capable governing institutions

NNI Forum: Tribal Sovereign Immunity

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Native Nations Institute
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Tribal sovereign immunity has far-reaching implications, impacting a wide range of critical governance issues from the protection and exertion of legal jurisdiction to the creation of a business environment that can stimulate and sustain economic development. Native Nations Institute (NNI) Radio convened a group of tribal leaders and Indian law experts to discuss tribal sovereign immunity and the need for Native nations to approach the issue strategically. Moderated by Harvard Project on American Indian Economic Development Co-Director Joseph P. Kalt, the forum provides tribal leaders and their constituents some important food for thought as they seek to protect their nations' interests and advance their nation-building priorities.

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Citation

Native Nations Institute. "Forum on Tribal Sovereign Immunity" (roundtable forum). Native Nations Institute For Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 14, 2007. Interview.

Joseph P. Kalt (moderator): "Like other sovereign nations around the world, Indian nations have powers of sovereign immunity to be free from lawsuits, other challenges to their authority. At the same time, the realities of a globalized economy, a very competitive world, often puts tribes under pressure to waive that immunity and tonight we’re going to talk about the issue of sovereign immunity, when to waive it, when to use it, when to not waive it and we’ve assembled a very distinguished group really representing all walks of life here. On my right, Lance Morgan is the Chief Executive Officer of the Ho-Chunk Inc. tribal enterprise of the Winnebago of Nebraska, well known for its success over the last decade in building a conglomerate of businesses to really rebuilt and strengthen the Winnebago Nation. On my left, Professor Rob Williams from the University of Arizona Rogers School of Law and Director of the Indigenous Peoples Law and Policy Program is one of the nation’s leading educators in American Indian law, has written on all aspects of law and teaches tribal audiences law students at the University of Arizona all the aspects of American Indian law and focuses a great deal on the issues of sovereign immunity. On my right, Chairman John 'Rocky' Barrett is the long-serving Chairman of the Citizen Potawatomi Nation of Oklahoma. Starting a couple decades ago with very little, it’s now the engine of Shawnee, Oklahoma, and the surrounding region and noted for its success not only in its economic development, but in rebuilding a community that had been scattered across the United States. On my left, practicing attorney Gabe Galanda from Williams Kastner. Gabe is an expert working with tribes particularly in the Pacific Northwest really doing innovative things with handling sovereign immunity, its uses and misuses, providing advice to tribes, to clients, on these challenges the tribes face as they struggle with the question of when to waive their immunity, when to not waive it. And so we’ve assembled these folks to talk to us about their experiences, their views on this challenge that so many tribal leaders face across the United States. I’d like to begin with all of you, and maybe start with you Lance and work down here, we hear a lot about the issue of sovereign immunity, often out on the ground. Waiving sovereign immunity is equated with waiving sovereignty and you’ve faced this I know in your business enterprises. What are your views on that, what’s the boundary there? Is waiving sovereign immunity waiving tribal sovereignty?"

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Lance Morgan: "I really don’t…I think they’re two different things. I think they’re easily confused because they both use the word 'sovereign' in it. I always say that on our reservation, if somebody were to try to take away a tribal sovereign right, maybe a state or a county or somebody else, then we’ll fight to the death, it’s on, we’ll empty the tribal treasury to fight that one. But if it’s a business transaction where we want to play a game, we want to take someone’s money or we want to make sure that we do something together, I really want to make sure that we’re playing the game by the same rules, and waiving sovereign immunity really is not that big a deal for us in those situations. If we want to access that capital or to enter that relationship, then it’s only fair to be able to level the playing field between the two parties. So in those instances we’ll waive it all the time. It really isn’t that big a deal for us."

Joseph P. Kalt: "Rocky, from your point of view, tribal chairman having dealt with these issues so much, with your bank, with other aspects, what’s your view on this question is waiving sovereign immunity waiving your sovereignty?"

John "Rocky" Barrett: "It’s actually an exercise of sovereignty. I know from our perspective, we sort of look at it as how would we feel as lenders if someone came to us and wanted to borrow money and said, 'We’re not interested in waiving sovereign immunity in dollar amounts for this particular note or this contractual obligation that we have with your bank'? Our first reaction would be, 'Well, you don’t intend to pay us.' We take the same perspective at the tribe, that if we’re going to behave as responsible lenders, we have done our due diligence, we know that the cash flow is there, we have reasonable expectations for the success of the project for which we’re borrowing the money, and if we do not then we still feel duty bound to pay the loan off. So the waiver of tribal sovereign immunity from suit, particularly for financial transactions, we think is a part of doing business responsibly as a tribe. But it’s not a waiver of your sovereignty. You as a sovereign have the ability to say, 'I’m going to, as a sovereign, I’m going to put us on equal footing in this obligation and I’m doing that as a choice.' So you’re really not giving up…you’re exercising your rights."

Joseph P. Kalt: "Gabe, what are you seeing with your clients and what are you telling them about this issue?"

Gabe Galanda: "Well, we look at sovereign immunity primarily through two lenses. One is the proactive use of sovereign immunity as Chairman Barrett said as an exercise of sovereignty, essentially defining the time, scope and manner by which a sovereign may consent to suit or invite lawsuit against the sovereign and ultimately the tribal treasury, so that’s looking at it proactively perhaps in a means of drawing commercial investment to the reservation or other private investment to the reservation. It really becomes an exercise of sovereignty. But defensively is perhaps where the line between sovereignty and sovereign immunity blur, because defensively most common you will find tribes leveraging their immunity to withstand attack by local government or state government as Lance eluded to, and in that instance you are using sovereign immunity as a defensive mechanism to protect your sovereignty and without sovereign immunity state courts will be presented with questions of regulatory jurisdiction, in particular whether cities, counties and states have jurisdiction over affairs arising out of the reservation and as a threshold defense to that type of question which would be brought in state court by such entities, tribes can assert their sovereign immunity. So in asserting their sovereign immunity defensively, they are protecting their sovereignty, and in some instances that’s where the lines between sovereignty and sovereign immunity blur."

Joseph P. Kalt: "Rob, I know you’ve got strong views on the origins of this concept of sovereign immunity. Where does it come from?"

Robert Williams: "Yeah, I’m always amused when I hear tribal people defend sovereign immunity as one of their inherent rights as if it was something that existed prior to contact, and actually sovereign immunity originates in the 14th, 15th century, it comes from this notion that the English king could do no wrong and that would be exactly what the old common law courts would pronounce. The king can do no wrong and since the king maintains his courts and pays the judges, the judges aren’t going to dare challenge that notion. So it’s really an idea that you find replicated in no tribal culture in North America. In fact, the traditions of most tribes are that leaders are totally accountable to their people, and oftentimes leaders take on additional responsibilities for their people. So it’s a countercultural notion. I think the important thing to recognize is that sovereignty is really the big-picture issue, and that sovereign immunity is a tool of sovereignty and that’s how governments have always looked at sovereign immunity. The United States has sovereign immunity, the federal, the state governments have sovereign immunity, tribes have sovereign immunity. The big difference has been that for the past 100 years, the federal governments and state governments have used their sovereign immunity as a tool, making strategic decisions about when to use it, when to assert it, when to waive it, when to limit it, when to cover it by insurance, and so I think what you’re seeing many tribes now understand is that this is an important tool of sovereignty, of control over the reservation, of control over economic development, and it has to be used with a lot of thought and has to be used strategically."

Joseph P. Kalt: "Pick up on that, all right. I’ve heard a lot of tribal council members view a request by let’s say an outside investor for a waiver of sovereign immunity as an insult because it says to the outside investor I don’t trust your court system. I don’t trust you to adjudicate any disputes between me and you. I don’t trust that. And I sense sometimes there’s some truth in that, that is that all you’re hearing is just mistrust of tribal court system. Should tribal councils take it that way as an insult?"

Robert Williams: "I think that tribal councils should really look at what’s being said when outside investors say, 'We don’t trust or we don’t know your court system.' That’s a challenge for the tribe. Many tribes have established very effective court systems. They have courts of appeals, they have codes and business codes that they operate under, but sometimes they don’t do the job they need to do to make sure that the outside investment company understands that. So if what the tribe is hearing is we don’t trust your courts, we don’t know about your courts, rather than look at that as an insult, I think it’s better to look at that as an opportunity to educate and if the tribe really can’t say to these outside investors or to entrepreneurs on the reservation -- because Indian people have to use those courts as well -- if they can’t say that we have a fair court system, that we have transparency, that you can do business here, that your debts will be obligated. Rather than take that as an insult, I think what the tribe needs to do is look inside itself and make a decision about how important that is. We’ve talked about sovereign immunity as a tool of sovereignty, an effective judicial system, an effective dispute-resolution system is also another important tool."

Joseph P. Kalt: "Gabe, what do you see out there? You deal with tribal clients and they hear it as an insult. It’s an insult to their sovereignty."

Gabe Galanda: "A lot of it, though, really depends on the way in which the request is made. As a threshold matter, if you are a non-Indian entrepreneur approaching a tribe to do business, you must appreciate that there are blurred lines between sovereign immunity and sovereignty and choice of law and choice of forum, first and foremost. And then beyond that these are not just legal terms of art that can be plugged into a boilerplate contract. These are legal terms, certainly, but they have social overtones, political overtones, cultural overtones. Along the lines of what Rob was suggesting, some people believe that they have a treaty right to tribal immunity when in fact they probably do not. But you have to understand the consciousness of Indian Country and tribal council who are elected by their people, and ultimately what their people are thinking about issues of sovereignty, jurisdiction, sovereign immunity and the like before you even approach a tribe. So it’s much like going to the Far East and before you would ever go to the Far East to do business, any business person knows you would become savvy in the ways of people doing business in the Far East, the custom and traditions of those folks sitting around a board room or even a restaurant. You may take a translator. When approaching a tribe, you may take a corporate Indian lawyer who understands the philosophy of tribal government, who understands those political, social and cultural overtones and ultimately understands the pragmatic approach that tribes are taking to resolve issues of common concern. And they are valid concerns: the integrity of tribal court systems, the transparency of tribal government, the sophistication to do business in seven, eight or even nine figures. Those are very valid concerns, but it’s really in the art of the delivery and in making sure that when you approach tribal government, you are doing so very sensitively and you appreciate that it may be your only approach, only opportunity to really convey to them that you are there to do business in a meaningful way and you are there to meet halfway on these very important issues."

John "Rocky" Barrett: "The exercise of sovereign immunity has become in some ways the way that Indian Country seems to be using it is presenting a threat and judges, particularly Supreme Court judges, seem to find the concept repugnant, and unless we tailor the use of sovereign immunity in the same way that state legislatures have and the federal government has, where you provide recourse in situations where tribes want to take sovereign immunity now. If they don’t provide some other form of recourse, to someone with a complaint within their judicial system, they’re going to find themselves on the receiving end of some very adverse rulings."

Joseph P. Kalt: "In your case, too, Rocky, I take it you all have taken this prospect of an insult and basically turned it into a challenge to build your own court systems and to be able to sit there and say our court system…I take it…Hearing you talk before, I know you think you’ve got a court that’s just as good as any other. What have you done in that arena to build that court system?"

John "Rocky" Barrett: "We do think we have a very good court system but if a lender, if we have a project that we need a lot of money for that project from a lender and the lender…we exhaust all the lenders who say everyone says we’re going to have to have a tribal sovereign immunity waiver, well, then I guess we’ll have to have a sovereign immunity waiver. I’m not saying there’s situational ethics there but…"

Joseph P. Kalt: "But you’ve built your Supreme Court."

John "Rocky" Barrett: "We have built our Supreme Court and they are a very knowledgeable, responsible group of experienced jurists."

Joseph P. Kalt: "And how do you relate to the State of Oklahoma courts?"

John "Rocky" Barrett: "We have a full faith and credit agreement with the Oklahoma courts, which has only been tried a couple times. Once, the first time not successfully, but after we appealed the process through I believe that the state is more comfortable with that process now. But the idea that we would defend ourselves from jurisdictional threats from the state governments, we would not hesitate to use sovereign immunity from suit as a defense in that matter, the same as the state would not hesitate to use it against us if we were to make a similar jurisdictional threat."

Joseph P. Kalt: "So you’re looking for parity there."

John "Rocky" Barrett: "Yes."

Lance Morgan: "I think it’s important to understand that you’re talking about sovereign immunity and sovereignty in a couple different contexts. In the United States, the government makes up maybe 25 percent of the economy. On a reservation, typically the tribe might make up 95 percent of the economy and because of lots of reasons, the tribes are forced to be the economic engine on their own reservations also. And so you have a governmental context in this really emerging, fastly emerging commercial context in business, and they’re really two separate issues and I think that what happens, the confusion is that political leaders think of it a certain way. But in a business context you have to think of it, it’s a much more flexible dynamic, and that’s what causes confusion I think at the local level. And tribal government leaders are right to protect sovereign interests for the government, but it becomes an impediment to the growth on the economic side that really in all cases isn’t really a rational kind of reason to not go forward, and it can end up hurting you by limiting your opportunities on your own reservation."

John "Rocky" Barrett: "There’s definitely a misunderstanding of what it is on the reservation, too. It’s amazing what people will come up with of what their perception of sovereignty is. We recently in the performance venue of our casino, we had Three Dog Night there to perform and of course that drew all the old hippies in half the State of Oklahoma."

Joseph P. Kalt: "Did you go, by the way?"

