Joseph Flies-Away (Hualapai), Associate Justice of the Hualapai Nation Court of Appeals, discusses the importance of Native nations building and living a sound, culturally sensible rule of law -- through constitutions, codes, common law and in other ways -- that everyone in those nations knows, understands, practices, respects and defends.
Flies-Away, Joseph. "Knowing, Living and Defending the Rule of Law." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.
"Good morning. Say these words with me, right after I say them: Framer. Framework. Founder. Follower. Funnel. Facilitator. Friend. Family."
"Now remember those words. Now I'm going to say something to you and I'm going to ask you to do something. I'm going to say "˜the people' and then in your own mind or in your own verbal expression yell out at the top of your lungs, or as silent as you want, your 'people.' So when I say "˜people,' you say your thing and then I'm going to say, "˜Gather, ground, and grow,' and I'm going to do something with my hands and I want you to watch that. So you all know what to do? You're the accelerated class? The people. Joan [Timeche]. You can't interrupt. I don't know if this is on or not. He put it on me, that man, so I don't know. I can't deal with the technical stuff. I've got to go on. Remember the instruction. I say, "˜the people,' you say yours out as loud as you want in your own language and then, "˜Gather, ground and grow,' and I do something with my hand. The people. [Audience] Oh, gosh, you people are...come on. [Hualapai language]. The people. [Audience] Gather, ground and grow. And I'm going to continue with that kind of thinking as we do this.
Okay, I'm going to talk to you from this paradigm and it's this, and I always speak to everything from this. And I developed this starting when I was a planner for the tribe and a council member for the tribe and then when I became a judge. This used to be a flat planning tool, but it became spherical when I became a judge after this minor said to me, "˜Joey,' because they always call me 'Joey' instead of 'judge.' I let the kids do that, but not the adults. "˜What do you think about when you decide to send me to jail?' or something like that and I really thought about it because I wanted to tell that juvenile what I thought about when I decided things because I had...that was the first time someone really asked me the question. So this has come...let me get it up here...and I now speak with it all the time because it's very relevant to what we do as community nation builders, how we all gather, ground and grow. And some of it's very academic so I can speak to a bunch of professors in this way and then I can speak to any population. I can speak to Chinese. I can speak to Russian. I was in Australia in November. I spoke to a bunch of judicial people there from the same point of view. I'm going to share this with you. Now that's this sphere.
As people gather, ground and grow -- throughout all human beings -- there's always conflict. There's always going to be, as you see on the bottom, conflict, but at the same time there's always going to be cooperation. And between conflict and cooperation we're going to go through life; all our life, we're going to have goods, we're going to have bads. We're also going to have issues of personal, or citizen against the group, tribe or community and we have to balance between myself and my people, myself and my family, myself and the tribe, myself and the nation. But we're somewhere along those lines in balance. We're going to also have to think about what one person thinks is right or wrong, as opposed to what the group thinks is right or wrong. Me, my family. Me, the tribal council. Me, my co-workers.
Now this last one, this sphere is made up of these axes and so there's that one, that one, that one, but the bulk of it is made up of this last one, which is on one end common law, constitutions and codes, that which is written and on the other end custom, common practice and culture, that what we do. And all cultures are in there somewhere. White people, you're like way over here on the writing for a long time, Anglos, English, they wrote. We didn't write all the things. We had picture glyphs and we had symbols and things, but we're more down here. We didn't have to write everything. We talked about it, we were oral, we told stories.
So as we get into the more modern context, they're asking us to be more in this somewhere up here rather than down here. But there's nowhere in the sphere that's wrong or bad. It's where the group of people have decided to be because you're going to take your custom and culture as far forward with you as the best you can. But like at Hualapai, chiefs used to have more than one wife. Can I do that now? Unfortunately, no, I guess not. So you don't bring everything forward with you. You bring the best of your people, the best of your culture, the best of what you know as human beings from out this generational growing as people. But somewhere along the line you're going to be between here and balance here all over.
