blood quantum

Matthew Fletcher: Defining Citizenship: Blood Quantum vs. Descendancy

Producer
William Mitchell College of Law
Year

Michigan State University Law Professor Matthew Fletcher compares and contrasts between Anishinaabe conceptions of citizenship and belonging historically and today, and proposes that conference participants consider taking some innovative approaches to redefining citizenship that address the complex cultural, legal and political landscape that Native nations face.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Resource Type
Citation

Fletcher, Matthew. "Defining Citizenship: Blood Quantum vs. Descendency." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Sarah Deer:

"So this session will highlight the major issues that arise in this debate about whether to require a minimum blood quantum for tribal citizenship or base citizenship decisions on lineal descendancy and understanding that there's many other factors that a tribal nation can use to define citizens. We're going to focus on these two issues for the remainder of the morning. We have two speakers, both tribal members.

We have Matt Fletcher from the Grand Traverse Band. He's a professor of law and Director of the Indigenous Law and Policy Center at Michigan State University. He's Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He's a member of the Grand Traverse Band of Ottawa and Chippewa Indians and in 2010 he was elected to the American Law Institute.

Dr. Jill Doerfler, Associate Professor at the University of Minnesota Duluth grew up on the White Earth Reservation in Western Minnesota. She earned her B.A. in History from the University of Minnesota-Morris and her Ph.D. in American Studies from the University of Minnesota. Her areas of focus were literature, historiography and politics. She has extensive credentials that you can read in your materials, but I'll note that in 2011 Dr. Doerfler was awarded a faculty fellowship from the Institute for Advanced Study, University of Minnesota. In 2010 she won the Beatrice Medicine Award for Scholarship in Native American Studies. So please join me in welcoming our two speakers for this panel."

[applause]

Matthew Fletcher:

"Good morning everyone. [Anishinaabe language]. My name is Matthew Fletcher and I teach at Michigan State University School of Law and though 'Sparty' pays the bills, I have to say too [Anishinaabe language], which means 'Go Blue!' And I have a lot of relatives going back to the 1890s who have been going to Michigan so I have to recognize them as well. I'm going to be talking to you a little bit about some of my experiences in working in Indian Country on tribal membership issues. I will touch upon certainly questions of blood quantum and lineal descendancy, although I think it's pretty clear if you were at the morning session that Steve [Cornell] in particular really covered sort of the foundations there, and so I may jump off a little bit from what he had to say and I'll certainly jump off from what John Borrows had to say. So let's just kick in right now.

I'm a member of the Grand Traverse Band of Ottawa and Chippewa Indians, which is located in the center of the universe, Peshawbestown, Michigan, and I am also a descendant, a Potawatomi descendent and eligible for membership at three Potawatomi tribes in Michigan, which is Pokagon Potawatomi, Gun Lake, and Nottawaseppi Huron. Most of my relatives frankly are Potawatomi...Pokagon Potawatomi descendants and so I'm going to talk a little bit about one of my ancestors who's a guy named Leopold Pokagon. He's I think great...three great-grandfathers ahead of me and he is the...actually for whom the Pokagon Band of Potawatomi Indians is named in many ways though he is actually not a Potawatomi guy. The story goes is that he is from the Grand Traverse Bay area so there's double my Grand Traverse Bay lineage there to some extent. It's not totally clear if he was Ottawa or Chippewa, but let's assume he was Ottawa and he moved down state. Either as a young person, he may have been adopted as a young person, as a child or married into the family down state. He married a Potawatomi Ogama who's name was Topenabe, married his daughter and I don't remember her name. And eventually in the 1820s and 1830s, after his father-in-law passed away, he became the Ogama for what would become the Pokagon Potawatomi, the St. Joseph River Potawatomi group and negotiated treaties on behalf of the tribe. And in fact, one of the...they were the...this Potawatomi band was one of the only Potawatomi bands able to escape removal out to the west into Kansas and later on into Oklahoma. You may have heard of the Prairie Band Potawatomi and Citizen Potawatomi, they're from southwestern Michigan, northern Indiana area. The Pokagons were able to stay back and were able to avoid removal.

What's important about our story here is that as I said before, Leopold was an Ottawa guy so the real question is, if he's Ottawa, how the hell did he become the chairman of an entirely different tribe, if not just the chairman, the member of that...a member presumably of that tribe? And it really goes to the Three Fires Confederacy in the Great Lakes, especially Michigan, the Ottawas, Potawatomis and Chippewas, very close-knit communities at the same with individualized leadership structures and geographic entities. We call them 'bands' or 'tribes' or 'communities' now and in many ways they had some of the same political distinctions between them in the 18th, 19th and early 20th centuries as well. I think it's important to note that one of the reasons Leopold did not stay back at Grand Traverse Band is a very pragmatic one, it would have been -- if it were him and definitely in my own experience it is with me -- you hang around your own village and you're a young man growing up, it's very likely that you're going to have to leave. Otherwise, you'll end up marrying one of your own cousins and so that is why people move around, why there's a lot of intermarriage between the Anishinaabe communities in Michigan and elsewhere. And this is a perfectly reasonable and culturally justifiable way of measuring and determining, I guess, what we would call 'membership' or 'citizenship' now. Again, I'm going to have to use those words because I don't speak very much at all of the Anishinaabemowin and I am an English-language speaker and I've obviously been taught in the English language for my whole education including my law degree. So I just mentioned Leopold because I think it's important that how far away we've moved from what would have been very non-controversial, relatively speaking, membership or citizenship decisions made in the 19th century to where we are now. There's no way Leopold could ever become a member of his own tribe, the Pokagon band, at this time and it's a very strange, long road as to how we've gotten to that part.

I want to talk about a second story, which is a case I litigated as in-house counsel for the Grand Traverse Band, a case we'll call En re M. And M. was a young kid. He was a descendent of Thames Band Oneida. His mom was Thames Band Oneida. She claimed to be full blood. And as a tribal attorney for an American Indian tribe, we are -- and the enrollment office will tell you this, too -- we are taught that when just because a Canadian Indian says they're full blood doesn't necessarily make it so because of the Canadian Indian Act where either you're full blood or you're no blood whatsoever, at least that was the paradigm under which so many Canadian Indians were forced to live under. And so he claimed to be Thames Band Oneida, which didn't do him much good in trying to become an enrolled member of the Grand Traverse Band, but his father was one-eighth Grand Traverse Band. And if we were able to count any of his Canadian Indian blood -- at least one-eighth -- he could have gotten bumped up to a quarter and therefore be eligible for membership under our criteria at that time. And it was my job to fight this young kid's application. It was not a fun case in any way. It was quite a disturbing case frankly. Easily the hardest case I'd ever had to do. Most of my work as in-house counsel litigating cases in tribal court -- and I did enjoy litigation a great deal -- was mostly litigating against tribal members or in this case someone who wanted to be a tribal member -- a kid, basically a kid who was in high school at that time, and I had two arguments in objection to his claims. Number one, the Canadian Indian blood was indeterminate, we couldn't know for sure as a matter of law and number two, we couldn't count Canadian Indian blood anyway because it was from Canada. Both of these rules, both of my arguments, are as a matter of law, Grand Traverse Band law, were the prevailing arguments. I won. The tribe won the case. We were able to keep this young kid out, but I will tell you now that I have moved on from my job as in-house counsel that both of those arguments are horse sh**, and I think everybody in this room realizes that this kid probably was...had more blood quantum in him than the vast majority of our own tribal membership, although it's hard to say, who knows what that means.

So I bring these two questions to you, these two anecdotes or cases to you as examples of how far we have gone wrong to some extent when we talk about tribal membership criteria in American Indian tribes. You know that there are some tribes who -- and Steve again, thank you, great job putting up the PowerPoint talking about the wide variety of membership criteria -- but I think it's safe to say the two paradigms of tribal membership in the United States are blood quantum and lineal descendency. And sometimes there's a combination, but generally speaking the main criteria for tribal membership is one or the other. And as we often say in law schools, these criteria are over- and under-inclusive. Blood quantum includes people who may or may not have any connection whatsoever to the tribe and excludes people who may live from the reservation, who speak the language perhaps even as their first language. They may even dream in the language and participate in the ceremonies and participate in the cultural life of the community and the polity of the community, but for whatever reason are not tribal members. And then lineal descendency, as you all well know, may include people who have never been to the state in which the tribe is located or it may include people who just have no connection whatsoever. There are anecdotal stories in Michigan of members of the tribes who are of lineal descendency who, for example, in Upper Peninsula of Michigan, there's the Sault Ste. Marie Tribe -- which is a tribe of lineal descendency -- participated in the fishing wars of the "˜60s and "˜70s. The tribal members fought against a bunch of people trying to stop them from exercising their treaty rights and then after the treaty rights wars are over, treaty rights survived and became regulated and more predictable, the tribe suddenly was inundated by some of the same people who had fought against them demanding an application for membership and some of them were eligible for membership and so they were brought into the tribal community and recognized as treaty, card-carrying fishers. I'm not saying that's a good or a bad thing. It is obviously a bit ironic, but it gives you a sense of how some of these membership criteria can be very arbitrary. Although I won't say capricious, I won't go that far.

I've passed out a couple of law review articles and I haven't really been able to take the time to really write down all of my thoughts about tribal membership. These are very incomplete articles, but I have a couple of ideas when it comes to tribal membership, what I would like to see more tribes think about. I want to second something that Steve said, which is, 'Don't let the federal government tell you what to do.' That was part of my problem with the En re M. case. I was actually able to persuade the tribal court that if he recognized this Canadian kid that the federal government would come swoop in and take our federal recognition away from us and the reason I was able to persuade the court of that is because we had multiple letters from the 1980s from a guy named Scott Keep in the Department of Interior who said exactly that. "˜I will make sure that if you accept these other people in that Congress will strip you of your federal recognition.' So there's that, and I want to second a whole lot of what John Borrows said about recognizing that the law is in the heart of the language. That's the most important part, really the most important talk I'm sure you will hear today, but a couple of other things. And I come to you and I say these things, these recommendations with my very incomplete and superficial understanding of [Anishinaabe language], which I think is an encapsulation of the natural law of the Anishinaabeg communities. And something that I think that I would like to think more about in terms of incorporating how we take these concepts that John called vague and make them into legitimate and real legal concepts and legal structures. And I think the first place we can go is immigration law.

Immigration law in the United States is highly controversial, but the structure of the thing isn't really all that confusing. Basically, when somebody comes into your community, you take to them and maybe you stop them at the border or maybe you go up to them at some point later on at some entry level and say, "˜So, what do you plan on doing here?' and "˜How can you contribute?' and "˜What are you going to do for this community?' And so we have things like visas and green cards, people can come here and work, they can come here and go to school, many people come here and they go into the military. They don't always become citizens, they don't always have complete voting rights, but they participate in the economy and in the social structure and in the polity of the community, or in this case, of the nation. And I don't see any reason why Indian tribes can't do the same thing with people that come into their reservations, even on fee land owned by non-Indians, they can still exercise some governance authority over them. And the way to do that frankly isn't really all that difficult, much different than what some tribes are already doing.

Somebody comes into your reservation and says, "˜I want a job,' and you hire them. They probably have entered into a contractual relationship with the tribe. There's no reason that the tribe can't then say, "˜Well, now that you're here, when you're on the reservation you're subject to our laws.' It's really nothing more than what a visa is. Or when somebody comes onto the reservation who's a non-member or a non-Indian who's perhaps married or attached to our tribal members and they want to live in tribal public housing or they want to take advantage of tribal governmental services, whatever might be available, those individuals should also be aware and be considered at least 'semi-citizens' of the tribe. That doesn't mean that just because somebody works for the tribe or somebody receives governmental services or lives on trust property that they are full voting members of the tribe. Lots of tribes have differing citizenship classifications. I live off the reservation at the Grand Traverse Band, outside of the six-county service area, I'm not eligible to vote in most elections, but I'm still a citizen of the tribe. So there's no reason why these people who are not blood Indians cannot be brought into the tribal polity. And I think it's important that we consider the possibility that we broaden our scope of citizenship and membership and we can call it whatever we want. We can call them the Anishinaabeg word for 'immigrant' if we can come up with a good respectful name for that. All of these people are something...are people that we should try to bring within the grasp of the tribal community and of the tribal government and in a good way and in a way that is consistent with [Anishinaabe language].

I think there are a couple of different reasons for that. One is very...they're both very pragmatic reasons and the reality of our modern issues arising from Indian Country governance. Number one is, the outside world perceives Indian tribes as being race-based nations. That is the absolute perception. Unless, with incredibly narrow and few exceptions, people cannot be full members or citizens of an Indian tribe unless they have a racial ancestry. And for those of you who know anything about American constitutional law or our history, that is quite a problem even in the United States. There are a whole series of constitutional amendments designed to prevent states and the federal government from doing the exact same thing that Indian tribes do as a normal matter of course. Now, we all recognize there are perfectly legitimate reasons and perfectly understandable reasons why tribes move in this direction, why tribes use ancestry, they use blood quantum, or lineal descendency to articulate and define citizenship. And I'm not saying actually that should change whatsoever, but what I am saying leads into the second major pragmatic point which is, there are people within Indian Country that the tribe cannot control. These people in some instances know that. In context like sexual predators, in the context of environmental dumpers, Indian Country is a target for people like this, people who are non-Indians who know they can get away with it because it's Indian Country and the reason they can get away with it is because the courts and the politicians in D.C. and in state legislatures believe that Indian tribes are less than when it comes to acceptable governments. And one of the main reasons they consider that and they believe that is because of this racial ancestry requirement to tribal citizenship.

Now, I recognize that there is a bit of a hole in my analysis that I'm arguing, on one hand, racial ancestry as a criterion for citizenship leads us into a bad place and limits us as Indian tribes, as tribal leaders and tribal government entities from exercising our jurisdiction. On the other hand, I'm also saying let's not do away with tribal membership criteria that is based on ancestry and so there is a distinction there, there is a problem and I can't pretend to resolve it in this moment. But I do think that a well thought out and creative immigration policy, immigration rules, finding a way to get those non-Indians, those non-members to consent to tribal government, as many as possible, is a way to legitimize tribal governments, to exclude people is actually a paradigm we should move away from. But to be more inclusive is a place we should consider going, more inclusive with practical limitations. Now I've given this talk before and one of our prior presenters, I don't know if she was listening to me, but she gave the exact response that I expected to get, which is, "˜Well, if we do that, then Indian tribes will just become German.' What she went by that -- this is Bethany Berger -- is sort of joking was that there are a lot of German people apparently who would love to be members of Indian tribes. And if you know anything about German hobbyists, you'll know exactly what I'm talking about. That doesn't...actually that's not a very good response to my comment or to my suggestion. I really think that tribes can be much more creative in how they define who is within their polity, who is within their government control.

And the last thing I want to say and this may be, depending on, because of our audience, may be the most controversial thing. I don't know that major change in creativity on the question of tribal membership and citizenship and the questions of inclusion and exclusion can be fulfilled without a major and important reconsideration of our tribal leadership structures. So many times I've read about histories of Indian tribes and especially in the Great Lakes -- because that's what I really focus on -- and also the traditional stories on the question of leadership really give me the sense that Indian leaders in the Great Lakes area, the western or the upper Great Lakes, were not elected leaders. They were appointed for a particular purpose and some leaders are really good at negotiating agreements or treaties with other leaders from other nations or even within the tribe. They have incredible skills and I've seen leaders from lots of tribes, my own tribe -- which I frequently criticize, I will tell you -- who are amazing diplomats, who speak in a way that I would never be able to do. I just don't have that skill. And then there are leaders who are incredible business people who can see through and have a vision about how to make an organization work and how and creative ways to develop an organization and to generate governmental revenue. And then there are leaders who are just amazing at taking the views of their constituents and moving forward with those views and trying to take the issues constituents bring up, it could be anything from employment to housing to anything and find a way to react to those issues and solve those issues going forward.

But too many times, I see people being elected for four years who are good at some of those issues and not so good at other of those issues and we always joked -- and believe me this is a great lawyer joke, a lawyer joke not directed at lawyers by the way. You can make those jokes as well, I'm asking for it. But we used to say at Grand Traverse Band, the only thing you needed to be to be a leader was electable, to have a big family, and sometimes that isn't really the kind of leadership you're looking for. Sometimes it is, but sometimes it isn't and I think we need to reconsider exactly what it is that tribal leaders are good at. We had this proposal at Grand Traverse Band that the tribal council shot down, not because they weren't tempted by it, but because it was too obvious what we were trying to do.

The other lawyer joke we had, and again not one directed at lawyers, but us lawyers directed at our clients basically was, every council member was one-seventh tribal chairman because we had seven council members one of whom was the chair and they all thought they were the chairman. And we always joked about that, so one day we wrote up how to reorganize the tribal government so that they actually would all be one-seventh tribal chairman. And the government is this system of departments that could actually be structured in such a way as to give each of the seven elected officials control, chairman-like responsibility over a discrete amount or a discrete listing of departments, very much like the Secretary of Interior is in charge of the whole series of agencies within what is the Department of Interior. And we thought this was a fantastic proposal, we knew exactly where people would go. One person, one of our council members, our clients was really, came from the housing department. She was elected because of issues relating to the housing department. She should be the secretary of housing and on down the line. Obviously it was shut down, it didn't go anywhere, but I think that more generally speaking a reconsideration of the rules and of the appointment of tribal leadership is also in play and also may actually be a prerequisite to serious reconsideration of tribal membership issues.

Now that I've said that, I'm going to sit down and let Jill [Doerfler] speak and I'm sure she's going to give a much more peaceful presentation. But I want to thank you all and say [Anishinaabe language] to the Anishinaabe people who are here and also to the Dakota and others who...anybody who is from this area or who has listened to me today and I thank you very, very much."

Rae Nell Vaughn: Tribal Court Systems in the 21st Century: The Choctaw Tribal Court System

Producer
Indigenous Peoples' Law and Policy Program
Year

Former Chief Justice of the Mississippi Choctaw Supreme Court Rae Nell Vaughn provides a detailed overview of the growth and evolution of the Mississippi Choctaw's governance system and specifically its justice system, stressing the importance of Native nations providing a fair, effective, culturally relevant forum for enforcing tribal laws and resolving disputes.

Resource Type
Citation

Vaughn, Rae Nell. "Tribal Court Systems in the 21st Century: The Choctaw Tribal Court System." Indigenous Peoples' Law and Policy Program, College of Law, University of Arizona. Tucson, Arizona. September 16, 2009. Presentation.

"Thank you for taking time out today to come and meet me and listen to what I have to share: my experiences and expertise in tribal court systems. Our topic will be the "˜Tribal Court Systems in the 21st Century' and my point of reference, of course, will be Mississippi Choctaw. How many of you have ever heard of Mississippi Choctaw, the Mississippi Band of Choctaw Indians? A lot of people at home in Mississippi, when you say that, the first thing that they equate it to is gaming, casinos, Silver Star, Golden Moon, the bells and whistles of gaming, and they tend to forget there are people and there is a government, a society there. As Ryan [Seelau] said, I served as Chief Justice for the Supreme Court for the tribe. I worked with the judiciary for 11 years. I served for the tribe...I worked with the tribe for a total of 23 years in a wide variety of areas -- in health, education, in culture -- and so I'm kind of like the full-package deal. And so having the opportunity to serve the people as a judge was the most humbling invitation for me to have been offered and to have accepted and it was such a traumatic experience for me. I'm a tribal member. I'm a member of the tribe. I lived there for the majority of my life. I was a bit of an Air Force brat for just a short period of time, lived in Massachusetts. My father was stationed at Otis Air Force Base. Came back home to Mississippi and then we went off to Kansas for a bit and then came back and been there ever since. Where's the southern accent, you may ask? It's there, it'll creep out sometimes when I start really rolling along and you might hear a "˜y'all' after a while, so just be looking for it.

What I want to begin talking about is the history of the tribe. As you know, with all tribes across Indian Country, there were a lot of treaties and agreements that tribes went into. Well, our tribe went through such a process as well, and in 1832 we signed our final treaty. We signed. It wasn't like we wanted to sign, it was more or less, "˜You are signing. Here's the pen and here's the line. Sign on the dotted line,' of giving or seceding all our lands to the government. That was the final secession of our lands. However, we did have a number of people who refused to move, to remove and go on the Trail of Tears and we are the descendents of those tribal members who refused to go. Early in the 19th century, the tribe was hit with an influenza epidemic and our membership, our people got down to under 1,000 in the early 1900s. We had no support from the state. We were living in very terrible conditions, working as sharecroppers in the cotton fields, losing a lot of who we are or who our identity was, living in very poor conditions and again, with no help from the state or from anyone. Yet in 1945, applications were made to become federally recognized and we were successful. And in 1945 that happened, we became recognized as the Mississippi Band of Choctaw Indians. However, in my language the name of our people is 'Chahta,' and that is the name of Choctaw and of course, with the non-Indians translating it to 'Choctaw' is how that came to be.

And so with the establishment and recognition as a federally recognized tribe comes what? The development of a government, the establishment of a government, and one of the very first things you have to do in establishing a government is looking at your laws, your foundational laws. And what's that? That's the constitution. And of course, this is not to say that our own tribal structures were not good, but we were being forced to look at models or not to look at it, we were told to. Okay, let's just put it out there. We were told to do it, that's what it is. It is what it is. And so we adopted an IRA constitution and once that happened, then began the function of the government. Now this government is a two-[branch] government, an executive branch and a legislative branch. They went through a lot of challenges because of course, as you know, you've got the BIA [Bureau of Indian Affairs] agent there assigned to you and he pretty much was trying to run the show, basically trying to tell the government what to do.

I don't know if you are, and you probably are...for those of you who are familiar with Mississippi Choctaw, Chief Phillip Martin, who has for the past 40 years led the tribe. And I had the opportunity to read his book because one of the things...and he is my role model, he has been my mentor; he's known me all my life. It took him forever to finally call me -- once I got married -- call me by my married name. It was always, 'Rae Nell Hockett,' 'Rae Nell Hockett.' I'm like, "˜Chief, I'm Rae Nell Vaughn now. I'm grown up.' It's not that snotty-nosed little kid runny down the dirt road. So anyway, I had the opportunity to talk with him, to read the book, and it gave me so much insight about who he was and how he came to be as a leader, and how important all the experience he had led him up to how he was going to lead. Of course he had the boarding school experience, he had the World War II experience having gone to Germany -- all these different experiences molded him into who he ultimately became to be. And so during this period of time, once the tribe began its structure of government and getting government rolling, Chief Martin then became involved in government. I promise you, this is not going to turn into a Chief Martin story, but he's so interwoven into the tribe I would be remiss not to talk about him. So of course, there's this constant butting of heads in regards to what the people want and what BIA wants or they don't want to give you. And so Chief Martin and the other members of the government began taking control, began pushing back, began looking at the things that they needed to do to help the people and to help the people prosper. Like I said, it was a very tough time.

Ryan and Ian [Record] and I were talking a couple of days ago, and in my memories I have flashes of what I remember. I'm 45 years old, so a lot of what has happened has happened during my lifetime and the things I remember, I do remember being in the cotton fields with my grandparents and family, I do remember lining up to go to the outhouse and that was the last time at night, if you didn't catch it then you were on your own, of living in a home with no heat, no running water. Now think about the time frame I'm talking about here: no transportation, no employment, nothing, very rural, very isolated area, very spread out. Communities were very far apart from one another. It was a very challenging time. A friend of mine said, "˜But you know what, Rae, you never really know how poor you are until someone tells you you're poor.' And I can remember during that period of time growing up and being around my grandparents and my great-grandparents. I had the good fortune of having my great grandmother still with me -- who is a renowned basket weaver and has her pieces out in the Smithsonian -- but having that family network, that family connection was so very, very important and you'll see how it's interwoven in what I'm talking about, the close knit-ness.

So his charge, Chief Martin's charge as a member of the community was to get the government up and going and they began doing that. They began making their way to [Washington] D.C., trying to get additional dollars, trying to get assistance. Now let me tell you, the BIA agent did not like this at all. He's like, "˜I'm the big dog here. I should be the one going up there. If anybody's going to go up there, that should be me.' And so there again was that butting of the heads, of people stepping up and taking leadership. Now you know as well as I do that there are ramifications. There could be ramifications for that, and also think about where we are -- rural Mississippi -- at a time where there's a lot of racial tensions and issues and problems going on. And here we are, this small group of Native Americans, the only group of Native Americans that are recognized in the State of Mississippi and yet we're just an afterthought for anyone. They began strengthening the government. The government then [was] able to receive federal dollars from a program called CAP, and what the acronym stands for fails me at the moment, but it was a very important stepping stone for the tribe to begin laying foundations for infrastructure in the sense of services to the people. I promise, we are going to talk about justice systems but I really want you to understand where we were to where we are now.

So, in the midst of that, people are getting enrolled with the tribe. No one's rushing to do that. So you had maybe by the "˜70s maybe a membership of 2,500 to 3,000 people enrolled. And of course our enrollments were skewed like everyone else. There are some people that are enrolled that are blonde-haired and blue-eyed, but knew the agent and got enrolled. So they're tribal members. We do have a group of people down on the Gulf Coast who are mixed but are questionable, but it is what it is. So as the government began to exercise governing, the population is growing. Then came the need of law enforcement, of services, and then ultimately of courts. In the early "˜70s, we had the establishment of the CFR courts, which fell under the regulations of the BIA. Now this was more of a misdemeanor court, is a misdemeanor court; it was handled by one tribal member judge and one clerk. That was it. One clerk, if you could get a clerk, if you could find a clerk. Temporary housing all over the place, just wherever you could find a spot and it could be shared facilities. They barely had actual physical buildings in the governmental area, but it's just wherever you could find a spot. And so that's how they operated court and that's how they enforced law enforcement. Now let's back up with law enforcement. You had only maybe two officers having to patrol large areas and I know that there are some tribes even today that continue to struggle with law enforcement issues. And so we had this structure set up in the early "˜70s and technically it worked, but it didn't work as well as it could. Of course we were reliant on funds from BIA, so we did the best we could do.

Then, under the leadership of Chief Martin, moving from a member of the council, which he was -- and I failed to state that -- then, ultimately becoming identified as the chairman. At that time, through the governmental process of the council, council members were elected in. Then the council itself voted amongst themselves, identifying who the chairman would be. So Phillip Martin then was voted in as the chairman. And so under his leadership, they began looking at industry once they laid down this foundation of infrastructure. It was a long road, a very long road. There were moments of prosperity early on in the mid...late "˜70s with the establishment of Chahta Enterprise. One of the very first companies that they developed was the construction company Chahta Development, which was the flagship, which was what brought revenue in, which is what supplemented the tribal government. And then as that company took off, they began going into other ventures. In the early "˜80s, we then went into the automotive industry. Under Chahta Enterprise, we did work with Ford, NavaStar -- and I'm talking about companies, I know Ford -- but they did a lot of wire harnessing-type assembly, blue collar work, but it was work. However, in the mid "˜80s, as some of you may know from history, we had issues, we had problems with the economy; even then the automotive industry was up and down. And so the tribe was riding on this wave of prosperity and then the wave would dip, but money was coming in. And so then, as more money began coming in for the tribe, and also you have the [Indian] Self-Determination Act, which also kicked in as well and kicked in additional resources, the tribe then took on managing its own services, managing itself under Public Law 638. One of the very first areas that we were able to manage were the courts, law enforcement, and detention. Now mind you, it was a phased-in process because ultimately you have to find personnel, space, operations, and management. And it was during this period of time that we had a lot of exterior things going on that the tribe was dealing with, for example, in regards to the court. In regards to the court, you had the [Mississippi Band of Choctaw Indians v.] Holyfield case, which I'm sure some of you may be familiar with. This is the adoption case of the tribal, two small tribal children who were adopted off reservation, and this case was the test for ICWA [Indian Child Welfare Act]. And then came 1994, when the Mississippi Band of Choctaw Indians opened its doors to gaming: Silver Star. Just to give you a sense of how successful it was at the beginning, we paid out our loan in six months, of the money that we borrowed to build this facility -- six months. And let me tell you what I heard Chief Martin had said: "˜Well, you know what, if this doesn't work...,' because really we were looking at, "˜Well, is this going to be a bingo hall? What is this going to be? Is this really going to go?' He said, "˜You know what, if it doesn't take off, we'll turn it into a manufacturing plant.' Well, it didn't happen. Silver Star expanded maybe three or four more times after that and they thought, "˜Well, why do we need to expand? Why don't we built another piece of property across the street?' And in early 2000 I think it was, we then opened the doors to the Golden Moon.