John "Rocky" Barrett: "Oh, yeah. My hair’s shorter now. One particularly grizzled, tattooed old guy showed up and immediately sat down and fired up a joint. Of course our police descend on him and put him in cuffs. He said, 'I thought you guys were sovereign.' And I said…"

Lance Morgan: "It’s a crime not to care on the reservation."

John "Rocky" Barrett: "His idea of sovereignty was a total absence of law. That was his perception of it."

Robert Williams: "Let me pick up on a point there. Those full faith and credit agreements, which essentially allow tribal judgments to be enforced in state courts and state judgments to be enforced in tribal courts, there’s an example of exercising your sovereignty. When you can have another court take a look at your own tribal court’s judgments and say we’re going to enforce those, that extends the reach of your power, and so there’s an example whereby using sovereign immunity creatively, combining it with some of these other tools like the full faith and credit agreements, gives a tribe a chance to really project its sovereignty beyond the reservation borders, and that’s what sovereignty is all about."

John "Rocky" Barrett: There were some practical applications that really what generated this thing was child support payments. We were having difficulty getting child support judgments enforced in state court. People would go off reservation and we could… non-Potawatomi spouse, we couldn’t get child support judgments enforced and when the thing was reversed for the state where they wanted to enforce a garnishment I think or I think there may have been a child support issue, we finally sat down with the local district judge and said, it looks like we have the basis for a quid pro quo here and we worked the agreement out and filed it with the Oklahoma Supreme Court. This was back in ’84. It’s been a long time ago. ’85 I guess.

Joseph P. Kalt: "We all work with or know tribes where they’re a long way from being able to walk in and negotiate or secure for example full faith and credit agreement. Where do you start? Think about some of the tribes out there that are struggling without the economic development, without the economic resources, still saddled without a court or with an older constitution not of their own making. Where do you start in this game to build these kinds of capacities to walk in and be able to stand there toe to toe with the state of Oklahoma and say look, 'Our child support system is just as good as yours, we can do this reciprocally?' Where do you start in that?"

John "Rocky" Barrett: "We are the court for another tribe in Oklahoma. We are the court for two of the local municipalities around us who can’t afford their own court and police systems. This other tribe that has come to us, we enforce their statutes. They’ve maintained their sovereignty from the standpoint of having adopted their own set of statutes, but our clerk, our judge, our prosecutor, our public defender, they all function on a…we do it on a contractual basis. They function to act as that tribe’s court, and if it were not for that they couldn’t afford the cost of the infrastructure."

Robert Williams: "And talking about sovereign immunity may be a bit of the tail wagging the dog, because to even get to the point where you can talk seriously about thinking about sovereign immunity, thinking about taking out insurance policies to cover liabilities, negotiating these types agreements with the state, you better have your self-governance act in order, you better have an effective tribal council, you better have an effective constitution, you better have a really good tribal court system with independent judges who are not afraid to make decisions that might be politically unpopular. And so in many ways, to even get to this point that we’re talking about where you’re going to be thinking creatively and strategically about using sovereign immunity as an economic development tool, as a sovereignty tool, there’s a lot of steps that need to go beforehand that tribes need to think about seriously."

Lance Morgan: "It’s a tiny piece of the puzzle. I think that sometimes people talk about sovereign immunity in a negative fashion or something you have to waive or something that will hold you back or keep people from dealing with tribes, but I think that once you get your act together and you start evolving as an entity, as a tribe and as a tribal corporation or something, sovereignty starts becoming a positive. You can use it to ward off kind of nuisance-oriented suits. You can also use it to really start asserting your rights as a tribal government. One of the examples I like to give is that we were in the tobacco business and the state controlled every element of the manufacture, the distribution and we were just at the retail end and they would just cut us off. They’d tell the non-Indian distributor don’t sell to us without state taxes on it or we’ll pull your license. They would never go to bat for us. But we were part of this thing in the late ‘90s where there was a tribal manufacturer, a tribal distributor and a tribal retailer all with sovereign immunity and the state would tell them…they’d call us up and they’d say, 'You better not do it.' Well, we only sold to tribes. We sold to each other. We created an entire distribution system that was protected by sovereign immunity that allowed the tribes to assert what it wanted to do, its own taxation rights on the reservation that it couldn’t do before under the old system. That’s just one example, but there’s a hundred ways that you could use it as a way to step across the line and assert your rights."

Gabe Galanda: "And I would say at a very basic level, you have to walk before you can run as Rob is suggesting, but you can begin to empower a tribal council to begin assessing their sovereignty, just assessing what it means to have sovereignty, and maybe you’re a P.L. 280 tribe which means you have by federal law ceded criminal jurisdiction to certain states. Well, that doesn’t mean that you’ve ceded civil regulatory jurisdiction and the Cabazon case tells us that. So you may have somebody on your reservation who is a nuisance, who is causing problems, who you cannot criminally prosecute by way of P.L. 280 or Oliphant but you can civilly exclude them from your reservation and that is an exercise of sovereignty. Now best-case scenario, you’re civilly excluding them through a tribal court process, but even without a tribal court the tribal council could have the inherent authority to exclude someone civilly from the reservation and they begin to establish their sovereignty in that way. You may have a reservation that’s been completely allotted by the Dawes Act essentially creating a checkerboard environment, where you have fee parcels next to trust parcels next to fee parcels and so on and so forth and you’re confused about who has jurisdiction over what. Well, there’s a law suggesting that you have civil regulatory jurisdiction within the exterior boundaries of your reservation, irrespective of whether there are non-Indians who own fee parcels that were essentially taken from tribes and tribal people in the 1800s. So there’s another exercise in sovereignty. How are you going to harness that sovereignty -- and irrespective of fee title over your reservation in the fact that it’s checkerboarded -- assert civil regulatory jurisdiction over these activities that are taking place within your reservation? Maybe you begin to tax your non-Indian neighbors under your local taxing power, or maybe you begin to assert zoning authority. So there’s a number of ways tribes can begin to walk again before they run to begin understanding what their sovereignty is, notwithstanding all these erosions of sovereignty that Congress and the courts have forced upon tribes, and then once they are more accustomed and more fluent in the language of sovereignty, then comes the more sophisticated discussions about building tribal justice systems, about exercising your sovereign immunity in certain ways, which ultimately is an exercise of sovereignty. And then you can begin to take those steps, and I think it becomes circular and somewhat starts to perpetual itself."

John "Rocky" Barrett: "Yeah, if you don’t exercise it, it doesn’t exist."

Gabe Galanda: "And if you don’t exercise it Congress or the courts will."

Lance Morgan: "You don’t get elected one day and all of a sudden you’re a sovereign, tribal sovereignty, sovereign immunity expert. Those things evolve over time. With Chairman Barrett, you’re talking about somebody who’s been there and functioning and has dealt with all these situations and has learned how to approach these things. This is an evolutionary process and you’ve got to figure…you talked about walk before you can run. You’ve really got to figure out a way to internally in your tribe nurture that kind of environment where a sophisticated approach to this begins to evolve internally."

John "Rocky" Barrett: "I remember the night where we sat down and said, 'Let’s sit down and list everywhere that tribal law applies or could apply if we had the statute.' And we sat down and worked with Browning Pipestem. I don’t know whether you remember Browning. And Bill Rice, who's a law professor at Tulsa University Law School. And we sat down with them one night and basically walked through our set of statutes and what their experiences were with other tribes and talked about what our, what is the gambit of tribal law that could apply that we could use. Interestingly enough, from that night we probably doubled that list since then because of the evolving picture of how we interrelate because we got in the rural water district business and we started operating a state-licensed rural water district basically where the water district leases the operational facilities, the pipe and the water treatment plant and everything from the sovereign of the Citizen Potawatomi Nation and that interaction between essentially what’s the state body -- which we control the board of directors of it -- back to the tribe. That’s a hybrid that we never dreamed that we would have, or this hybrid of us providing the court and police for a municipality, a charter municipality. That’s an interesting cross-deputization issue."

Joseph P. Kalt: "One of the dimensions here that sometimes comes up and you’re starting to touch on it, so often this issue of sovereign immunity is accounted around the big business deal, the bank is depending, whatever. But so much of sovereign immunity often has to do with littler things. A tribal chairman friend of mine one time said, 'You know, if you get a reputation, someone slips and falls in your casino and hurts themselves 'cause you had improper equipment there or you had not repaired the floor or something, that reputation spreads around the community pretty fast and you start to lose business and so forth.' Maybe starting with you, Rocky, there is an element of accountability here not only with outsiders, non-Indians, but Citizen Potawatomi citizens."

John "Rocky" Barrett: "Well, for us in particular, because we operate the largest chain of tribally owned national banks in the country -- and banks are purely creatures of public confidence -- if people don’t feel confident about your behavior as a sovereign in the ownership of this national bank, they’ll take their money out. Obviously, we have more money loaned than we have on deposit, that’s part of the nature of the banking business, and if you can’t keep a reputation with the public intact that you’re going to behave responsibly in all matters, it’s going to end up costing you the capital of the bank. People will run from your bank."

Joseph P. Kalt: "We’ve started to do some research. It looks like the states in the United States with the strongest prohibitions in their constitutions against any waiver of sovereign immunity are the places with the greatest poverty and the greatest reputations for corruption and other malfeasance among the public officials."

John "Rocky" Barrett: "A lack of accountability, yeah."

Joseph P. Kalt: "Lack of accountability."

Lance Morgan: "Sovereign immunity is a wonderful thing to have in a fight. It’s excellent. But it’s also a responsibility. If you misuse it, you won’t have it for long is my guess. If you use it in small context or small ways to hurt someone else’s interest when it’s really not fair, that’s what you have insurance for because you need to hang on to it for the big things, when someone’s attacking the tribe’s assets or going after really a jurisdictional kind of right or a regulatory thing, then it becomes important. But if you use it as a run-of-the-mill thing, it’s really going to be looked on as a negative, and I don’t know many tribes that do that to be honest."

Robert Williams: "There’s a lot of hidden costs here for tribes, and I like the point you make about when we think about sovereign immunity, we think about the big multi-million dollar deals, but if you sit around and think about what Indian people expect of their tribal governments, well, they expect them to provide an economic environment for jobs, they expect them to provide help out on healthcare, they expect them to help out on education. But suppose you can’t get the teacher to come out and teach at that school because they don’t think they’re going to get a fair shake in an employment context because they’ve heard there’s no protection out there for job tenure. Suppose you can’t get a construction company to build that tribal health clinic because they feel that they’re not going to get their contracts enforced. And so it may well be that one of the biggest barriers to exercising sovereignty in all these different areas is this one issue of sovereign immunity, because it creates a perception out there not only amongst non-Indian businesses but amongst the Indian entrepreneurs that this isn’t a good place to invest, this isn’t a good place…"

Joseph P. Kalt: "To be a school teacher."

Rob Williams: "This isn’t a good place to work, this isn’t a good place to teach, and it just might be that one little issue. I like what you said, Rocky, how you guys sat down that one night. I call that the sovereignty audit. I actually encourage tribes to do a sovereignty audit and see where you’re exercising your sovereignty at, and what you’ll usually find out is that you’re not exercising it nearly as vigorously as you think, and it may well be because of this barrier that sovereign immunity may be creating for you."

John "Rocky" Barrett: "Well, it’s claiming where your government has jurisdiction. If you claim the jurisdiction and authority, governmental authority that you’re entitled to, that’s basically the exercise of sovereignty. But the use of sovereign immunity defense in a court action, like Lance said, you don’t just do that casually. That’s using a hand grenade in a fist fight. It’s too much. You just don’t do that until you are attacked by a larger sovereign my guess would be."

Gabe Galanda: "I think sovereign immunity presents the most imminent threat both to business and ultimately sovereignty in the tort regime, and if you think about Mexico for example, people hesitate to drive south of the border because there’s a perception that there is no law and order in Mexico. So on some level that effects their economic bottom line. People would rather just simply go to San Diego or somewhere else rather than Rocky Point or Tijuana, given that perception or even misperception. The same thing holds true to some extent for Indian Country, which is not to suggest it’s not a safe place, but when you have headlines that read 'XYZ Tribe Dismissed Wrongful Death Suit Out of Court Leaving Grieving Widow Without Redress,' people are going to think twice before they head to the casino to ultimately do business and leave their money there for the tribe to then reinvest it in governmental service programs. Same thing can be said of amphitheaters, which are now opening up on the reservation. Casinos and amphitheaters, by the way, are a pretty interesting mix of alcohol and music and dancing and a whole host of things so things will naturally happen."

Joseph P. Kalt: "A lot of slip and falls."

Gabe Galanda: "There’s a lot of slip and falls, there may be in fact fist fights, and that’s not again to suggest that the reservation’s not safe. There is law and order there, there is law enforcement and security. These industries are regulated and over-regulated as a matter of health, safety and welfare, but when headlines begin to appear in the Sunday paper people getting dismissed out of court when something happened and perhaps it was to no fault of their own, someone falling and being hurt or being assaulted by a non-Indian patron and ultimately questioning security of a tribe, those are the kind of headlines that tribes must avoid or those people will not do repeat business and in turn the economy on the reservation will suffer."

John "Rocky" Barrett: "Well, and slip and falls, our grocery store is just a lawsuit magnet. We have one tape after another of people walking in, taking out a bottle of detergent, pouring it out on the floor and laying down in it and start yelling. It is…phony slip and falls. We probably have 20, 25 a year in our grocery business."