The person in the middle or the institution in the middle is what I call the warrior of law. Every human being should be a warrior of the law. They shouldn't be just a judge or shouldn't be just a leader, shouldn't just be someone who was put in that position. Everyone of us, our children, all should be a warrior of law, meaning that we're going to try to balance all of these things throughout our lifetime. With myself as a human being, because this works as individuals, but myself with the groups that I'm a part of because there's always going to be the me, but always a group. There's always going to be all of these other things.
So, as far as dispute resolution, the four words that I look at that by constitution or by custom and peacemaking, they're basically doing some of these things. They're confronting whatever issue might be at hand or whatever problem or whatever hurt or whatever pain that's there. They start communicating about it, meaning they're going to discuss or they're going to go through procedure. What procedure are you going to use to get through it? So I call that communication.
They're going to need to make compromises, because no one can have everything they want, although we want to have everything we want, we just cannot. When we go to court, somebody's going to lose in there. I made a lot of decisions. I was telling some of these people this morning, half my tribe hates me because I put them all in jail at least once and I've took children away from people, I divorce people and I gave alimony to one side or I gave the tool chest to someone and they got pissed about it, whatever it's going to be. As a judge, you're hated or disliked by half the people. You can't win. It's sad for me, but I try to do my job. But people have to make compromises, but you confront, you communicate, you compromise in order to reach concord, which is peace.
So every warrior of the law, everyone of us should be wanting to get to peace inside of us as an individual, but with the groups and people, families and all of the others that we are a part of. That should be our goal in life as humans. Now institutionally, you have governments writing things down in constitutions saying how this communication might work procedurally: trial level, appeals, how it's to be filed. I have a case right now where the justices, the three of us on the panel, are bickering over whether to give a person a pre-trial conference on an issue, these little things that we have to deal with, but it's all a part of how we're going to communicate about it on the appellate level. But we have a code, we have new rules that we made not too long ago in the court of appeals. It's supported by our constitution and we try to do the best we can. But there are a lot of issues that I'd rather would not have all this procedure, all this stuff in the court system.
When I was judging, and I judged in many places, and I've been around many places to help with, as professor said, wellness courts. I even came to do TA [technical assistance] for this tribe actually. Pascua Yaqui used to have one of the only family wellness courts at one point and it was a good one. I don't know where it is now, it's not there, but they had a good family wellness court. I think they have adult, but that kind of process is something that you look at a little bit differently and we're making rules...they make rules about it and everything, but I've been all over the place and I've learned a lot everywhere I got from the people that I deal with. They're all over the board. Some like to be more like haikus or White people when they want to be the system; they want to look just like the state court. Others don't want that.
When I sit as a judge, I wear a ribbon shirt that my mom made and I don't like to wear that black dress. I might as well put on that white wig if I wear that black dress, but I'm not going to do that. I don't want my hair white yet. It's getting there, but I'm not going to go there yet. So I wear a ribbon shirt because it's something that is of us, not of Anglo. But there are a lot of tribes who want to be like that. Well, okay, who am I to say, "˜Well, that's not good.' But all of you as nations or people...leaders of your people, warriors of law, all of your people have to come to some conclusion about how that's going to look, up here. History, clarity, vision are the past, the present and the possible, the vision. You have to have a sense of what that's going to be.
What is your court system, your dispute resolution system going to be? And there's quite a bit out there as you just heard. There's other places that have started peacemaking. There's other places who are just developing court systems. A lot of people have...I read grants for the federal government, we award money to people who are just developing court systems and they want to do more like wellness court, they want to deal with the issues of that because wellness court is about addictions of all the people and yesterday I said, "˜Well, we can't build all these nations with half our population being sick, we just can't do it. Then we rely on all the outsiders and it's not our nation, it's theirs. We have to get our people well.' So wellness courts are important. We have to keep working on them and a lot of tribes, they ask for money to do that and that's one of the things I help them do. So we have dispute resolution, we have writings, we have customs here, we have the individual issues where people file against each other or the community or the tribe files against the person or however it goes.