And so in the midst of all of this, you had not only your population increasing of your tribal membership, but you also had an influx of people, non-Indians coming through the reservation, vendors, customers. You had a major highway that ran right through the tribal lands, Highway 16. And so in 1997, the tribe then reorganized again and restructured the tribal court system. And I'll get to the specifics of that a little further into the slide, but one of the other things that happened in 1997 was an accord that was signed between the State of Mississippi and the Mississippi Band of Choctaw Indians. And this is very historical and it's very important because this accord recognized each party as a sovereign to say, "˜I recognize you, Mississippi Band of Choctaw Indians. You are a sovereign government and we need to work in partnership.' Some might say, "˜Well, this is just the olive branch, this is just the PR,' but it's significant because once this accord was signed, it opened doors, it began opening doors, doors that we weren't able to open. And I've always said, when we've had positive impact, positive experiences, when the tribe has had the opportunity to see progress, it's always been about who the players are and the timing. And it's key; it's key. And so this was an accord that was signed between the late Gov. Kirk Fordice and of course, Chief Phillip Martin. And it was, it was very historical and we have several historical moments throughout the history of our tribe.

I talked about the organization and structure of the previous court, and I think it's important because one thing that you will learn as practitioners is the importance of support of your court and the makeup of your court. The CFR court structure, as I said, was one tribal judge and one clerk, and then of course in the "˜80s and mid "˜90s, you had a tribal court judge, a member, a tribal member who served on the bench. And then you had a special judge who came in to deal with more of the complex cases that would come before the court and he was a law-trained individual -- I know him -- Judge Vernon Cotton, who's now on the circuit court with the state. Two clerks, a probation officer, and then you had tribal member associate judges who kind of came and went. We never really had a lot of consistency and we'll talk more about that as we go on.

This is the current overall organization of the tribal court system and you'll find that in your handouts. As I shared with you earlier, tribal Choctaw government is set up as two branches and the tribal court is a statutory court, which falls under the umbrella of the Judicial Affairs Committee, which is the oversight committee. They do not participate in the day-to-day operations of the system. We work with them in regards to issues such as budget and code development. They also are the ones who, when there are issues of violations of canons of ethics, things of that sort, they are somewhat of an ad hoc committee on discipline as well. You have the chief justice, who is also the principal judicial officer for the system and is the administrative liaison between the two branches. One of the distinctions of this court or the uniqueness is that we have the ability to create individual divisions of court. So you had a criminal court, you had a civil court, you have your youth and family court and you had -- which we'd never had before -- our traditional form of court, which is the peacemaker court, Ittikana Ikbi. "˜To make new again' is what that translates into. Prior to the Supreme Court, establishment of the Supreme Court, you had what was called the 'Court of Appeals,' which was made up of course of the judges who did not preside over that court, so you had a three-panel court of appeals. But because of the increase of cases that were coming to the court, there was a need to have and develop a separate tier. And so, as Ryan said, that court was established in early 2000.

The Supreme Court consists of course of the chief justice, two associates justices. During my tenure, I had the great fortune of having sitting with me on the bench Frank Pommersheim, Professor Pommersheim as most of you know, and also Carey Vicenti. You don't know the wealth of information those two men bring to the bench: the analysis, the logic, everything. I was just very fortunate to have had the experience of working with those two gentlemen and think very highly of them as well. We also had a pro tem justice who is a tribal member; her name is Judge Roseanna Thompson. She's a linguist, graduated from Penn State and wore two hats: she ran her language program, but she also worked with us in the court. A wealth of experience and knowledge as well; love her to death. Aside from the judiciary, the bench itself, you have the administration of court. Once, of course, you issue a ruling, what happens with all of that and who are all the players that are involved? And this was an expansion of the system itself because we saw more of a need, that the court needed to be more involved and it needed to be more defined and more developed.

And so we established a Department of Court Services and within that service we have a director, school attendance officer, adult and juvenile probation officer, diversion coordinator. The diversion coordinator's responsibility was the development of teen court, which some of you may or may not be familiar with. That's more of a sentencing court for juvenile delinquents. Once they went through formal court and were adjudicated as a delinquent, if the judge felt like the offense wasn't as severe and this young person might be just right at the line of either he's going to go down that road or maybe we can correct it and get him back on the right path. We sent him to teen court. Our very first experience with teen court was amazing. Of course, as you know, with teen court it's made up of their peers, young people who are sitting in different capacities as prosecution, as defense, sitting as a juror, sitting as a bailiff. The only adult in that courtroom was the judge, which could be a member of the community, which could be one of the practitioners of the bar or one of the other judges. I've sat several times in teen court. And so we had our first case and it was a breaking-and-entering case. And it's just like what you may have heard time and time again. They were ready to give this guy a big sign saying that he was guilty of his offense. They wanted to put him out on the road and let everyone see what he was guilty of. They wanted to give him beaucoups of community service hours. And so we had to kind of reel them back in just a little bit, but we had told them and talked with them about how important it is for the juvenile delinquent to understand the offenses that they're committing. That it's not so much against you as a community member, but it's against the tribe, and in essence it's against yourself. And so you have to make this right with the tribe. It's been a very successful program. And that's one of the things with this system that we're looking at is looking at other alternatives to provide justice for our communities in Indian Country.

We also have a youth court counselor who works with juvenile delinquents once they get into the system. We had a receptionist, administrative assistant, custodian, of course, your clerks; we had seven clerks and a file clerk and they are the heartbeat of your system. They are the ones who make the system run. Yeah, the judge can sit up there and drop the hammer, the attorneys come, they argue and there we go, but it's those clerks who make the system run and who cannot allow the system to run. So as practitioners, I strongly suggest you get to know your clerks. You just wait, for those of you who probably are already out there practicing, you know what I'm talking about because you piss a clerk off and you're not getting anything timely, if at all. I assure you. I have seen it. I have received complaints on clerks. So I know. And then again, and I'm not going to belabor the point, but this is the overall structure of the tribe and the court falls here as an independent agency with the tribe. However, yet it continues to be under the executive branch and I want to talk a little bit about that as well.

'Independent agency' -- words are sometimes more cosmetic. A lot of courts in Indian Country are set up the way we are. They're statutory courts, and sometimes aren't given the respect that they should be given. Let me assure you: tribal court is not a program; it is not a social program. It is a form that is established to protect the people and enforce the law. But for whatever reason -- and there are many I'm sure -- there continues to be this tendency of a perception that these are just programs. "˜Tribal court is nothing more than a program like social services, like legal aid, it's just a program.' And until we can, as practitioners, begin changing that mindset...and we have to. We really have to. I'm not quite sure the audience I'm talking to, I know you all are students, the majority of you are and maybe end up working for your tribe or if not for another tribe or for a sovereign nation -- whether it be here or abroad -- but one of the things that, one of the messages I hope to get out and that I hope you take with you is that there needs to be respect for that institution, that it is not a program. And it gets lost in translation in the big scheme of things with tribal government. Tribal governments struggle. You have some governments that are running well, you have others that have a lot of strife going on, but having the ability to exercise your sovereignty by operating a court and providing law and order and justice is one of the very key elements for government. And you, as a practitioner, possibly as an attorney general for your tribe or as just general counsel, you need to keep that in mind, and also protecting your tribe, protecting that sovereign. And it is. It's a term that's used in many senses and much sense abused. We've had that discussion about pulling the sword of sovereignty and wanting to use both sides of it, using it all the time. And I've always told...like I tell my children, "˜You need to pick your battles. You can't fight every one of them. You'll never win the war.' Everybody's heard this but, of course, I'm not going to belabor this. You guys are law students, you know what this is all about, what sovereignty is. If we can go on to the next because I know my time is going here.

And it does, sovereignty begins at home. Again, talking about the exercise of it. And it is truly in a fragile state for Native people. Socially, we have a lot of issues that a lot of these tribes are dealing with and the majority of the time this ends up in the well of the court. That's where a lot of these things are handled. And again, stability and consistency of a good court system is key. You have a high dropout rate of students, high suicide, you have increase in violence -- and this is just speaking in generalities -- you have poor health conditions at times, high poverty rates. They're also factors that we must remedy. And that again goes back to that close knit-ness of the community, of how we can create a more healthy and stable community for all our communities in Indian Country.

Again, exercising the sovereignty and it does, it belongs to the people just like as American citizens it belongs to us. How do we exercise those rights? Vote. I used it. It worked. I'm happy. At the tribal level, tribal members delegate those powers to tribal councils through voting and with electing a chief, which in 1977 the tribe amended its tribal constitution to elect the chief. Chief Martin ran for the very first election of chief and guess what? He lost; he lost. That was during the [gerald] Ford administration, I remember because right after the Nixon administration Ford had a hard time getting things going again and so did this, the first chief, the first identified chief had a difficult time. And then after his four-year term was up, Chief Martin then ran and was successful and was elected the second chief of the tribe. The tribal council then delegated and established the tribal court, as we talked about earlier within the issue of the reorganizational slide that I showed you.

Principles of the expression of sovereignty: the fundamental expression is the formation of tribal government and the determination of tribal membership, which continues to be a pressing issue for all tribes. We've seen it in California of where people get disenrolled. We've seen it in various tribes, even within my own tribe. There have been informal discussions about dropping the blood quantum. Our constitution says a half or more and they'd like to see it drop down to a fourth. Will that happen? I don't know, but it is a strong discussion that's taking place right now. And membership is key. Membership: I have a really big issue with membership because membership, as defined by the federal government, is based on blood quantum. Well, if I'm a full-blooded Choctaw, my family relocated to Chicago, grew up there, never came back to the reservation, don't know the language, don't know the ceremonies, but I'm full blood based on what my papers tell me, aAnd then you have a child who is a quarter Choctaw, family lives on the reservation, family's very well known in the community, they participate with the tribe, they know the language, they speak the language, they're fluent, they're involved in ceremonies. So why is it that we look at a document that tells me that this person isn't qualified to be a Choctaw? What kind of weight does that have? As far as I'm concerned, it doesn't. It holds no weight, because it's who you are as a Choctaw person, who you are as a Navajo, who you are as Eastern Band of Cherokee. It's who you are. There are big conversations, like I said, concerning membership that [are] taking place and it's a hard call, it really is. It's a very hard call.

And then you have the legislative expressions, adopting tribal ordinances and laws, which they do. The tribe meets four times a year, holds their regular business meetings as well as special called meetings. Throughout my tenure with the court, we've developed new codes in regards to domestic violence, having a code that addresses that specifically, and even within that code there were issues concerning who we are as Choctaw people and having to look at these models that we were given and 'Choctaw-izing' it because some of the things that -- which you may or may not agree with --hindered or conflicted with culture. And that's not to say that I'm sitting here a proponent of domestic violence, that's not it, but it's trying to get this message out that when an offense is committed, for example, concerning firearms, because that was the issue at hand, as a tribal man you went out hunting. And so if I am found guilty of domestic violence, I can no longer have a firearm, which interfered with their hunting which is a part of the culture. And it was a really big issue, that code was tabled so many times because it went back and forth, but it finally was passed. They made amendments to it. Instead of not ever allowing them to have a firearm, they penalized them for five years. I, for one, did not agree with that and wanted to stick with what we had laid out at the beginning, but I knew it was a cultural question. And these are hard things, these are hard things and this is just an example of what councils have to deal with. That's just one part of it, that's not even the business aspects of it. And then of course you have your administrative portion of it where your tribal leadership has an administration, which basically deals with the day-to-day operations and execution of social programs and services. And then you have the judiciary, which is the tribal courts, the enforcements of unwritten law and written law.

Well, what is tribal law? For us, in our general provisions, we have our customary law, we also have the tribal code and then when the code is silent we go to federal and state law as well. And if I'm blocking anybody please tell me, I will move myself because I know I can be a big gray blip on the screen. We also have -- as I stated earlier -- a peacemaking code. And I'll tell you, it wasn't very well embraced at the beginning because at that time people...and people in general, in general society, they want their time in court. They want to be before that judge and they want to tell you why that person is guilty, but what does it really solve? Does it really solve the issue at hand? Because sometimes the issue that's brought before the court is just the very tip of the iceberg, you're not really getting the full story. When we began looking at the development of this division of court, we had the opportunity to go down to Navajo Nation and to visit with their peacemaking court and the communities knew this and we brought that information back. And so then we began operating the court. And there was a lot of comment, "˜Well, this is just Navajo court. You're trying to operate Navajo court.' But it wasn't because, as we know historically, living in a society, living in a community, you had rules, you had laws. It may not have been written, but there were laws and rules of your society that you knew. For tribes, it was oral; you knew it, it wasn't written down anywhere, they told you, they talked with you, you listened. And so we got this peacemaker division going.

You'd think we would have had the opportunity to have a case that was just minimal, just real basic. Nope, not the case. There's a family in one of our outlying communities, major issues, very dysfunctional family. The father was a very aggressive...he was a bully, he was a community bully and also an alcoholic, which doesn't mix well either. And he was stirring up issues and for people to tell you that they're afraid to be at their home, that they didn't feel safe in their community is hard to imagine, but you had people feeling like that. He was having issues with another family, the Hatfields and McCoys almost, and it was getting to that point. What ended up tipping this entire issue and bringing it to court was that these young boys from this particular family, the bully's family, went into the home of an elderly person, an elderly woman, hurt her, stole from her and vandalized her home. Well, let me tell you, the charges started flying. We had cases being filed, counter filed, it was just loading us up, and it got to a point where we had to sit down and talk with the community because we weren't going to be able to get down and resolve the root of the problem. And so it took some time -- it took six months. It took a long time to finally get a lot of the people in. There was about a total of 35 people were involved in this entire issue and I applauded the peacemaker. He was very diligent and he got...he made it happen. And I think one of the other things that helped him was that he was a minister. But it happened and they sat down and they talked.

As much as people said, "˜Well, this is Navajo court,' and it wasn't. And I respect Navajo court, don't get me wrong and I'm not putting Navajo court in a poor light or anything, but we Choctaw-ized this process and it was a process we already had, but it was a more structured process. We were able to bring in people who would also help facilitate this issue. Six months of going back and forth, of talking, letting people vent, and it does escape me at the moment, but whatever the issue was, it was minimal, it was so minimal, but it grew arms and legs and it took off. And I know how some people can be, they don't forget. They don't forget in the sense of they're angry and upset with you, but they can't remember what it was they were angry and upset about and because my grandma was, I am too. I don't know why she was, but I am too. And so it was getting down to those root issues. And that's how it was very therapeutic, very therapeutic for the community. Another side note to this though: the bully continued. So, unfortunately, we ended up excluding him from the tribe, but we had the support of the community and that's a hard thing to do. You certainly don't want to be excluded from your community, but if you're a detriment and creating an unsafe community, there are no alternatives and that is a part of our code as well, which makes our code unique as it does with other tribes as well.

Of course we have the written laws, constitution, our ordinances, codes, we have opinions and decisions that we have for our tribal courts and is available for review. And then of course the additional laws, written laws that we have are peacemaker resolution orders, which in this instance they do hold the strength and power of an order of court, of formal court, which is a very unique thing. Okay, if we can go on. I want us to have time to talk so you have the handout. These are pretty basic pieces of information that you're very well aware of and I'm not going to go over those things, but these are the types of cases that Choctaw court deals with: of course child adoptions, protection and custody issues, alcohol-related crimes and other social crimes, domestic violence, commercial cases. We have a very strong civil court, which deals with a lot of the cases because of the economic development that the tribe is involved in. One of the first things -- and as practitioners you need to know -- one of the first things that lender is going to ask the tribe is, "˜Well, if there's a dispute, where is it going to be heard? Where is it going to be heard?' And time and time again they say, "˜It will be heard in tribal court. It will be heard in Choctaw tribal court.' Now, if you don't have a stable and consistent court system, and let me tell you, you know as well as I do, our legal community is small. Information goes from one end of the coast to the other. Information goes faster now with internet. If you don't have a stable system, they're not going to do business with you. They just won't do it. We also have, of course, repossession, which falls under civil, you have youth court issues, traffic, and of course our peacemaker issues.

So what's on the horizon? What's on the horizon for courts and for governments? We must be aware of the upcoming policy changes. We know that there can be negative impacts on governments, specifically on courts. We struggle yearly as to the types of funding, well, what are we going to get? As a system, how much money will we get from the federal government? How is this particular act going to affect us? There was the issue of the Tribal Justice Act back in the "˜90s. Sure, you put an act together, but you didn't give us any money and it had a lot of good pieces in it, of strengthening tribal justice systems, but when you don't fund it, it's only as good as whatever the ink you used to sign the thing with. And as we know, federal policy has been characterized by dramatic shifts and you have these here. And of course the Self-Determination Act, which followed after termination. So I say all that to say this: it is critical that you're aware as practitioners of what's happening out there in the landscape because what affects one will ultimately affect us all. And so you must always look at any type of policy development with the backdrop of the tribe, of tribal sovereignty, of the federal trust responsibility, of the government-to-government relationships that have to occur, and that have to be cultivated and have to be perpetuated and continued. And that laws and policies have to be unique and specific for Native Americans. I say specifically for Choctaw because that's the tribe I'm representing.

So, in closing, we must continue this pursuit of self-determination. We have to encourage this with our governments, with our people, with the courts and the protection of our sovereignty not only within our courts, but also outside of our courts is very important. Again, building collaborative relationships within tribal, state and federal governments, through inter-government agreements such as the accord that I talked about and then here on the federal level with the ICWA.

A story I'd like to share with you. When I first came on the bench for the Supreme Court, I sat down with one of my mentors and I said, "˜I want to make a difference here. I want us to take this system to a level of respect because we, like everybody else, got beat up. "˜Kangaroo court! They don't know what they're doing! We need new people!' What is it that we can do?' And we had a really good brainstorming session in talking about the things that I wanted to do. Now, let me again remind you, I live in the State of Mississippi, and we've never had a strong and positive rapport with state government. One of the things I had wanted to do was to open a door and to have dialogue with our counterparts, which had never ever happened. And in early 2000, the chief justice of the Supreme Court for the State of Mississippi came down to Choctaw with his associate justice and we sat down not so much as judges, but as people and talked about a lot of issues. That one conversation sparked a lot of other activity. We began having these exchanges, having the opportunity to go and speak to the judges of the state, having their justices come down and talk to our bar and talk to our government. And it's those types of relationships that many tribes don't have the opportunity to develop for whatever reason.

Also, we worked very diligently with our U.S. District Attorney. Now as some of you may recognize, those are very difficult relationships to have and sometimes you may have a U.S. District Attorney who just doesn't give a crap, isn't going to work with you, who could care less. But we had the good fortune of having a U.S. District Attorney by the name of Jack Lacy who was phenomenal. He retired recently, but he left such a great legacy in the sense of working with this tribe and we were able to have many cases that may have been...that may not have ever been brought before the federal court happen and go through and it was because of his own diligence as well. But it was having that relationship, cultivating that relationship, and that is very important for those of you who may end up working with tribes. It's very key.

And then lastly but not leastly, learning from other tribes and sharing successes and challenges. As you can tell, I love to talk and I love sharing this story and I love sharing other stories, but we learn so much more from these exchanges that we have. And sometimes we're all on the same page, we all have the same passion for the people and for working for the people because these investments that we make, and it may sound like a cliché, is for our future generations to come and it's laying these strong foundations for them. But it's also cultivating this generation that's to come to lead us and they need to have the proper tools, they need to know that there is a strong government, they need to know that there is a strong form of court, they need to understand what it means to vote, what it means to stand up for what's right, and it's having that ability to share these types of things with other tribes, what their successes, what their challenges are and working together because what we fix or are able to do for one has far reaching effects for all of us across Indian Country and it's important. It's important.

So with that, I leave you with this. It's always been my philosophy, the tribal courts are guardians, we are the guardians, we are the gatekeepers, the protectors of the sovereignty, of our children, of our families, of our communities, of our tribe. The strength, respect that you give this system speaks volumes, it creates an atmosphere of trust for the people that it serves and also the respect of those from the outside as well. But more so, it's for the people to feel that when they walk through the door of that justice complex, they know that they have a fair forum that they're going to."

Constitutions and Constitutional Reform - Day 1 (Q&A)

Producer
Native Nations Institute
Year

Presenters and moderators from the first day of NNI's "Tribal Constitutions" seminar gather to field questions from seminar participants on a variety of topics ranging from dual citizenship to the relationship between a nation's constitution and its economic development environment.

Resource Type
Citation

Cornell, Stephen, Jill Doerfler, Robert Hershey and Miriam Jorgensen. "Constitutions and Constitutional Reform - Day 1 (Q&A)." Tribal Constitutions Seminar. Native Nations Institute for Leadership, Managment and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A Session.

Justin Beaulieu:

"Okay, I have a question. It's kind of three parts. So the first part is citizenship. This is important to me personally because my kids and myself are involved. Citizenship, is there any tribes that have identified dual citizenship with another tribe where, like historically where, I can be a citizen or a member of like Mille Lacs, White Earth, Red Lake, etc., and then what impact does that have on federal status? If I'm federally recognized from one tribe, can I not get...I don't understand that. So the second part of the question is, are we putting the cart before the horse when we talk about putting this in our constitution not knowing if that's going to pass or not because how do we consider the next generations when we haven't defined really who they are yet? And then the third part is, has any tribes faltered with their constitutional reform because citizenship was included in there?"

Robert Hershey:

"What was the third part again?"

Justin Beaulieu:

"Has any tribes faltered with constitutional reform, like not passed it because there was a citizenship clause in their constitution, was it not ratified and what not?"

Stephen Cornell:

"So, who's going after that?"

Jill Doerfler:

"Well, I can say a couple things, I guess, probably with regard to White Earth. We don't have a clause that says anything regarding...that precludes dual citizenship, but we didn't really address it specifically like citizenship among multiple tribes and we felt...there was a question at White Earth if citizenship should be considered separately and that was sort of considered separately in the late "˜90s' efforts for reform where we kind of talked about those different options. And at that time, in the late "˜90s, the plan was to put up the new constitution and then put up citizenship sort of at the same time, but then have citizens vote on all those options. And as we worked on our effort more recently in the 21st century, we felt that it was better to put it up as a whole because then you can see the scope of the government because if you have a different type of citizenship that might impact other parts of the constitution and we felt that it would actually be better to put it up as a whole than to separate it out. So that's what we kind of came to."

Stephen Cornell:

"The only thing I'd add -- and this comes to a portion of your question -- there's nothing out there that says you have to redo a constitution all at once. And there's sometimes issues that people find particularly difficult to deal with, and as Jill was saying, this was an issue for them and they decided to put it altogether in a single package, but you can imagine a situation where a nation might say, "˜We need to make some critical changes; it's being held up by one issue over which we have real concerns. We're having trouble resolving that issue. We're going to set that issue aside and deal with it later.' Now that gets complicated for exactly the kinds of reasons Jill talked about, but there's nothing that says you've got to do it all at once and that's what most tribes seem to try to do, but this is your constitution and you're the ones who know whether some issue is going to derail the entire effort and whether one option should be to hold off on that until you can get some consensus over what it should look like. But in the meantime, let's do what we can do because we need to make these changes. So I just wanted to point that out."

Robert Hershey:

"Let me add one other little point to that. The majority of constitutions that we've looked at -- and we did a study of about 200 membership ordinances in different constitutions -- and the majority, the vast majority prohibited dual membership. And I think you'll see that more common than not. One of the tribes we were asked to assist, the question of membership was not even a part of the proposed amendments, but there was a suspicion that it was somehow part of the proposed amendments when it was not at all and that derailed the entire constitutional process. And I agree with what Steve said too, it's probably the trickiest part in there. It may be better to develop some sort of a consensus on the things that seem...like removing the Secretary of the Interior approval language at least initially on some of the ordinances to get that forum going. We have a tremendous amount of constitutional conventions that took place with White Earth to go ahead and inform the public and yet your turnout was a fraction of the people that were involved in the community so I think really it's about the process of education to where it becomes familiar because you're asking people to try and adopt something different than what they know what the status quo has been."

Miriam Jorgensen:

"I don't know of a tribe that has dual membership, although I heard that it was possible in Oklahoma. So I was glad to hear from Mike Burgess that is the case and I think one of the things that's important to think about is to go back to the fundamental idea of what matters to the nation in terms of its citizenship. If it's valuable to them because that's the way that many people see themselves or that there is a segment of the population for which dual citizenship is really important about what the definition of that community is, it might make sense to include it and I wouldn't be surprised if that's part of the reason in Oklahoma where because the Oklahoma Indian history and what, 45 nations relocated to Oklahoma, something like that..."

Herminia Frias (moderator):

"...Thank you. Marcelino?"

Marcelino Flores:

"Thank you to all our presenters, and what I'm understanding so far is that each tribal nation needs to come to an understanding of who they are and how they will govern themselves, but none of this happens in isolation. And I can appreciate Jill beginning to mention that where we're going is one of those questions and Stephen Cornell mentioning perhaps firewood issues and probably appropriate at the council meetings, but the question that I have is there are some things that just cannot be ignored and I think they need more clarification and understanding and that is the role of economic development, health care and housing, particularly for health care. We're largely dependent on the federal system and it's changing, it's very different now. We really don't know what it means to be under Obama Care, especially within the State of Arizona. So how do you address these larger issues in the context of constitutional reform?"

Stephen Cornell:

"I think that's a great question and I'll take a first shot at it. In some ways, I think in the areas you're talking about and I'm going to circle around and come back to your point. We had a tribal chair who said to us once, "˜We get a lot of money from the federal government for programs, a lot of that is treaty-based obligation and our attitude is, 'They owe that to us.'' But he said, "˜I pursue economic development because in my experience every one of those federal dollars is a leash around my neck and it restricts my freedom.' He wasn't talking about himself when he said "˜my,' he meant "˜my people.' 'It restricts our freedom because in order to get that money we've got to agree to year evaluation criteria, we've got to get your permission on how to spend it, we've got to spend it in the way that you think is best for us, not the way we might think is best for us.' And he said, "˜So economic development to me is a freedom program. It's how do I create the resources that allow me to escape that federal leash?' And he said, "˜Don't get me wrong. They owe us the money. They'll never pay us enough money to pay for the land they took, but I don't want to be sitting here having to ask their permission to do the things we think are important for our people.' Now you imagine getting, let's say he reached the point where he could afford health care for his people and where he could provide the housing and there are some nations that are doing that right now, that are pursuing tribally managed health care, for example. The real question is, if he got to that point, has he got the governing tools he needs to deliver on that responsibility? If you say to the U.S. government, "˜Treaty says you're responsible for health care, but you don't do a very good job of it. And I could sit here and wait for you to do a better job of it, but the chances are I might die waiting. So instead, we're going to take responsibility for that because I've got people whose lives are at stake and now we're getting the money to do it.' And now the question is, "˜Can I do it well?' That's going to depend on your constitution. That's going to depend on whether you've got the governing tools in hand that allow you to deliver the things you want to deliver to your people. Now you can get bogged down in the treaty argument and who should pay for it argument and all of that, but at some point you have to say, "˜There are things we want to do for our people and we've got to show that we can deliver.' So that to me is where all these things come back to constitutional questions. They come back to, what do you want to govern and do you have the tools to do it well."