Joseph P. Kalt: "Now those kind of situations, I think I’m seeing a trend out there of tribes more and more waiving sovereign immunity around say an enterprise or a particular…and waiving it in to their own courts. Is that what you’re trying to do with your torts for example?"

John "Rocky" Barrett: 'Well, of course the first thing we do is call the insurance company. We try to insure in order to keep it out of the issue of what court has jurisdiction. We’ll let the insurance company handle it as much as we can. Of course, if we can show the person that has the phony slip and fall the piece of tape and say, 'Do you want to go to court on this one?' We’ll try to get it into our courts. We can’t force the non-Indian to appear in our court, but we can if we can prove that person wrongfully came after us, we’ll come after them civilly in our courts and test that issue. The most difficult part of dealing with non-Indians is not having criminal jurisdiction, and most tribes should invoke some form of civil code of behavior that if someone over whom they do not have criminal jurisdiction commits a crime of some kind they should pursue them civilly. In most cases, that’s probably a fine is all they’re going to get any way out of the issue if they’re fortunate to get that."

Joseph P. Kalt: "Lance, you mentioned a moment ago that if you abuse it you’ll lose it, basically. If this is used to really do what is sometimes the fear of essentially escaping responsibility, escaping accountability. I know Rob, as a tribal judge you’ve had some experience with this as a tribal judge. You actually have ruled in such a way as to send the signal."

Robert Williams: "And this is the point I try to make to tribal councils, is that if you look at the experience of the United States government and the state governments, they all asserted sovereign immunity and they asserted it very aggressively and what happened was in the 19th, early 20th century, judges don’t like it. Judges don’t …"

Joseph P. Kalt: "No judges."

Robert Williams: "Yeah. Someone who sits as a judge, you have the sense that your job is to do justice, and here’s this doctrine of sovereign immunity asserted by the State of Arizona, where there’s obviously a debt owed to a contractor and this poor guy may well be going broke because the State of Arizona is asserting sovereign immunity unfairly. You’re going to work very hard to find a way around that, and that’s exactly what happened in other state and federal courts is the judges were starting to chip away. We’re seeing that right now. We’re seeing lower courts, the Supreme Court chipping away at tribal sovereign immunity because quite frankly tribes are the outlier here, that most other governments have taken a very flexible approach and many tribes haven’t taken that approach. So as a tribal judge when I get a case and I feel that there’s an honest debt here or that the tribe was clearly grossly negligent, I’m going to listen to the arguments for that lawyer who’s trying to make a case that the tribe may have impliedly waived it here, but that’s really not good public policy. You really don’t want judges on the tribal court sitting there making these types of ad hoc decisions. What tribes really need to do is do what these other governments did and that is pass tort claims acts, pass administrative procedure acts where the tribe makes the sovereign decision on what forum these claims are going to be litigated at, what’s the amount of liability, when, where and how to keep control over that process so that judges like me can’t go off the reservation as we say and try and make law and make policy on our own."

John "Rocky" Barrett: "Best way to maintain the limits."

Joseph P. Kalt: "Now, Gabe, I’ve heard you express a view though that, 'Let’s not get too easy about waiving sovereign immunity.' I think you’ve had some concern that you waive it too easily you may give up your sovereignty."

Gabe Galanda: "Yeah, and I guess what I’m talking about is the alternative to the sovereign controlling and defining the time, place and manner by which it would waive its sovereign immunity as an exercise of sovereignty. My concern is when tribes are not doing through tort claims ordinances or well-tailored alternative dispute-resolution clauses to commercial loan agreements or other such things, that Congress or courts -- be they tribal, state or federal -- are standing by waiting to define sovereign immunity and waiveall sovereign immunity for the tribal sovereign. So unless you take affirmative steps to do that, you better believe that people on Capitol Hill or in courts throughout the country -- and that includes Indian Country -- will do it for you. And so there’s a number of protective pragmatic steps that tribes can take to insure that they are the ones ultimately legislating waiver."

Joseph P. Kalt: "Give us some examples of those practical steps."

Gabe Galanda: "Well, for example, just looking at the tort environment again, which I believe presents the most imminent threat to sovereign immunity, and the reaction that judges like Rob or judges on the tribal or state bench have is, 'Where is due process?' This person unknowingly perhaps came to the reservation, something happened, they were hurt and now you’re suggesting by way of your 12B motion there is no redress for this person. Well, there are alternatives to even filing the motion to dismiss on sovereign immunity grounds, which in this day and age, with an increasingly skeptical bench, is not wise for tribes to do without at least carefully considering alternatives. So you have an iron-clad general commercial liability insurance policy that makes very clear in certain instances when there are acts or omissions on the reservation by tribal employees or the tribal government itself that there is liability insurance money available. What liability insurance policies give you is two things primarily: defense and indemnification. So the first thing, there is a carrier or carriers on the line who must pay your legal defense bill, and then secondly, in the event a judgment is issued against the sovereign or even an officer or an employee they will indemnify those defendants for that judgment. It all starts with iron-clad liability insurance policies and making sure that ultimately the carrier is standing by to defend and indemnify, but the tribal sovereign still retains all policy-making decisions, decision-making, including whether to assert sovereign immunity and whether to do a host of other things. So first, make sure you have a very good liability insurance policy, and then once that lawsuit is filed and between that point in time and the time when you file, even file an answer, let alone file the motion to dismiss on sovereign immunity grounds, consider alternatives to putting your sovereign immunity in play in court and ultimately your sovereignty on trial. And two, that I recommend increasingly are if the claim has merits and there are available insurance proceeds and as a result of your liability insurance you have some sovereign decision making and authority, perhaps settle the merit, the claim with merit and then again that is good business and that keeps people coming back to the reservation to do business and that avoids the Sunday morning headlines about something happening on the reservation and someone being left without any redress. Secondly, if the claim is just outright without merit like the detergent claim in the grocery store, one alternative is to simply allow that person his or her day in court and to defeat them on the merits. You have a pretty good idea at the outset of a claim whether you can win a case on the merits, and so you might move right past the jurisdictional motion practice and simply beat them on the merits of a matter of summary judgment. They can’t prove that they were hurt, they can’t prove that you caused their harm or they can’t otherwise can’t prove their case against you. So there are alternatives to filing that motion to dismiss that I think tribes need to be very, very concerned with and thoughtful about such as what I just mentioned."

John "Rocky" Barrett: "Yeah, the issue of venue almost always arises in these deals. They want to sue you in state court because they know that you’re going to resist the venue. The lawyers that specialize in defending these phony slip and falls know you’re going to object to the venue, and so they put you in the position of analyzing what the cost of litigation is going to be and tailor their settlement at some number under what they think your cost of litigation is going to be."

Lance Morgan: "I want to change the subject a little bit to something I want to talk about: sovereign immunity, surprisingly. I think sovereign immunity is dangerous in the hands of the politically motivated or the uninformed. I’ve been in so many business deals with tribes where it’s about to happen, something critical that needs to happen and somebody gets up, either on the government side or in the audience in the room and they start making a speech and the speech is wonderful. I start believing it. And really it’s a great speech from a sovereign context, but in a business context or development side, it doesn’t make sense. But since these issues are so easily confused, lots of good things that should have happened don’t happen. And I always make the comment about the proud guy who makes the speech, stops the deal, then goes back to live in his car that’s got an extension cord into someone else’s house, and he’s talking about how sovereign he is. I’m thinking about the implications of doing these kind of things, and it really can hurt you if you don’t understand it or you allow it to be used in a political kind of way."

Joseph P. Kalt: "Particularly the two of you, it sounds to me like there’s got to be an educational role then, in other words to educate your own people so that you minimize the kind of speeches you’re talking about that sidetrack a deal or whatever. Early on in your efforts did you have to talk this issue through or did it just evolve that you got a consensus?"

Lance Morgan: "I think what really happened, I think you’re always going to have the speech problem where someone gets up and does that because you confuse the issues and what we did in our situation was is that we had this problem before, the first time the tribe started a corporation. The second time we started a corporation, 'cause we had failed -- the first one was a total disaster -- and on the second time we did it, we granted the power to waive the sovereign immunity to that corporation through a resolution of the board, so we developed our internal expertise on how to deal with this particular subject and took it out of the political context altogether, because frankly I don’t know how you ever divide it other than by just separating it, because a politician thinks in a certain way and there’s always a way to stop it by giving this kind of speech."

Joseph P. Kalt: "Is this an issue for you?"

John "Rocky" Barrett: "We asked for…we went back to our people for a specific constitutional amendment to put language in our constitution that authorized the tribal legislative body to waive tribal sovereign immunity in dollar amounts for contractual purposes because we thought that if people were going to do business on reservation we wanted to be able to make viable, enforceable contracts with those people and we wanted them to know that we had the authority to make that waiver. In the process of going to the people and asking them to understand this concept, I think our people came out of that with a clear understanding that waivers of tribal sovereign immunity in these kinds of situations was responsible behavior that was expected from its tribal government and it wasn’t something that we were giving up, but it was a business practice."

Robert Williams: "And that’s where education comes in, and I know those speeches, because I’ve given talks before tribal councils before about this issue and someone gets up and makes a speech and what I find is that oftentimes if you say, 'Well, let’s talk about waiving tribal sovereign immunity,' someone gets up and says, 'You’re asking us to give up our sovereignty,' and then what needs to be done is for the leadership to say, 'Well, not really. What we’re talking about is waiving tribal sovereign immunity up to $100,000, up to the limits of liability insurance policies, of only waiving it in tribal courts, backing that up with some education and training for our own tribal judiciary and our own tribal lawyers.' In other words, part of the education process is to make the tribal membership understand that when you talk about waiving sovereign immunity, it’s really limited waivers. I don’t know of any tribe that’s embarked upon this challenge of addressing the issue of sovereign immunity as a sovereignty tool which gives unlimited waivers of sovereign immunity. In fact, some of the research that Joe and I have done has shown that…I was actually surprised, there are many, many tribes that have selectively chosen where they’re going to waive their sovereign immunity, where they’re going to assert their sovereign immunity. So it’s as much a…sovereign immunity -- I think, Lance, you and I have talked before -- it can be a weapon as well as a tool and it has a defensive aspect to it and an offensive aspect."

Lance Morgan: 'Well, there’s really no surprise that there’s confusion about this issue, because it has so many different uses and to use it smart takes awhile to get all the context of it down, so it really is an issue where education matters in these kind of things and discussing it are very important."

Robert Williams: "Yeah, and I’ve looked at some of the laws you guys have passed, and Rocky, and if you sit down -- and maybe I’m going to sort of pull the curtain here and sort of be the Wizard of Oz -- but if you look at tribes that have really thought about this issue and if you look at where they’ve waived their sovereign immunity, it’s a pretty small exposure of liability there, which is exactly what states do. But let me tell you something, when you go to the state court or when you go to the federal court and you can show them all these statutes you’ve passed and all this legislation, what you’ve shown them is you take this stuff seriously and you’ve debated it and these are your public policy decisions and you’re going to get that respected a lot more than just going into that state court and say, 'Well, what have you done on sovereign immunity?' 'Nothing, we don’t have to worry about it.' And that’s what happens."

John "Rocky" Barrett: "I think…I don’t know how many tribal leaders have sat down and played out what happens if the United States Supreme Court essentially rules that sovereign immunity defenses are no longer allowed Indian tribes. How do you…"

Lance Morgan: "Don’t even say that."

John Rocky Barrett: "Well, but it’s something to look at, it’s something to worry about and it’s something to look at. How do you defend the treasury of the tribe, how do you shield its assets? There are still alternatives left to us in creating trusts for the cash assets of the tribe, in protecting…through the tribal courts in protecting the non-cash assets of the tribe, and of course those assets that are held in trust by the United States which can’t be encumbered are in some ways protected. But if you walk through whether or not someone could -- in the absence of sovereign immunity defenses -- make an assessment against future income, there are certainly governmental functions that would shield those in how you assert your tax authority, you could protect income by asserting tax authority over your enterprises. In the event that it happens, I believe that well-thought-out strategies could…you could defend the tribe against a raid on the treasury."

Robert Williams: "And isn’t it true that when you’re thinking about these things, what you’re really thinking about is what’s the least amount we have to give up to get business on this reservation. You don’t want to give away the whole store. You’re really making a calculated decision about sort of the minimal amount of sovereign immunity you have to waive, right?"

Lance Morgan: "Right. It’s always a calculated decision. I mentioned earlier that yeah, we do it all the time, but we’re very specific about how we approach it. We don’t show up with that on our forehead: we’re ready to waive."

John "Rocky" Barrett: "Aren’t you guys doing pretty much what we’re doing? We want people to want to do business on the reservation. We want them there."

Lance Morgan: "It’s a flexible dynamic. We fight hard when someone’s pushing our rights. If it’s a commercial transaction, we’re very flexible. I bet you we have 1,000 commercial contracts and we probably have waived sovereign immunity 30 times. Most of them don’t matter, they’re just small potato kind of things."