Now, this part here, I'm going to talk about some of the...see the people, policy, place, and pecuniary possibilities. That's another way of saying the people gather, ground and grow. Policy meaning how do these people as a political unit, polity, get together, organizational structure. Remember the people were like this, we're related by clan, by family, by band, whatever. But when we get to government, it's like this, hierarchical. How is the structure of our government going to be? So the people gather in whatever form or fashion, ground, and then the place and land issues like we have to have a building for our court system, we have to have a place to meet, we have to have a courtroom, we have to have all these things. And when I was a judge, I got electrocuted in my court and some of my council members here don't even know this, but I was electrocuted in our court because it was a condemned building, but that's where I had to hold courts for two years. But we have to have a place to do it.
The pecuniary possibilities is we have to have the money and the funds. We have to be able to have the resources, the tools to do good court, to make good decisions. If you have an appellate court system and you're only paying your judges $100 a day when they're making five times that an hour as lawyers somewhere, you won't get all the people you need. I've been in different places where they pay from $100 a day to $500 a day and I've done all the different places, but it's a matter of pecuniary possibility meaning financial. So going back to this, it's another way...do you have the people to do your court systems, do you have the human resources, your own people? It's best to have your own people as judges I would think.
But now through the TLOA, Tribal Law and Order Act, how many of you are actually looking at doing TLOA changes with your 3C or sentencing? Nobody in here? Because it's going to ask you -- and then the VAWA [Violence Against Women Act], the VAWA group -- it's going to cause you to have to have certain requirements made of your judges, of your public defenders, of your prosecutors, but we don't have a lot of us, don't have the human capital. There's only been three people at Hualapai that have gone to law school and two of them, they're younger than me, have already gone on and I don't know what the first one's doing, but the other one, he works in California and he's going to be a sports agent and I'm the one that works for tribal people, but some of us don't...some tribes don't have anybody who's gone to law school. But I'm not saying you have to go to law school to be a judge, although these acts tend to make you think you have to do that. But you have to have the human resources and we don't always have that.
A lot of people have wise people, older people. Well, not all old people are wise, but there are some...these peacemaking courts, which they put to use, those are the ones they're putting in there because they have some sense of wisdom and people respect them. Unfortunately...my mom says, "˜I didn't say anything and I'm an elder.' But I look at her, to me she's my mom and the elders are way older than her. So some people, we don't see the elders in the same light. But most tribes have good, strong, wise people who can be peacemakers, but are those...
Like what kind of cases are you going to bring to those systems? We have the law. We have a criminal code, tells you everything you can't do that's a crime, all the offenses, battery, assault, sexual defenses, everything. We have civil codes that tell you what you can't do. But we also have custom things that we shouldn't be doing, but these ones go to the court system that we have that is under the constitution and the code, but what about when people are just mad at each other? That is where I wish we would have more of the peacemakers where we could bring people in...we have a gym; we could fill the whole room with whatever. Bring these two people in and say, "˜What happened?' and if we have to give them boxing gloves. Well, let's make it a safe little place and let them have at it because we fight with pipes and all kinds of things, bats, when they get thrown in jail, why can't we let them do it in front of us? Just have them...we could do peacemaking at home if we just had the ability to figure it out.
And we can do it in our own way because at Hualapai, in our ethnographies and what I've read and then what I asked about from my great grandma was, they used to say...people would come in and if they needed to bring in another chief from another band...because Hualapai really, 13-14 bands of Pai people, [Hualapai language] is people of the tall pine. It's my great-grandfather's people. There's other bands. They're all different people. A long time ago they would bring in a head man or a chief from something else and sit down, hear what's going on and let that person decide, things like that. But they would all talk [Hualapai language] or how they'd say that. They'd all talk about it and some decision would be made and that would be it. [Hualapai language], it would be over with. That's it. We can still do that at home, but do we have the ability, do we have the people, the human resources to do that and do you?
Those are the things you need to think about and we have a lot of resources, but sometimes we don't know, we don't...and again it goes back to our own ability to see it in those people we don't like. And I know, you guys are all going to say, "˜Oh, I'm not like that.' All of you probably don't like someone at home and you...it just tears at you when you see them excel maybe or whatever. You know how you see them going down the road and you go...I know. We all do that. You're going to all these cars waving and waving, there's one, don't wave at all. All of us, you know. We have to come and accept that that's the confrontation, the acknowledgment of that. We have to know that that's what we do. I know I did it or I do it. I'm afraid of people at home. They're mean to me and I was telling our councilmen, I have no thick skin. I'm a baby. One little word, look, I'm just in tears practically. But we do that to each other. We have to somehow get past that.