Robert Hershey:

"This is where the Secretarial approval clause comes in too. If you're an IRA [Indian Reorganization Act] tribe, does that say something about your ability to get bank loans and foster economic development? You have the Supremacy Clause of the United States Constitution, the United States government behind you. Some lenders might look at the fact that you're an IRA tribe and they may go ahead and say, "˜Well, you're legitimate,' as opposed to another form of government, too. So that's something that...I said I wasn't going to give you a preview of tomorrow, but that's something I'm going to bring up."

Miriam Jorgensen:

"So now we know everybody's going to come back, Robert, because we're all excited about what you're going to talk about. I just want to say one thing and it's kind of to back up what Steve was saying and I will say that this comes from sort of thinking about what governments are structured to do. If your government is structured to provide health care to citizens and to seek funds to do that from the federal government, to provide housing to citizens and to seek funds from the federal government to do that and to provide streams of income to citizens and to use...rely on particular federal structures to do that, you have a government that's structured to do those things. But if you have a government that is structured to provide greater freedom and opportunity to your people and greater freedom and opportunity for the nation itself to be a self-governing, self-determined, sovereign entity, all those other things are likely to come, but you're going to have the government capacity to do it. So you have to think, "˜Have I built a government that's just about service provision or have I built a government that's capable of doing lots of other things and in the process, is therefore able to underwrite economic development, to underwrite the freedom of individual Native citizens of my nation to be able to access more streams of capital, to be able to have more opportunities and at the same time, yes, maybe I as a government am providing those things to them, but I'm structured to do much more.' So I think that's really the question that nations have to wrestle with -- are you going to limit yourself at the outset by saying, "˜I care so much about service provision that that's the only way I'm going to structure my government,' or, "˜I know that governments have lots of things that they need to do and if it does all those things well, it's going to be able to do service provision well as well.'

Herminia Frias:

"Thank you. We have a question in the back here from Nimrod? Oh, one more response from Jill."

Jill Doerfler:

"I'll just make one quick comment relating to that about services and citizenship and sometimes a concern that comes up is if we increase citizenship then what about services, what about putting strain on that and in a lot of ways our goals are to create strong nations with strong citizens who don't necessarily need housing assistance, but who, because there's good job opportunities and economic development within the nation, don't need to access those, but instead are maybe pumping resources back into the nation rather than extracting them. And so we talked about that quite a bit at White Earth as well. We want strong citizens who contribute and in some ways that don't need certain services maybe."

Mohammed Fardous:

"Hello, my name is Mohammad Fardous, and actually you already answered part of my question, but the question is that is it important to address the economic development in the constitution? If so, what factors should be addressed? Thank you."

Herminia Frias:

"What was the question?"

Mohammed Fardous:

"That economic development, is that important to be addressed in the constitution?"

Herminia Frias:

"Oh, is economic development important to be addressed in the constitution?"

Stephen Cornell:

"To me, that's something for an individual nation to decide. You may be in a nation where you feel the culture of dependency that has been forced on you by subordination and so forth is so deeply entrenched that you want to say -- and one of the things that you may state in a preamble or somewhere in a constitution -- one of the things you value as a people is to be able to support yourselves, to have control over your life, which in this modern time and in this country is going to require dollars. They speak. If that's important to you, you may want to say, "˜One of the things we want this constitution to do is to support prosperity, economic growth for our people so that we can be truly independent of some other government and their control of the purse strings.' I don't know, but to me that's up to an individual nation. It depends what you're most concerned with, and I don't think there's one answer, just as on so many of these issues we've been talking about there's no one answer. The answer is, what resonates with your sense of who you're trying to be and of what needs to change and of what you're trying to protect? That's what a constitution's about. Who are we, what do we need to change, what are we trying to protect? How do we do that? So it's really up to you."

Miriam Jorgensen:

"I think at the same time, though, every constitution is about economic development, but not explicitly. This goes back to the notion that we know that regardless if you're a tribal community, you're a state or provincial government, you're an international nation state, there are fundamentals that support economic progress. One of them is the fair resolution of disputes, and if your constitution sets up that process, it is fundamentally saying something about economic development. You have to have laws like I was talking about that people will abide by so that you can be a society that is a rule-of-law society, and that's not in an oppressive kind of way of, "˜Here's the law and you have to follow it and I said so,' but rather, "˜Do we have laws that we together as a nation agree on that these are the highest expression of ourselves and the way we want to live our lives and to some extent this is how we want to do business?' So does the constitution put in place processes that allow for rule of law to exist? And those are not necessarily saying anything directly about economic development, but they're structuring a governing authority that can support economic development."

Robert Hershey:

"I just want to reiterate the thing that you said about having a dispute-resolution mechanism. That's having a tribal court that has an independent judiciary because you're going to have to have people, if you're going to have investors coming from off the reservation, you're going to try to raise money for economic development projects, they're going to have to have confidence in that dispute resolution forum."

Stephen Cornell:

"And we're going to talk about that tomorrow."

Herminia Frias:

"Jill, did you want to add anything?"

Jill Doerfler:

"No."

Herminia Frias:

"Okay. We have another question in the back."

Jamie Henio:

"Hello. My name is Jamie Henio with the Navajo Nation and my background is primarily in housing and criminal prosecution, but the idea of government reform and constitutions is new to me right now. And I've started working for the Speaker's office about seven, eight months ago and this is...the idea of government reform is pretty much a hot topic on the Navajo Nation right now. So I'm thinking here, listening to everybody and the term 'IRA tribe,' what is an IRA tribe is my first question, what's that? And then the other thing is Navajo Nation, they're looking at...well, there've been attempts in the past, 1930, 1955 and 1960 to develop a constitution, adopt a constitution, but it failed every time. So right now that's where the movement's at again, too, is to develop a document that will govern the Navajo Nation. So if the Navajo Nation should adopt a constitution at this time, would they be considered an IRA tribe and under the control of the Secretary of the Interior? That's my other question."

Robert Hershey:

"Okay. An IRA tribe...well, first of all, after the terrible policies, after the terrible schizophrenic policies of how non-Native society has intruded upon and committed acts of aggression and genocide against Native peoples and then through the allotment period in the late 1800s to the 1920s, in 1934 some of the Solicitors and some of the people in Washington felt that they could go ahead and foster a restructuring of that terrible allotment period where Native peoples lost about two-thirds of their lands. They created what was called the Wheeler-Howard Act in 1934 and that was the Indian Reorganization Act and that basically then from that the BIA [Bureau of Indian Affairs] went out and issued pattern constitutions for the tribes to adopt. I think...it was nothing that the tribes or the nations asked for at that time. What it was, I think it was a convenience mechanism for the United States government also to go ahead and foster its relationship and its so-called trust responsibility with Native nations at that time. So that's the genesis of the IRA. Navajo came about in...and I know that you've had three attempts at constitutional conventions and reformations and that has not passed and I have a historical document written by a Navajo student of mine that I can get you too that talks about that. I think it may have been lost somewhere from...that was given to the nation, but I have a copy of that for you. The fact that you would adopt a constitution does not necessarily make it so that you would be adopting it under the terms of the Indian Reorganization Act. You can adopt a constitution in another way, by yourself. The way Navajo came through the Navajo Business Committee in the 1920s was by virtue of Standard Oil coming to the Secretary of the Interior and basically saying, "˜We want your oil and your shale,' and therefore they established a series of business agreements that then became the councils, which then became the series of concessions and agreements with the Secretary of the Interior and a lot of mismanagement. But it was motivationally driven by non-Native people trying to seek Navajo mineral royalties at that time, out of which then your statutes and laws have evolved keeping in mind the fundamental laws of the Diné. So it does not mean that you have to become an IRA tribe."

Herminia Frias:

"Thank you. Kevin? Which mic is that? Six."

Kevin:

"The gentleman that was talking about economic development, I think every one of the constitutions that are in place in one form or another discuss it in a manner and you were talking about disputes. Well, the issue is if self-determination is applied through a lot of federal programs, that's also under that principle of economic development and the right to govern ourselves. But we have to remember that it's not an act that gives us that right, it's our birthright. So as we can all understand that it's our right as human beings to go in that direction, it's already applied. We just have to apply it. It's already there, written in probably everybody's constitution in one form or another, in the programs that we receive, the ones that do receive them, the monies are there for that principle. Thank you."

Herminia Frias:

"Thank you. We have a question, yes."

Audience member:

"I kind of...I have a question, but I don't know if I'm asking to you guys or maybe to the tribes, because in 2000 we went and passed our new constitution, 2000, the year 2000. So we had an IRA and we made changes. We made it to fit us as Yavapai people, to fit how we're going to do economic development, how we make laws, how we interpret and how all these things happen. But today I think our constitution, when you look back, we're having problems with membership, and I think that's one of the things as tribal people and leaders that you need to look at, what's going to affect you in 50 years. Because me as a leader, I try to look out for 50 years ahead of time or the babies that aren't even born yet. I don't look for today or tomorrow, that's what...that's how I was raised and one of the things, I know that's what we're struggling with is membership and we're working at it but I know like you...one of you speakers presented today that the U.S. Constitution hasn't been changed and it's hard to change and sometimes you don't want to always change your constitution, but as Native people we change every so many centuries and we don't know how many people are actually of our descendance or have just came in and moved in our territory. So I think really the question goes...I don't know if it goes to you guys or us as people. We're the ones that identify ourselves and define ourselves. How many years do you let go by...because here we're...this is year 13 for us with our constitutional change from 1934 and it's been working, but the membership part has been hurting us because we...like this lady here, she's a teacher and she sees all the children that she knows are going to always live within our reservation and their parents are tribal members, their grandparents were tribal members, but we can't enroll them. And I sit there and I argue with my council because I will say, "˜Let's just enroll them. We know who we are. I know that baby's never going to...or that baby's going to live here or that baby may be doing something good in the future and we're not even going to be a part of it,' but it's because our constitutional change that binds our hands and that's why it's so important like what the...like what you did with your community when you had all your forums and meetings and...our committee is doing that now and this is learning for them and I'm glad that they're here, they're learning from you that this is what we need to do is to identify, do everything you can with your community, involve them because in 2000 our community was not involved in this change of constitution. And it is a good constitution and we're tweaking it now. So like I said, I don't know if it's up to...I know it's up to us, but because you guys are the professors and you guys know the rule of thumb or you know the U.S. Constitution, how do we go as citizens of changing them? Do we look every 10, 15 years or do we just not do it and just say, "˜Hey,' cause we do have some elders that say, "˜Just leave it. Just leave it. Don't change it.' So how...what do tribes do that you guys have worked with, I guess is what I'm asking."

Stephen Cornell:

"Well, I was going to ask Miriam because I can't remember whether it's Cherokee or Osage who built into their --Cherokee -- who built into their new constitution the provision that they would revisit it every 20 years I think."

Miriam Jorgensen:

"Actually, it was in the 1976 constitution, that's what motivated the..."

Stephen Cornell:

"...The change, yeah. So it's a...you'd have to think what the appropriate interval is for you, but it's certainly one thing to consider is to say, "˜The world changes and do we wait for a crisis to arise that forces us then into some quick forced constitutional reconsideration or do we say, no, we're going to revisit this document every 10, 15, whatever it might be years, and we'll prepare for that and we'll know it's coming. And therefore it won't be this process that happens in crisis conditions where you don't have time to think about what you're doing adequately because you've got to respond to something that happened. Instead, this will be part of our deliberate, continuing growth of our government.' The world changes; your nation's changed. We sometimes have...I think the anthropologists are probably to blame, but probably all of us are, this notion of these unchanging forever communities that lived in North America. Well, heck, there were trade relations, people had new ideas, people tried new things, people discovered that the climate changed or that you moved because you were following a resource and you had to do things in new ways and the rules changed because you said, "˜Ah, we've got to come up with a new solution for this, deal with the situation we're in now.' Why shouldn't that be part of your new tradition of how you govern, that we're ready to change when the world demands that we respond to new conditions."

Herminia Frias:

"If I can add to that, I think that sometimes we get fixated on that this is done and we forget that this is really a living document, this is really something that we need to adhere to and pay attention to as our society changes. So thinking about it, how is it that we do things today, how is it that we do things tomorrow, and how is it that we're going to do things 25 years from now? It changes."

Miriam Jorgensen:

"So I don't think Jill's going to necessarily blow her own horn on this, but I think that their experience at White Earth is probably real similar to what could go on for you guys at Hualapai. Jill's presentations about historically where their blood quantum rules came from, where their membership and citizenship rules came from, and really telling the history of that. I had read things that Jill had written before meeting her and I encourage you, if you never read any kind of an academic article in your life, to read her 2009 piece in American Indian Quarterly. It's beautiful, it works from the point of storytelling and it puts you in the position as if you were community members in 1910, '13 when the Indian agents came around and assigned blood quantum and you get the understanding that it's an entirely constructed idea. And I think that a lot of citizens today in tribal communities don't understand a lot of that history and they think that it's something that's been...that's definite as opposed to something that's more or less made up and you gave that, a version of that kind of talk multiple times, and it really starts to break down on people's understanding of where these rules come from and opens them up to a greater acceptance that there could be different rules and it can be more inclusive of children and grandchildren and great grandchildren and who's going to be in that community."

Jill Doerfler:

"Well, thank you very much, Miriam, for noting that. Yeah, I didn't get a chance to talk at length about it in my presentation today, but as I said, my research has been on Anishinaabeg identity historically, and so part of that was how people were talking about identity and citizenship in the 19-teens and the historical record on it is amazingly rich. And so we have people at White Earth talking about identity and blood quantum and I was able to use lots of quotes from them extensively to say...what they said time and again was A, "˜we don't know what you're talking about when you try to say blood quantum,' and B, "˜that doesn't really matter to us. What matters is our families, what matters is how we live our lives.' I'll just give two quick examples because I can't help myself. One, what happened is they're asking people at White Earth, "˜is so and so a mixed blood,' and they want to know because of land sale. That's what they're really looking at, but I was interested in the identity. So they asked a woman, "˜Isn't it true...is your husband a mixed blood?' and she says, "˜No, my husband is a full blood. He made himself a full blood.' And so we see there her answer being surprising...I don't know how many people would say that today, they make themselves, but at that time Anishinaabeg people created their own identity by their actions, what they did made them who they were and they were really in control versus this idea of blood quantum, which is sort of pseudo science and it's something that we don't have control over, that's just some kind of number assigned to us at birth by our tribe or the Bureau of Indian Affairs or something like that. And the other fabulous quote that I'll mention, as a person was being asked time and again about another person's blood quantum and he finally said, "˜I don't know. That person has been dead a long time. If you really want to know, you should go ahead and just go dig him up.' So Anishinaabeg people always have some good humor and that's one of my favorites because they're like...there's no answering these questions about blood quantum. And so I think I'll leave it with that."

Herminia Frias:

"Thank you. Justin?"

Justin Beaulieu:

"One of the things that I was going to touch on with her question is that I did a research paper about blood quantum too because it was important to me. And one of the things that I identified was that the only people or the only things that are really identified by how much of something they are is some animals and Native Americans. That's the only thing. So if we're going to categorize ourselves into a category with animals because that...it's always kind of been about resources. The federal government didn't want to be babysitting a bunch of Indians so they said, "˜We're going to make...if you have a kid with a white person, they're half,' and then eventually we're going to be extinct before we're dead. So that was good to them. That was good for them and if that's what we want to continue, that's going to be our legacy, I guess that's our choice."

Herminia Frias:

"Thank you, Justin."

Mike Burgess:

"Mike Burgess again. Not to answer the blood quantum issue, but this young lady, you had a question that you made a statement that how often or how many...when should you change your constitution? My response to that would be and a suggestion is, when your leaders no longer honor it. And so when your leadership doesn't follow through with what that constitution abides by, because I was struck by one statement here that was up on the screen that the law must be followed, rightly or wrongly, be followed. So a constitution that does not define how leadership should be held up, it should be a constitution that has generally your bylaws or your rules of behavior or your ordinance for conducting themselves. So on the reverse side of that, leadership that wants to be in office that can't honor those rules doesn't need to be there in the first place. I bring this up because of my own people again. One constitution, it was [Three] Affiliated Tribes, we broke apart in '65, new constitution in '67, been amended 14 times. We've attempted to change the constitution three times in the last ten years, but my people...put it in political rhetoric, you live with the devil you know. So people who are afraid of change have to be instructed, taught and shown that change is good and beneficial. And so the few of us in my people that want to make these changes, we can't get heard and that voice has been squelched. Well, thankfully the internet is there and even that is misinterpreted at times. But there are these things that can be put in place and for one, we are discussing among ourselves not anymore lowering blood quantum, but raising it. And someone asked me, "˜Well, when and where would you have the cut off line to raise it?' So in 1976, every Comanche enrolled at that time received a per cap and I explained to them, "˜When we first got started with this blood quantum stuff on the reservation days, everybody was a full blood and one-quarter of our tribe was not full-blood Comanche. So why don't we go back to that time frame to 1976 and everybody's a full blood and our children come up half or quarter or three-quarters.' So you're not faced with this reducing blood quantum to get more numbers, which hasn't benefited us in the long run precisely because of per cap, educational benefits, and half the people who don't live at home want their medical card, their education and their per cap and never come home. So some of us are discussing this idea of citizen responsibility, coming home to vote each year, being recognized in the community at specific events and times. So we are having to come back to what some of you have now, citizenship requirements and things of that nature. So I wanted to expand on your question of when to change the constitution. Thank you."

Herminia Frias:

"Thank you. Charissa, right down there."

Audience member:

"This is in regards to the blood quantum. I was just...I teach my kids not to be...not to be prejudiced, but I'm also defending myself and my tribe when I say marry your own tribal members so we don't face these kind of issues. We have a lot of benefits, we have a lot of resources on our own land within our own tribe, we have our language, we have our traditions, we have our ceremony, we have our land. In our tribe, in our tradition, you have that umbilical cord when you're born, then it falls off. We bury it where we're from. We pray for it and we bury it and that's why it's important to teach your kids to marry within your tribe, marry within your tribe so we don't face these kind of problems. And it's important; if you start now when they're young, when they're older it goes on and on. And I tell my kids that. I don't want you to marry somebody that's not a non-member. "˜Why?' I said, "˜Because you're going to lose it, you're going to lose the identity of being a full-blooded Apache.' "˜Well, mom, what makes me Apache?' I said, "˜What makes you Apache? Look at all the hills around you, look at the horse you ride freely, look at everything you do; you hunt, you pray, you dance, you play. You do that because you're Apache. If you're out there, you won't do it. You'll be sitting on a city bus, you'll be doing these things. You'll be following the federal government and the state government. On our lands we have our own laws and we should keep our own blood quantum within our own tribe. Thank you."

Herminia Frias:

"A question in the back."

Jamie Henio:

"Thank you again for letting me speak. I just wanted to share a story regarding the constitution and the Navajo attempts at the constitution. Last year, I was fortunate enough to listen to a speech by a former Navajo leader at the Navajo Nation Bar Conference. And he explained the previous attempts to the constitution and he shared a story with the audience and it goes like this. Back in the early days, there was a big movement about adopting a constitution on the Navajo Nation and you have your pro-constitution people here running around trying to convince everybody saying, "˜This is good for you, this is life, this is life-sustaining.' Then you have your traditional people here who were sort of against it. So they had a big meeting and at that meeting the traditional leaders and the pro people met and the traditional leaders were saying, "˜Okay, you're saying this piece of paper, this document is life-sustaining. Okay, let's put it to a test then.' He goes, "˜We'll build two fires here. One here for you and then we'll build another fire here. On this fire, that's your fire. On our fire what we'll do is we'll go to our flock, get a sheep, we'll butcher, we'll make some bread, we'll fry some meat and cook it and stuff. On your fire, get a big tub of water, boil it and then what you'll do is we'll be cooking meat over here and we'll eat. On your fire take the piece of paper that you're touting around and put it in there and boil it and then we'll see which sustains life.' So you get it? He's telling people, "˜Take your constitution and boil it and eat it and see if it'll sustain your life for you.'"

Robert Hershey:

"And you think mutton sustains life? Ooh. No, I'm teasing. I'm teasing. I loved it. I ate it every day."

Jamie Henio:

"Well, the thing is then later on the guy says, "˜You know the reason why they rejected the constitutions? Because we still have that fear of the livestock reduction program.' And that's why they've been rejecting the constitution because they think that might happen again. So that was his point at the end after that."

Herminia Frias:

"Any other questions, comments? Okay, we have one more at least."

Audience member:

"Hello. I just wanted to make one point, something that Miriam said, which I think...I hadn't thought about before and that's when looking at sources of law to put into constitutions this recognition of international law. I hadn't thought about that, but Indigenous people are making progress all over the world when they're back against the wall and no one will listen and courts will not listen domestically that they're starting to make progress in international law with the Rights of Indigenous Peoples, the declaration on rights and obligations of man. I think that the way for this progress to continue is for it to be recognized in tribal constitutions. For example, the gentleman spoke about the birthright and where are you going to find that in a body of law to cite? But in something like an international document where self-determination and the importance of land to Indigenous people is emphasized. I think that's a great point, something I hadn't thought about."

Robert Hershey:

"I'm going to talk about that tomorrow, too. Thank you -- one of my students, an attorney, bright guy."

Herminia Frias:

"Anyone else? Yes, sir."

Roger White Owl:

"Hi. Roger White Owl. Three Affiliated Tribes. One of the things I guess I wanted to ask the panel, one of the things is as we look at this concept of the social contract in constitutions and what they are really about how important is ambiguity in these documents that you have a living document that isn't just technically written because even the great Greek philosophers said that the worst government was run by lawyers. So that is..."

Miriam Jorgensen:

"And I think Shakespeare said it, too."

Roger White Owl:

"Just how important...because as we see...as we see...as we see, as Mr. Burgess said, pointed out is that your constitution should not be too technical to where your people can't understand it. It's the people's document and so that's the reason why that attorneys make the worst lawmakers according to even Greek philosophers and the very essence of what we know as Western jurisprudence. And so as we look at that, it needs to be...our constitutions need to have this bit of room to be interpreted as the concepts of the rule of law in government and everything else is expressed in implied powers. That's what we have within the constitution and in constitutional interpretation. So how do you guys feel, how ambiguous should a constitution be?"

Miriam Jorgensen:

"Well, I can't give you an amount, like it should be 60% ambiguous and 40% not, but I think it is true that a degree of ambiguity is important and exactly for those reasons that you say a living document, that it allows there to be interpretation of that document that moves with the times. I've written a little bit about this and we talk about it as breathing room in a sense in the document, that you don't have to resolve every single issue by going into great detail in the document. That's what I was kind of getting at when I said about the rules of procedure, a lot of those rules of procedure for legislatures are very loose, they're sort of like, "˜Well, we're going to assign it to the legislative body to establish its rules of procedure. We're going to tell them how representation should occur and what the quorum should be. We might even tell them the dates on which they should meet or how often they should meet or the actual way that they establish their rules are going to be a little bit looser, that we're not going to specify this necessarily in the constitution, we'll just give some direction.' And that allows things to change a little bit if they need to. I think however that in order to have one of those constitutions that has breathing room in it, your constitution absolutely needs to specify a body that's responsible for interpreting the constitution because if you don't assign somebody to interpret the constitution, you've got this somewhat ambiguous document without any ability to say, "˜Okay, at this point in time this is what it means.' Our interpretation may change a little bit, we may change and grow like Steve was talking about, we may change to adapt to the times or to changing circumstances or whatever but you still need somebody to do that... that constitutional interpretation. And if you go back and look at the Mohegan constitution, that council of elders, which I said has that funny role, it's both a legislative body with respect to custom and tradition and certain kinds of traditional law, it's also a constitutional interpretation and judicial review body for that tribe. And so it has very clearly assigned this role." 

Jill Doerfler and Carole Goldberg: Key Things a Constitution Should Address: Who Are We and How Do We Know? (Q&A)

Producer
Native Nations Institute
Year

Presenters Jill Doerfler and Carole Goldberg field questions from seminar participants about the various criteria that Native Nations are using to define citizenship, and some of the implications that specific criteria present.

Resource Type
Citation

Doerfler, Jill and Carole Goldberg. "Key Things a Constitution Should Address: Who Are We and How Do We Know?" Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A Session.

Mike Burgess:

Mike Burgess from Pawnee Nation College. My question is to both either yourself Jill [Doerfler] or Dr. [Carole] Goldberg. In your research and findings, had there been any discussion on consolidation of tribal blood quantum and make it all one tribe?"

Carole Goldberg:

"By consolidation, you mean looking at people who have blood quantum from a variety of different tribes?"

Mike Burgess:

"If a member is not enough of your blood quantum, but they have more than enough to be a quarter blood, half-blood, even full-blood Indian, which is happening to a lot of our children in Oklahoma, they're full-blood Indian, but can't get on any roll."

Carole Goldberg:

"Right."

Mike Burgess:

"So if you're consolidating that and you recognize them as a member of your tribe and make them full-bloods or half-bloods, just your tribe only. Have any tribes approached that?"

Carole Goldberg:

"Not only have tribes proposed that, but I have actually seen it in some of the constitutions in California tribes where it may well be, for example, there are so many Pomo tribes in northern California. And you may not have descendance from this particular Pomo tribe, but in times past there was all kinds of intermarriage and kinship relations. And so the view of some of these tribes is as long as you're hypothetically one-fourth is from some Pomo tribe, they'll make you a member of this particular tribe so long as you don't also try to become a member of some other tribe. It's definitely being done. I wouldn't say it's widespread, but it's definitely being done."

Mike Burgess:

"Thank you."

Robert Hershey (moderator):

"It is. It is in a number of constitutions and membership ordinances that if you are a member of another tribe you cannot be a member of this particular tribe that you're trying to be included in. So that is something you'd have to look at either through your constitution or your membership ordinance and to change if that's the result you wanted. Yes, sir."

Ray Louden:

"Hi. I'm Ray Louden with Red Lake. This is for White Earth. How is the new constitution with White Earth going to affect the constitution with the Minnesota Chippewa Tribe, and then is the ultimate goal then for the White Earth Nation to be removed from...?"

Jill Doerfler:

"The White Earth Nation has tried for many, many years to engage the Minnesota Chippewa Tribe in constitutional reform at the level of the Minnesota Chippewa Tribe and those efforts have not been fruitful. As I said, we've had efforts at White Earth for 30 years and we've tried to engage the Minnesota Chippewa Tribe throughout that time. Minnesota Chippewa Tribe has always -- well, I don't...not always -- they've had for a long, long time had a standing committee on constitutional reform. No actual action has come out of that committee for many years, and so ultimately White Earth citizens felt that we need to move on our own. It's unclear what will happen with regard to the Minnesota Chippewa Tribe, whether White Earth will still participate or how the Minnesota Chippewa Tribe will react to us having our own constitution."