Gabe Galanda: "And I guess I would just follow up what the Chairman said, and ultimately there is the threat to tribal sovereignty, most notably by and through local and state government in the event you didn’t have your sovereign immunity, and there’s a great case that the tribes can still use as a shield, which is the Oklahoma Tax Commission vs. Citizen Band, a Potawatomi case -- thanks to Chairman Barrett -- but the other target, if you will, is the tribal treasury as the Chairman suggested, and if or when that day comes when sovereign immunity is no longer a viable defense for tribes, they will be sued frequently like corporate America is being sued. And unfortunately the potential through litigation, class-action litigation or other personal injury litigation could ultimately bankrupt the tribe and leave them without a viable operation. So that’s really what’s at stake is at the end of the day tribal proceeds that are used to provide governmental services to Indian people is what’s really at issue when sovereign immunity is not used responsibly."

Joseph P. Kalt: "I’m going to have to wrap this up, but I want to say first thank you to all of you. I’m struck by this conversation. What we’re actually watching is this increasing sophistication of tribal governments playing on the stage with other governments, because all around the world the strategic use of things like your sovereign immunity is an asset you don’t want to waste. It’s what governments all around the world tussle [with] and think through all the time, and it’s very encouraging, I think, to see the kinds of lessons you all are bringing to us. Thank you very much for this discussion."

Joseph P. Kalt: Sovereign Immunity: Walking the Walk of a Sovereign Nation

Producer
Native Nations Institute
Year

Harvard Project on American Indian Economic Development Co-Director Joseph Kalt discusses what sovereign immunity is and what it means to waive it, and share some smart strategies that real governments and nations use to waive sovereign immunity for the purposes of facilitating community and economic development. 

Native Nations
Resource Type
Citation

Kalt, Joseph P. "Sovereign Immunity: Walking the Walk of a Sovereign Nation." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 21, 2012. Presentation.

Stephen Cornell:

"Sovereign immunity: a topic that we run into constantly in Indian Country and something that Joe [Kalt] and others have thought a lot about. And so Professor Kalt, sovereign immunity."

Joseph P. Kalt:

"All right, Steve, thank you. Hi, everybody. Good to see you all. See some old friends, students and so forth here. I want to start out talking about sovereign immunity, which is a key issue of course for a lot of tribes, with a mock tribal council meeting. And here's the deal. You're a tribal council, you are nation builders and you've listened to these talks and you go home all excited. And in fact one of the things you're going to do is you're going to start an effort to try to keep the elders from having to move into the city when they get very old or ill. You're going to build an elder care facility right here at home. And it's going to cost you $10 million -- construction costs -- to build this elder care facility to take care of your own elders. By the way, this is based right down here just outside of town, Tohono O'odham has built the premiere elder care facility in Arizona, maybe in the nation. Not the premiere Indian elder care [facility], it's a world-class operation, right down here 50 miles away from us, absolutely phenomenal, expensive. It has those kind of rooms that are a mixture of...they look like homey, but they also have hospital capabilities. It's expensive. Ten million bucks and the construction company wants you to waive sovereign immunity on the construction contract. They want you to waive sovereign immunity. They're saying, ‘Look, we're going to go and do a bunch of construction for you. You're going to pay me $10 million.' And what is the waiver of sovereign immunity? What are they asking for? What do they want? Here's a construction company -- in fact, I'll be the evil construction company. 'Ten million bucks, willing to do a deal with you, but I want you to waive sovereign immunity.' What's the construction company asking for? Yeah, they want assurance that they'll get paid and when they say waive sovereign immunity...Oh, in fact I'll tell you what this construction guy wants. I want you to waive sovereign immunity, I want you to waive into State of Arizona courts. What does it mean? It means, 'I want you as a tribal government to waive your freedom from lawsuits so that if you don't pay me, I can come sue you and get my money ‘cause I'm going to put up...I like...I love this community. I want to help you, but also I'm going to spend ten million bucks.' So that's the proposal, is that I, the construction company, will have the right to sue you if we get in some kind of fight. You don't pay me, I don't know, maybe there's some worker insurance issues that come up, but I have the right to sue you in Arizona State court. You'll submit to Arizona law and that's my proposal.

Now I want us to have a little debate in the council, make this about even, starting here with my good friend Edward here. Everybody from you downward, you can only speak against this proposal to waive sovereign immunity. From here down you can only speak in favor of waiving sovereign immunity. So here's the proposal, I know because you all had me over for dinner last night that you're on my side, you support waiving sovereign immunity. Why? You can only speak in favor of it. That's true. I don't trust your tribal court. I just watched one of your former judges on video. He got booted out for some political reason. I don't trust your courts. I don't trust your courts...You're exactly right. Yes? Exactly. Gail's exactly right. This very wise council member recognizes that to get the deal done, I'm not trying to be a bad guy, but I'm not a charitable organization. I'm not going to give you ten million bucks and you have elders that need care, we're going to do this quickly. So thank you very much for your support. Any opposition to waiving sovereign immunity? Any proposals? Counterproposals? Yes, sir. With all due respect, council member, with all due respect, and you also won't have an elder care facility. Okay, go find another contractor. Okay, fffffff, here's your new contractor. Here's your new contractor. I'm sorry, I insist on a waiver of sovereign immunity as well. Yeah, I know. You ran on the same ticket together against my brother. What infrastructure are you talking about? Any responses? He says, well, what, I guess we'll put off building the elder care facility for 15-20 years. Is that enough? Remember, I want the construction job. Any response? He says, you'll go build your tribal courts, etcetera, etcetera. Okay, look guys. You can see what the fundamental issue is, right? You can see that there's this tension here and you said it very well, what's your name? You said it very well that...he said it very well. There's this tension. 'Wait a minute, I'm sovereign, if I waive my immunity and particularly if I waive it into like the State of Arizona courts, I'm submitting myself to the laws of another nation, another government,' and you've been fighting for decades, centuries, for sovereignty. On the other hand, you might have to wait 15 years. This is realistic, folks. This is the tension that tribes get themselves into.

Let's talk a little bit about sovereign immunity, and what I'm going to end up doing is looking at some of the clever things tribes are doing to try to essentially maintain their sovereignty and get that elder care facility built. They're trying to do both. First of all, where does this concept come from? What is sovereign immunity? Sovereign immunity, where did it come from? Should you ever waive it? What do real governments do out there in the world? Notice the start of this talk was something about walking the walk. How do real governments out there handle this issue? Because you know, by the way, this is an issue for basically every government out there from the State of Arizona to the country of Poland, to Tohono O'odham [Nation]. This is an issue for nations all over the world. What do rogue governments do who don't get the elder care facility built, etcetera, etcetera? And is there conflict? You know what these sessions are about -- they're talking about using your sovereignty right. That's what this whole exercise is about is building the nation, the sovereign nation. Is there a conflict between the message of NNI [Native Nations Institute] and this issue of sovereignty?

What is it? Sovereign immunity is limits on the ability of a government to be sued, for example, vis-í -vis its own citizens. Sovereign immunity, you can't sue me. You might be able to sue me as an individual depending on the way tribal law works, but you can't sue the government as an individual unless it's waived. Limits on the ability of a government to be sued by non-citizens including this construction company that was going to build the elder care facility or by other governments, being sued by other governments. Now, is it protection, is it an asset, or is it a burden?

Let me pause for a second. How do you guys think about waiving sovereign immunity or protecting sovereign immunity? Is it helping the nation to have sovereign immunity, is it hurting it? What's your sense? You guys deal with it. Yeah, it's interesting, and this will be the central theme here -- he's been looking at my notes -- this'll be the central theme. You're exactly right. It's an act of sovereignty to be able to waive sovereignty. That doesn't mean you should always waive it. The game is to do it smart, to be smart about it, both how you do it, when you do it -- and you'll see in a minute -- where you do it. Meaning when you're waiving immunity you're really submitting yourself to some other system of law enforcement essentially, judicial enforcement than solely your own government. Can you be smart about that?

I'm not a lawyer and I stole this slide from a very, very good attorney. He's on the board of NNI, Gabe Galanda. Gabe is one of the leading Indian attorneys up in the Pacific Northwest. The boundary, what is this sovereign immunity? It turns out that for tribes the law is pretty clear that a tribal entity, by that I mean the government, your housing department, your gaming operation, a tribally owned business, is subject to suit only if immunity is clearly waived. It's interesting, this is a case in which the law has tended to kind of support tribal sovereignty and unless that contract explicitly says, ‘We the tribe hereby waive our immunity,' the courts treat that as, ‘Well, the tribe is sovereign. It's immune from suit.' But that also means that when you waive sovereign immunity you've got to be real clear about how you do it and where you do it and when you do it and who does it, etcetera. It shields tribes from suit in federal, state or tribal court and for either monetary or equitable relief. Equitable relief would be like my housing department bought a truck from the Ford dealer here, didn't pay. Equitable relief would be they get the truck back. Well, you'd be surprised, those car dealers, if you don't waive sovereign immunity, they're real unlikely to sell you the truck. They're kind of that way, those car dealers. Immunity can protect tribal agencies, businesses and so forth on or off the reservation.

But you can also smell the other side of the coin in that it can be abused. It can be abused. Enter into that $10 million contract and then once the building's done say, ‘Sorry, Mr. Construction Guy.' We'll look at some of the consequences of that.

Where did sovereign immunity come from? Anybody have any idea? This guy. This is not an invention of even federal Indian law. It came from that era in which these guys, the kings of England and so forth, claimed...and importantly, and this is important, because if you think about you as leaders of your nations, your responsibilities, when you behave well, here's what they were arguing. It has its origins in something that's pretty distasteful. It said, ‘I am the King. I'm here by divine right. God made me king. The people don't have any authority over me.' And this was used by these European kings to create all kinds of atrocities over their own people. Essentially, 'I'm above the law, I want to steal your property. I am the king. I have sovereign immunity.' So there's something, you've got to be a little weary then that there's something about this sovereign immunity that actually doesn't fit. In my experience -- I'm from the White Yuppie tribe -- in my experience with working with so many Indian communities that I do, that actually isn't really deep in the culture of most tribes, the idea that you as a leader are above the law of people, that's not Native. Not in my experience. No, no, no. You serve, when you serve, the people. And you when you quit serving the people we get rid of you. And so there's a little bit of tension here that this whole idea of sovereign immunity, which has become in some ways quite sacred because it is protecting the nation's sovereignty, has this element of it that it can be abused. ‘Oh, I'm above the law,' says the tribal council, the tribal housing department or whatever.

Should the nation ever waive sovereign immunity? What do real governments do? And this is this walk the walk part of what I want to say. What do real governments do out there? All over the world, all over the world, governments eventually find it necessary, if they are going to get that elder care facility built, if they're going to get that new business to locate on the reservation, if they're going to get many things done, they find that they indeed do need to ‘waive sovereign immunity.' But how do they do it? Here's the story. Who wants to be West Virginia? What does that mean? We looked around, turns out in the United States, every state in the United States has various provisions for sovereign immunity. Sometimes it's in state constitutions. Many states, for example, will -- either by constitution or by law -- one of the 50 states will say the state will carry a huge insurance policy, $100 million insurance policy -- and they'll waive sovereign immunity so you could be sued in federal court as a state up to the level of their insurance policy. And they literally write their laws that way. The sovereign immunity is hereby waived up to the level of enumerated insurance amounts. Other states in the United States will waive sovereign immunity around specific things, for business transactions like a construction contract, and so forth. They'll waive sovereign immunity and they'll enumerate that in the law or even in their state constitutions.

Now why pick on West Virginia? West Virginia has the strongest ‘never waive sovereign immunity' clauses of any ‘tribe' -- that is one of the 50 states -- in the United States. If you go look across all the states -- Rob Williams who you just saw in the video and I looked at this -- and you look at how different states handle sovereign immunity in the United States, West Virginia is the one who says, ‘We will never waive sovereign immunity.' And we don't think [that] the following two things are coincidental. Number one, want to guess what the poorest state is in the United States? West Virginia. There's a relationship there. Literally the poorest state in the United States has the strongest 'we'll never waive sovereign immunity' clauses. Secondly, you hear all the time back in that part of the country,  coal mine disasters. Funny, you know there are coal mines actually in a lot of states. Want to guess who leads the United States in coal mine disasters? In fact you're going to know it, right? You hear it on the news. West Virginia. Why? Because I can't go as the descendent or whatever of someone who just got [killed]...I can't go sue the state for having Harry as a mine inspector when you all know Harry couldn't do that job. My point being, you're insulating the system from its own people, you insulate the system from its own people. So I assert -- and despite the fact that my own father was born in West Virginia -- I don't want to be in West Virginia. And we don't think it's coincidence at all that you have the poorest place in the United States and some of the worst kind of public service like mine inspections, mine safety, in this particular state where you as a citizen can't get to them, I as a business guy can't get to them. They are protected. They've got the worst infrastructure, just horrible, West Virginia, the poorest place in the United States.

So what most states do, and governments around the world, is they have limited waivers of sovereign immunity, limiting up to a certain dollar amount, waiving up to...’We waive sovereign immunity up to $100,000 or we waive sovereign immunity on construction contracts.' They enumerate and have limited waivers of sovereign immunity and I'll show you some examples in a moment. The other thing that you see real nations doing is entering into investment treaties. When you waive sovereign immunity, you're waiving your jurisdiction into somebody else's jurisdiction. And a lot of what...wouldn't you feel more comfortable if you felt like you had to do that to get the elder care facility built, wouldn't you feel a little more comfortable doing that if there was a treaty between you and whomever you were dealing with that laid down the rules of how things will play out if we get in a fight, if we get in a dispute over that construction contract or something like that? And so all over the world what we see is real governments entering into, ‘I'll waive my sovereign immunity if you'll waive your sovereign immunity,' but we're not just going to use those words. We're going to sign a treaty that lays down essentially a law that we both agree to. Notice this is an act of a sovereign. A treaty is an agreement between nations, a treaty. And so what you see all over the world, and there is a whole, there's actually, it led...after World War II, all over the world, treaties like that, it led to a demand, ‘Well, I'm signing a treaty with your nation, I'm signing one with yours, you're doing one with hers, vice versa.' It's actually created a whole international court system now. The primary one is the London Court of International Arbitration where governments go into fights, that is they have courts, where the huge construction company is suing the Country of Poland or something like that but they've done it by the creation of treaties, which said, ‘We'll create this thing called the London Court of International Arbitration and we'll waive our immunity into that process.'