But a lot of that comes from the historical trauma or the way that we were raised. Our parents and the grandparents were in boarding schools and they weren't given all the love and all the parenting, and so we're kind of just mixed up through a lot of hurt and pain that we're not over. We carry it. And I always make the mistake of saying like Bob Marley, but I'm not talking about Bob Marley. What Marley am I talking about? No. Jacob Marley. Christmas Carol. You know how he's coming, "˜Eh, harr.' We carry our pain and our misery and our hatred and anger for whatever our great grandpa said about so and so. We do that. We need to let that go. We don't have to forget everything. We've got to let those chains go because we're holding onto such pain and just horrible feelings about things that has just been handed down.
My grandma used to tell me about how the...she heard and all of Hualapais know about this -- we're celebrating this in the next month or this month -- when they made us march all the way to a place called La Paz, which interestingly means "˜the peace' in Spanish, but they took all the Hualapais over there and a lot of people died on the way and they took off and escaped and came back home. People died on the way back. But I come from and these guys come from the people who survived that. But when the old people told you that story, they would remember and they would cry and they would just...and we haven't let all that go and we all have our stories, we all have that memory that we carry. And we may not acknowledge it or even know or can see it, but we do, we just hold on because our grandmas were special to us, our grandpas and we listened to them and they unfortunately sometimes gave us this feeling.
My grandma said, "˜Don't trust white people.' I didn't trust a white person until I went to college and five years ago I went to a reunion and I told them this. I never said it to them before. I said, "˜My grandma said not to trust any of you people, but you're all right.' And they laughed like that. But I had to tell them that because I was like, "˜Oh, god.' Three white people I had to live with in a three-room thing and, "˜what do I do with this?' because I hadn't lived with white people. The white people in here probably think that's backward, but it's just...I'm telling you as it is. So we have this in our people and I'm going to go these ones.
ELDR, E is for earth, L is for lightening, D is for dream and R is for rain. Dream's the most important, that just means law and I'm going to get to that, but E is the physical. We have a lot of issues: alcoholism, diabetes, hypertension, all of our physical problems that we have. L: lightening. Our thoughts. We hold off on our... We have terrible thinking. We remember, we hold onto these thinkings. The R: the rain. The emotions. We have a lot of the emotions still. But D, the most important one is the dream, which is law, whether it be what we've done as custom or what we've written down and all of that is good, but we have to have our law.
Law is what connects us and binds us together, whether it's in the stories and tales and cultures and customs and common practices that we know, that the Pueblos know more, Hopi knows more, Diné know more of these things because it's in ceremony. But we also have the ability to write things down for ourselves, for people to know in our own place, but also for outsiders to know who we are, where we come from, where we want to go as human beings so that is this side, but everywhere here is good.
There's so much more with this. I didn't even look at this. I had all these little notes, but I didn't even tell you these things because I guess that was all right, I went through stuff, but there's too much to say all the time and too little time with this. And there's too little time for all of you in a way because you're going to be 10 years from now, boom, what happened? So we've got to wake up, [Hualapai language], and do what you've got to do and go home as survivors and know that you descend from strong and powerful people and that you can do this stuff with whatever knowledge you learn from each other and other people and just do the best you can, like I said yesterday, because we have to get past that. We are going to be the people who show the entire earth how to be good human beings. Hopi prophecy, other prophecies -- that's going to be the Indigenous people. Which one of us are going to do the best job of that? So I challenge all of you to go and think about that.
Lastly, warrior of law, all of us as human beings, as leaders, leadership, law, land and les affaire we'll leave that for now. But all of us should say, "˜I stand in reason, I walk with will, I stumble over morality, but I will catch myself and go on with my journey with law. So the best of luck to all of you. [Hualapai language], thank you."