Robert Hershey:

"Thank you. You're Red Lake, yes? Yeah. We have time for two more questions right now, the speakers at the microphones then we'll break for lunch. I want to make an announcement about lunch in just a minute. Yes."

Stephanie Cobenais:

"My name's Stephanie Cobenais from Red Lake. What are you deciding on how...what's going to be a descendant on your referendum stuff? What is it?"

Jill Doerfler:

"We haven't identified a base roll yet, which needs to happen. We sort of worked under the presumption that we'd use our current roll, but that isn't 100 percent clear. So a descendant would be somebody descended from a roll that will need to be identified."

Robert Hershey:

"Thank you. Yes, sir."

Audience member:

"How many tribal members do you have enrolled in your tribe?"

Jill Doerfler:

"Excuse me?"

Audience member:

"How many tribal members do you have on your rolls?"

Jill Doerfler:

"We have about 20,000 citizens right now."

Audience member:

"Wow, that's quite a bit. Yeah, we have 900 enrolled tribal members in our tribe but due to our blood quantum it doesn't allow...a lot of our tribal member...a lot of family members to be enrolled. I have a granddaughter that's six tribes. She has six tribal...she's six tribes anyway right now and she couldn't get enrolled with my tribe so she went to one of the other tribes that she represents and then she got enrolled there. But it was kind of a sad deal. But I liked your presentation and I like the way that you guys dealt with the lineal part and I think we got a lot of good ideas out of that and it made me think a lot, too, about our lineal part because here in Arizona...I know tribes here in Arizona it's a lot different here. I have family members from a lot of different tribes here from Arizona that...even some of these guys like, I'm Tonto Apache, I'm related to these guys over here. I'm related to a lot of people in the San Carlos Apache Tribe. And we have other tribes too like Yavapai, other Yavapais up north. My father is a northern Yavapai and his clan still exists. It's still up there. And then I'm also half, I'm a southern Yavapai too. So there's a lot of this stuff going on here in Arizona, it's like a big melting pot. I see a lot of that, but I saw a lot of good ideas in your presentation that really stood out to me and I think we're going to probably take some of that home to our tribe and just try to present it to our people and see what they think about it. I just want to thank you for your presentation."

Jill Doerfler:

"Well, [Anishinaabe language] thank you to you. That's wonderful to hear. I didn't have time...I'll just make one brief comment. I am not a demographer, I'm more the historian/literature-type person, but the tribe did hire a demographer to do a population study and even though...sometimes it sounds like 20,000 is a lot of people, but we are going to soon be reaching a stage where we just have an aging population at White Earth. Our death rate is going to be outpacing our birth rate and we're going to be moving towards declining numbers and so that's also motivating factor. Even though it seems like we're big, we're still really feeling a lot of impacts of blood quantum."

Robert Hershey:

"Thank you. Carole."

Carole Goldberg:

"There's just one brief observation that I wanted to make. For a very good reason we don't have members of the outside press here but if they were, I think they might be very interested in the fact that the word gaming actually has not appeared in any of these presentations about enrollment because there is such a misconception out there that is driving all of this discussion and it's really not, as I think we've seen..."

Robert Hershey:

"Can you share some of the experiences in your community of what you're dealing with regarding identity, membership, citizenship? Why do we have this distinction between "˜membership' and "˜citizenship'? What does "˜membership' mean to you? What does "˜citizenship' mean to you? These are some of the questions you're going to be dealing with when you...I could call on my students. Can I call on a member of the Pascua Yaqui Nation's council to...sorry, Robert, because you brought it up at lunchtime. There's an issue within your constitution that is kind of contrary to the membership rules that you've set out. Is this something that you feel like that you're going to have to attend to? Is the Pascua Yaqui Council going to have to attend to dealing with some of the divergent issues or the irreconcilable positions within a constitution?"

Robert Valencia:

"There's two things that affect our tribe and our current constitution. One is our tribe was very instrumental in the Law and Order Act, getting that together, but our constitution still is what it is and we...that gives us a one-year limitation on the sentencing and I think it was $5,000 on fines and such, and the other is the Membership Act. Our tribe has been...was recognized in 1978, recognized again in 1994, and with this membership bill it's something that in order to do what we want to because it's in the constitution, it was in the Act, we would have to change that. So those are the two pressing issues that we have, among others."

Robert Hershey:

"Thank you very much. But the reason I asked you to speak to this was because there was a contradiction in the constitution as to what the nation wanted to do with regard to its membership. It went to Congress. Now some of you may have, not the IRA [Indian Reorganization Act] tribes here, but you may have also some other federal act that has designated you into the federal recognition and the acknowledgement process, too. So those types of things are unique where you can get congressional acts to go ahead instead of going through the whole formal process amending the constitution and the Pascua Yaqui Nation has been successful in that regard."

Robert Valencia:

"That's right. Initially the Act establishing the tribe did say that we had to have a constitution and initially it was supposed to be in 1980. We didn't have one until about 1988 and we haven't changed it or modified it since that time."

Robert Hershey:

"Thank you very much. Kevin, we've been looking for you."

Kevin Dupuis:

"I have a question for White Earth and as being a former tribal executive committee member I can understand what you're saying and as a reservation business committee member now, the question I have, if the constitution is done with White Earth, is there a point where the tribal executive committee of the Minnesota Chippewa Tribe has to approve or disapprove that constitution? And the concern I have is this -- that if an individual reservation in the consolidation of the Minnesota Chippewa Tribe writes their own constitution, do they become separated from the Minnesota Chippewa Tribe because the question I would have to that, if they have their own constitution they could not represent the membership of the Minnesota Chippewa Tribe [as] their tribal executive committee member. Because our constitution that exists now, whether it be right, wrong, indifferent, it's the only document we have, and the concern with is if it can't be followed now, how is this going to go with the constitution coming from White Earth?"

Jill Doerfler:

"Right. We're definitely in new legal territory when it comes to the White Earth constitution and the Minnesota Chippewa Tribe constitution and these are questions that we'll have to be exploring, especially this summer in consultation both with MCT staff attorneys as well as TEC members, White Earth attorneys and White Earth tribal council and exploring how can the MCT accommodate in some way. Can White Earth have its own constitution and can other MCT nations have their own constitution and still participate in the MCT in some way. Is that possible? These are sort of questions that we need to be working on answers to."

Kevin Dupuis:

"I understand it and I agree with you, just simple principle of federalism. It was discussed years ago in 2004 and I think all the way to 2006 that the tribe already has its own constitution, can we delegate that authority to the individual reservations to write their own constitution and be under the umbrella of the Minnesota Chippewa Tribe? My concern is this, if you follow a constitution that you write under White Earth and White Earth adopts that, even through the principal referendum I need to ask myself as a tribal member, because I'm not enrolled in Fond du Lac. We're all enrolled in the Minnesota Chippewa Tribe. Our enrollment papers go to the Minnesota Chippewa Tribe, not the individual reservations."

Jill Doerfler:

"Correct."

Kevin Dupuis:

"So an action like this, I'm asking at that point, you finish your constitution, it goes through a referendum vote with your people on White Earth. Is there a separation from White Earth from the Minnesota Chippewa Tribe, because I can't see White Earth representing members of the tribe anymore if they have their own constitution."

Jill Doerfler:

"It will depend on what actions MCT wants to take. If MCT does nothing, that may be your question. If MCT does nothing, does White Earth essentially then separate? I would say the answer to that is most likely yes, but I'm not an attorney and I'm not here to give legal comment on that. These are issues that we're working on exploring."

Kevin Dupuis:

"Okay. Thank you."

Robert Hershey:

"If I may add something too. It implicates some other issues as well. One of the issues is, what is the Minnesota Chippewa constitution, the nations that are involved in it, is it a Secretarial approval constitution, to do amendments?"

Jill Doerfler:

"Yeah."

Robert Hershey:

"So even though there's a referendum, it doesn't automatically result in a new constitution if the new constitution and the...then you have to call for a Secretarial election, and so then there's a whole process that has to be put to the voters. Then that's also going to go ahead and implicate. Whether or not this becomes an example to the other nations or not as to whether they want to go ahead and adopt a new form of constitution, it could be very exemplary in that regard. And there are situations where in constitutions...the Tohono O'odham Nation for one, Hopi Tribe for another, that they have separate and distinct powers that like the districts here on the O'odham Reservation have their own sense. The Hopi constitution allows for the villages to establish their own constitutions as well. So this could be a number of ways to go ahead and satisfy some of the concerns that you were raising there and at the same time allow for that kind of semi-independence or quasi-independence and it could be a united affiliation of nations with separate and distinct constitutions. It could be an example to go ahead and formulate one type of a constitution if that's the way the people go. But it still is going to require after a referendum, it still is going to require a petition to the Secretary of the Interior to go ahead and have a Secretarial election."

Jill Doerfler:

"I should maybe clarify that our referendum, the plan is to proceed with that referendum via a Secretarial election."

Robert Hershey:

"Yes, please."

Pamela Mott:

"My name is Pamela Mott and I'm from the Fort McDowell Yavapai Nation. At lunchtime we sat with Navajo and the other Yavapai tribe and to our question who we are and how do we know, it all came down to a Creation story, "˜cause we all know people sitting here where we come from, how we were taught. The time I grew up, I grew up with a bunch of elders so everybody that I came with, we know who we are and where we're from, but when federal government came and gave us those IRA constitutions that we have today, we have to start changing and identifying ourselves. And I think one of the things at our table that we kind of agree with and I brought up was that when you brought up maximizing your numbers and talking about political, it had a concern to me as a Native American woman "˜cause we're raised like family and we take care of one another. I was wondering, it's so hard for me to understand why other tribes would make one tribal member less important than another one when you said you put restrictions on somebody living off the rez versus someone living on, because a lot of times we don't have the wherewithal to have jobs for educated tribal members and they have to go somewhere else to work or they have to go out of state to work. I have to use my family as an example. I have a nephew that's a doctor in mechanical engineering. There's no job for him on my little reservation, so he has to go. What makes him less of an important tribal member than somebody back home that doesn't have an education but is there working? And I think when you guys teach, as professors when you teach this to people or other Native students that are in your classes, every tribe is different, we're all different, so some of those things I think need to be brought out because I'm a leader for my tribe and when I have to go to [Washington] D.C. and fight for Native American rights or fight for...big one is gaming and you said gaming didn't come up. It is coming up because that's what we're fighting against now but a lot of the things stem...why would you want to make one person less than another when the way we were brought up we had to take care of everybody within the community? And there were adoptions. I know Navajo had talked about some adoptions they had and it depended on your history. If you took slaves in...we weren't mean people. We took care of those people, unlike when they brought the slaves. I understood back east the slaves were more happy to live with the Indians than they were with the non-Indians because they were treated better, they were incorporated as families and that's how we're brought up. So that was one of the things I think our table agreed with, it was kind of hard for me to understand why if there were tribes out there, why would you make somebody different than another based on whether you live within the reservation, whether you don't live in the reservation, because we get a lot of feedback from the people that don't live within my community because they're educated and they tell us, "˜This is what we're doing out here. How can you incorporate with the businesses on the reservation to help us be successful?' And those are some of the things I think that was brought up at our table and I wanted to share that. So I think when you guys are teaching you need to know that. A lot of it comes from our heart and family. We're not like the regular outside non-Indians because a lot of them, they just move. It's easy for them to get up and move one state to another and not have contact with their family members. It's not like that for us. We're always contacting somebody. My sister...I may not...she lives on the same reservation and she lives a hop, skip and a jump from me, but I call her every day or I go see her every other day or something and my children live...I have a son in Oklahoma and he calls me every single day just to let me know how he's doing, how we're talking. So a lot of times you guys don't incorporate that in your teaching, and I think...coming from us now maybe you guys need to start doing that or understanding the tribes."

Carole Goldberg:

"Thank you very much. Actually, I live in Los Angeles. My husband's tribe is in North Dakota, so I'm actually very familiar with the situation of living far away from one's home community. There are places where issues arise involving resource extraction. So there are places where there is a lot of potential money to be made by things like strip mining or various other forms of resource extraction. It has in some places created some tensions, not that people don't care about folks who live far away, not that people don't want to take care of them or stay in touch with them, but just plain old worries that the temptation to do things in the territory might be too great if you don't live there and so that's the source of the tensions that I was referring to over what do you do about folks who live in a place and want to make sure that it's not ruined by various forms of environmental strains and people who live far away and may not experience that. And that...but the variation is tremendous and there are places where that is not an issue and where there are not concerns about treating folks differently. What I was trying to do was give you some sense of the tremendous variety of issues that exist out there and only you can know whether those matter to your own community."

Robert Hershey:

"I'm going to add one thing here, too, just before and this was brought up at our lunch table with my students and they're very passionate about this as well. And if I may just digress just briefly into a little history lesson. Back in Jamestown Colonies with...we hear about Pocahontas, but we don't hear much about her father, which is Powhatan, who was the leader of a number of tidewater tribes in that region. During the treaty ceremonies that would go back and forth whether or not the attempted colonists would be allowed to stay there, there was a ceremony where the English wanted to put a crown on his head and they wanted him just to bend down a little bit so they could put the crown on his head. So the English were taking that as that he was declaring fealty to the crown of England. Now he wasn't thinking that. He was thinking that he was extending his empire. And what I heard from the woman that just spoke, and I thank you for those comments very, very much, is that those educated, those people that are off the reservation, they're contributing and they're bringing things back to your community. So it's very, very interesting how you can extend your empire out there and it doesn't just have to be that people living within a particular area, that's determinative, but it's about those relationships and those contributions that can be far and wide. So that was just something, so I appreciate those comments of what you said. Thank you. Sorry for the history lesson, it's just law professors."

Steve Cornell:

"Steve Cornell from the University of Arizona. For Carole Goldberg, Carole I was just wondering if you had any experience with tribes that are dealing with citizens who live outside U.S. borders with nations that were split by the border. Obviously it's a huge issue right here in southern Arizona with the Tohono O'odham people. There are Yaqui people south in Mexico, but it's also an issue for Mohawks, for some of the Blackfeet Confederacy and others, and have you seen any constitutions that directly try to address the citizenship of people who through no fault of their own are living on the other side of the U.S. border?"

Carole Goldberg:

"I actually have, because one of the communities that I've worked with is the Houlton Band of Maliseet Indians in northeastern Maine and a number of the people from the Houlton community, the Maliseet people are actually living in Canada and it is interesting to note that over time the international border has had the impact on communities or it can have the impact of creating a sense of division that would not have existed had that international border not been introduced. And this is a topic that required a lot of internal dialogue within this community. Are they really a part of us? Even though the kinship relations were pretty obvious, the language, the cultural tradition were common but there was this bit of unease about whether...first of all whether there was something that would be viewed wrong by outsiders of including these "˜foreigners,' I use that in quotes, as part of our tribe and there was also again this sense that there had been some separation over the years. And there was at the end of the day I think more receptivity to saying, "˜These are part of our families, these are part of our culture and community and we shouldn't arbitrarily say that they're outside because they're in another country'. But it was a very hard discussion."

Carole Goldberg: Designing Tribal Citizenship

Producer
Native Nations Institute
Year

Scholar Carole Goldberg shares what she's learned about citizenship criteria from her extensive work with Native nations across the country, and sets forth the internal and external considerations that Native nations need to wrestle with in determining what their citizenship criteria should be.

Resource Type
Citation

Goldberg, Carole. "Designing Tribal Citizenship." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Presentation.

"Thank you very much for that introduction. I've already extended my thanks to the Native Nations Institute for inviting me here. I also want to extend my thanks to the Pascua Yaqui people for hosting this very informative event.

I'm going to be talking about tribal 'citizenship' -- that already raises questions about terminology. You've often seen the word 'membership' used in lieu of 'citizenship.' The term 'membership' harkens back to something that Chairman Rocky Barrett of Citizen Potawatomi said in one of the earlier presentations you saw here today. There was in the development of tribal constitutions through the Indian Reorganization Act of 1934 a view of tribes as, in some respects, corporate entities that would have boards and members. There was also a view of tribes as something akin to private associations or even clubs that would have members. The terminology of 'citizenship' evokes sovereignty and nationhood. I think it's become more common for Native nations to use the terminology of 'citizenship,' but any constitution has to have, as you heard earlier, the legitimacy and acceptance of the people whose government it is and the terminology will have to fit comfortably for whatever community that is.

I want to make one other preliminary point and that is about citizenship and constitutions, because many nations that don't even have constitutions will have citizenship or enrollment provisions in their tribal laws. So what difference does it make to have it in a constitution as opposed to having it in a code or an ordinance? We've heard constitutions described as fundamental law, which they surely are. One of the characteristics of fundamental law in general is that it is more difficult to change. So if you want to have the citizenship or membership provisions for your government to be more stable, less subject to change with political variation over time, then you will want to have it locked into your constitution.

Now there are many different ways your constitution can specify how difficult or easy it is to change the constitution. I come from California, where it is actually really easy to change our state constitution. As a consequence of that, we've had some fairly zany provisions in our constitution, but I will also say that I do not think we would have tribal gaming today in California were it not for the fact that it is relatively easy to modify the constitution of the State of California. By contrast, the constitution of the United States is really, really difficult to change and we've been stuck as the United States nation with some very old -- and, I would argue, antiquated -- provisions in our constitution precisely because it's so difficult to change.

So when you think about putting a citizenship provision in your constitution, also be thinking about how easy or difficult it is to change your constitution. You might want to allocate some of the authority over citizenship to your lawmaking process apart from your constitution precisely because that may be easier to change over time. So that's just kind of preliminary and a more global set of considerations to think about.

So you've heard already about the considerable variety of tribal constitutions both in times past and in the present day, notwithstanding the unifying force of the Indian Reorganization Act. There's still quite a bit of variation and that variation can be seen in the range of citizenship provisions that exist in tribal constitutions. I have given you a list of some of the more typical forms of citizenship provisions that you can see with examples afterwards of Native nations where those kinds of provisions can be found. So you can find citizenship provisions that rely on lineal descendants from a base roll or list. So anyone who can trace ancestry to a person who is on that list would be someone who could qualify for tribal citizenship. And the Cherokee Nation of Oklahoma is a good example of that. As you know, there is quite a bit of legal controversy over which lists, but the descendants from lists is the foundation for citizenship there.

There is also quite a bit of tribal constitution making that includes what I'm calling here minimum percent of tribal or Indian descendance, often referred to as blood quantum. And the percentage can vary from very high to very minimal, but some percentage would be specified and in some citizenship provisions the percentage of descendance can actually vary depending on the person's other descendants. So there are actually tribal constitutions in California that say that the minimum descendance requirement from that particular tribe is less if the remainder of your descendance is from another California tribe or in some instances from another federally recognized tribe. And that is a recognition of the fact that there are sometimes rather arbitrary divisions that the United States imposed when treaties were made or reservations were established and they wound up breaking up communities that had previously been unified. And so sometimes the constitution provisions say that if you come from one of our sibling or related tribal communities, you don't have to have as much descendance from our tribe, but if you're a total outsider then you must have the higher minimum descendance. So that's another array of possibilities.

There are yet other Native nations that specify that in addition to descendance, whether it's lineal or percentage, that you must also have your descendants be through your father's or your mother's line and we've got examples on both sides because there are matrilineal and patrilineal traditions in many Native nations and I've given examples of Santa Clara Pueblo in New Mexico where it is patrilineal and the Seneca Nation of Indians in New York where it is actually through your mother's line.

Still another form of citizenship provision focuses not just on descendance, but where your parents were living at the time you were born, and this has to do in many instances with places like California where reservations were assemblages of peoples from that general area who had been scattered even though they weren't all part of a single community, but they were gathered together on a single reservation. So the place mattered a lot. So in order to be a member for example of the Tule River Indian Tribe in California, you must be born to parents who are living on the reservation. As you can imagine, this creates a huge premium on being able to live there and when your population grows and you don't have more places for people to live, it puts a lot of pressure on your citizenship rule. This by the way was a type of provision that was favored by the Bureau of Indian Affairs at the time of the Indian Reorganization Act in the 1930s.

And the last example I'll give in this list -- and I'm confident that I'm not exhaustive and there may be other examples you can all point me to -- but are provisions for citizenship by adoption or in the international sense we would call it naturalization. How do you become a citizen when you were not born as one? And here the variations are very great. So there are places like Nez Perce in Idaho where anyone can be adopted or naturalized as a citizen of the tribe. You don't have to have any other prerequisites other than the tribe is willing to have you. But there are other places where naturalization is limited, maybe limited to people who are not eligible for citizenship because they don't have a sufficient percentage of descendance or blood quantum or you might have to be a member of some other federally recognized tribe and give up that other citizenship in order to be adopted. Or you might have to be related to an existing citizen of the tribe. There are many variations that one can have and again, the process for adoption or naturalization is going to matter a lot if you have one of these provisions, because the process can make it extremely difficult or it can facilitate the adoption or naturalization of people into the tribe.

So there are all these choices out there. That doesn't mean that you can just put them all in a hat and pick one and say, ‘Okay, this one's ours,' or just deliberate for a little while and say, ‘Oh, this one sounds right.' There are a lot of important considerations that are going to go into thinking about which kind of citizenship provision matters and you're going to get a very specific case of those deliberations, but let me try in a more abstract way or general fashion to suggest what some of these considerations might be. So I'm going to divide them into external and internal. And by the way, I think the internal are more important, but the external are not irrelevant.

So do you have to worry about direct federal controls? My answer here is no. The federal government through the United States Supreme Court decisions through the pronouncement of the Bureau of Indian Affairs says, ‘We're totally hands off.' Now, does that mean they're totally hands off? No, it does not. They find ways to insinuate themselves. In the past, it was because if you had an Indian Reorganization Act constitution, the Secretary of the Interior had to approve the constitution. So they used that leverage to strongly recommend, if I may say as an understatement, that certain kinds of provisions be in there, and that's how places like Tule River were strongly encouraged to include these requirements that the parents be living there at the time the child is born. And the BIA's interest was in keeping tribal citizenship numbers low because the BIA was concerned about the burden on the federal government because certain financial benefits were to be distributed to tribal members. The federal government also gets involved in situations where there are contests over whether a particular tribal government should be recognized for dealing on a government-to-government basis and this is how the federal government has become embroiled in all the controversies at the Cherokee Nation of Oklahoma. But in general, this is your decision. The federal government should not be dictating and if they try they should be resisted.

There are however, some indirect ways in which the federal government has some influence on the choices you make. So to the extent that federal benefits and the applicability of federal laws turn on tribal citizenship, it will matter greatly how you define that citizenship. The federal government has increasingly made its laws turn on citizenship rather than on your descendants as a Native person and the reason they've done that is because they are fearful that they will be carrying out racially discriminatory legislation if they do otherwise. I would argue that they're not, but that's another story. My point is that for things like applicability of the Indian Child Welfare Act, can you have control over your children? Your citizenship provisions are going to make a huge difference because the law only applies to children who are members or eligible for membership. And there are many other benefits -- employment with the preferences within the Bureau of Indian Affairs, federal benefits for scholarships and other forms of federal disbursements that will turn on citizenship.

A second area where it can matter a lot is in the authority of a government to carry out its powers, so for purposes of criminal jurisdiction not only by the tribe, but by the federal government it will matter whether someone is enrolled. Now for federal criminal jurisdiction purposes, there's actually a little bit more leeway even if you're not formally enrolled. If you're recognized by the community as belonging there, the federal government rather than the state may have authority if some wrongful act is committed, but that's a very fuzzy area and it's a whole lot more secure to get out from under the authority of the state if a person is a tribal citizen. And these days, now the recent reauthorization of the VAWA act may make it less relevant for some purposes, but still for quite a few purposes, if the tribe wants to exercise its authority, both criminal and civil, it's going to be a lot easier to defend that in outside courts if someone is a tribal member. So there are other ways in which the federal government does this indirectly, but I'm going to move onto the more internal matters because I think these are the ones that deserve the most attention. So what are some of the things to think about from within your own community?

Well, as we've said many times already in this brief amount of time this morning, constitutions need to have legitimacy within your community, which means they have to have continuity within the values and beliefs within your community. That's not to say that those are static, that they never change, but there must be some organic sense that this reflects our community. So what does your community understand to be the expectation for someone to belong to that community? There's a lot that's been written by people in my academic world about whether kinship and descendants and blood quantum are new constructs for tribal citizenship that don't really fit historical ways of understanding, of belonging for tribal communities. And they point to the fact that hundreds of years ago individuals who were not biologically related to members of a community might be incorporated through a variety of means -- through marriage, through captivity in warfare, through political alliances. For a lot of reasons people might be brought into a community even though they're not biologically related. So why should native nations today care about descendants?

Well, I think there is an argument to be made that kinship has always been a fundamental component of belonging in tribal communities and how outsiders were viewed 200 or 300 years ago may not be the same way that outsiders would be viewed today. There is not the same concern 200 or 300 years ago about being overwhelmed by a population of immigrant colonizers from across the ocean. That wasn't an issue 200 or 300 years ago and so maintaining some expectation of kinship may very well accord with foundational beliefs in a community. How that kinship is understood is going to vary from place to place, blood quantum may or may not capture that, but the idea that kinship matters I think is something to be considered from an internal perspective.

At the same time, another important consideration is going to be maintaining numbers, I suggest, and maximizing political impact. So I've worked with a number of native nations, and you heard from some even earlier today, who were concerned about reductions in their citizenship numbers over time if they maintain very high percentage descendants requirements.

One interesting example is the Otoe Missouria of Oklahoma, who just a few years ago reduced their percentage descendants requirement from one-fourth to one-eighth. And here's what their leaders had to say. They said that, ‘Before the change there were about 1,400 enrolled members and only 129 of them were below the age of 18.' Today, since they changed their requirements there are over 2,500 members, 479 of those are minors and what the chair said at that time, this was announced two years ago, is that, ‘The future of the tribe is more secure both physically and financially.' The chair noted that a majority of the departments and services offered through the tribes are funded by grants and the higher the number of tribal members served by the grant, it means that the grant funding is generally higher. So there are many political, financial and other reasons. The chair also said, ‘Our tribe has gotten younger. A majority of our new members are younger people. This ensures a strong future for the Otoe Missouria Tribe. With a larger membership we should be able to obtain additional funds from government agencies and maintain and pass on strong traditional values to the growing tribal membership.' So this was some of the thinking behind increasing the numbers by decreasing descendants' requirements.

At the same time, Native nations have been concerned that if they expand their citizenship numbers too greatly, they may jeopardize cultural cohesion and they may be jeopardizing those who have shown their loyalty over time by maintaining affiliation. How do you at the same time sustain your numbers over time and at the same time not disburse your citizenship so widely that you lose connection to your home community. You saw from the depiction of the Citizen Potawatomi Nation, with their 27,000, how widespread their population is. How do you ensure that you don't have a citizenship so large that the people are not vested in protecting their land and their home community? So that's another issue to consider. And protecting the tribal land base is going to be very important, because if you have lots and lots of citizens who do not reside or feel a connection to that land base, you may very well be in a position where the majority of your citizens are willing to see it despoiled because it will provide benefits to folks who are not present. And that is a danger that one must anticipate in thinking about the design of citizenship and related provisions.