Now, in addition...what do rogue governments do? Here's the typical pattern. They sign one of these treaties. They sign one of these treaties. They then sign a contract like my build the elder care facility story. The second the building's done they breach the contract. This is what rogue governments do. They breach the contract. ‘Oh, sorry. You know, you installed those door jambs a little wrong and so we're never going to pay you your $10 million.' They've got all kinds of pre-textual things like that and they plead sovereignty, they plead sovereignty. They ignore the treaty -- and I'm going to show you a real-world case in one second -- they ignore the treaty and they say, ‘Well, yeah, we said we'd go into the London Court of International Arbitration but that was by a previous council,' tribal council or national legislature. ‘Oh, I'm a new government, I don't abide by the treaties of a previous government. I don't abide by tribal council decisions from the previous administration. That's why I'm here is ‘cause I voted this guy out.' And you ignore the treaties. ‘Oh, you want to take me to court? Fine. Go have your hearing and I won't show up.' And there'll be all these people dressed in suits -- I actually do some of these for a living -- that go to the courtroom in Paris, at the World Bank, and only one side will show up. The complainant shows up but the country who signed the treaty and said it would show up doesn't show up. What are the consequences?

This is a real-world case. I actually testified in this case in Paris. It was kind of cool. I got to see the French Open during the thing. It was cool. I don't even like tennis. Ecuador. Where's Ecuador? Down there in Central America or South America. Ecuador, they sign an international investment treaty with a whole bunch of nations. And you can imagine tribes doing this -- for example, among themselves -- and signing a set of treaties in which, or signing essentially a treaty by negotiating cross-recognition of jurisdiction with the state government. It's the same thing. Anyway, Ecuador signs one of these. They enter into like a $6 billion...actually they enter into like $50 billion of oil and gas contracts. They want to develop oil resources; reminds me of what's going on up in North Dakota now. They want to develop their oil and gas resources. They sign big contracts with construction companies basically, but these big oil companies that go build oil wells, pump the oil out of the ground and all that. The Occidental Petroleum and these companies, Exxon, they come in and they invest billions and billions of dollars. And essentially, this is a real-world story, Ecuador -- here comes the oil companies, they invest all that money -- almost the second they finish building the structures, putting in the oil wells and all that, Ecuador sends in the troops and kicks them out. In fact, the way they do it is a new president comes in -- a new council if you will -- and says, ‘Those big oil companies are ripping us off, taking away our national pride,' and uses this speech to justify literally flying in guys, soldiers in helicopters to take over the oil fields. Now remember, they've got a treaty. They go to court in this, not an Ecuador court, not a U.S. court; it's actually an international court. It's actually a court of arbitration. Ecuador picks a judge, the oil company at issue picks a judge, they've got $6 billion in the fight, and the two judges then pick a third neutral [judge]. That's kind of nice. They each got their shot. They're trying to share the power, not going into U.S. court, not going into Ecuador court, anywhere else. They create their own court with arbitration. And Ecuador loses in that international arbitration. And Ecuador loses in that international arbitration. And Ecuador says, ‘Yeah, we lost. We owe that company $6 billion. Ha, ha, ha, ha, ha.' And they literally just go, ‘La, la, la, see you later.' And they go out and party I guess and ignore, and ignore the arbitration result.

What do you think the consequences of this is? What do you think happens here? What do you think happens? Ecuador has stood up for its sovereignty. It's not going to let any group of these arbitrators rip them off. What do you think happens to Ecuador in this situation? Here's what happens. Almost immediately -- you are looking ahead, aren't you -- no one would loan Ecuador a penny. And immediately, those who would loan them, jacked up the interest rates to Ecuador -- this is all documented. Like overnight, Ecuador goes from being able to borrow money at eight percent interest to 28 percent interest. What's that cost Ecuador? Say they want to borrow $10 million; one year's interest at eight percent: $800,000. One year's interest once they raise those interest rates to you to 28 percent, $2.8 million. Suddenly doing any public effort -- build a new hospital, a new elder care facility, pave a road -- just skyrocketed in cost. Went from $800,000 a year basically to $2.8 million. And I could add as many zeroes as I wanted there. I could make these numbers...they are pretty large. But what happens in this situation with these rogue governments is in the short run you got the oil wells and in the long run you've basically made a situation where no one wants to deal with you. You are now West Virginia. Ecuador and West Virginia kind of sitting there together. And the investment in the public's interest -- the roads, the hospitals, whatever it is -- just went from 80 to 280, it's like a factor of almost three or I guess it is three. You tripled the cost of investing in this country.

So how do you waive sovereign immunity and how do you go about the process? Now we'll talk about smart and not smart, but you can sort of feel the message is smart governments figure out how to waive immunity while protecting their sovereignty. How do you just mechanically do it? And we see tribes doing three kinds of approaches. Some will write it into their tribal constitutions. So increasingly we're seeing some tribes, you had discussions here about constitutional reform. More and more, we're seeing tribes do what we see like U.S. states do. The tribe here can elect to waive sovereign immunity up to the amount of its insurance policies. It can elect the tribe, 'under duly passed ordinance by the tribal council says in the constitution...,' in other words you can waive for the following thing: physical infrastructure development, a business investment, something like that in the constitution. A lot of tribes do it by an ordinance. Rather than the constitution they pass a law. The tribal council passes a law and says, ‘Okay, we'll waive sovereign immunity on a case by case -- it doesn't mean like a blanket, but on a case-by-case basis we'll waive it up to the amount of our insurance policies, we'll waive it for construction projects, we'll waive it for infrastructure development, and things like that.' And often a tribal council, on a case-by-case basis, will do a council resolution that for this particular loan, the $10 million for the elder care facility, we'll waive immunity through an ordinance, a borrowing resolution.

Where do you get the authority to waive? That is, think about your own nation. You come back from this and say, ‘Okay, we don't want to be West Virginia. We don't want to be Ecuador. We've got to have a smart waiver of sovereign immunity policy.' Where do you get the authority to do that in your community? Just put it up to the council? What we see tribes doing is sometimes the whole tribe will make this decision. There's a cultural match issue here. What does your community want, what does it expect? And in some tribes that means, ‘No council member, you don't get to vote on waiving sovereign immunity. You've got to take it to all the people, and we're going to put it up for a referendum, essentially.' By the way, that's really messy, right? That's really messy [because] how do you convey to the man or woman on the street these kinds of issues? This is a little bit techy, a little bit law, and it can be demagogued by those demagogues who won't waive sovereign immunity because it's waiving our sovereignty. And so you end up with that challenge. But other tribes will do it by tribal council. It's just like passing another law that, 'Here's the speed limit in the town,' and ‘Oh, here's the next ordinance. We're going to have a waiver of sovereign immunity on all our loans.' Something like that.

And some tribes will delegate the power to sovereign immunity to things like the board of directors of their tribal development company or that tribal enterprise or the gaming enterprise, so the council, the politicians, are not involved in that. Is that smart or bad? What do you think? Should you take your development corporation and say to the board of directors, ‘You decide. Not the council, not the people, you decide when and where to waive sovereign immunity.' What do you think? Smart or not smart? And this is the game. That's exactly right. You can sort of feel -- two-edged sword -- on the one hand, it can be smart [because] you can take some of the politics out of it and make some of this like taking out the next loan or line of credit or something pretty straightforward. But you want to be specific about it and say you can waive sovereign immunity, but you can only waive it into federal court, or you can only waive it into this intertribal court, or you can only waive your sovereign immunity on certain dollar amounts, certain events -- those kinds of things. And so you see tribes be very inventive about this question by putting on -- as I just said -- specificity; dollar amounts, events, what kinds of things, what circumstances, how long, what jurisdiction. I work a lot up at Crow, for example. I've worked there for many, many years up in Montana. And the Crow and the State of Montana, the Crow would no more voluntarily -- without a gun to their head -- waive sovereign immunity into Montana state courts. They're much more willing to waive it into federal court, [because] they've just had this horrible relationship forever with the State of Montana. You can pre-specify these things at actually any of those levels.

When are limited waivers of sovereign immunity smart? One is contractual waivers, particularly for loans, and other long-term contracts. One quick story. I work with a tribe up in the Pacific Northwest. This is kind of cool story. And here's how they waive sovereign immunity. They wanted to borrow I think, the dollar amount was like $110 million; it was a pretty big loan, a tribe up in the Pacific Northwest. The bank, Bank of America actually, says, ‘Sovereign immunity? I'm not giving you $110 million unless I have some recourse if we get in a fight and some hope of getting my money back if I give you this $110 million bucks.' So says Bank of America, ‘I want you to waive sovereign immunity into State of Washington courts.' The tribe says, ‘No way.' The tribe responds with a counter offer. ‘I'll waive sovereign immunity, first into arbitration, meaning if we're in a dispute we'll put arbitration clauses in these contracts. You pick a judge, I pick a judge the two judges pick a third; it's neutral, it's fair. And we'll operate under the London Court of International Arbitration rules and legal procedures. We'll waive into arbitration.' Is that the end of the story? Is that satisfactory do you think for Bank of America? Why?

Next problem. Arbitrators might have a very fair arbitration and might rule in favor of Bank of America. It's kind of like my story of Ecuador; you've got to get the arbitration award enforced. And so typically these waivers of sovereign immunity waive into arbitration, but then they'll have a clause about ‘any duly found arbitration award shall be enforceable under the laws of...' blank; State of Washington, federal, etcetera. 'So, okay, we'll go to arbitration,' but then Bank of America says, ‘That's not good enough for me.' They're about to lose their $110 million. The tribe says, ‘I've got an idea,' and this was kind of cool. Tribal council members like yourselves sitting around and they're talking about, ‘Well, let's waive it into tribal court,' meaning we'll allow ourselves to be sued, but any arbitration award will be enforceable in tribal court. What do you think Bank of America says? They used to say no. They're now more and more saying yes. They first say no. Bank of America says, ‘We're going to enforce the arbitration award in tribal court? No way.' So then the council has this very interesting discussion and it goes back to part of what you said, Joe, about building the tribal infrastructure and the tribal courts and so forth. The tribal council says, and this gentleman on the tribal council says, ‘Folks, I'll tell you what, if we don't trust our own tribal courts, we're not really a sovereign nation.' And so what they strike a deal with Bank of America is, ‘Okay, arbitration award enforceable in tribal court. If our tribal court will not enforce an arbitration award, then you can take us to State of Washington court.' What did Bank of America say? They said yes. Notice the gimmick. Partly it was a self-challenge. It was doing what you're implying. If we're going to walk the walk of a sovereign and our own tribal courts won't live up to a duly found arbitration award under a contract we voluntarily entered into, then we're not worth our sovereignty.

It was kind of an interesting thing. They end up, bottom line they waived into Washington court but they put a challenge to themselves and a line in the sand that said, ‘We want you to come to tribal court. If tribal court won't enforce the award, then take us to court.' Interestingly enough they said, Bank of America initially said no to tribal court. They're more and more, not just Bank of America, more and more contractors and so forth and banks and so forth are perfectly willing to go to tribal court. It's not as if the State of Washington courts are all that great. People think there's this -- I've talked to some of the guys at Bank of America -- they actually sometimes say, ‘Yeah, I'd much rather go to tribal court. They're much faster. Often their judges are better trained.' Do you realize in many states what's going on? State courts, they're buried in family issues, drug issues. Here in Arizona, you've got immigration issues, all of these things going on, and these judges in these state courts don't have any time to learn business law, to take these big dollar cases and so forth. And if Bank of America wants to take you to state court, it might take them seven years, where if I go to tribal court maybe I can get a judgment in two years or something like that, or one year. And so what you're finding is sort of Rob William's speech about building that good tribal judiciary, that speech about that. It turns out the market kind of likes that and more and more you're finding tribes...I literally had one guy say to me, ‘I'd much rather go to tribal court than to state court. State court is politicized, underfunded...,' meaning all the things you hear about Indian courts, politicized, underfunded, hacks, nobody's a good lawyer, blah, blah, blah. But if you build your judiciary the way that Rob Williams was talking about in the previous lecture -- nobody applauded his video by the way, for someone who's not really here, we don't applaud -- but you can hear the same theme here in other words. It's one of the comparative advantages of tribes because our, particularly in the United States, the state court systems are no great shakes. It's not like Bank of America trusts a state court much more than they trust a tribal court, but you've got to invest in it. And that story about Bank of America is one where they challenged themselves. ‘If our courts won't uphold a proper award, then take...' that's a challenge to each other in the council.

