partners will take advantage of you if you let them and if you don't educate yourselves, you are helping them. We already did that. That was the BIA. Okay? Same thing, banking. I actually have a background in economics. Banks don't understand that all of us have invested in ourselves and our community members. We know things now. You don't get to have interest rate and collateral. You assume risk, you make more interest. You have no risk, we don't pay as much interest. This is simple stuff.
We had a bank refusing to renegotiate one of them old council deals. Mmmm. $119 million project, balloon payment in two-and-a-half years. I'm negotiating it. It was just expensive. Economy dumped right before that. And I tell them, 'You can't have it both ways, boys. You've got our money in your bank as collateral, you're making some pretty good interest, I don't want to wait til the balloon is ready, let's start talking now.' They said, 'Well, no.' 'No?' 'No, no, that's the way the deal is, we'll talk when the five years is up.' We talked. We liquidated our portfolio the second week of September, paid off the entire $119 million, watched the market tank October 1st and no, I took every cent out of their bank and paid off their loan, they're not getting interest either. Put your money where your mouth is. I'm not going to say I knew what was going to happen in the market, but I also knew I wasn't going to let someone else take advantage of my own people and fail to act. And people knew the deal wasn't good and they kept bemoaning the fact and hollering and, just get off your ass and do it. The next bank that comes through the door isn't going to be so silly if they know you're going to do something about it. Aggressive assertions of sovereignty and some good business practice and a little knowledge thrown in.
The last thing that really has been most interesting for me around sovereignty issue is dealing with other jurisdictions lately. With the economy tanking and local government aid being cut, the other jurisdictions, especially the local ones -- townships, counties, things like that -- the relationships are just getting gnarly. They're feeling desperate. They don't like tribes taking land into trust, they don't see our employment and how we contribute. They see what they want to see. They say they see the use of social services and Indian Child Welfare and, 'Wah, we don't get to have casinos, you should pay for these things.' Excuse me, those are entitlement services. You don't allocate them based on race and perhaps, if your tone were different, we can talk about what tribes can do in partnership around roads issues, around fire districts, around lots of things. Some of it we might even wish to pay for but don't begin the conversation by telling me what you want. You tell me how can we help both of our communities do better [because] we're still residents of your county and your township and your state whether you like it or not. I have a housing issue; you don't get to abdicate your responsibility to Indian Country based on race and their status as citizens on a reservation [because] they're still citizens of your state. You will bring resources to this community and I will leverage them and I will reduce your burden because our people will be able to take care of themselves.
I had a local...president of our local county, his name was Richard Brenner, say to me, 'Well, you people don't pay property taxes.' And I said to him, 'Dick, I can call you Dick, can't I? Lots of people pay for lots of things because of this reservation. We pumped $125 million into your economy in payroll and distributions and income last year.' I said, 'We're the largest employer in your county and the second-largest employer in a nine-county region. Don't you dare ever come to my office with your hand out and call us 'you people.'' So a little righteous indignation goes a long way. You need...we're allowed to demand to be treated with respect for not only what we've accomplished to date, but the short time with which we've done it. Aggressive assertions of sovereignty is holding other people accountable not only for what we deserve as citizens but also making sure we are the best tribal government we can be so that burden is reduced. We're taking responsibility for our own people. And basically, success is the best revenge. That's just a fact. The other thing I like to tell people when dealing with other jurisdiction is don't allow people -- businesses too for that matter, I guess -- don't let them confuse tribes as political entities with race. In people's minds, they're fairly interchangeable -- like the 'you people' comment. He was coming to us as a political unit and saying he wanted something but then saying he didn't like delivering services to us because we were a certain kind of people. He was confusing the two. Yes, we are a race of people but we are a political entity. And this is going to be a government-to-government conversation and if you bring up race again, you're bad and I'm going to get you for it. It's an EEOC [Equal Employment Opportunity Commission] thing. So, know the parameters of your own authority, hold people accountable, hold yourself accountable. But basically -- what it comes down to I think is -- how much are you willing to tolerate and what level of conflict are you willing to put up with? I think that for a long time tribal nations like to operate under the radar. And if we don't talk about our accomplishments and we don't back it up by being able to do it well, we're really not going to be able to advance the agenda of our communities. And we want that. And like everybody said with the cultural match, we know how to do it best, but you have to really be able to seize it and to sell it to those around you. Be your own best advocate and educator. And with that, I'll let you get on to the next speaker."