Do you want to secure future generations? What I've heard so often in working with Native nations on their citizenship provisions is they want to make sure that their future generations are not left out, that they are able to pass on that tradition and culture and they are able to pass on that sense of belonging. And finally, I want to make sure that I mention, because I'm a lawyer, sorry, that you want citizenship provisions that are not going to be too complicated. You want ones that are not going to turn into huge arguments over time about what they mean. Okay.

So the last thing I'm going to talk about before I let you move onto the next presentation is what are some of the design options that you can be thinking about to try to balance some of these, especially these internal considerations, because sometimes they point in opposing directions and you have to be able to accommodate them. So one thing to be keeping in mind is that citizenship and voting provisions can be considered to some degree on separate tracks. You have to be very careful that you not have classes of citizens. We all know that there... until 1919 women were citizens of the United States, but they could not vote. And certainly those in the 18- to 21-year-old range who were being drafted in Vietnam were pretty unhappy that although they were citizens they could not vote on whether they were even going to be involved in a war. So that there is a powerful force that moves towards the convergence of citizenship and voting, but still there are ways to design voting provisions so that you can both expand numbers and at the same time protect your core community and land.

So one of the ways you could do it is you could say, ‘Fine, everybody who's a citizen can vote, but you must be living in the tribal community in order to have voting privileges.' In other words, anybody is entitled to come and live there so anybody who makes that choice can be a voting member. That way you can be ensured that those who actually make the decisions are the ones who are invested in that community. Or you could simply say, ‘No absentee voting,' meaning that you have to really care about this community in order to vote and make the journey. 'Come on voting day, but we will not let you sit in the comfort of your home in Anchorage and vote for what's going to happen in Citizen Potawatomi.' Or what you could do is what Citizen Potawatomi and Cherokee Nation have done, both of them places with large off reservation populations, and in the case of Cherokee Nation even contested whether there is a reservation, and what they've said is, ‘We are going to structure our voting by districts. There will be districts within our territory and then we will construct districts outside our territory that will not have an equal voice, but they will have a voice.' So the Cherokee Nation actually created a bunch of districts within their territory and then they said, ‘There is a separate voting district that will elect a representative for the off-reservation Cherokees.' And that way they are not excluded, but they are not given overwhelming influence.

Two other suggestions for design that can help you start to accommodate some of these considerations. One is the idea of the right of return and this idea is the idea that anyone who is a lineal descendant would have special privileges to become a citizen if they so chose. So they would have to make an active effort. They would not automatically as a lineal descendent be a citizen, but they would have to make the affirmative effort to affiliate and if they did they would be allowed to do so. It's not that they would have to be subject to someone else's decision about it, but they would still have to make the active choice. That way you can ensure that there is some real connection that that person has to the community.

And finally, you can think about doing what Fort Peck did back in the 1980s. They created a category that they called associate members and these were people who were given the...belonging to the community because they had members by their title, but it was specifically presented that they would not be voting members and they would not be entitled to the distribution of tribal assets. So these were folks who had a lesser percentage of descendance or blood quantum, but they still were descendants of the nation. They just didn't qualify for the percentage required under their constitution.

What I want to emphasize is that there are a lot of choices available, in theory. That doesn't mean that all of these choices are available just because they sound intriguing. You have the hard work, the hard work of political process and I've worked with communities that have tried to develop consensus on what should be the criteria for belonging. It's not easy. They did everything from holding coloring contests for the preschoolers in order to get the parents involved, to surveying the elders, to holding meeting after meeting after meeting. There was somebody on that screen who said, ‘This is not a three year maybe not even a six year process.' It takes time and commitment, but the possibilities are there. Thank you.

Anthony Hill: Constitutional Reform on the Gila River Indian Community

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Native Nations Institute
Year

Gila River Indian Community (GRIC) Chief Judge Anthony Hill, who served as Chair of the Gila River Constitutional Reform Team, discusses the reform process that GRIC followed, the current state of GRIC's reform effort, and what he sees as lessons learned from Gila River's experience.

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Citation

Hill, Anthony. "Constitutional Reform on the Gila River Indian Community." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Presentation.

"Last year I came here and I want to thank the Native Nations Institute for inviting me back. Apparently, I didn't embarrass them too much so they had me come back. When I was here last year, I talked a lot about the nuts and bolts of constitutional reform: what to do, what not to do, things like that. This year I'm sort of taking a step back and maybe looking at the whole picture. I'm still going to try and talk to you about the beginning and all the way to the end, but maybe we look at it from a wider standpoint because as Ms. [Angela] Wesley's presentation shows, you can successfully achieve constitutional reform, you can engage your citizens, you can make them excited about this endeavor. I don't want to be the 'Debbie Downer.' Have you ever seen that character on Saturday Night Live? ‘Wah, wah, wah.' I don't want to be that character, but sometimes things don't go right. The best plans fail. The people that are excited at the very beginning are often the first ones to drop out at the end and that's probably where I'm coming from and that's the perspective that I'm going to present to you because Gila River did engage in constitutional reform and it's something that we have been looking at for quite some time.

Our community has and I'm sure as a lot of you have, we have a 1960 IRA [Indian Reorganization Act] constitution. It has only been amended once in that time and that was when the voting age was lowered to 18. And basically, since the ‘80s there's been a movement to try and change the constitution to make it more flexible, to adapt to the times that we're living in because many people felt that, of course, having an IRA constitution imposed on you is against the idea of sovereignty, but in addition to that, our community was growing. Our community is engaged in gaming activities and with that comes economic development, comes the growth of the size of government, comes the dependence on the government. So we needed a more flexible form of government than the IRA constitution could provide. And there were attempts in the ‘80s, there were attempts in the ‘90s to revise our constitution. Those unfortunately did not go anywhere. And again, the community decided to pick up where they left off in the ‘90s.

And so about the middle of around 2005, the council, our tribal council, started talking about the idea of constitutional reform. And they decided to pursue it again and they entrusted constitutional reform to a panel of eight citizens from the community. Now you're probably wondering, where did we get the number of eight citizens? Our community is divided up into seven we call them districts, basically those are geographical areas that council people represent. So we have seven districts in our community. The eighth member was from the community members living off the reservation in Phoenix. So the council felt it was important to include them because they are members of the community and they are governed, again, under our constitution. So the community council decided we need to include them as well and they came up, the group they come up with is the Tribal Constitutional Reform Project. And our project was very well-staffed. Not only did we have the eight members of the task force, we also had a lawyer, an outside lawyer that was brought in. So we didn't have that conflict of in-house counsel, which represents the current government, also representing the task force, which was seeking to change the government, because unfortunately that does happen a lot and unfortunately it happened in the end and I'll get to that. But we had an outside lawyer, we had outside counsel. We actually had a project manager who was experienced in constitutional reform. They brought him in and put him under contract. And we had an administrative assistant. So we had a pretty good team set up.

And when the members of the task force were brought onboard, there was a seven-phase they call action plan that we were to follow to achieve our constitutional reform and the action plan was drawn up by the project manager. So that was in place before the task force members got there. And that is our action plan or that was our action plan. Some of the titles that were given to it, I certainly didn't choose these titles for the plan, but as you can see there's a lot of emphasis on reaching out to the public, just as Ms. Wesley's group did, that's what we tried to achieve as well. And the ultimate goal was to reach the Secretarial election. To revise our constitution I'm sure as you know we needed to have a Secretarial election. So that's the goal we were going on. And there's sort of a timeline for you. It took a lot longer than we expected it to and perhaps that's the first thing everyone needs to keep in mind. We had a strict timeline and with this strict timeline we should have been done I think in 2010 and we obviously didn't achieve that. So the best-laid plans do not work out and your plans...hopefully you'll have a plan when you go back and you decide you want to revise your constitution you will have a plan on how to do that. And yes, your plan will include a timeline and I'm not sure whether it's going to end up like our timeline where we are still what seven years out and we still have really no new constitution.

In January 2011, we did submit the final draft of our constitution. And I didn't put it on there because I actually couldn't fit it in, but what happened is not only did they accept the final draft, but at the same time they dissolved the reform project team. Now they didn't tell us they were going to do this, they just did it. ‘Thank you. We appreciate your help. The door's over there. See you later.' But if you recall, the phase, the seven phases would have included the reform project carrying through all the way until after the Secretarial election. So the action plan that the council passed itself, they decided to change it themselves, and they showed us the door and I think we were standing outside the council chambers saying, ‘Did that actually...? Did they say what I think they said? So we're not having a meeting next week?' ‘No, I think we're done. Go home. It's over with.' So we submitted the final draft in January of 2011 and it has sort of sat there for almost two years. What has happened to it is, when we submitted the final draft we submitted it with wholesale changes. What the council decided to do was to pick one change out of it, which is to take the Secretarial election out of the constitution and leave all the other changes on the back burner. So as far as we know, we will be having a Secretarial election this coming spring, but it will only be on one question, whether or not to remove the Secretarial election or keep it in there. The council tells me, and they reassure me, and I have friends on the council, and I believe what they say, that they will put the other revisions back before the people very, very soon. Are they telling the truth or not? Time will tell. So this is a to-be-continued story, which comes...I come to my first point.

Our constitution or our draft constitution, I guess, came out of a crisis and that's not the best way to approach this endeavor. Our community was going through a lot of things. There were some leadership tensions between the council. Our executive is called the governor. There were some tensions between the governor and the council. There was a lot of infighting. There was attempts to suspend the governor, to remove him from office. And what happened is they were planning the constitutional reform before this fighting started, but by the time they got around to approving the reform it sort of came out of this crisis, if you will, and unfortunately that tainted, I think, the whole project. So if you are looking at constitutional revision as a way of addressing a crisis or a breakdown in the government, I would probably ask you to step back because you don't want your project to be colored by this whole crisis. And during the whole time we were working on this project, the council would come in and say, ‘You know what, we want you to do this,' and then the governor would come in and say, ‘I want you to do this.' Well, who do we listen to? They entrusted the task force with revising the constitution yet they were...we were not at arm's length as we should have been. And I guess that would be my suggestion to those of you who are elected officials that if you create a task force, let them do their job. Now that doesn't mean that they're to run roughshod over everything; hold them accountable, by all means. If you're going to invest resources and you're going to invest the fate of the community with that group, you should hold them accountable. But do not use that group to fight...as a proxy to fight out your battles with one another because I think in the end that's what happened. Our task force was used to battle the other branches of the government because they didn't want to do it themselves. So remember that when you go...and I have a quote there from John F. Kennedy, ‘When written in Chinese, the word crisis is composed to two characters. One represents danger, the other one represents opportunity.' In our case, that crisis came with danger and we probably should have saw it because this brewing battle was the backdrop for our constitutional reform. Your crisis should never be the driving force behind your constitutional reform. Now a lot of people will say, ‘Well, what if the crisis is because we don't have an adequate constitution?' And a lot of the problems come because many Indian communities do not have adequate constitutions. Again, I would just go back and say, things change, leadership changes, councils change. Let things settle down, let the dust settle, then start with the clean slate on your constitutional reform.

The other problem we had because our constitutional reform was born out of crisis, the changes that were made to the constitution were changes that were designed to deal with the crisis. They weren't designed to deal with the public interest in the future. They were designed to deal with things now and as Ms. Wesley pointed out, your constitution should last beyond the people that wrote it, beyond the people that are governed by it. It should go into the future and I know when we started out with this project that's what we were looking at. We were looking generations down the road and one of the examples and whether you like it or not, you look at our own United States Constitution. It has lasted over 200 years and it has served our country pretty well, with the exception of the amendments that have been added. And that's something that I think all of us in Indian Country would try to strive for is a constitution that looks into the future. But our constitution when we revised it, it was shortsighted because it was designed to deal with the crisis. And so we shortchanged our future because we weren't looking ahead far enough.

In our constitution, the blood quantum is in there and I'm sure many of you have blood quantum requirements for your membership. Despite all...there was a great emphasis on changing the blood quantum or addressing the blood quantum, but because we were so busy looking at everything else, at the end of this nearly five-year project we didn't even touch blood quantum. And that was a great failure on our part because the membership of a community is the most important thing. It is literally the lifeblood of a community and if you can't decide on who should be in your community, you're not going to have a community in the future. So that was a failure on our part because we didn't address that issue because we were so busy addressing the crisis that we...the time we were living in.

My second point to you was not only are we revising our constitution, but we're also starting a conversation with the people, and as Ms. Wesley pointed out very correctly, it's a time to engage our community because all of us know that we don't communicate enough with our community members. For those of you who are on council, even myself as a judge, I live in the community of the people that I'm supposed to be judging, but I don't communicate with them as often as I should and there's a lot of reasons for that. We're all very busy people, there are pressing issues that we have to deal with. So the revision allows for a conversation with the people. It allows us to look at, to start talking about how is our government now, and what kind of government do we see in the future. We had to do what we call -- and I think Ms. Wesley, you also pointed it out as well -- we had to do a 'Constitution 101.' That's just basically we as a task force, we had to go out to the community and explain to them, first of all, that we have a constitution. A lot of people didn't know we even had a tribal constitution. It was the first time they had ever seen that document and we went through it and we explained to them the genesis of the 1960 IRA constitution, we explained how the constitution worked, and we explained or we asked them, ‘What would you like to see changed about this constitution?' And just as Ms. Wesley's group did, we had exercises; we had surveys that we filled out. We even did exercises on blood quantum. We asked people to use their own family members and we put hypotheticals before them. What happens if we change the blood quantum to eight-percent Indian blood or something like that and we actually had them map out how it would affect their family. You'd be amazed at how much people are drawn into the conversation when it affects their own family because if we revised the constitution and set the blood quantum at a certain rate, some of their family members might not even be eligible. So it has a real-life impact on people's lives and that's one of the things I hope that when you go and revise your constitution you'll let them know that, that this document, as stale and as old as it is, it has a direct impact on the lives of the people, especially if your membership requirements are in that constitution. You have to have an open and honest conversation.

I have been the subject of many conversations in my community and some of them are not good, that's just life in politics in Indian Country. We actually have -- and I'm not going to tell you the website or anything -- we actually have a Facebook page where people talk garbage about people in our community and that's a little more open and honest than I would like to get -- I'm waiting for my name to show up on that web page -- but an open and honest conversation about our community about the state of the government. And for those of you who are elected officials, when we talk about open and honest conversation, that includes talking about you as well and some of you maybe don't like to be talked about. If you're in politics, I don't know why you would not like to be talked about, but some of that conversation is going to be about you. So please don't be too uncomfortable when the people have that conversation because they're going to look at it through your eyes and they're going to look at it through the people that are in those positions now. So be prepared for a little criticism.

When you're revising a constitution, you will have many audiences. You will have the body that you report back to -- the council -- you will have to report to the people, and you will have to report to some of the key players that are involved. In our case, those key players include the Bureau of Indian Affairs, because any revision has to go through the Bureau. So we had to keep them in the loop. So you have to make sure that, at the beginning of your revision, you make sure that you touch base with everyone that's involved because it's more difficult to pull them in later than when you do it at the beginning. Communicate with the decision-makers, and when I say decision-makers, most likely that will be your council or those in elected positions. As a task force, we routinely reported to the council on our activities. Part of the action plan that I referred to earlier, we had to get permission from the council to go from phase to phase because they wanted to make sure we had accomplished all our goals in that one phase before we could move to the next. So we kept the decision-makers informed. Communicate with the people -- that should be a given, that should be your primary goal. You have to do it from the beginning and I'm pleased that our group did that. From the moment the council authorized the revision of the constitution, we deployed out to our various constituencies and reported that this project is coming up, please keep a lookout for it, please become involved and please give your opinion. And be creative in your methods; you see the usual ways of communicating, through the Internet, through mailings. What we actually did is our community's enrollment office allowed us to have the mailing address of every adult member in the community and we mailed them out information because a lot of people don't have the internet or a lot of people are not tech savvy. They get a lot of information through the mail. So we communicated it through the mail. We have our community newspaper; we put articles in there, we put special sections of the newspaper in there. Then we communicated through our meetings. We have what we call district meetings, community meetings where we reported to those people who showed up.

If you have populations, large populations that are off the community, off the reservation, include them. Half of the people who are enrolled in Gila River, they live off the reservation. So there is a big component of people off the reservation and while we're near Phoenix, we had some of our best input from community members who lived in Los Angeles and San Francisco. And we actually went to go see them and we had meetings with them. And you know we had more people attend the meeting in Los Angeles than we did in some of our own district meetings on the reservation. So reach out to them and identify, where are they and reach out to them. And again, communicate with the key players. Again, as I mentioned, the key players in our case were the Bureau of Indian Affairs officials, our superintendent. We constantly kept her up to date on what we were doing because eventually that whole document will be going to the superintendent and she will look over it and she will have to forward it down the chain of command in BIA. So she was always aware of what we were doing so nothing was a surprise.

Productive public meetings: sometimes meetings drag on like I am now, on and on and on and on and you're safe because I have one minute. You always want to educate your community members 'cause as I said, when you do Constitution 101, your community members may not even know you have a constitution and they may not know what is contained within the constitution. But a bedrock principle that you need to communicate to your people is, what is a constitution? What is it, why do we need it? And that's the foundation on which you're going to build your education. You're going to educate your people. We had exercises as I mentioned earlier, the exercise about blood quantum, survey exercises that we had, feedback. Just as Ms. Wesley's group got feedback from her people, we got feedback from our people. Some of it was negative, some of it was positive, but all of it was helpful. And then catalog your results. It's interesting because when we submitted our final draft to the community council, we showed them the results of our survey and I have hundreds and hundreds of pages of survey results so they could see what the people were saying. We cataloged each and every comment, written comment that we received. So you could comment by the email, you could comment on paper and the council got a copy of each and every single comment that was made during the course of this whole five-year project. Those are the results that you want to accompany your draft constitution. Time, just as I know now, time is not a luxury. The timeline that you work out, it may not work like ours did, but you kind of have to know when to put a cap on things. Know when to stop. I think what happened is we had planned, we had followed the timeline, but we kept going back out and getting more survey results, over again and again and again. We had to put a stop to it, so don't get caught in having meetings after meetings after meetings.

The final point is sometimes we're short of the goal line, sometimes we don't make the touchdown and that's the one regret that I have about the exercise that we went through, the revision that we went through. The momentum can be difficult to maintain. People are excited about this project, they think that we're going to go back, we're going to change our constitution, rah, rah, rah and it's a long process and people sort of drop away as time drags on. So the momentum is difficult to maintain. Always keep your communication lines open with the people, that's so important. And then at the end of the day, all the hard work that you do revising your constitution, you're going to hand it over in most cases to your elected officials, to your tribal councils and we did that. This is the final report that we gave to the council. I have a copy. I keep a copy of it and I keep a copy in my office all the time. So elected officials, tribal council members, when you get this from your task force, your constitutional revision team, don't just put it aside, because a lot of people worked very hard to put this material together. Your own people gave of their time and their effort, their voice so that it could be put in front of you. And don't do what our council did and just set aside for two years and hope that it would maybe go away because it's in your hands, you're supposed to represent the people not your own interests, not in keeping power for yourself. You're supposed to represent the people. So if you do task an outside group with constitutional revision, make sure that you do reach that goal line, cross the goal line, make the touchdown; change the constitution. And I hope maybe if they have me back here next year I'll have positive news to report, but that's where we are now. And I don't mean to paint our elected officials with the same broad brush. There are a lot of supportive people in our community; there are a lot of people who care about constitutional reform, who still wish that it would go ahead. So it's a story whose ending we do not know, but I know that my time is out and I thank you for your attention."

Jill Doerfler: "No Easy Answer": Citizenship Requirements

Producer
Native Nations Institute
Year

Anishinaabe scholar Jill Doerfler discusses the process that the White Earth Nation followed to arrive at their new constitution, and details the evolving debate at White Earth about which citizenship criteria it would incorporate into this new governing document.

People
Native Nations
Resource Type
Citation

Doerfler, Jill. "'No Easy Answer': Citizenship Requirements." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Presentation.

"It's wonderful to be here. As I mentioned, had the privilege of being here last year, thrilled to be back this year. For the sake of time we're just going to sort of roll right into it. My presentation today is "'No Easy Answer': Citizenship Requirements," because it's a difficult topic for us. Basically I'm going to talk about a sort of case study of the White Earth Nation and focus on citizenship and how, over a number of years, we talked about citizenship and came to a decision on what we wanted. I identified four basic keys that helped us that you may find useful as well. We had an inclusive and open process, we talked a lot about the history of tribal citizenship, both how citizenship or identity was regulated prior to the Indian Reorganization Act, post-Indian Reorganization Act, and then when we came to a blood quantum in 1963. We worked really hard to integrate and practice our Anishinaabe culture and values within the governance structure and within citizenship. And then finally, perhaps most importantly, patience and perseverance. As I said, it's not going to be an easy task and as Carole [Goldberg] said, there are many, many different options and things to be weighed and considered and yet it's worth it in the end. So I'll elaborate on all of these.

I'll say briefly that White Earth is currently part of the Minnesota Chippewa Tribe (MCT), which is an umbrella structure that has six nations. You'll see White Earth located furthest west there. White Earth has been very interested in creating our own constitution. We've had several different efforts for constitutional reform that have gone on for about 30 years. So it has definitely been a long process. What I'm going to focus on is our efforts from 2007 forward. In her 2007 State of the Nation address, Chairwoman Dr. Erma Vizenor noted that among the issues she wanted to address in the upcoming year was constitutional reform. Vizenor noted that a clear separation of powers of tribal government should be considered as well as requirements for citizenship stating, 'As tribal membership continues to decline under the present one-fourth blood quantum requirement, we must decide eligibility for enrollment.' She went on to note that 'White Earth members must decide these issues by referendum vote.' So she put it up right away, establishing from the outset that it has to be up to the citizens to make this decision. Tribal government isn't going to be the one to make it.

For me personally, I was elated. I had been studying tribal citizenship for several years and was in 2007 preparing to defend my dissertation, which examined citizenship regulations and cultural values among the White Earth Anishinaabe. So after the State of the Nation address, I contacted Vizenor's office and asked how I could be of assistance. We agreed that I would write a series of newspaper articles for our tribal newspaper called the Anishinaabe Today based upon my dissertation research. In the articles I delineated the ways in which Anishinaabe got White Earth conceptualized identity during the early 1900s, then I shared the history of blood quantum and then discussed the changes in tribal citizenship that had occurred within the Minnesota Chippewa Tribe. What we hoped is that the articles would both provide information, as well as encourage White Earth citizens to get involved in what was the newest effort for constitutional reform. Some people were a bit wary of having been involved for several years at this point, but we wanted to sort of revitalize them.

So basically citizens were invited to serve as constitutional delegates. There was an application process. Everyone that applied was accepted. We had the first of what would be four constitutional conventions beginning on October 19th and 20th, 2007. The convention was an open public process. Anyone who was interested could come. It wasn't delegates only, but anyone who wanted to come could. At the first convention, Chairwoman Vizenor discussed the need for reform and gave a brief history of the different attempts for change. The delegates were provided draft copies of different constitutions both a draft that had been generated in the late 1990s at White Earth, another draft, and then the current Minnesota Chippewa Tribe Constitution that we were under -- that we still are under -- at that time. There was both an air of excitement and nervousness that day when the process began. We got right into it with the topic of citizenship on the agenda. I was instructed to give a presentation to start things rolling -- I did. I gave a brief presentation about the history of tribal citizenship, explained how blood quantum came to be, the requirement for citizenship in 1963. Part of my goal was to integrate Anishinaabe values and cultural practices so I asked delegates to keep in mind the concept of mino-binaadiziwin. Mino-binaadiziwin translates as 'live well, have good health; lead a good life.' It's a concept that's not about just physical survival, but about a world view in which individuals and groups work actively together to create what we think of as a rewarding, ethical and nourishing life. So it's kind of a whole worldview outlook. In conclusion I asked that we work to restore mino-binaadiziwin in our families, our communities, and our nation at all the different levels and I noted that by working together we could create a strong nation that would both echo our traditions and create a positive future.

After my presentation, delegates were divided into small groups to discuss citizenship. The use of small groups was really effective. It allowed everyone time to share their ideas and concerns. The small groups then, after a period, reported back to the whole group. Several of the groups agreed that blood quantum was not an effective or appropriate way to regulate tribal citizenship, but at that time they found it difficult to decide what the best requirement would be. Many people noted that they had at least some children or grandchildren who could not enroll because of the blood quantum requirement. One group stated that they were confident that a strong effort to maintain our culture and language would ensure that using lineal descent would not water us down, which is something we may be familiar with, the idea that it might be a problem if we used lineal descent. There were some delegates who voiced their desire to continue to use blood quantum. So at that time we agreed that the issue of tribal citizenship would require further discussion. Delegates were encouraged to discuss the issue with their families and their communities and to go home and continue to think about these things. We weren't going to rush to come to any decision that day or anything. The convention went on, we talked about other wide range of issues, separation of powers especially. Ultimately the convention ended with optimism and a real push for positive change for the future. So we'll continue rolling.

A second convention was held January 4th and 5th, 2008. Constitutional delegates had expressed a desire for the White Earth constitution to reflect Anishinaabe values; not surprisingly, that's the main reason a lot of people were there. So we began that first evening with a presentation by White Earth citizen Natalie MacArthur and she talked about the ways in which values could be applied to and implemented within constitutions. She stressed that a constitution must reflect a society's values. So delegates were asked to write down four of their own personal core values and then a correlating belief statement: how do you put that into practice? They discussed these personal values in small groups and then reported back the common values they had identified together. Many of the values, not surprisingly, related to respect, love, truth, honesty, family and compassion. One delegate noted that 'everything we do, all the hard work, love, respect, etc., should be pointed towards future generations. Core values should be used to take care of future generations.' The core values and sentiments discussed closely parallel the Anishinaabe seven grandfather teachings, which emphasize the importance of courage, truth, respect, love, honesty, wisdom and humility as the guiding principles of Anishinaabe life, to live the good life.

Then I was up again to give a presentation. I talked about the history of blood quantum, the concept -- where it came from, the European origins -- and then how it came to be used for tribal citizenship. I explained that while blood quantum was at one time considered science in the 19th century maybe into the 20th century a little bit, today we know that it doesn't exist as a real thing. It's used kind of metaphorically, but it's not real. Blood quantum was not a requirement for tribal citizenship as I said until 1963. And I wanted delegates to have clear and concise information about how the Minnesota Chippewa Tribe came to use this one-fourth Minnesota Chippewa Tribe blood as the sole requirement for tribal citizenship. I summarized resolutions passed by the MCT in the 1930s and '40s that required lineal descent for tribal citizenship and explained that these resolutions were rejected by the Secretary of the Interior, not surprisingly. The Secretary of the Interior was not interested in those and therefore were not made part of the constitution and the Secretary sent many letters back saying blood quantum would be great, residency would be great, you guys need to keep thinking about this. I also used a variety of examples to show that elected leaders of the MCT fought really hard against blood quantum because they knew that someday their descendants would not qualify to become tribal citizens. The records on this are just absolutely spectacular -- people getting up giving long speeches about the importance of family. So I was able to quote extensively from those. I hoped that this information would empower delegates to redefine citizenship in a way that both enacted Anishinaabe values and emphasized relationships, which was something that many people had talked about wanting. I ended the presentation by acknowledging that tribal citizenship was a difficult and controversial issue, but I also emphasized that it was an opportunity to put our values into action. I suggested the delegates consider how the core values that we had discussed earlier that evening might translate into citizenship requirements. How could we put those values into action in the constitution itself? So we had that discussion.