I've already touched on the way this often takes the form is you first go to arbitration but you still have what's called a choice of law question with respect to enforcement. You don't always waive sovereign immunity. When you can, you try to waive into your own courts and get the world to trust those courts. And you're not, tribes start out at a disadvantage because so many businesses, for example, are not used to dealing with tribal courts. Some of them are probably racist, but it's not like they like the other courts all that much either, folks. Talk to anybody in business, the last thing in the world they want to do is go to a jury. And I have tribes that have gotten very smart and they'll take business disputes not to a jury in their own tribal court but to a three-panel judge panel where two of the judges might be from a related but not my own tribe. What they're doing is they're saying to that bank of whatever, we know you hate those American juries [because] they're just whacko sometimes. We'll give you a system with people who are qualified by building a judicial system of our own that is better and faster and fairer than the state court system. Waive into arbitration, waive into international bodies. We're starting to hear some talk about this.

The Salish tribes, you may be aware there's this big effort going on trying to get the Salish tribes in the Pacific Northwest, Canada, U.S. talking now about things like, 'Let's create an international court, essentially, where we can draw upon judges from multiple tribes.' I work with one tribe, joins one of these intertribal appeals court systems. How many of you are in an intertribal appeals court system? Anybody? I'll describe one of them for you up in the Pacific Northwest. I get into a dispute with a tribe and I want to appeal it, I lose. We go to an intertribal appeals court, a three-panel judge court -- three panelists, three judges -- none of which are from the tribe I'm fighting with, but they're all tribal judges. Not State of Washington judges, State of Oregon judges or something like that. And you're essentially saying to the world, you'll get a fair shake. Oneida is, yeah. And then sometimes you waive into another government's courts. A lot of tribes are finding that for relatively small things, if it's literally a pickup truck you're worried about, you waive into the state court. You've got to know when to pick your fights in a sense. Now if you're talking about a major thing like hundreds of millions of dollars, a different story. And be clear and explicit, and I'll show you some examples.

Here's an example of a tribe handling sovereign immunity. This is from an actual charter of a tribal corporation says this tribal enterprise, tribal business, ‘The enterprise is an entity of the tribal nation and is established for the benefit of the nation. As such, it has the same immunity from suit as the nation does.' What you're watching the tribe do in this document is draw a line that says, ‘We have sovereign immunity, we are asserting that we are sovereign.' But then it goes on to say -- the stuff not in yellow -- 'notwithstanding the fact that the enterprise is immune from suit, the enterprise is hereby expressly granted to sue in its own name and a limited right to be sued in its own name as more fully set out below.' That phrase ‘a right to be sued,' that is a limited waiver of sovereign immunity and they go on, ‘...As more fully set out below. The enterprise is not immune from such suits, actions or proceedings initiated by the nation or its regulatory agencies and departments, nothing in this section or in this charter shall be construed as a waiver of or limitation on the sovereign immunity of the nation.' What you're watching a tribe do is set up a tribal corporation, tell the world, ‘Yeah, there's limited waiver of sovereign immunity, but you can only sue the enterprise, you can't sue the nation.' So you're not suing for example to get at the assets of the tribal council, of the tribal government. You may be suing to get that truck back from that company, but you don't have the right, that's what this is laying out as they set up in the charter of this corporation. This is the nation's law telling its corporation and hence telling the world when you can be sued and when not.

Here's another example: ‘The nation waives any doctrine that otherwise would require the exhaustion of remedies in the judicial court of the nation including any administrative remedies before proceeding with arbitration or litigation.' What is this clause saying? What they're saying here is, there's this notion of exhaustion of tribal remedy. This is saying, ‘waives any doctrine that would require.' It's saying, I'm setting up, you don't -- you the private investor with me -- don't have to necessarily exhaust all legal remedy through tribal court. We'll negotiate a limited waiver of sovereign immunity and the tribe is announcing to the world, ‘If you sue me, we'll go to arbitration like we agreed.' I won't come back and say to you, ‘Oh, no arbitration. You have to go through 19 years of tribal litigation.' No, no, no. We'll do straight arbitration. You're watching a tribe try to design that for itself.

Real quickly, a couple more: 'If there is no colorable...' -- this is again from a tribal contract -- ‘...if there's no colorable claim that the federal court has jurisdiction, if the federal court determines that it lacks jurisdiction or in the event of a challenge to the federal court's jurisdiction, then the nation consents to the enforcement of the gaming enterprise' -- this is for its casino -- ‘the enforcement of the gaming enterprise's agreement to arbitrate and the confirmation enforcement of any arbitration decision or awards in the judicial court of the tribal nation, Arizona Superior Court and any court to which the decisions of those courts can be appealed.' What you're watching here is the tribe say, with respect to our casino, 'We actually, we're agreeing kind of to stay out of federal court. You can come to tribal court or you can go to Arizona State Court, but we're not going to federal courts' is basically what they're trying to say.

These are just examples. There's zillions of these kinds of examples, each one tailored by the tribe in kind of an intelligent way to achieve the double objective. There are two objectives around sovereign immunity. One is to protect your sovereignty. The other is to not be West Virginia. If there's one lesson you want to leave this whole event from, it's to not be West Virginia. My point is, in other words, you're trying to achieve economic development or other infrastructure needs, that means you're probably going to have to waive sovereign immunity, but there are smart ways to do it: arbitration, waive into your own courts. Back that up if you have to by, after going to state court we'll go to federal court or whatever. But at the same time you want to do it very carefully so that you pre-specify. We're not giving up our sovereignty as a nation, we're only doing a limited waiver here for this particular loan, for this particular enterprise. And that's the challenge of sovereign immunity is to balance those two things, protect sovereignty but also not be West Virginia. So that's the lesson, don't be West Virginia. Thank you, guys."

Native Nation Building TV: "Bonus Segment on Native Nation Building"

Producer
Native Nations Institute
Year

Joan Timeche, Stephen Cornell and Ian Record with the Native Nations Institute at The University of Arizona discuss the "Native Nation Building" television and radio series and the research findings at heart of the series in a televised interview in January 2007.

 

This video resource is featured on the Indigenous Governance Database with the permission of Fox Channel 11 in Tucson, Arizona.

Citation

Native Nations Institute. "Bonus Segment on Native Nation Building" (Bonus Segment). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy and the UA Channel, University of Arizona. Tucson, Arizona. 2007. Television program. 

Announcer: "This is Fox 11 Forum, a look at issues of concern to Tucson and Nogales, with your host Bob Lee."

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Bob Lee: "Good morning. I hope you're having a nice weekend. This morning, we'll be discussing a new broadcast series that looks at some of the challenging questions facing American Indian, Alaska Native and Canadian First Nation governments. Each program in the series looks at successful nation-building efforts and at the issues that had to be overcome. We'll learn more on this in a minute. Stay with us, we'll be right back."

[Music] [On screen: Native nations in the U.S. and Canada ae recognized as Indigenous nations with a measure of sovereignty. / The Native Nations Institute was founded by the Morris K. Udall Foundation and The University of Arizona.]  

Bob Lee: "Welcome back. Native Nation Building is the name of a new ten-part radio and TV series that's now being seen and heard across the U.S. and in Canada. It addresses a number of issues currently being addressed by contemporary Native Nations, and we're going to talk about that because it originates right here in Tucson. Let me introduce my guests. Dr. Ian Record is Curriculum Development Manager with the Native Nations Institute at the U of A. Dr. Joan Timeche is Assistant Director of the Native Nations Institute, and Dr. Stephen Cornell is Director of the Udall Center for Studies in Public Policy -- a co-founder of NNI, a U of A professor, and generally involved in a number of things. Before we talk about this really interesting series of programs, let's talk a little bit about NNI and remind people what that's all about. What is the Native Nations Institute? What led to its founding?"

Stephen Cornell: "I'll take a shot at that. The Native Nations Institute is a research and outreach unit within the University of Arizona that's designed to assist Indian nations in the U.S. and First Nations in Canada at dealing with governance and development issues. It's really an effort by the U of A to focus university resources, research results, practical lessons that we've learned about development and governance, focus those on Indigenous issues, provide a resource to Indigenous nations that are wrestling with governance challenges. It's now what, five years old -- 2001 -- and was founded by the University of Arizona and by the Morris K. Udall Foundation, which is a federal foundation located here in town."

Bob Lee: "I think it's important, too, that we note that this is not just focusing on local tribes, that as I mentioned in the beginning it's Alaska and Canadian, it's truly an international effort that's being spearheaded here. Is an overall goal of what the Institute is all about, is there something five years from now you'd like to have seen achieved?"

Stephen Cornell: "Well, I think if we looked five years down the road, we would find Indian nations in the U.S. and in Canada first of all in charge of their own affairs, making decisions for themselves about their lands, about how they organize their governments, about civil affairs, about their relations with other governments -- states and the United States government. We'd find those nations building economies that support their people, reducing the kind of dependence that has plagued many Indigenous nations for years. We'd find those nations fully engaged with other communities across the United States, yet finding ways to maintain and sustain their own ways of life and their own cultures. We don't see the Native Nations Institute as the sort of key to all of that, but simply as one of an array of organizations and resources working closely with tribes to try to enable that, to help make that happen."

Bob Lee: "How much sovereignty is there now? It sounds like there isn't a lot."

Joan Timeche: "There actually is quite a bit of...tribes have been exercising their sovereignty more recently with the passage of a number of public laws that allowed the tribes to take over more of the responsibilities that the federal government had been providing on their behalf, and increasingly we're finding tribes who are beginning to make their own decisions for their own future and they're testing, they're questioning and they're exercising."

Bob Lee: "Is it conceivable that one day instead of as we drive down the freeway and a sign says, 'Entering the Pascua Yaqui Reservation,' we might see the term 'reservation' disappear and this would be...we would be entering in effect another country or another political entity entirely?"

Joan Timeche: "I would imagine so. That would be fantastic if we could see that, and I think essentially that is already occurring today. I come from the Hopi Reservation and Hopi Nation, and so when you go out there, we don't have so much the signs that you might see in the metro reservation environment and you clearly are going into another country when you go out onto the Navajo Reservation, onto the Hopi Reservation, and I think the terminology, that 'reservation' may stay because it's written in a lot of government language, documents."

Stephen Cornell: "Even today we see -- there are places where you go -- I remember driving in Oklahoma just a year or two ago and passing a sign saying, 'Entering the Cherokee Nation.' These are really nations within a nation and they certainly view themselves as nations, they enjoy a very substantial degree of sovereignty as Joan said, and I think we're likely to see them increasingly using that sovereignty to shape their lands and their peoples in the way that they desire. And the idea of driving onto the Tohono O'odham Nation, for example, is likely I think to become more and more part of the language."

Bob Lee: "Let's talk about this broadcast series that is -- I believe, as I look at some of the topics of the individual shows -- calling attention to some of the goals and objectives of the NNI [Native Nations Institute] and helping acquaint the general public as to some of the issues as well as, it seems like, there's sort of a rallying effort underway here too among the Nations themselves. How did the series come to be?"

Ian Record: "The series really began with the realization that...a lot of what NNI does through its research efforts is collect stories, collect stories about what Native Nations are doing, what's working in Indian Country, and why it's working. And lots of times on reservations, Native communities, they get so wrapped up in their own situation, their own circumstances, the challenges that they face, that it's hard for them to bridge the gap to other Native Nations and learn what they're doing. So that's really what the series is all about is really bringing those stories, connecting those tribes and really flattening that learning curve about nation building."

Bob Lee: "When you set upon putting the series together, now does it rely on the resources within our local nations or does it encompass Canada, Alaska, etc.?"

Ian Record: "We have a number of guests from Native nations in Arizona. We also have guests from Native nations throughout the United States and some from Canada, and what you really see by watching the series is that the nation-building messages are really universal. The specific circumstances, the specific challenges that a particular Native Nation might face may be different from that of another, but at the same time the key components necessary for nation building -- there's five of them that NNI commonly cites and those are practical sovereignty or genuine self rule, effective governing institutions, cultural match -- and what we mean by cultural match is a match between a given nation's governing institutions and the way that the people in that community believe that authority should be organized and exercised. The fourth is strategic orientation -- thinking and planning long term -- and then the fifth is finally leadership. And we find that the messages that we see through this nation-building research are universal to all nations."

Stephen Cornell: "Bob, I might just add, Ian mentioned that it's a pretty diverse group of guests and it ranges in this series from Robert Yazzie, who's the retired Chief Justice of the Navajo Nation Supreme Court; Rob Williams, a professor of law here at the University of Arizona; so both of those are Arizona sources. But it also includes people like Sophie Pierre, who's the Chief of a First Nation in British Columbia; Elsie Meeks, who has been involved for a long time in economic development efforts on the Pine Ridge Sioux Reservation in South Dakota; a number of people drawn from nations across the United States. So it's a very...it's a national perspective and an international perspective when you bring in some of the Canadian First Nations that are dealing with very similar issues to what Indian nations here are dealing with."

Bob Lee: "What are some of those issues? We'll talk more about that in just a minute. Stay with us, we'll be right back."

[Music] [On screen: Between the U.S. and Canada, there are more than 1,100 Native-American tribes. Native peoples around the world are working to invent new development strategies and governance tools that match their unique needs and contribute to maintaining their cultures.] 

 

Bob Lee: "Native Nation Building is the name of a new broadcast series that debuted here in Tucson this past weekend. Where and how can people see or hear what we're discussing on the program this morning?"