And then the next morning we had... turning it again to the topic of tribal citizenship. We weren't coming to any conclusions just yet. Delegates were asked to examine a list of options and you see them here on the slide. I'm not going to read all of them, but basically the 1990s effort for reform constitution had created a list of citizenship options because they couldn't decide at that time exactly either. And so delegates were asked to look at that list and you see them here. Lineal descent is one option and then the other options are each based on a variety of blood calculations, some of which get kind of complicated. At that time the Chairwoman Vizenor instructed delegates to narrow down the list to one or two options. However, before that happened, one group said, 'Actually we have another option to add to this list. We're not going to narrow it down just yet.' So their idea was that, 'All those who are currently enrolled be made full bloods.' This eventually became known to us as the 'Four-Fourths Band-Aid,' which I think does sum it up. So delegates discussed this at length and then reported back to the group. Basically they reported back saying that they really felt strongly that it was a difficult issue. Some people said, 'Yes, we favor the Four-Fourths Band-Aid because basically what it would mean is that everyone who is currently enrolled is going to be able to have his or her grandchildren enrolled.' So it'll go a certain step so far. So some delegates were ready for change to some extent, but they were uncomfortable making maybe a permanent decision regarding change. They were unwilling or maybe unable to completely let go of blood quantum. They kind of wanted to manipulate and still find a way to maybe use that. As the discussion continued, the issue of family surfaced on many time and again with the delegates' comments. One delegate noted that he favored the use of lineal descent because it includes all family members and was a way of taking care of our families, so enacting some of our values. It was also noted that lineal descendants would go on forever and that if blood quantum were to continue, White Earth -- our sovereignty could potentially be in jeopardy; the Nation might not always exist. However, some delegates were apprehensive that more citizens would put an increased strain on already limited resources. Another delegate stated pretty succinctly, 'No one is happy with blood quantum,' but that person just was unsure about how White Earth should regulate citizenship, how we could move forward. So ultimately the wide diversity of comments and opinions reflect both a desire for change as well as trepidation about what change might really mean. Even though the delegates could easily identify core values, some were having a difficult time conceptualizing how to practice those values in citizenship requirements. Again, delegates were unable to come to a clear conclusion about what the best requirement would be and so, once again, we agreed that the topic would be revisited at a later date. Again, go home, keep thinking about it; keep talking about it.

We came back several months later for what would be the third convention, October 24th and 25th, 2008, focusing here again on citizenship. During my presentation, I noted that delegates had discussed values at the last convention and suggested that a good way to think about core values is to think about the things that we were taught as children or the things that we teach our children or emphasize to our children or grandchildren today. And I turned to stories for this. Stories are one of the primary ways that we teach our children their place in the family, community, nation, and even within the world. Stories also delineate proper and improper behavior. Anishinaabe scholar John Borrows argues that stories contain core Anishinaabe legal principles and traditions that continue to be important as Anishinaabe nations create legal codes and judicial systems today. So I wanted to tie constitutional reform to cultural revitalization in a very concrete way and I thought story, for us as Anishinaabe people, would be a good way to do that. I talked about our story of [Anishinaabe language]. I thought this would be a good story because it offers some interesting possibilities for interpretation with regard to core values and the constitution. So I summarized the story for the delegates and then I gave an allegorical interpretation that related to citizenship based on that story. I invited delegates to consider how to create citizenship requirements based on the positive values expressed the previous convention and in the story about [Anishinaabe language]. I ended my presentation by advocating the themes and story, which were sovereignty, resiliency, persistence, respect and [Anishinaabe language]. I thought these would be useful to consider as we moved forward with constitutional reform.

When we reconvened the next morning, we had a wonderful presentation by Dr. David Wilkins. We saw a little clip of him earlier today. He gave a great presentation on tribal governments and kinship and how kinship can be used to create responsibilities within nations, how it functioned historically and could be used today as well. Then I gave a presentation entitled "Evaluating the Options for Tribal Citizenship," so we moved back to our list and we said, 'We've got to kind of work through these.' What I did was tell the delegates what we need to do is take a closer look at each of these requirements on our list and we're going to ask this set of questions and go through item by item and think about how can we evaluate this and how can we come to a decision. So you can see the questions here that we went through. So we were going through this process. Most delegates were listening intently, weighing the options and yet you could start to feel some tensions rising in the room. Some people were unhappy, some people began talking really loudly to each other and being really disruptive. At that point one delegate was frustrated and she stood up and she said, 'Can I make a motion?' And Chairman Vizenor said, 'Yes, you can.' And so the motion was made that no options for tribal citizenship that require blood quantum be discussed any further. The motion passed. There was only one option on our list that doesn't include any type of blood quantum, which was the lineal descendancy option. Consequently the issue of citizenship was decided. It was kind of surprisingly quick in a certain way even though we had been talking about it for a long time. It was the culmination of numerous discussions on citizenship that had occurred at the previous conventions as well as conversations that delegates had had with their family outside of the conventions. At that time, I simply ended my presentation early; we were done discussing the issue.

After that convention, Chairwoman Vizenor designated a constitutional proposal team to draft a constitution based on the three conventions that we had had. She asked constitutional delegate Gerald Vizenor, who was a very well known scholar and author from White Earth, to be the principle writer for the document. I was also a member of the team and as agreed upon by the delegates, during the process, lineal descent is the sole requirement for citizenship within the constitution. So we know then that the constitution of the White Earth Nation was created through a grassroots process of open discussion and compromise. Delegate Gerald Vizenor did an incredible job of writing the document. He did a nice job of astutely balancing a wide range of viewpoints and his attention to detail was crucial for the mechanics of the constitution. The constitution is a unique reflection of the White Earth Nation. Most importantly it reflects and enacts Anishinaabe values and incorporates enduring cultural traditions while envisioning a certain future. The constitutional proposal team was satisfied with the document. We presented it to constitutional delegates in April 2009. The delegates did make some changes to the document at that time, not to citizenship. They voted in favor of ratification and so the document was complete at that time. Chairwoman Vizenor was happy with the process and reminded delegates that we would...that the delegates were done with their work, but that the document would still go out for referendum vote.

Ultimately, the ratified constitution of the White Earth Nation echoes Anishinaabe traditions and envisions a perpetual future of promise. Today, what we're doing, we're in the process of preparing for a citizen engagement and education effort, which will culminate in a referendum vote on the constitution, which will hopefully be in September or October at the very latest. So we're working on that. Ultimately, in conclusion, as I said, I think four keys that basically worked for us is: really digging into our history -- thinking about how Anishinaabe people thought about identity and citizenship in historical times; looking at our cultural values: how they could be implemented; having these open respectful discussions; and focusing on the future -- what would be best for future generations as delegates often emphasized? Miigwetch."

Jill Doerfler: Constitutional Reform at the White Earth Nation

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, Anishinaabe scholar Jill Doerfler discusses the White Earth Nation's current constitutional reform effort, and specifically the extensive debate that White Earth constitutional delegates engaged in regarding changing the criteria for White Earth citizenship. She also stresses the importance of Native nations understanding their traditional governance systems and also documenting the origin stories of their current constitutions prior to engaging in reform so that they can deliberate constitutional change with the appropriate context in mind.

Native Nations
Resource Type
Citation

Doerfler, Jill. "Constitutional Reform at the White Earth Nation." "Leading Native Nations" interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. April 2013. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host, Ian Record. On today's program we are honored to have with us Jill Doerfler. Jill grew up at White Earth and is a descendant of the White Earth Nation. She's been involved with White Earth's efforts for constitutional reform and served as a member of the constitutional proposal team. She also serves as Assistant Professor of American Indian Studies at the University of Minnesota in Duluth. Jill, welcome, and good to have you with us today."

Jill Doerfler:

"Thank you so much. It's a pleasure to be here."

Ian Record:

"So I've shared a few highlights of your personal biography, but why don't you just start by telling us a little bit more about yourself. What did I leave out?"

Jill Doerfler:

"Sure. Well, as you mentioned I grew up at White Earth and then I did my undergraduate work at the Morris Campus of the University of Minnesota and then on for a Ph.D. in American Studies at the University of Minnesota-Twin Cities campus. And then had two years outside of Minnesota, one at Michigan State and one at the University of Illinois. Then I came back to Duluth for American Indian Studies, which has been really a great place for me to work."

Ian Record:

"And you're also a published author."

Jill Doerfler:

"I am. Thank you. I have had a couple of books come out recently, one co-authored with Gerald Vizenor called The White Earth Nation: Ratification of a Native Democratic Constitution, which we'll be talking more extensively about as we move on today, but Gerald was the lead writer during the constitutional proposal process and so we collaborated on a book. David Wilkins wrote an introduction for us. Gerald wrote a chapter and the constitution itself is in there and then I write newspaper articles for our tribe and so some of my newspaper articles examining the constitution and explaining different chapters are in the book. So that was exciting. And then just recently in February I had another book come out that's co-edited called Centering Anishinaabeg Studies: Understanding the World Through Stories. And so in that book, I collaborated with Heidi Stark and Niigaan Sinclair and we have 21 chapters. It's a much lengthier book than the first and it's a wide range of scholars working in Anishinaabeg studies and using story as a kind of framework to look at law, to look at environmental studies, language, education, so a wide range of disciplines and kind of centering around story as a framework. And my chapter, in that I examine Ignatia Broker's Night Flying Woman which is a White Earth author's text about basically it's very instructive about how to act as a Ojibwe or an Anishinaabe person, and I examine how that text might apply to constitutional reform."

Ian Record:

"That's great. I'll have to check it out. So we are here today to talk about constitutional reform, and I'm curious to learn about how you personally came to be involved in the recent constitutional reform effort at White Earth."

Jill Doerfler:

"Yeah. So I was just a Ph.D. student working on my dissertation, which was on Anishinaabeg identity and citizenship focused on White Earth starting around the turn of the 20th century and moving forward. And I was just wrapping up the dissertation in 2007 when Erna Vizenor, our chairwoman, gave her State of the Nation address stating that we were ready to move forward with a new effort for constitutional reform. There had been other efforts at White Earth previously, but she announced that and so I was very excited to think about how my research could come into play in a very sort of real concrete way. So I called up the office and asked how I could get involved and we started out using newspaper articles as the first way, using some of my dissertation research and rewriting it into newspaper articles to share with people the history of tribal citizenship and Anishinaabeg identity. And then as the reform process moved forward, I continued to give presentations on my research to the constitutional delegates and so I became involved in that way."

Ian Record:

"So in 2009, those delegates ratified a new constitution for the nation. What prompted...you mentioned that White Earth had looked at constitutional reform in the past and had never sort of gone through the whole process and this time they did. What prompted them to go down the reform road?"

Jill Doerfler:

"Well, I think there's a wide range of factors. Currently, White Earth is under the Minnesota Chippewa Tribe constitution, which hasn't been functioning very well for us and there are no separation of powers, for example, in that constitution and the provision for citizenship hasn't been working well for us and there are several things, the Secretary of the Interior I think is mentioned maybe 13 times, and so that constitution just basically hadn't been functioning. And so there had been a few other efforts for reform starting actually in the "˜70s and then a strong effort in the late "˜90s and then Chairwoman Vizenor had ran in part on the fact that she would engage in constitutional reform. It's something that the people at White Earth have wanted for some time. They feel that a new constitution could provide some checks and balances. We have had some issues with corruption and fraud at White Earth in the past that were really problematic and if we don't have a new constitution in place, we don't have a way to prevent that from happening again."

Ian Record:

"So can you briefly describe the process that your nation devised to develop a new constitution, because I can tell you from my own experience that there's a lot of nations talking about the need for constitutional change, but of that number, there's a minority among them that actually make it through to the ratification of a new constitution. So in that respect, process is absolutely critical, so can you share a little bit about the process that your nation took?"

Jill Doerfler:

"Sure. It was definitely a grassroots kind of process and we weren't as organized to have a full plan laid out with timelines and deadlines when we started. Mostly, Chairwoman Vizenor just wanted to start by holding a constitutional convention and see how things went. So in preparation for that, I was writing newspaper articles and then we had a process for constitutional delegates. It was advertised mostly in the tribal newspaper and then people could apply to be constitutional delegates and then Chairwoman Vizenor also sent word out to our community councils and asked those community councils to each send two delegates. And everybody who applied to be a delegate was accepted so it was really inclusive that way. At the first convention, we discussed a wide range of issues and Chairwoman Vizenor ended it by asking the delegates if they wanted to carry this process forward and they did and so we did. So it was really...even though she was in some ways leading the process, she was really letting the delegates make the decisions as far as what they wanted."

Ian Record:

"So your process went through to its fruition, but I would imagine along the way there were several issues or obstacles that emerged. Can you talk about some of those challenges and how you worked to overcome them?"

Jill Doerfler:

"Sure. I think one of the biggest challenges was keeping everyone engaged and keeping the attention of the people and of the delegates, 'cause it was a couple of years in the process. So we started with that first convention in 2007 and then wrapped up in April of '09, so it was that lengthy process. We didn't have a large amount of funding or anything like that. We didn't have a person in charge of doing all the organizing. There were myself and Joe LeGarde and a couple of other people helping get things done, but we didn't have a dedicated person, which I think would have been advantageous to have somebody really coordinating the effort who was in charge. And so we were kind of splitting the duties and kind of each contributing what we could. So that was a little bit of a challenge, but I think the delegates who really believed in the process stuck through with us because they cared so much about the issue they were willing to take the few bumps in the road and to keep moving forward knowing that the results would be worth it."

Ian Record:

"So you sort of touched on this issue of citizen education and engagement, and you mentioned you did a number of newspaper articles which I've had a chance to read, and I think unfortunately we don't see that level of education in many other tribes that are engaging reform so I was wondering if you could talk a little bit more about the efforts that you and the delegates undertook to really I think first and foremost get the citizens to understand why this should matter to them and then get them sort of moving in and engaged in the actual deliberations around what do we need to change in our current constitution or do we need to in fact develop an entirely new one."

Jill Doerfler:

"Yeah, well, I think the delegates are the ones who really did a lot of the work going out. We would talk about issues at the conventions and we would always say, "˜Okay, go back to your families, go back to your community, whether you're on community council or whether it's informally at other gatherings, talk about these issues,' and then I would write the newspaper articles also to kind of keep things at the forefront and hopefully keep people thinking about it and talking about it whether it's over a coffee break at lunch or whether it's at a powwow or like I said, another formal meeting. So we really asked the delegates to kind of go out and keep those conversations going and then to come back and share with us what they had learned and what people were telling them."

Ian Record:

"So it wasn't just about what you were hearing in the actual meetings but it was what you were hearing second hand from people who were coming back with essentially field reporting on what they're hearing sort of on a one-on-one personal basis."

Jill Doerfler:

"Definitely, definitely, and I definitely also received quite a few emails. As technology improves and with my newspaper writing, definitely a lot of people emailed me to tell me their thoughts and ideas and so we took all of that into consideration."

Ian Record:

"How important is that to make sure that the education and engagement of citizens around everything from what a constitution is to what we're thinking about in a new constitution, how important is that to be ongoing versus intermittent? We've seen other tribes stumble where really the only time they're really educating and engaging is when they have a physical meeting and whoever shows up, you show up and you get the information you need and you maybe give the feedback you want to give, but everyone else is sort of left out in the cold."

Jill Doerfler:

"Yeah, I think it really has helped the process that we've tried to stay as engaged as possible throughout, because it gives people more of a commitment and they feel like they're more part of the process, they are more part of the process which is what we want. We don't want a document that just comes out of a few opinions. We need to have everyone's input, because a document like a constitution is a big compromise ultimately. We took in lots of ideas and I'm sure no one person got exactly everything they wanted in that document and so that's another part of the process is sharing the deliberations, sharing the different ideas, and then the outcome so that people can see that there's such a range of ideas that we compromised on certain aspects to try to do our best with what would be the best choices."

Ian Record:

"So you mentioned at the outset that Chairwoman Vizenor was sort of the spearhead for this effort. She made it part of her State of the Nation address and took a lead role sort of at the outset, but then from what I'm hearing, she sort of took a step back after that and played more of a supportive role. And we've seen that as critical in other places as well, where it's good that the leaders are supportive of the effort but not dominating the effort. Is that sort of how it unfolded there and how important was that in the overall success?"

Jill Doerfler:

"Yeah, absolutely. I think it helped take...politics is never going to be out of anything, it's definitely not going to be out of a constitutional process, but I think it helped remove that Erma was not a delegate, she did not vote on the document, she helped facilitate the meetings, she helped with the agenda, but she was not making any of the choices. When delegates had to vote for something, she helped make the motions and helped the process, but she didn't have a vote in the issue, and so it helped give voice to the people and helped the people realize that it's up to them, they're the ones in control and they have the power to make the choices and it's not going to be a process where tribal government just hands us a document and says, "˜This is what tribal leadership wants.' Instead, it's more coming from what the people want."

Ian Record:

"So you did a presentation earlier this week at the Native Nations Institute's constitutions seminar on this topic and one of the things you cited as a key to success in terms of getting the citizens engaged and keeping them engaged was the use of small-group discussions, sort of breakout groups. Can you talk a little bit about what led the nation to use that as an approach and just how critical it was?"

Jill Doerfler:

"Yeah. Boy, I'm not exactly sure how we came to the decision to do that now that I think of it, but in preparation for the first convention we talked about...I was talking with Chairwoman Vizenor and Joe LeGarde and others about how the convention might run and topics and I think it probably was maybe Joe LeGarde that said we should do the small-group breakout. We started out with 40 delegates, which is a large group to try to have a conversation with and then all of the conventions were open and public, so at all conventions there were also other people who attended who were not delegates, and so what we did then is we would have a presentation on a topic or introduce a topic and then give the delegates time to consider certain questions within their small groups. And I think that gave each individual, whether they were a delegate or not a delegate, time to discuss and time to discuss with delegates what was best and it helped people get a more personal viewpoint and also not to feel intimidated to talk in front of a group of 40 delegates plus other attendees. That can be intimidating for some people and as far as time constraints go it was also useful that way. People could say more and then report back as a group and also kind of start the compromise process within the groups hopefully hearing a diversity of ideas in the group, presenting back maybe one or two ideas, and then hearing from others. And so I think overall it helped people feel like they were heard."

Ian Record:

"That's great. So you mentioned that this process lasted over two years. You had four constitutional conventions sort of spaced out during that time and obviously from what you're saying a lot of work in between, ongoing work. Was there...at any point in the process were you at all concerned that or did you doubt that a new constitution would actually take shape and be ratified by the constitutional delegates?"

Jill Doerfler:

"Well, let's see. I don't think...there was going to be no guarantee at the end what the outcome was because we started out with a very loose process with delegates asking them if they even wanted to continue with the process. And there was probably not the clearest of roles from the outset, and it wasn't until Chairwoman Vizenor selected the constitutional proposal team to start the writing of the document...and I think we were very fortunate to have Gerald Vizenor be a constitutional delegate, and as some of the viewers probably know, Gerald Vizenor is a really accomplished scholar from White Earth -- having written I think at this point well over 40 books, everything from poetry to novels to short stories to theory to history -- and so that was lucky for us. We didn't engage a lot of legal consultation, we didn't have somebody sitting by the wayside doing that, and so we had our processes and I had detailed notes and we kind of used that to start the writing. So I think until we started writing the document, it was a little unclear how long the process was going to be and who was going to be in charge of the writing. And I think it actually helped that we didn't have that team designated from the outset, that we were kind of in a looser process because then it wasn't...nobody identified us early on and said, "˜I want to make sure I say this to Gerald or this to Jill because they're going to be part of writing it.' Instead it was...kept it more open and kept the power also more dispersed."

Ian Record:

"So you briefly referenced the role of lawyers in reform process, and I think you may be an exception to the rule at White Earth in that you're not a lawyer and Gerald's not a lawyer and you wrote the constitution. We've seen other instances where the lawyers get involved, even before the writing of the constitution they're heavily involved in the process. Was that ever at sort of the forefront of minds, "˜Let's keep the legal aspects to the side, the legal folks to the side because we want this to be an expression of the people's will and not the expression of any particular lawyer's will?'"

Jill Doerfler:

"Absolutely. I think it's really difficult to find sort of objective legal advice. Everybody has their opinions, even staff attorneys at White Earth have their interests, and so we really wanted it to be a document that people can read and understand. Sometimes...from a legal perspective, sometimes lawyers write in a certain way that's difficult to understand and so we definitely wanted it to come from the people and we did not really utilize lawyers, which some lawyers have critiqued since then. Sometimes I get a raised eyebrow from lawyers that we didn't really engage that in the process."

Ian Record:

"Time will tell I guess if it's going to be an issue."

Jill Doerfler:

"Right, right. We'll see how well that works out in the end."

Ian Record:

"So what would you say ultimately -- now that the process is done -- what would you say ultimately were the keys to the success of the nation in actually seeing this process through?"

Jill Doerfler:

"I think definitely we had a very open, inclusive process. As I mentioned, we had delegates -- who everyone who applied was accepted -- and then all of the constitutional conventions were announced in the newspaper, it was open, anyone could come who wanted to come. No one was ever asked to leave or turned away and so it was very...it was as transparent as we could be and I think that was really critical. We never had a closed door meeting. Never had a closed door meeting with lawyers, we never had a closed door meeting with delegates. Everything was open and so that was definitely one of the keys to our process. Maybe I'll also say that persistence was part of the key as well, because it did take a couple of years and in a way that seems like a long time for me, 'cause that's the timeline I was involved, but some of our constitutional delegates had been involved in different efforts for reform over the past 30 years and so some of them definitely get a lot of credit for seeing the different processes through. And I would say that none of those previous efforts were failed efforts which could be looked at as well. We tried in the late "˜90s, there was a draft constitution at that time, but no action was ever taken on it. True, but I think nonetheless that process still helped us build up to what we did in 2007 and the experience that those people had, they brought that to the table with them when they came in 2007 with those other efforts so that was really advantageous for us."

Ian Record:

"And perhaps some informed perspectives on what didn't work and what to avoid and that sort of thing."

Jill Doerfler:

"Absolutely, yes."

Ian Record:

"So I want to turn to the subject of citizenship, which is as you know one of the most controversial issues facing all Native nations -- who's going to be a part of us and how do we define the criteria that determines that? Citizenship was at the core of your nation's constitutional deliberations, and I'm curious before we get into sort of the mechanics of how you came to arrive at your new definition of citizenship or perhaps a returning to an old definition of citizenship, can you talk a bit about how the White Earth Anishinaabe defined citizenship traditionally and what criteria they used prior to colonization?"

Jill Doerfler:

"Sure. It varied over time, so there isn't just one answer to how things worked, but there's big changes over time. Anishinaabeg people have had contact with non-Indians for hundreds of years by this point and there have been changes, migrations and where my research really starts is starting in the early 20th century, right after the turn of the century. And in my research, I wanted to look at how Anishinaabeg people thinking about their identity, sort of pre-IRA, pre-organized government, and what I came to look at was a series of records that were based actually on land transactions at White Earth. In the 19-teens, allotment happened at White Earth as it did in many nations. And what happened at White Earth is there's legislation that says, "˜Mixed-blood people can sell their land, full-blood people cannot.' Land at White Earth is really gorgeous and spectacular. It was both good timber land and good farm land, lakes country. Lots of non-Indians said, "˜Hey, we'd like that land, we can either make a living there or make money there.' And after allotment happens at White Earth, then we get that legislation about mixed blood and full blood and then land transactions take place at an extraordinary rate. White Earth is often pointed to nationally as a case study because of how quickly land changed hands. And White Earth people complained that there was illegal activities, that people were being lied to or people who couldn't read were asked to sign papers that they were told was for their bill at the store and it was for a lease or it was for the sale. So lots of White Earth people complained and ultimately the federal government did a couple of investigations and one was conducted by Ransom Powell, who was a relatively well-known attorney in Minnesota because he represented some lumber company interests and he was selected to do the process at White Earth. There's a clear political choice there on the part of the U.S. government in choosing him, but he and his team went around and interviewed Anishinaabeg people asking them, "˜Is so and so mixed blood or a full blood?' and those records are extraordinarily rich with responses by people at White Earth saying, [a] "˜I have no idea what you're talking about when you say mixed blood and full blood. We don't define people like that.' 'I can't remember' was a big one. And then Powell and his associates would then also ask questions like about phenotype. "˜Well, did such and such have dark skin' and Anishinaabeg people would say, "˜I don't know, I don't remember,' or some people would say, "˜I don't know, they weren't really light but they weren't really dark, they were kind of medium,' and so Anishinaabeg people found all these inventive ways to kind of get around these definitions that the U.S. government was trying to push, which were these sort of fixed biological, unchanging definitions and for Anishinaabeg people identity wasn't something that was fixed. Identity was something that people created themselves through their actions, how they lived their lives, what choices they made and so they conveyed that time and again in the interviews. And so part of what I shared was some of my research on that, that identity was fluid and people were empowered to create their own identity, which I think is really interesting for us to think about today, that many of us have been really familiar with blood quantum and thinking of identity as this thing that is unchanging that you're born with versus a 100 years ago, Anishinaabeg people saying, "˜Well, you make yourself a full blood or you make your own identity.'"

Ian Record:

"So you brought up a good segue to the next question, which is about blood quantum, because in 1963 White Earth, the sole definition for...sole criterion for citizenship at White Earth became blood quantum. And I'm curious -- how did that come to pass? And it doesn't sound to me like the White Earth people certainly prior to that and I would imagine in 1963 probably didn't fully embrace that change, did they?"

Jill Doerfler:

"Right. Blood quantum I always think is used to disenfranchise people at White Earth in two ways and first it starts with those land transactions. Ultimately, what that investigation found is that about 90 percent of people at White Earth were mixed blood, i.e. 90 percent of those land transactions are legally valid and there's no legal recourse. And so people at White Earth were familiar with how the federal government could use identity to disenfranchise them, in that case to take land basically illegally. And so White Earth becomes part of the Minnesota Chippewa Tribe, which forms in 1936 with the IRA kind of style government and originally there isn't real firm criteria for citizenship. People basically apply to become citizens based on their parents and they're approved. There is no blood quantum requirement initially. And the Secretary of the Interior starts writing to the tribal executive committee, which is the governing body of the Minnesota Chippewa Tribe, saying, "˜You really need to think about your citizenship requirements and you really need to think about using either blood quantum or residency or some combination of these things.' And many members of the tribal executive committee including people from White Earth said, "˜No, we don't want to do that. That's going to become a problem for our children or our grandchildren and we need to think about future generations.' And so they passed several resolutions on citizenship that were lineal descent and sent them to the Secretary of the Interior who has, there's an approval clause in the constitution that the Secretary has to approve. The Secretary rejected all of those resolutions time and again and so over about a 20-year period, this would kind of ebb and flow. It would kind of come up and they would pass a resolution and the Secretary would reject it and then time would pass and the Secretary would say, Well, you really need to decide this.' And they would do the same thing and the Secretary would write back saying, "˜For all intents and purposes, this is the same legislation that you sent me last time. I rejected it last time, I'm going to reject it now.' And then finally we move into the later "˜50s and into the early "˜60s and this is termination time as people familiar with American Indian history are familiar. And basically there were some letters sent that weren't too veiled threats regarding termination saying, "˜If the Minnesota Chippewa Tribe doesn't decide this very soon it'll be made a matter of Congress and Congress will decide.' And so ultimately the tribe agrees to one-quarter Minnesota Chippewa Tribe as the sole requirement for citizenship. It gets voted on by the leaders in '61 and it goes into effect in '63 as a constitutional amendment."

Ian Record:

"So it sounds like this was at the beginning...it sounds like this was a main topic of conversation from the get-go when the new effort began."

Jill Doerfler:

"Yes, absolutely it was. People have felt the impact of blood quantum now. I myself am one of those people. As you mentioned, I'm a White Earth descendant, meaning my mother is a tribal citizen and I'm not and the reason is because of blood quantum. And so many, many families have been impacted, literally divided by blood quantum which is what leaders were talking about in the "˜30s and "˜40s and the record on their statements is very rich, very impassioned speeches about the importance of family and how this will affect the future. In a lot of ways, it was a delayed form of termination. The tribe in some ways was up against these threats of immediate termination, but blood quantum itself is designed to slowly make the population smaller and eventually designed to eliminate tribes. And the Secretary of the Interior was very, relatively frank about that in some of his communications to the tribe saying, "˜Every person that you add to the roll diminishes the share that each person has,' and so trying to use resources to try to get people to tighten up citizenship requirements, trying to limit population numbers. And so to some extent, it's working. And the tribe actually did a demographic study recently showing population and the demographer found that using trends over the last 100 years, if we kind of average things out, we anticipate that by about 2040, we'll just have an aging population, there won't really be anyone eligible for citizenship, and by about 2080, 2090, we anticipate that there may be few or no citizens meaning that as the U.S. government has hoped, the nation will cease to exist. If there are no citizens, there are no treaty obligations, no tribal government, and it's over."

Ian Record:

"So you said the resolutions were from about the 1930s and the 1950s from White Earth about this issue and they were all rebuffed?"

Jill Doerfler:

"Yep. Yeah, "˜30s, "˜40s and then they tried some other tactics sort of in the "˜50s because what was happening was some people were like being rejected from healthcare, other BIA [Bureau of Indian Affairs] programs and the Minnesota Chippewa Tribe and White Earth as a part of that would write to the Secretary of the Interior or to the agent and say, "˜These people are our citizens and they don't have one-quarter blood quantum as the Bureau sometimes wants, but they're still our citizens and they still are entitled to these services.' And there was a big fight and as I said, the record is really rich, and I would imagine that the same is true for other tribes, and I would really encourage other tribes to take a look at their histories and kind of examine what was going on. If the tribe has blood quantum, how did that come to be, what was going on before that? Because I think for lots of people at White Earth, you know, we've had blood quantum since '63. A lot of people have grown up with that and not known anything different, and we need to look back at what our ancestors were saying, what people were doing historically, and think about, 'How can that guide us today? Can some of their wisdom still apply today?'"

Ian Record:

"I saw you when I was doing my presentation yesterday, I was making that exact point. You were nodding your head 'cause I was basically saying that it's absolutely vital for tribes when they begin the constitutional deliberation process that they need to first understand where they came from, where their constitution comes from, what's the oral history, what's the archival history, what's the documentation around what your own people were thinking back when these things were created and did they have any say in how these things were created? Or did they try to voice their opinion on how these things were created and were ignored, were refused, etc.?"

Jill Doerfler:

"Absolutely. I think that's very key. I think people sometimes assume that whatever document we have now or whatever document their tribe has been operating under was somehow sanctioned by elders or was the result of a lot of deliberation and thought and that's not necessarily the case. Sometimes these constitutions were passed with very little participation, sometimes the Secretary of the Interior or other bureaucrats from the BIA were heavily involved in writing these constitutions and it's important to look at that history. Before you're ready to move forward you have to think about the past, because really the way that we construct the past and what happened helps us understand our present and that's what helps us envision our future as well."

Ian Record:

"Isn't it really...at a fundamental level isn't it really an issue of ownership, that there are a lot of people in the community that -- because they don't know that back history, they don't know the origin story, if you will, of their current constitution and system of government -- that there is a sense that we do own this, that this is ours, that this is somehow our creation when in most instances, I won't say all, but in most instances, that's absolutely not the case."

Jill Doerfler:

"Yes, exactly. Yeah. There can be a loyalty to that document that maybe people would have a different opinion on if they had a little bit more historic information."

Ian Record:

"So I want to kind of dive now into how you guys deliberated citizenship, this issue of citizenship in the recent reform process. At the outset you developed some questions to help guide constitutional delegates in terms of evaluating the different options for redefining tribal citizenship. Can you talk about what those questions were and why you chose them?"

Jill Doerfler:

"Sure. It was actually a little bit more towards the end of the process. So we had had several deliberations on citizenship. I had given some presentations also on the history of blood quantum, which is important. It's important for tribes to know their own history, but then blood quantum as a concept has its own history. So we discussed those things, and then because of previous reform efforts at White Earth, there was a constitution created that had a list of citizenship options and so we utilized those during the current process. And so I asked delegates to take a look at those options and start going through them and based on the previous conventions I created a set of questions that wanted to ask which of these options best enacts our Anishinaabe values and beliefs because delegates had said time and again, "˜What we want is a constitution that's ours, that reflects our Anishinaabe culture and our values and how can we put that in the constitution? And so that was kind of an easy mark to say, "˜Then that's a question we want to ask as we look at our citizenship options.' One delegate had talked about how citizenship really is part of the question, who are we and who are we in our hearts,' which I thought was good so we utilized that. We also utilized a question relating to which of the citizenship options will be best for White Earth in the future, so not only looking at our current situation, not only thinking about ourselves or delegates thinking about themselves, but thinking about future generations as our ancestors had encouraged us to do then if we used that to look at the different options."

Ian Record:

"So tell me about one option which you've termed the "band-aid" option or maybe you didn't come up with it, but it's what you shared as the band-aid option. What did it propose and why was it ultimately discarded?"

Jill Doerfler:

"Sure. So we basically had several options that we were looking at. One was lineal descent, three were a variety of blood calculations of different types that were...some were relatively complex, and then delegates, White Earth delegates came up with another option during one of the conventions. One of the small groups said, "˜We have another option which is to make everyone who's currently enrolled, whoever is on the rolls right now, we'll make them a full blood. We'll make them four-fourths.' And ultimately that became termed the 'band-aid' approach. I think one of the delegates said that, that wasn't my term, but delegates considered that option a little bit and it was called the band-aid approach I think because it just put a temporary fix on the problem. What it would do would make it so that everyone who's a citizen now would guarantee that their grandchildren are enrolled no matter who they've had...who their children had children with, etc., that their grandchildren would be enrolled. But it doesn't guarantee anything beyond that. So we're looking into the future, but we're only looking into the future a little bit and there were probably definitely delegates with great-grandchildren who are part of the process who could already see that that probably wasn't forward looking enough. And delegates talked about the fact that this will fix the problem now, but what it will ultimately do is pass the exact same problem on to either our children or onto our grandchildren or some future generations, and so I think delegates ultimately felt like they came to be part of the process to make the hard choices. This isn't going to be an easy choice regarding citizenship, but they wanted to make it in a way that was more forward looking than just two generations in the future."

Ian Record:

"I think on Capitol Hill they call that the 'kicking the can down the road' approach."

Jill Doerfler:

"I think they do."

Ian Record:

"So what decision -- and I think you referenced this already -- but can you talk about the decision that the delegates finally arrived at regarding citizenship, and how did they arrive at that decision?"

Jill Doerfler:

"Sure. Ultimately lineal descent was selected as the option. We deliberated it, delegates deliberated it several times, I had given several presentations as I said evaluating options and sharing information and finally we were discussing different options for citizenship and finally one delegate just made a motion and said, "˜We would like to stop discussing options that deal with blood quantum.' It passed and therefore the only one option that doesn't deal with any type of blood quantum, that was lineal descent and then we moved forward from there. And I think it was probably a culmination of things. In some ways I think delegates who probably decided from the outside that they were in favor of lineal descent were maybe weary of talking about it because we had spent a lot of time on it and so I think for some of them they were like, "˜We are ready to make this decision' and I think for other people it was a little bit of a push that they needed to be like, "˜Okay, we're just going to...we're going to have to just make a choice here. We're never going to get a unanimous decision. There's going to be some people who are going to vote for and some people who are going to vote against and we have to accept that process and move forward.'"

Ian Record:

"So how do you...it seems to me that you're pretty certain that this will strengthen, this new criteria will strengthen the nation moving forward. Can you discuss in what ways?"

Jill Doerfler:

"Sure. Well, I think ultimately it is an enactment of our Anishinaabe values. It really places family and relationships at the center of the nation which is historically appropriate, which is things that we know that our ancestors wanted, and so that's advantageous 'cause it's putting those values into action. If we say family and love and respect is at the heart of the nation, how can we do that? Well, using lineal descent, using family then is one way to do that. It also strengthens the nation from the perspective that potentially we have the option to exist in perpetuity. We don't have a graph with a line that shows when the population will end like we do with blood quantum. We have the idea that as long as families are passing on their values and traditions and political loyalties exist, people will choose to become citizens of the nation and that leaves that option open. A strong citizen base I think is critical for any nation. It gives them a diversity of resources regarding people, what citizens can contribute to the nation, which is something we also talked about at White Earth quite a bit. Sometimes there's a perception that citizens will just drain resources and people will just want to become citizens in order to get certain benefits. We also talked about the fact that becoming a citizen is a responsibility and that when you make that choice to become a citizen, A, you're in some ways acknowledging the jurisdiction of the White Earth Nation, B, you're submitting yourself to those laws and codes and you have obligations to carry out. You're not necessarily going to get anything. We don't have per capita payments at White Earth. I don't see that happening in the future, and I think we want to think of citizens as assets and think about how can more citizens provide more resources. How can having somebody who's a citizen who has expertise in environmental like change, climate change be an advantage? How can we bring more people in and be more inclusive and what could that mean both for the nation politically and economically as well?"

Ian Record:

"So it's interesting you mention this issue of obligations. We talk with a lot of nations about that issue, that somewhere it was lost in the colonization process the obligations of citizenship, that a lot of folks in Native communities, because of the legacies of colonialism, view their relationship with the government as 'what do I get out of it?', not so much what the government and the nation should be expecting of them and what they should be obligated to do. Can you be a little bit more specific on what sort of obligations I guess are expected of citizens under the new constitution and system of government?"

Jill Doerfler:

"Sure. And I'll also say that I think in some ways, because of colonialism, that the relationship with tribal government and the relationship with federal government has sometimes been a little bit confused and I think there is this obligation and what the federal government owes especially via treaty obligations to tribal nations and tribal citizens. But tribal governments don't necessarily owe tribal citizens anything. They may choose to provide services, again enacting our values or choosing to do certain things, but that's not an entitlement necessarily that somebody has. So part of being a citizen is contributing and everyone...as Anishinaabe people we always say, "˜Everyone has a gift,' and the range and diversity of gifts is important to us. We don't want everyone to have the same gift. We want a diversity of people which also relates to increased population. But everyone will contribute in their own way. They will contribute maybe working in tribal government, maybe working for a certain program or service. They may contribute by raising healthy children, they may contribute by helping other family members, they may contribute in a wide range of ways, but focusing on that instead of focusing on what a single person might get."

Ian Record:

"I want to move now onto the other aspects of the new constitution, and I'll ask you in a second for your thoughts on what you think stands ou,t but I'm curious, there's one change that I forgot to write on the list of questions and that is, you're no longer the White Earth Band of Ojibwe, you're now the White Earth Nation. Why was that change made?"

Jill Doerfler:

"Well, we use that sometimes now anyway and we do feel it's a little bit more appropriate for us. It's a little bit stronger assertion of our sovereignty. That's been a preferential name that we've used internally for a while and so this was an opportunity to make that change officially in the constitution."

Ian Record:

"So what other things stand out in terms of the new constitution? Can you give us a brief overview of some of the concrete, fundamental differences between the new constitution and how you govern yourselves under the old arrangement?"

Jill Doerfler:

"Absolutely. I think the separation of powers is one of the biggest things. When Chairwoman Vizenor first announced the fact that she wanted to start constitutional reform, she mentioned two things: citizenship and separation of powers. Currently, there is no separation of powers and the court system is basically established via statute not in the constitution, which gives it a little bit more precarious of a position. And so the new constitution, the ratified constitution of the White Earth Nation, separates out a president, a legislative council, and the judiciary, and each has separate roles and responsibilities. Also the legislative council is not enumerated in a fixed way, because we know that White Earth population will change over time and we don't want to lock ourselves in to having three representatives or three districts or five districts and so that is left open, that will change over time. One part that is fixed is off-reservation representation -- which is something that doesn't exist now -- in a very concrete way. Right now, everyone votes for the chairperson and the secretary-treasurer. They're elected, as we say, at-large. But there are three districts on the reservation right now. So the constitution has sort of open number of districts on the reservation and then two representatives for off-reservation but within Minnesota. And so that's a guarantee that off-reservation [citizens] will have at least two representatives, which is important because we have a large portion of the population, White Earth citizens living off the reservation, so that was a major change. And as I said, having the judiciary separate and established within the constitution, that's really critical because things like the new Tribal Law and Order Act and the Violence Against Women Act, which is hopefully going to allow Native nations to extend their jurisdictional reach a little bit, part of that is having that separate judiciary helps guarantee for everyone that there will be some independence there. I think most of us in Indian Country are in favor of increased jurisdiction, but increased jurisdiction without a separation of powers can be a little bit scary and so that's also..."

Ian Record:

"It essentially raises the stakes and if you maintain a politicized court system, it's just going to make things even worse potentially."

Jill Doerfler:

"Correct. I'll also say a couple of other things about the new constitution. Currently at White Earth, we have community councils, which are operating in a relatively informal basis. They're not written into any governing document, but in the new constitution we have community councils established, we have an elders council and a youth council, and they all have real important roles within the community for people to gather to talk about political issues to also engage in cultural activities, to keep language and cultural practices ongoing and it allows people ways to engage the elected leadership and allows elected leadership maybe to choose to come to a youth council meeting or to come to an elders council meeting when they have a problem. And so that was really important to delegates, and I'm really proud that we have those different councils established and set within the constitution itself."

Ian Record:

"That's fascinating. One tribe I worked with for quite a long time, they, in a draft constitution, which has not yet been ratified, they actually gave constitutional authority to their elders council and their youth council to review legislation before it could be voted on which I thought was really cool."

Jill Doerfler:

"Wow!"

Ian Record:

"I'm really looking forward to that getting ratification at some point. So we talked about what's actually in the new document, some of the things you referenced. That's ultimately just a piece of paper. That leads me to the question: what's the new governance reality that that document seeks to create? How does it seek to improve the effectiveness of White Earth governance and make it more culturally appropriate, etc.?"

Jill Doerfler:

"Yeah, I think also trust is a big issue with government at White Earth and other nations as well. White Earth, as I said briefly, has had some issues with fraud and corruption in the past and that has really tainted peoples' view and their trust and their view of the tribal government as legitimate. And so we hope that the new governing document with the separation of powers, with the ways in which elections are structured, will help improve peoples' pride in the government, potentially their political loyalty, that would be improved."

Ian Record:

"If you were to explain to somebody that knows nothing about your tribe and knows nothing about the reform effort, what aspects of the new constitution and the new governance system are most culturally distinct to White Earth, what would you tell them?"

Jill Doerfler:

"I would say that our preamble is actually potentially most distinct. Preamble, as some people know, is a place in the constitution where there is sometimes a little bit more freedom rather than the articles and exact procedures that are laid out. But I think the preamble is really nicely written, acknowledges our broad range of relationships and cultural values historically and contemporary, and so I think that does a nice job. I do think that we have some processes for basically ethics, impeachment, citizens are allowed to petition. I think that kind of citizen involvement is very culturally appropriate and something that people will welcome having in the new constitution in a way that citizens haven't been able to be as engaged with the current governance structure. And I think historically, Anishinaabeg people and White Earth people had a lot more opportunity to engage leaders, to be a little bit more involved in the process than is currently available, so I think the new constitution also does that. And I think the balance of checks in power and balance of power is also culturally appropriate. Historically, Anishinaabeg people didn't have one or two leaders who were making all the decisions for the tribe. That power was disbursed, there were lots of lengthy council meetings where people could get out and participate, and so we see some of those things integrated in the new constitution as well."

Ian Record:

"So what cultural values would you say does the new constitution seek to protect, advance, to live, and what future do you feel it's designed to help create within the nation?"

Jill Doerfler:

"Sure. I think that one of the things that we talked about a little bit during the process was cultural values and core values. At ones point delegates were asked to identify some of their core values and write belief statements, and ultimately they came very close to intentionally or not intentionally mirroring our teachings, which are sometimes called the seven grandfather teachings, which is basically love, respect, honesty, humility, wisdom -- these types of really basic core values that transcend time, that transcend place that we can all be engaging in today. Sometimes culture for American Indians gets fixed a little bit historically in the past and fixed into certain actions, but if we think of love and respect as part of our cultural values then that opens us up to enacting them today."

Ian Record:

"So final wrap-up question. You guys have gone through the whole process. You're awaiting a secretarial election, is that correct?"

Jill Doerfler:

"Right."

Ian Record:

"But in terms of the actual process and the crafting of a new foundational governing document, you've gone through that process. What do you feel other nations can learn from the White Earth experience? What sort of lessons do you feel that you've learned that might be transferrable to the challenges that other tribes are facing?"

Jill Doerfler:

"Right. So I do hesitate to say we're through the process, 'cause we're gearing up for a really...hopefully what will be a really big citizen engagement and education effort, because things have been sitting at White Earth a little while. Delegates ratified the document in 2009, it's now 2013, and so we do need to work this summer and into the fall to reinvigorate and to educate about the document to make sure any questions that people have are answered. But as far as the writing process and the process that went into getting the document that we have now, I think that transparency was key. I think we did a relatively good job with that. I think since we've finished, social media has really taken off and I would say if we were doing...the nation who's doing it now I would say need more presence on the web. We primarily used newspaper articles which was great, but things on the web can happen a little bit more in real time and I think that would be something that tribes could utilize. I think the fact that we were inclusive as far as delegates went is also good. It also provided some trust I think to people who were maybe skeptical of the process. We can say that everyone who wanted to be included was included but there was that application process and there was a deadline and that was it. There were later some people who wanted to become delegates after the process started and we were unable to do that because we had to stick with our original plan. But I think that that was good as well. I think if we would have added new delegates later we would have almost had to start over and re-educate, so I think it was good that we had that open process, but then once the delegates were selected we stuck with it and we didn't make changes. So I think it's easy to say, "˜Oh, yes, we'll add you,' because there were definitely great people who came along that would have been great additions. Instead we said, "˜Please continue to come to the conventions and you can still share your thoughts and ideas and talk with the delegates and be involved that way.'"

Ian Record:

"Well, we really appreciate you taking some time out of your busy schedule to share your thoughts and experience and wisdom with us, and I'm very eager to see how things unfold there. I definitely think that other nations that are talking about reform, embarking on reform, struggling with reform can certainly learn a lot from the White Earth experience."

Jill Doerfler:

"Thank you. It's been a pleasure to be here and I'm definitely looking forward to our referendum, which will hopefully happen soon."

Ian Record:

"Well, thank you, Jill. That's all the time we have on today's program of Leading Native Nations. To learn more about Leading Native Nations and the Native Nations Institute's website, please visit nni.arizona.edu. Thank you for joining us. Copyright 2013, Arizona Board of Regents."

Great Tribal Leaders of Modern Times: Jayne Fawcett

Producer
Institute for Tribal Government
Year

Produced by the Institute for Tribal Government at Portland State University in 2004, the landmark “Great Tribal Leaders of Modern Times” interview series presents the oral histories of contemporary leaders who have played instrumental roles in Native nations' struggles for sovereignty, self-determination, and treaty rights. The leadership themes presented in these unique videos provide a rich resource that can be used by present and future generations of Native nations, students in Native American studies programs, and other interested groups.

In this interview conducted in October 2003, Jayne Fawcett of the Mohegan Tribe tells of her childhood with her mother’s family, who operated the oldest Indian-run museum in the U.S. As Ambassador of the Mohegan Tribe, Fawcett furthers both her family’s legacy of cultural preservation and her tribe’s economic development initiatives.

This video resource is featured on the Indigenous Governance Database with the permission of the Institute for Tribal Government.

People
Native Nations
Resource Type
Citation

Fawcett, Jayne. "Great Tribal Leaders of Modern Times" (interview series). Institute for Tribal Government, Portland State University. Uncasville, Connecticut. October 2003. Interview.

Kathryn Harrison:

“Hello. My name is Kathryn Harrison. I am presently the Chairperson of the Confederated Tribes of the Grand Ronde Community of Oregon. I have served on my council for 21 years. Tribal leaders have influenced the history of this country since time immemorial. Their stories have been handed down from generation to generation. Their teaching is alive today in our great contemporary tribal leaders whose stories told in this series are an inspiration to all Americans both tribal and non-tribal. In particular it is my hope that Indian youth everywhere will recognize the contributions and sacrifices made by these great tribal leaders.”

[Native music]

Narrator:

“Jayne Fawcett, currently the Ambassador of the Mohegan Nation of Connecticut, has served the Nation in many capacities, most significantly as Vice Chair and Public Relations representative during critical transitions in the tribe’s history. Today the Mohegans number approximately 1,000 members. Even though upheavals and thefts of their lands in the past were difficult and disillusioning, the majority of the Mohegan Tribe remained in Connecticut and the tribal members maintained a notable cohesion and commitment to their culture, keeping friendly relations with their neighbors. The Mohegans founded a church on their reservation in 1831. Fawcett grew up on the home site of the Rev. Samson Occom, the first American Indian minister in the United States. Her childhood was spent largely with her mother’s family on the home site. The family also operated the oldest Indian run museum in the United States founded by Gladys Tantequidgeon in 1931, a century after the church was built. The museum today continues to display Mohegan artifacts and teach the culture. Fawcett’s aunt and cultural teacher was Gladys Tantequidgeon, medicine woman and powerhouse of the tribe who was 104 years old at the time this interview was conducted. As a child, Fawcett would often go on speaking engagements with her aunt. She would also learn the tribe’s legacy from her uncle, the late Chief Tantequidgeon. Jayne Fawcett went to the local schools where Mohegan children were accepted. After receiving a BA from the University of Connecticut, she became a social worker for the Division of Child Welfare in Connecticut but then decided to enter the teaching profession. A teacher for 27 years in Montville and Ledyard Fawcett was Chair of the Montville Indian Parent Committee. Education has been a major focus of her life. She has been an instructor on Mohegan culture at Connecticut schools and universities and has served on curriculum committees for the local multicultural school. She was an adviser for the projected Native American Studies Program at the University of Connecticut. In 2001 President Clinton appointed Fawcett to the Board of Trustees of the Institute of American Indian and Alaska Native Culture and Arts Development. In the 1970s, while a teacher and a mother, Fawcett became very active with the tribe. In 1978 she became a founding member of the new constitutionally elected Mohegan Tribal Council and in 1990 was elected Chair of the Council of Elders, the tribe’s judicial arm. Shortly thereafter she returned to the tribal council and in December, 1995, took on the role of Public Relations Representative. Jayne Fawcett was one of the key figures in the arduous process necessary for the Mohegans to obtain federal recognition which they gained in March, 1994, becoming the second federally recognized tribe in Connecticut and the 545th in the United States. The day the U.S. Department of Interior made the announcement was full of elation. As one writer has put it, ‘The tribal members had spent 100 years struggling to prove that the world has not seen the last of the Mohegans.’ Since recognition Fawcett has continued her dedication to educate the non-Indian public about the tribe. As she, her aunt and uncle maintain, ‘It’s harder to hate someone you know a lot about.’ Federal recognition has allowed the Mohegans to pursue self reliance and tribal economic development. With its diverse enterprises the tribe has created thousands of jobs for Connecticut. The most renowned project is the Mohegan Sun Casino which pleased even Gladys Tantequidgeon, proud to see so much Mohegan culture and art in the structure’s design. Through all her work Fawcett has maintained solid and joyful family commitments to her husband, daughters and grandchildren. Her husband she says is her champion in tough moments and her own art has not gone unneglected. She is an accomplished organist and pianist and only recently stopped playing the organ at the Mohegan church. The Institute for Tribal Government interviewed Jayne Fawcett in October 2003 at the Mohegan tribal offices.”

Growing up in Uncasville

Jayne Fawcett:

“I went to school in the local schools and because it was a mill town and because we were all poor we didn’t realize we were poor and the Mohegan Indians were accepted. We were together as a group but we were accepted and I’ve always said it that I think Uncasville was perhaps the best place in the country to grow up Indian. And I attributed that partly, well maybe entirely, well, to the fact that we were all poor but also that my Aunt Gladys and my Uncle Harold had built with their own hands a small museum and all of the children in the community would come to that museum and learn about the Mohegans. And they built it with the theory that it’s very difficult to hate people that you know a great deal about and every school child had the experience of coming there and learning about us and not learning so much about the ways that we were different but about the ways that we were alike. And even going back our earlier festivals, our wigwam festival which was really very similar to a powwow was a homecoming for Mohegans and their non-Indian neighbors. And so there was an acknowledgement of difference and a feeling that this was a different community but there was also mutual respect and love. And I think it’s an extraordinary story and maybe somebody should study why Uncasville was always so responsive to us. I can remember when we were going through the federal recognition period and a gentleman came from another town and was berating the town council and the citizens there and telling them that they needed to oppose us and we were going to do this, that and the other thing. And the First Elect man asked him to leave and I really knew I was home and it was, I think that was a memorable moment in my life.”

The museum today

Jayne Fawcett:

“It is the oldest Indian run museum in the United States and it contains a collection of Mohegan artifacts that were handed down in our family as well as articles that were collected by my Aunt Gladys when she worked for the Bureau of Indian Affairs and the Bureau of Arts and Crafts. Well, I guess it was in the ‘30s and ‘40s.”

On becoming Christianized Indians

Jayne Fawcett:

“As you probably know, we would have had our own Trail of Tears had it not been for becoming Christian Indians. We were given the choice to become Christianized or to be removed. And so it was kind of a double-edged thing but we did become Christianized and the Rev. Samson Occom was the first Christian Indian minister in the United States. He set out to build an Indian school with Eleazor Wheelock and this school, he went to England to get money for this school and he got a great deal of it from a man called the Earl of Dartmouth. And this little Indian school grew to be Dartmouth College.”

The story of Gladys Tantequidgeon

Jayne Fawcett:

“Gladys Tantequidgeon is my 104 year old aunt. She is the medicine woman of the tribe. She never had formal schooling. As a very young woman she had to help raise the younger brothers and sisters but she was a brilliant woman. And when Dr. Franks of the University of Pennsylvania was studying the Indians in the northeast, he became acquainted with her and brought her to the University of Pennsylvania where she worked and studied with him there and actually co-published with him and went on with studies to receive an honorary doctorate from both Yale University and the University of Connecticut. She was offered one by the University of Pennsylvania but the requirement was that she had to travel there and at that point in her life it was too great a distance. But she then worked for the Bureau, I believe she was the first Indian woman to work for the Bureau of Indian Affairs under Mr. Collier and she worked out west with the Sioux and worked to help them restore many of their traditions. And then she worked for the Bureau of Arts and Crafts and so during this period she collected a great many artifacts and these artifacts are in the museum. And then she returned home to run the museum and she would go on speaking engagements and I would go with her. And she was determined that I would go to college and my mother was too. My father was really, girls didn’t go to college and it was a complete waste of money but she really helped in convincing him that it was important that I go to college. Everything, whether it was bringing me stories of operas or when I was a little girl to just constantly bring me with her and talking to me about our history and about our past, she was I believe the strongest influence in my life.”