Ian Record: "Well, the television version of this series is currently running on the U of A Channel, which is Channel 19 on Cox and Channel 76 on Comcast. It airs Friday evenings at 8:30 p.m. and Sundays at 1:30 p.m., and it will be running through March 26th. People who are interested in listening to the Native Nation Building series on radio, it's going to be distributed nationally by the AIROS Native Radio Network, and so if you're interested in getting that series here locally, it's the same old song and dance -- you've got to contact your local public radio station and let them know you want to hear the series."

Bob Lee: "And the tribal radio stations are also carrying it. Unfortunately, the stations here in southern Arizona are not carrying it. I'm going to show a website address in a little bit and I did discover that there's going to be a webcast available also."

Ian Record: "Yeah, you can webcast. You can podcast. You can listen to it online both live and whenever you wish."

Bob Lee: "So there is a way to get around the fact that the stations down here are not carrying it."

Ian Record: "We're hoping they'll come around, but not yet."

Bob Lee: "Well, they're independent. Let's talk about some of the subjects that are addressed on the program. I was particularly drawn to the sixth program, which looks specifically at tribal economic development and tribal entrepreneurship, and these are issues that everybody's interested in. Let's talk about that specifically. What are some of the aspects of economic development?"

Joan Timeche: "Aspects in general or...you're going to find that on most reservations, the tribal governments are the ones that own the enterprises. They are the ones that have the resources -- monetary, human, all of the additional resources -- that might be needed to get it off the ground. They have the know-how, they've had the perseverance, and so on. But increasingly what we're seeing is more citizens who are beginning to...who have expressed an interest in owning and developing their own businesses, and we often see tribes have a two-pronged approach to development. One where the tribes own the enterprises that usually require large intensive capital or maybe it's natural resource-based or something like that, but we're also seeing more of an approach moving towards helping their own tribal citizens start their own businesses. But it requires a lot of regulatory development that has to be done, creating that environment, so it's conducive for a member and they don't have to go through hundreds of steps to be able to get perhaps the land to lease to start the business. So we're seeing changes, very positive changes moving towards those directions."

Bob Lee: "So there's a regulatory aspect that has to be perhaps addressed and loosened up a little bit?"

Joan Timeche: "Yes, yes. In some cases, well, on all reservations they have the BIA [Bureau of Indian Affairs] regulations for leasing of land have to be followed. They're very cumbersome. If you have traditional land holdings, like on Hopi and Navajo, the Tohono O'odham Nation, the land is controlled at the local level, so then you have to get permission from clans to districts to chapters to villages before you can even approach the formal tribal government. So the process can be very cumbersome, and then once you get to the tribal approval, then you've got to go back to the Bureau of Indian Affairs to get the final say-so on all of the lease agreements, so it can be very cumbersome."

Bob Lee: "Something I had mentioned earlier, and I guess it comes back to what we were saying, when you talk about the BIA, one of the things that probably would be a long-range goal would be to somehow not have to deal with the BIA and have true sovereignty."

Joan Timeche: "Yes, that would be good, and I think that there are some tribes who are trying to work that out in their leasing regulations and in some of the codes that they have adopted where they've been able to set up a process that still meets the needs that the Bureau of Indian Affairs' [has] in terms of its own documentation and its own processes, if they can accept and authorize, delegate in a sense to the tribes the authority to be able to sign off on those processes."

Bob Lee: "You wanted to say something and maybe it was what I was going to follow up on."

Stephen Cornell: "Well, I don't know. I was just going to add that I think one of the things that the session that you're talking about, that interview, does is discuss what tribal governments themselves can do to support citizen entrepreneurs, because the very complexity of the regulation that Joan has just described, the effect of that is often to take people who've got ideas and get up and go and they say to themselves, 'Gee, it's going to be too complicated to start a business here, I'll move to Tucson or Phoenix or L.A. and start it there.' And increasingly, we're seeing tribal governments saying, 'Okay, what steps do we need to take to keep our own citizens here, keep that talent here, keep that energy here and engage them in the economic development effort?' And we're seeing some very innovative work by some tribes that have really solved this problem. They've taken control of the regulatory environment and are creating an environment that encourages their citizens to stick around and invest at home. So there's some really interesting things happening out there, and a lot of that comes up in the interview."

Bob Lee: "So in a sense they're going through the same thing that many cities, Tucson included, are going through is how do we keep our talent here. Another question that came to mind, when we talk about the BIA, why don't they just...why does in a sense Uncle Sam want to keep his hand involved in this? Why not just walk away and let the tribal nations do their thing? It seems like there's a lot of talent and abilities to get that done without somebody hanging on there. 150 years ago I can understand that, but now..."

Stephen Cornell: "It's interesting, Bob. We've done some systematic and robust research over the last 20 years on some of these issues, and one of the things that comes out quite clearly is that as federal decision-makers relinquish that decision-making role and move into a resource role, tribal development tends to do better. When tribes are in the driver seat making decisions for themselves, development does better. So one of the...I think the core question here is how do you move the BIA or other external bodies out of decision-making into a resource or support role where they're needed and when you do that? Then Indian nations themselves begin to benefit from their own decisions, pay the price of mistakes they make, they tend to begin to create the world that they want, which is what should be happening out there anyway."

Bob Lee: "Good government -- we'll talk about that in just a minute. Stay with us, we'll be right back."

[Music] [On screen: NNI works with Native nations and organizations on strategic and organizational issues ranging from constitutionl reform to government design, intergovernmental relations, and economic and community development. / Native nations that have been willing and able to assert their self-governing power have significantly increased their chances of sustainable economic development.]

Bob Lee: "Welcome back. We're talking about Native Nation Building, a new 10-part radio and TV series that's now being seen and heard across North America actually and it originates right here in Tucson. We've got about six minutes left. I want to try to touch on two more issues that are a part of this radio and TV series. We're talking about developing a new sort of tribal government, nation government. What are some of the keys to making that happen and that is the topic of one of the programs."

Stephen Cornell: "A lot of governments in Indian Country were not really developed by Native people. A lot of them have their roots in federal legislation in the 1930s, a lot of them are modeled on mainstream U.S. organizations, they don't represent in many cases the ways Indigenous people would like to govern themselves. One of the most striking developments of the last 25 years or so in Indian Country has been an effort by a lot of Indian nations to reclaim the right to design governments that fit their ideas, their cultures, and in practical terms this is leading to a lot of constitutional reform. One of the interviews in this series focuses on tribal constitutions and on the efforts the tribes are making to rethink the constitutions they currently are working with. We think of it as sort of remaking the tools of governance, and a lot of tribes are engaged in doing that, trying to figure out, 'What is going to work in our situation, what will the people being governed believe in?' You've got to have governing institutions that those being governed think, 'Yeah, these are good, we believe in these, these are our institutions, not somebody else's imported.' So a lot of that is happening in Indian Country and a good chunk of the program is about that."

Bob Lee: "This all leads toward what is essentially the final episode in this first series, and there may be more I suppose, and that has to do with looking, moving toward nation building and very quickly explain again what we mean by nation building."

Stephen Cornell: "I think you can think of nation building as putting in place the foundational institutions and practices that can support long-term development, not just economic development, but development of the kinds of quality of life that Indigenous nations themselves want. It's trying to put the foundation in place that tribes can build on according to their own designs over the next 100 years, whatever it might be, whatever their thinking is about their long-term vision. So it's really about, 'What kinds of tools do we need to build the future we want? Have we got the right institutions in place? Have we got the right decision-making capabilities in place? Do we have the right relationships in place with other governments?' All of that is part of nation building, and that's what a lot of these nations are engaged in."

Bob Lee: "We should perhaps address very quickly, is there a commonality in terms of the Native nation culture from Hopi to Pascua Yaqui to Canadian Nations and so forth that would help facilitate this, or are there a lot of differences that also have to be overcome?"

Joan Timeche: "I think that you're going to find that every tribe is different from each other, they're all unique and although they may have, there may be bands that may be similarly, familially related or come from the same region or whatever, have the same barriers to overcome, their languages are different, their cultures are different, and therefore their governments are going to be different from each other. But there are some commonalities. Take New Mexico, there are 19 Pueblos there, and almost all of them operate on a theocracy, where it's a traditional form of government where their cacique, their chief comes in and he does an appointment of their elected leadership on an annual basis..."

Bob Lee: "So one of the challenges, then, is that one size isn't going to fit all?"

Joan Timeche: "Yes. But there are common elements of governments that do apply across the board."

Bob Lee: "That would be helpful in seeing this to its fruition. Ian, what do you hope is going to come out of this? When the series is, the first ten episodes are said and done, what do you hope for?"

Ian Record: "Well, we do view this as an ambitious series, but at the same time we view this as a modest starting point. We view this as a way to start a dialogue between nations, Native nations and other individuals, non-Native individuals, people in positions where they make decisions that affect Native communities -- to educate them as well, to really get a dialogue going about what's really going on, what are some of the phenomenal things that Native nations are doing, and really educating everyone about those efforts."

Bob Lee: "Terrific series from what I've seen and heard about it, and hopefully it won't end here. Thank you very much for being with us this morning to talk about this. And you can log onto American Indian Radio on Satellite, airos.org, and you can learn more about the success that many Native nations are having in restoring economic health, developing effective governments, shaping their own futures, and that website will give you lots of links, one of which can take you to the live streaming broadcast as well as archives of the programs that we talked about here today. Again it's airos.org, http://www.visionmakermedia.org/, and follow the links there and you can get a lot of information. Next week, we will be discussing prostate health here on this program. Until then, for Fox 11 I'm Bob Lee. Have a safe week ahead, we'll see you again next week."

Native Nation Building TV: "Introduction to Nation Building"

Producer
Native Nations Institute
Year

Guests Manley Begay and Stephen Cornell present the key research findings of the Native Nations Institute and the Harvard Project on American Indian Economic Development. They explain the five keys to successful community and economic development for Native nations (sovereignty or practical self-rule, effective institutions of self-governance, cultural match, strategic orientation, and leadership), and provide examples of Native nations that are rebuilding their nations. 

Mary Kim Titla: "Welcome to Native Nation Building. I'm your host Mary Kim Titla. Contemporary Native Nations face many daunting challenges including building effective governments, developing strong economies, solving difficult social problems and balancing cultural integrity and change. Native Nation Building explores these complex challenges and the ways Native nations are working to overcome them as they seek to make community and economic development a reality. Don't miss Native Nation Building next."

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Mary Kim Titla: "Today's program examines where, how and why nation building is currently taking place in Native communities throughout the United States and beyond, in particular the fundamental issues governing Native nations' efforts to restore their social sovereignty and economic vitality and shape their own futures. Here today to discuss these nation-building issues are Drs. Manley Begay and Stephen Cornell. Dr. Begay, a citizen of the Navajo Nation, is Director of the Native Nations Institute for Leadership, Management and Policy at the Udall Center for Studies in Public Policy at the University of Arizona, where he also serves as Senior Lecturer in the American Indian Studies Programs. Dr. Cornell is the Director of the Udall Center for Studies in Public Policy and a Professor of Sociology and Public Administration and Policy at the University of Arizona. For the past two decades, they both have worked extensively with Native Nations in a major research effort that seeks to identify the keys to solving the challenges to nation building. Welcome, gentleman, nice to have you here today."

Dr. Stephen Cornell: "Thanks for having us."

Mary Kim Titla: "First of all, what is nation building in practical terms?"

Dr. Stephen Cornell: "Nation building is really about how Indigenous nations in the U.S. and elsewhere can put together the tools they need to build the futures that they want. And by the tools they need, we really mean the tools of governance. These are nations in our experience with very ambitious goals, they face daunting challenges, they carry the legacies of colonialism, they are trying to overcome deficits in economic affairs, in health, in all kinds of areas. If they're going to do that, they need the governing tools that are adequate to that task and Nation building is about identifying those tools, putting them in place, being sure that they match Indigenous ideas and culture and putting them to work."

Mary Kim Titla: "Can you talk about some of the tools? Explain that."

Dr. Stephen Cornell: "Yeah. A lot of Indian nations here in the United States have governments that they did not design. That's not true of all of them, but a lot of tribal governments were designed basically by the U.S. Department of the Interior back in the 1930s. They aren't very sophisticated structures of government. Some of them have no provision for adequate court systems or ways to resolve disputes within the nation. Some of them have got unwieldy legislatures. Some of them don't have the kinds of procedures that you need if you're going to move vigorously and effectively to make good decisions, implement them, get things done. So we're talking about rethinking some of the those tools of government. What kinds of tribal courts or other dispute resolution mechanisms will serve Indigenous needs and interests? What kinds of governing structures will people believe in and support within the nation's own community? Are those structures adequate to what the nation is trying to do? So when we talk about tools, we're talking about the practical mechanisms that nation's use to organize how they go about trying to get stuff done."

Mary Kim Titla: "Dr. Begay, would you like to add to that?"

Dr. Manley Begay: "Sure. It seems from the work that we've been doing that nation building or nation rebuilding, as Steve mentioned, really began to occur with most Indian nations around 1975 when the Indian Self-Determination Act was ushered in, and since then a lot of Indian nations have begun to wrestle with rethinking their political systems, rethinking their economies and it's not unlike other nations that have gone through colonization and all of a sudden found themselves in the midst of freedom, if you will, very much like what occurred in Eastern Europe after the Soviet Union fell apart. Poland is wrestling with issues of constitutional reform, you had the European Union there, and Indian nations are in the same boat and a lot of other colonized society are wrestling with Nation building and rebuilding."