School choices and the experience of prejudice

Jayne Fawcett:

“I went to a girl’s school, a very good girl’s school and I was accepted by the girls. This was kind of an interesting thing I think. And it was fine pretty much for me to go to parties where there were girls but then as they got older they were co-ed parties and I wasn’t invited to those. They would have a separate party so there was a difference. It was okay for me to be a friend but it was not okay for me to be a potential girlfriend to one of their brothers. I wanted to live away from home and so the only other sure fire thing was the University of Connecticut so I did go very happily to the University of Connecticut. But I think every time I left Uncasville there was always a stronger feeling of difference and always a stronger feeling of prejudice. So that’s why I’ve lived my life here, Uncasville is a comfortable place for me. Even with my husband when people who are associates of his would make remarks about Indians I would be, usually hostile remarks about sovereignty and things like that I would, with the draw, but now I’ve reached the point in my life where it doesn’t bother me at all. I can deal with that and I realize I don’t even have to deal with that so I guess that’s a growth step for Jayne in this process.”

As a teacher, Fawcett worked with the Indian Parent Committee in Montville: it’s work and concerns

Jayne Fawcett:

“I was a member of the Indian Parent Committee then and there were some very interesting issues that came before us. One of them was bussing. And most of our children went to the Mohegan school and were very happy there because there were other Mohegans there. And so they decided, ‘Well, here are all these Mohegans in this one school, well, that shouldn’t be so we should bus them.’ And what people didn’t understand is that where bussing is good for one minority it may not be good for another minority. Indian children frequently in situations where there are so few of them and when they go to another school there may not be any like them, that for them to have a level of comfort it was important for them to stay together in this one school. And so we had quite an issue. We tried to get the law changed but finally it was agreed that we couldn’t get it changed but that it would be overlooked in this situation. I think it’s very important to impress on people that just because something is good for one minority it is not necessarily good for all of the different minority groups that we have in this country. We thought that it was important to introduce again older children. They’d all been to the museum but we wanted to expand their horizons. We would take them to the ‘Heim Museum in New York and to various Indian sites. We would have them meet with the Indian elders and this was for Indian children and non-Indian children because we felt that it was important for them to learn these things together.”

The impetus behind the Mohegans seeking federal recognition

Jayne Fawcett:

“We had a unique history in that in order for us to keep our land we had to become non-reservation Indians because we were originally, someone said, ‘You’re one of the most recent reservations.’ I said, ‘No, we’re one of the oldest reservations. We had a reservation under King George of England before this country was even a country.’ And so then we became a reservation under the State of Connecticut and we were a reservation before they began to have the reservation system nationally. We’re a reservation under the State of Connecticut and the State of Connecticut had overseers who controlled virtually all business aspects and all important decisions of the tribe and one of the things that happened was that they began to take land for friends and for themselves, illegally but they began to do it. And so we realized that this was happening and in order for us to keep our land we had to become non-reservation Indians and hold it in fee land. I live on land today that has never been owned by a non-Indian. So this was the only, then we saw that jobs were leaving the area and we were very concerned that the fee land that our children had and that the young people had was going to be eroded, they would be selling it, there would be nothing to keep them here and we would no longer exist as a people. And so that’s when the impetus for federal recognition came about. I was afraid of federal recognition as was my aunt. She had worked among people for whom federal recognition had had many negative consequences and so it was a double edged sort kind of. You go along with it because it’s the only way we’re going to survive or is it going to, is recognition going to destroy our people in a different way. So we did not want them to become dependent on the federal government. That was a very great concern.”

Choosing the Bureau of Indian Affairs process over the congressional route

Jayne Fawcett:

“The one thing that the Bureau of Indian Affairs did was that there was such a thorough investigation that there really could be no disputing our legitimacy and so we felt that it was important not to take the congressional route and have it approved by Congress just by an order of Congress. We felt it was important to go through, and I guess it was about 17 years, but we did feel that it was important to take that route and so we did. I don’t know whether we were right or wrong but that was the reasoning at the time.”

Aspects of the BIA process

Jayne Fawcett:

“They collected the records that literally proved that we were tribal just because they wanted to know what pictures, who were the Indians, the Indians in the pictures, what were the weddings. They asked the florist, they asked the people in the schools who the Indians were. They asked the mortician, everyone who had had social contact with us in the area they said, ‘Are there Indians here, who are the Indians?’ and they went to church and counted the Indians in the Mohegan Congregational Church and the children. Unless you’ve been through federal recognition you don’t know exactly how thorough it is. And so all of these pieces came together to form a picture and the picture was one of a tribal society.”

Gladys Tantequidgeon’s response to the new developments with the tribe

Jayne Fawcett:

“So Gladys was very happy and Ruth was very happy finally. Some of her anxiety went away but she was always a bit skeptical and then when the casino was built we were all very nervous because it was, we decided to bring them over to see the casino and Gladys I believe was in a wheelchair ‘cause they couldn’t travel around. She was walking then but they couldn’t travel around, my Aunt Gladys and my Aunt Ruth. So we waited because we were really concerned about her verdict and finally she said, ‘When you said you were building a casino I thought you had lost your culture and now I see that you have not,’ because if you’ve been to our casino it very heavily reflects Mohegan culture. Every aspect in the Earth Casino is representative of our past and we tried to take that past and translate it into the future in the Casino of the Sky because we did not want people to feel that we were an anachronism. We wanted them to understand that things Indian can be as much a part of the future culture of our society as things non-Indian.”

Allies and friends in the recognition process

Jayne Fawcett:

“Our allies were all the older families. If you’d been in town for a long time and you were part of Uncasville and part of Montville, you were our ally. If you were a newcomer and we had a lot of people who because of the Naval base and the Coast Guard Aca, we had a lot of people who were military and people who had just moved into town, they brought with them I think some of the feelings that they had had about Indians from other places. So our allies were uniformly I would say the old families in town.”

Response of government officials

Jayne Fawcett:

“I think we have had a wonderful relationship with all of them. Once again we feel that it’s always important to meet with people and go over issues and usually when that happens we find that we’re really not that far apart and so people who initially were opposed to our federal recognition have become our friends. So I don’t feel that in the State of Connecticut I can say that we have enemies.”

Fawcett brought to the table a knowledge about how people outside of Montville feel about things

Jayne Fawcett:

“The other piece I think that I brought to all of this was what Melissa and I both bring and that is a cultural piece and the insistence on having a Mohegan design to our casino. Our backers initially and everyone told us that this wouldn’t work, people would be uncomfortable with this but we said we wanted this to be a place that people knew they were somewhere else, that they knew they were in a different country and we had a very small reservation and the only place we could shout it was in that casino. And so we even now publish a booklet called Secrets of Mohegan Sun and it literally tells you everything that is symbolic in the casino that is part of Mohegan culture, things that you may look at and not even realize a part of it are. And I feel that if there was anything that I did to influence anyone, this was the most important thing that I did. But I think there’s another important piece that I’ve left out that I, oh, I wanted to share because I think it made a difference for Indian Country. When the Mashantuckets built their casino they were not able to get funding in the United States because at that time no one wanted to lend money to an Indian tribe because of the issue of sovereignty. In other words, you couldn’t recover your losses. And so this is something that people don’t understand about Indians. We can do anything just as well as anybody else given a level playing field. Now if you can’t borrow money from a bank and you can’t borrow money from any of the great lending institutions, you’re not going into business, not even a small business because you have to be able to access the money of the world. And so we were the first tribe, Roland Harris who was the chairman and I with our financial advisers went on the road show and we were the very first tribe to access Wall Street. And because we were able to do that, because we were able to give them a level of comfort through a variety of legal means and without giving up our sovereignty, it opened the door for other Indian tribes to borrow money. And I think maybe that’s the thing I’m proudest of because it always makes me angry to hear people say, ‘Well, I don’t see why the Indians can’t do this, why they can’t do that,’ and they don’t realize that you can’t put things, that the conditions of ownership on a reservation are such that while there are advantages there are also some very serious disadvantages, particularly with regard to establishing a business and borrowing money.”

How the tribe, the local community and Connecticut benefit from the Mohegan Sun Casino

Jayne Fawcett:

“We have a wonderful facility that is making a difference in all of our lives, putting our children through college. How could you ask for more than that? Giving us a place to work. We’ve built homes for our elderly, our medical needs are taken care of, we’ve worked very hard to be the very best employer that we can. You may have noticed as you came in a wonderful facility for our employees. They have their meals here, they have medical facilities here, they have gym facilities here, stores, you name it. We’ve tried to be an exemplary daycare, an exemplary employer and we’ve tried to help the town and other Indian tribes. Yes, Mohegan Sun makes a huge contribution to the State of Connecticut. We have about 10,000 employees and we’re a tribe of about 1800, well, 2000. So of that over half of our tribe, let’s put it this way, is under the age of 18 and then we have our elders so that doesn’t leave a whole lot in here, in the middle and we have some people who are in the service and away or have jobs elsewhere. So I believe it’s accurate to say that virtually anyone who wants a job who is Mohegan and wants a job at the casino has a job at the casino and we have them at all levels I’m very proud to say. We have from vice president on down and we’re very proud of that.”

Citizenship in an Indian tribe

Jayne Fawcett:

“There are many urban Indians who do not belong to tribes. Tribes have their own regulations and blood is only part of that. The federal government would not have given us federal recognition on the basis of our just having Indian blood or Mohegan Indian blood. You had to prove that you operated as an entity or as a tribe and so if somebody’s uncle so and so had been a tribal member 100 years ago and it had nothing to do with us that’s not being part of the tribe. And so it’s not, people need to understand it’s more a citizenship issue than it is a blood issue. Yes, you have to have the blood but are you a citizen of this tribe, are you a member, have you been a part of this tribe? So there is that also.”

Fawcett’s husband and children

Jayne Fawcett:

“My husband is an educator. He has his doctorate in education and has worked in the local, in school administration locally for years and years and he’s currently retired. He’s closer I think to his Indian family than he is to his own. And he has been a great protector of me. There are always instances where people are rude and make inappropriate remarks about Indians and he is my champion. He has always been a champion. Our children are both very concerned about Indian matters and both very active in Indian matters. Melissa as an author and Bethany has been very involved in tribal matters and until recently was Vice President of Marketing of Mohegan Sun.”

If there is a down side to prosperity

Jayne Fawcett:

“I suppose there is but there’s such a greater down side to poverty that I think I would really be a fool to say there was. Everyone suffers for some reason or other. There isn’t a person alive who doesn’t have or experience heartache or a problem. I can tell you it’s much easier to go through that kind of experience when you’re not worried about every penny."

The casino, Mohegan culture and the church on the hill

Jayne Fawcett:

“We can weave and we can have the church on the hill but we also need a way to be competitive in a modern world and the casino is the one way that we have been able to do this. It’s been very important for us. There have been people who have negative views of casinos. Gambling has been something Indians have done from time immemorial and I honestly don’t understand the problem that people do have with gaming when I think of even the most benign institutions such as the church. More people have died, died in the name of God than have been injured by gaming and any, anything taken to its extreme whether it’s credit card use or too much food, too much drink, too much sex, anything taken to the level of misuse and overuse can be a compulsive habit and be bad for us. So when you go to the movies, if you take the family you probably spend $50 and you come home with entertainment. When you go to the casino, you may spend the same $50, you come home with entertainment if you lose but if you don’t, you may come home with a great deal more. So I don’t understand the prejudice, and I think I have to use the word prejudice, that we have against gaming. I can only suppose that it stems from the gambling for Christ’s robe that the negative connotations to gambling came about. We have negative connotations toward overuse and abuse of alcohol, justifiably so, overuse and abuse of credit cards or anything you can think of but somehow they don’t carry with it this, oh, I don’t know, quasi low life feeling that people have put around gambling and it’s one I don’t understand because if you look at the facilities they’re magnificent, they’re fun. We offer entertainment for old people who can’t get around. This is a place where they can go and have fun. Do some people abuse it, sure. Do some people abuse religion, sure. Credit cards, food, you name it, it’s all in the abuse of the system that the problem lies. And we have been working on restoring that part of our language. We have cultural classes of course so that the traditional skills are not lost. We work very hard, we have prepared an educational program for the State of Connecticut on Indians of the area so that it can be available to schools and it goes through all the levels. It’s really hard for me to remember all of the pieces that all we have put out into the community to help and to help them know us.”

Fawcett is on the Advisory Board of the Museum of the American Indian and has received several national appointments

Jayne Fawcett:

“I received a presidential appointment from President Clinton to the Institute of American Indian Art, a wonderful, wonderful Indian school in Santa Fe. I enjoyed my tenure there and am very grateful to have had that opportunity. And I was also appointed by the Secretary of the Treasury as one of two Indians to be on the Tax Exempt Government Entity Advisory Committee. That was also a unique experience given my relative innocence on tax related matters but it was a challenge, let’s put it that way.”

The United South and Eastern Tribes, USET

Jayne Fawcett:

“I’m on the Board of Directors and the Treasurer of the United South and Eastern Tribes and I’m extremely proud of this group because it is a dynamic example of Indians working together. Our motto, ‘because there is strength in unity,’ has really helped us in meeting with legislators as a group and trying to help them to understand how some issues would negatively impact on Indian Country as well as to understand some of the needs of Indian Country. So this has been important, perhaps one of the most important things. We work together as a group and so do the ambassadors work together as a group. We work together also on health. USET virtually handles, acts as a conduit for a lot of our health issues with Indian Affairs so that, there are very, there’s housing and health and finance, there is a cultural group. I hate to leave any of them out but there are a variety of groups all of which present resolutions to the United South and Eastern Tribes and we then send them to the appropriate authorities with the backing of all of the tribes in the east and that’s a powerful impact. It’s powerful when the leaders or the members of the board of directors go to meet with a congressman or to meet with a senator about an issue. When you represent all of those tribes, you have a voice and we also work financially together.”

Fawcett has served as her tribe’s liaison on environmental issues

Jayne Fawcett:

“I did work heavily during the last council with environmental issues and I think we’ve done some unique things with what we call Knox credits which are things that we do to offset any pollution that we may be creating. But environmental issues have been extremely important to us and we’ve done some very innovative things with them in the casino.”

Electoral politics on the tribal level

Jayne Fawcett:

“We have a great many people who run. When there’s a council election, there are a large number of people who run. We have a tribal council of nine and a council of elders of seven so basically that’s it for the electoral politics. It’s basically the legislative and the judicial branches of the tribe, tribal council being the legislative and the council of elders judicial.”

And partisan politics on the national level

Jayne Fawcett:

“We try very hard to work with both sides of the aisle because we feel that that’s the only way we can have a complete understanding in Congress of what Indian Country’s needs are. We have learned about business and how to be competitive in business and just watch us go, just watch us go.”

The most deeply rewarding work

Jayne Fawcett:

“I have to say family with a caveat because you see the tribe is my family and so we are literally a family, we are all no more than third cousins so family and tribe are really intermingled so that one is really indistinguishable from the other and so it has to be my large family, my global family, the tribe.”

And greatest sadness

Jayne Fawcett:

“I guess my greatest difficulty still is dealing with bigotry. It was a sadness that begins as a child and never leaves. I do see that changing and I’m very happy to see that changing and I think its basis lies in ignorance and as we see a more informed public, as we see a more informed country and a more informed world, we’ll learn what I learned to teach years ago at the museum. It’s not how much we were different but how much we were alike.”

The future of the United States and of Indian tribes

Jayne Fawcett:

“My uncle always said that it was non productive to look back in anger, that if you devoted yourself to feeling sorry for yourself or to be angry about past wrongs that you really crippled yourself from happiness and from doing worthwhile things that make a difference in the future. And I think that’s the direction we’re heading. I think we really are learning. I think we’re growing up. I feel that the greatest threat to sovereignty of tribes are individual interest groups that can influence legislation and slide pieces of legislation in without hearings, without government to government consultation with Indian tribes. I think the biggest plus for Indian tribes is going to be the enforcement of government to government consultation on those issues which involve Indian tribes. This hasn’t happened yet but I think we’re moving down that path because people are becoming more and more aware of them.”

Fawcett loves her role as Ambassador of the Mohegan Nation

Jayne Fawcett:

“Each one of us on the tribal council has an area of not expertise but an area that where we feel comfortable. For example, someone may be very good in development, someone may be in environmentalism. We have someone who does a great deal of social service work. We have another who is very good at business, our treasurer is extremely good at business and has had a business background, as does our vice chair. So each of us takes a piece of council obligation I guess and oversees it.”

The Mohegan Congregational Church and tribal culture

Jayne Fawcett:

“The Mohegan Church is very, very unique. Our minister has participated in a pipe ceremony. We have had Mohegan religious ceremonies at the church. There is an eagle feather that hangs face down above the pulpit which is a symbol of peace and that this is a holy place. We had one minister tear it down and he was dismissed and we put it back up. And so the church has played a dual role. It has been a site where traditional Indian observances are held as well as Christian observances so it’s an unusual place. They aren’t in conflict.”

The legacy she would leave for her tribe

Jayne Fawcett:

“I guess the legacy I would like to leave is that I’m not an individual, I am part of a continuum and we all think of ourselves in Mohegan as part of a continuum, that it’s not what an individual does, it’s what we have all done as we’ve come along that has made the path better. And so I hope that when the Mohegans see this that they will work even harder to be part of that continuum and further our tribe.”

When non-Indian view her story

Jayne Fawcett:

“I hope they will say, ‘I can’t understand what she was talking about when she mentioned prejudice and bigotry.’”

For the celebration of federal recognition, Fawcett wrote a song

Jayne Fawcett:

[Fawcett singing]

The Great Tribal Leaders of Modern Times series and accompanying curricula are for the educational programs of tribes, schools and colleges. For usage authorization, to place an order or for further information, call or write Institute for Tribal Government, PA, Portland State University, P.O. Box 751, Portland, Oregon, 97207-0751. Telephone: 503-725-9000. Email: tribalgov@pdx.edu.

[Native music]

Videotaping and Video Assistance
Chuck Hudson, Jeremy Fivecrows and John Platt of the Columbia River Inter-Tribal Fish Commission

Editing
Green Fire Productions

Photo credit:
Jayne Fawcett
Mohegan Nation

Great Tribal Leaders of Modern Times is also supported by the non-profit Tribal Leadership Forum, and by grants from:
Spirit Mountain Community Fund
Confederated Tribes of the Warm Springs
Confederated Tribes of the Grand Ronde, Chickasaw Nation
Coeur d’Alene Tribe
Delaware Nation of Oklahoma
Jamestown S’Klallam Tribe
Cow Creek Band of Umpqua Indians
Jayne Fawcett, Ambassador
Mohegan Tribal Council
And other tribal governments

Support has also been received from
Portland State University
Qwest Foundation
Pendleton Woolen Mills
The U.S. Dept. of Education
The Administration for Native Americans
Bonneville Power Administration
And the U.S. Dept. of Defense

This program is not to be reproduced without the express written permission of the Institute for Tribal Government

© 2004 The Institute for Tribal Government

 

Erma Vizenor: Engaging the Nation's Citizens and Effecting Change: The White Earth Nation Story

Producer
Native Nations Institute
Year

White Earth Nation Chairwoman Erma Vizenor discusses some of the historical factors that eventually compelled her and her nation to undertake constitutional reform, and the issues her nation has encountered as they work to ratify a new constitution and governance system.

People
Native Nations
Resource Type
Citation

Vizenor, Erma. "Engaging the Nation's Citizens: The White Earth Nation Story." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 25, 2010. Presentation.

"Good morning. At home we say, '[Anishinaabe language].' Good morning. I want to thank everyone for being here, and to come to such a beautiful place. I came in late last night, so all I saw as the cab was driving me in was this huge place with all kinds of lights. And I was so anxious to see it this morning and it's gorgeous. Your home, your beautiful home, yes. I'm just sorry I can't stay very long today, but I want to thank my dear friend Manley Begay for inviting me to this seminar. He contacted me at least two-and-a-half, three months ago, and of course I checked off the date and made sure that I had this time open. So Manley and I, way, way back we started our doctoral program together at Harvard. This is kind of funny because this is how things happen but we were just overwhelmed with everything and we were also changing Harvard at the same time, because I know that we worked hard to get the Harvard [University] Native American Program as it is today. So we were overwhelmed with all of our doctoral studies and Manley and I said, we were sitting there and he said, ‘Yeah, we're going to go home in three years. We're going to go back where we belong.' Well, Manley stayed on at Harvard for 12 or 13 years doing good work at the Kennedy School of Government. I went home after three years and I got into a reform movement to oust corruption in my tribe and I did that for five years. All good work, necessary work. We didn't leave as we should. The day that I...or a week after the indictments came against three council members for bid rigging, election fraud, embezzlement theft, all kinds of crimes, a week after that I received a letter from Harvard. The letter said, ‘You come back and finish your dissertation or else by the end of...by the spring of 2006 we're going to drop you.' So I jumped on the plane and went back to Harvard and worked very hard, had to do everything over again, and I didn't write a masterpiece but I finished my dissertation and graduated that spring.

We as Indian people, I just want to say and commend all of you because most of us have to run twice as hard, work twice as hard, run twice as fast to keep up and that's the way it is. I don't think anything comes easy for us. I want to say that I am...say a little bit about the White Earth tribe. We are called; the federal government calls us the White Earth Band of Ojibwe Indians. I have gotten, I have worked hard to get our people -- although when we sign our documents with the federal government I have to use that name -- but amongst ourselves we call ourselves a nation because that's what we are. We always have to remember that we are what we call ourselves. I say to our people back home, ‘A band? My goodness, we're a nation of many bands and we think about a band -- loose, disorganized, small. We're more than that, we're a nation.' And so the White Earth Nation is located in northern Minnesota. We're one of 11 tribes, seven Ojibwe tribes and four Dakota Sioux tribes in the southern half of the state. White Earth is the largest tribe. We have 20,000 members and we're part of the Minnesota Chippewa Tribe, which is White Earth, Leech Lake, Fond du Lac -- and I know Chairwoman Diver was here yesterday -- Grand Portage, Bois Forte and Mille Lacs. We comprise the Minnesota Chippewa Tribe, which is an IRA [Indian Reorganization Act] structure created in 1936. The Red Lake Nation is not a part of the Minnesota Chippewa Tribe. The Red Lake Nation is Ojibwe -- and we have a good relationship with Red Lake -- but Red Lake is unique. It's a closed reservation because they didn't participate in the Allotment Act, the Dawes Act. They kept all their land in common and didn't allow...didn't participate so the land was not allotted and consequently lost. Wise chiefs in those days.

That did not happen to White Earth. White Earth was allotted all out and White Earth...and Red Lake by the way was the federal government's solution to the Indian problem in Minnesota and created these two large reservations to move all the Indians in Minnesota to the Ojibwe Indians, Chippewa Indians to these two reservations. Relocate the Indians again and get them all together where we can oversee and control them, but that didn't work because our Indian people did not leave their homelands and so we still have our reservations up of Fond du Lac and Mille Lacs and Leech Lake and Bois Forte. People went home again, even if some of them did come to White Earth. So that didn't work, but White Earth is the largest tribe because many of the different Ojibwe people came to White Earth. And the land was allotted out at White Earth and consequently because of that allotment process the land was lost, it was swindled, it was theft, it was lumber companies and farmers and people who were homesteading. So our land was lost. We had...our reservation was established in 1867 and comprised approximately 850,000 acres of land. By the 1900s, we had 50,000 acres of land left. The rest was lost. So land acquisition is a huge priority, large priority for us. Today, when the federal government organized the Minnesota Chippewa Tribe, the six reservations together, it put all of our land in common. We have approximately 60,000 acres of land at White Earth out of the 850,000 acres. That's in tribal trust land and it's under the ownership of the Minnesota Chippewa Tribe in common. I worked hard to get that back and some of the tribal leaders want to be paid out within the Minnesota Chippewa Tribe and I tell them, ‘I don't see your tribe in our treaty.' But that's the federal government creating these problems for us as Indian people.

The governance of the Minnesota Chippewa Tribe is an IRA constitution adopted in 1936 and is a very...since 1987...Vernon Bellecourt was a White Earth secretary/treasurer and was a very progressive man. He initiated a resolution that the Minnesota Chippewa Tribe conduct a constitutional convention. I admire Vernon because he was a visionary person. And in 1987, the Minnesota Chippewa Tribe passed that resolution but it never to this day has not held a constitutional convention. Well, we have an IRA constitution and it's very, very difficult for our people -- how many of us read our state constitutions or our United States Constitution and figure out what our rights...how many of us do that? We know it is taught in our schools, but our constitutions are not taught. And so when I came back from Harvard after I finished my classes, we had corruption in our tribe at White Earth, huge corruption. Our elections were fraudulent, we had bid rigging, and so I worked with elders on a grassroots reform movement and I spent the entire summer of 1991 in jail because we had all of this corruption. By 1995, and with the help of the late Senator Paul Wellstone, an investigation was done and indictments were issued and consequently a federal court trial. This grassroots movement really involved a lot of people at home and got them engaged.

When I was at Harvard, I studied the...Manley and I and Colleen Larimore, we did a paper together on community organizing. And so I learned some good skills there and so we engaged, I engaged the community, the reservation, which is a large area. It's a square that's 36 miles on each side and a lot of our people live in Minneapolis/St. Paul and they came up to help. So we had this huge momentum and change had to come and the people were, the people were empowered to make that change. We had to have open meetings every night, every night we had open meetings and it was spiritual because we had our spiritual people there and we always gathered around to pray first and we always said that we need the Creator to help us.

So in 1996 I was appointed the secretary/treasurer, which is the second role in government and I was elected to that position and re-elected in 1998. I lost my election in 2002. I lost it. But I ran on the platform of constitutional reform. Other tribal leaders run on it but don't do anything about it. But I did. I put together a committee and in 1997, '99 the committee drafted a constitution, I took it out to the reservation, to the Minneapolis area, and very few people showed up. It was a very, very difficult constitution to understand because it was...it talked about grand councils and it talked about language that we had never experienced before. And so when I lost the election in 2002, the constitution went off the radar screen, many things went off, went to the bottom of the drawer. I ran for election for the tribal chair in 2004 in the primary and I won the primary, beat the incumbent and constitutional reform was back on the radar screen again. And so we have, I facilitated, I organized and I facilitated all of the constitutional convention process from delegates, kept the entire process totally transparent and we drafted a constitution and we ratified it by the delegates about a year ago.

And then because...I say we're part of the Minnesota Chippewa Tribe with this IRA constitution, I've gone to the...now I'm at the Minnesota Chippewa Tribe level and I'm getting stalled. Some tribes don't want to change, and I think it's because of the colonization and the institutional oppression that people haven't come out of yet. I really do. Don't see the need to change, don't see the need to. There are some issues that are huge. The blood quantum issue is a huge issue, very controversial. Well, that's one of the most controversial ones is the blood quantum and in our new constitution we...our delegates voted on lineal descent. We are terminating ourselves, people, if we cooperate with the federal government on one-fourth blood quantum. We just need to do the math and pretty soon within...we think of seven generations, by seven generations most of us will be gone. That's a controversial issue and even our tribal members in our constitutional conventions get to the point where they say...they get into ethnic cleansing. We have African...our tribal members have married to African-Americans and look like African-Americans and they don't want them there because they're black. I say, ‘My goodness, ethnic cleansing? I can't believe that.' But that's where we're at sometimes. I want to just...I know I don't have a lot of time, but I want to just stop right now and turn it over. Thank you very much.