Mary Kim Titla: "Let's talk about the research. What prompted the Harvard Project and the Native Nations Institute to embark on the research?"

Dr. Stephen Cornell: "This kind of got us wondering what is it that makes some nations more successful than others, and in fact the data that we first looked at had to do in part with timber and with forestry. A lot of Indian nations have timber resources. Some of them seemed to be doing a better job of managing those resources than others and we got interested in why. And being professors, we thought maybe we knew the answers already -- typical of professors -- and so we thought, well, it'll be educational attainment or it'll be the Nations that have big natural resources will be doing well or the ones that have access to capital will be doing well. But we decided we'd better go look and we got a grant from the Ford Foundation to do some research. We spent a lot of time in the field getting stories of what was working, how did this enterprise succeed, how did this one fail, what else have you tried to do, what seems to be working here, what are the problems you're encountering. And the interesting sort of payoff to the research was it turned out that the critical elements were really political ones, that if you had your political house together, if you had some stability in the government, if you were successful in keeping political considerations out of enterprise management decisions or out of tribal court decisions -- if you could do some of those political things, then these sort of economic assets like good education or good natural resources or being close to a major market -- those would start to pay off. If you couldn't get the government house in order, then those assets tended to be wasted. So the result to the research was really to focus our attention on these political issues and the effect they were having on how these Nations did, whether or not they were able to achieve their goals."

Dr. Manley Begay: "And what was really interesting about the research findings initially was that we knew of no known cases of economic development, successful economic development, occurring without assertions of political sovereignty. And secondly, we also found that capable governing institutional development was a major piece of nation building. And thirdly, those institutions had to be culturally appropriate. And since then we've also found that Indian nations that are planning for the long haul if you will, a hundred years down the road -- what kind of society are we going to build, what do we perceive the society to look like 50 years from now --and those that have done that seem to be faring well or faring better than others that have not. Lastly, leadership is really critical. So these five components and research findings formed the basis for the work that we've been doing all along."

Mary Kim Titla: "Can you give us a snapshot of current Native nation-building efforts among indigenous peoples throughout the U.S. and Canada?"

Dr. Stephen Cornell: "Yeah, in fact there are a number of Nations across the U.S. right now that are engaged in constitutional processes. The Osage Nation in Oklahoma has just launched a major constitutional reform effort. The Crow Tribe of Montana, the Northern Cheyennes are involved in that. The San Carlos Apaches are engaged in governance reform or rethinking how they govern themselves. This is happening a good deal across the U.S. It's also happening in Canada where we see First Nations that are engaged in constitutional processes. Some of them are also engaged, especially in British Columbia, in treaty processes that involved working out new relationships with British Columbia and with Canada and that process also involves rethinking governance. So we see a lot of constitutional stuff happening there. We see some developments in tribal courts. The Mohawk Council of Akwesasne, which straddles the Ontario/New York boundary, are engaged right now in trying to rebuild their justice system. They of course face some interesting justice problems because of that boundary, because they're a nation that operates in two different jurisdictions and then they have their own jurisdiction. It's a complicated situation. They're trying to develop a court and justice system that's adequate to that set of challenges. We see a number of nations like the Ho-Chunk, the Winnebago Tribe of Nebraska, have started a corporation called Ho-Chunk Inc., which has been a very successful enterprise reducing unemployment there. They put a lot of thought into, how do you set up this enterprise so that it has a good chance of succeeding?"

Dr. Manley Begay: "And up in Canada there's the Membertou First Nation on the east side of Canada that's actually wrestled with figuring out how to develop a capable governing institution and they did that through what's called the ISO [International Organization for Standardization], sort of international standards set-up, and then also the Siksika Blackfoot Nation in Alberta have also really moved forward in thinking about nation building and is actually doing relatively well. Lac La Ronge as well. They're finding some success in promoting their wild rice not only in Canada and the United States but also overseas as well. So there are a number of stories of First Nations and bands up in Canada, tribes in the United States that have gone the extra effort to figure out how to build nations that work, and obviously one of the major success stories is the Mississippi Choctaw. And they did that without gaming. Initially they set up good governing institutions, they asserted sovereignty, really thought through how to develop a culturally appropriate political system and actually we refer to them as the Singapore of Indian Country. They did that without gaming. Only later on did they get into gaming and every day you'll see upwards of 7,000 black and white workers going on to Nation land to work. As a result, they've become the major political and economic powerhouse in the southeast and they've done that through nation building."

Mary Kim Titla: "And I've been there to Mississippi Choctaw and I've seen what they've done. It's really great with [Chief] Phillip Martin and other tribal leaders. I imagine that they must face many obstacles and of course those obstacles can get in the way of objectives. Can you talk about some of the obstacles that some of these Nations are facing?"

Dr. Stephen Cornell: "Boy, I think one of the obstacles that -- in fact I was just last week in Canada and talking with a First Nations leader and he said, 'You know, a lot of my people have been, we've learned over time to be dependent on Canada and to be dependent on federal agencies in Canada, and part of the work that we face as First Nations leaders,' he said, 'is trying to change that mind frame, trying to get into a mind frame that says, 'We can change this, we can take responsibility for what happens here.'' There's a -- Manley just mentioned the Siksika Nation of Blackfoot in Alberta. Chief Strater Crow Foot, whose the chief of that nation, he spoke at a session that Manley and I were both at not long ago and he said, 'We're trying to replace the victim attitude with a victor attitude.' He said, 'The victim attitude keeps you sitting still, the victor attitude gets you moving.' And he said, 'In my nation, that's one of our primary tasks as leaders is to change that attitude, a feeling that if we're really going to have an impact we've got to alter the way people look at the world around them, the way they think about what's possible.' So that's certainly one of the obstacles. Another obstacle, and Manley touched on this, is simply that sovereignty obstacle. It's getting the jurisdictional power to make decisions for yourself. That's something which Indian nations in the U.S., they've had a lot of jurisdictional power. It gets chipped away at by the U.S. Supreme Court, it's often under attack in the states and in Congress. Luckily, so far, much of it is surviving. In Canada, First Nations are struggling to achieve the level of sovereignty Indian Nations in the U.S. have, but that's an obstacle. If someone else is making the decisions for you, you're not likely to go much of anywhere. It's their decisions, the program represents their interests. Shifting real decision-making power into Indigenous hands is a critical piece of nation building. These nations have to be rebuilt by Indigenous people, not by decisions made in Washington or Ottawa or someplace like that. So I think the other big obstacle is that sovereignty piece. You've got to have the power to make things happen."

Mary Kim Titla: "We've talked about obstacles. Let's talk about assets. What are some of the greatest nation-building assets?"

Dr. Manley Begay: "Leadership is an asset. However, it's only an asset if you can couple that with developing good capable institutions, and if you set in place the rule of law and policies and codes and constitutions. That goes a long way. You can wait for a good leader to come around, and it takes 20 years to get a good leader, but you can't always be sure that the leader was going to be good. However, if you put in place policy, rules and regulations, you can always trust those rules, and enforcing those rules becomes part of nation building, and it seems to me that that's an asset that we see, the creativeness, the innovativeness of Indian people to really wrestle with figuring out how to do this, and to do it in a culturally appropriate fashion is an asset. And it's not something that's new."

Dr. Stephen Cornell: "The other thing we have to recognize as an asset is Indigenous cultures themselves, and sometimes people who think about how Indigenous culture is an asset think of it mainly in terms of stuff you can sell -- arts and crafts or something like that -- and that's an important way to think about it. We tend to think about it, though, in terms of what can we learn from Indigenous cultures about appropriate organization, so that the government that works at Navajo is not necessarily going to be the same as the government that works at Osage, because they are different nations with different heritages, different cultures, and part of the challenge of nation building is figuring out what set of institutions in fact resonate with what people here believe about how authority should be exercised, about how we should pursue goals. We've worked with some of the Pueblos in New Mexico where you have governing institutions that are very traditional. There are no elections, there are no legal codes, no written constitutions. The governing institutions are deeply rooted either in Pueblo tradition or in several hundred years of working under Pueblo influences, Spanish influences and other things. They've been borne out of Pueblo experience. You go up to the Flatheads in Montana, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, and you'll see a tribal government that looks very different. It looks, as our colleague Joe Kalt likes to say, 'It looks like it came out of my high school civics textbook.' Well, you've got three nations on that reservation and those nations have had to find a way to govern themselves that they all can support so it doesn't look very traditional. There are three traditions there, they might be in conflict with each other. So they've had to find a set of institutions that work for them. But that link to Indigenous cultures, that ability to tap into the fact that these nations long ago solved tough human problems and maybe the ways they solved some of those problems still work today. Let's tap into that. At Navajo, their court system, their justice system today combines western jurisprudence with longstanding Navajo ways of dealing with disharmony or conflict and that makes them an extraordinarily effective court system that no outsider could have invented. It had to be generated by Navajo people."

Mary Kim Titla: "Can we talk about more of the research and the five major keys to successful community and economic development among Nations?"

Dr. Stephen Cornell: "The first finding that came out of this research really was the sovereignty finding, the fact that Indigenous nations themselves have to be in the driver's seat if things are going to happen. So there's a kind of a power issue there. Where is the power? And from a research point of view, it just underlined something that Manley touched on earlier, that we haven't been able to find a case across Indian Country of sustained, self-determined economic development where someone other than the Indigenous nation was calling the shots. So that turns out to be a necessary piece of the puzzle. The second piece that came in on the research findings was that, yeah, but that's not enough in and of itself. You've got to back it up with the kinds of governing institutions that Manley has been talking about. They've got to be capable of dealing with contemporary challenges. They've got to be stable. They've got to control, keep politics in its place. They've got to assure people that if I have a claim, a dispute with the nation, it'll be dealt with fairly. Part of the challenge for Indigenous leaders today is, how do we hang onto our talented, energetic young people with ideas? If I've got a family to support, will I pursue supporting that family at home on the rez or will I move to L.A. or Minneapolis or something like that? For tribal leaders, how do we create an environment that says, 'You can do it right here, we'll make it possible, we'll keep you'? That means a governing situation in which it doesn't matter who my family is, who I voted for, I'll get a fair shake. So that second finding was about capable governing institutions. The third was this thing we've just been talking a bit about of the cultural match piece of making sure those institutions really have the support of the people, that people believe this is our government, not an import from somebody else -- this is ours. And then these last two pieces that Manley talked about, the strategic thinking that gets people to make decisions on what's on our agenda today in terms of what matters in the long run and what does that mean for how we decide this today. And then that piece of leadership."

Dr. Manley Begay: "Yeah, to give you an example, back to Mississippi Choctaw. Initially a big portion of the population of the Choctaws were moved to Indian Territory in Oklahoma on the Trail of Tears, so you essentially had this society that was uprooted back in the 1830s and only small groups stayed in Mississippi. But they held onto the land, they held on to who they were as Choctaws. And as time went on they went through the termination period, they went through...and here comes the Indian Self-Determination Act and they essentially wrestled jurisdiction and power and control from the feds as well as state government and began to pursue a long-term plan, and Chief Phillip Martin was sort of the main impetus for assertions of sovereignty back then. And once they wrestled a significant amount of decision-making power from the federal government and also from the State [of Mississippi], they began to think through, how do we develop a capable governing institution? And they did that basically by necessity because before they could attract manufacturing companies to the nation, they had to think about a commercial code, they had to think about appropriate policy rules and regulations, laws being put in place, a good court system, separating business from politics, and so forth so that the investor could feel safe in investing on nation land. And then the cultural match piece came in. Historically, Mississippi Choctaws really had the strong chief executive-type of political structure, but they also had a strong court system. They had a separation of powers and checks and balances set up, which allowed for them to plan well. So a lot of this was planned out years and years ago. A lot of the success Mississippi Choctaws are having now was planned 50 years ago, and so today you essentially have a zero percent unemployment rate, you have to import labor and so forth, so the strategic thinking piece came into play. And then you have good leadership, you essentially have really good leadership. So all of the ingredients to successful nation building seems to be present at Mississippi Choctaw. But we've seen it at Fort McDowell, we've seen it at Siksika, we've seen it at all of these places that we've mentioned that have built nations that seem to be working well."

Mary Kim Titla: "We do want to talk about more of those positive stories, those models if you want to call them that. I like Mississippi Choctaw, so I'm glad that you touched on that. Are there some other examples out there that you'd like to add?"

Dr. Stephen Cornell: "Well, one that we're particularly fond of is the Citizen Potawatomi story from Oklahoma. The Citizen Potawatomi Nation back in the 1970s -- this today is a very large nation, I think its population is well over 20,000 people -- but in the 1970s they had very little land that they controlled, less than 100 acres, they had hardly any money in the bank, life was tough, [the] situation was grim. Today the Citizen Potawatomi Nation owns the First National Bank of Shawnee, Oklahoma. Today they own the supermarket in Shawnee, where they sell beef grown in their own cattle herd and vegetables grown on their own farm. They've basically got a vertically-integrated food business going. They own some of the media outlets in town. And when you talk to "Rocky" Barrett, who is the current chairman of the Nation, he says, 'Well, you know, it's really an institutions story.' And I remember the first time I heard him tell the story of the Citizen  Potawatomi Nation at a conference in Oklahoma, and afterwards I talked to him and I said, 'You know, you really tell a nation-building story about governing institutions.' And his response was, 'Oh, yeah, if you're not thinking about constitutional reform, you're not in the economic development ballgame, because what you've got to do is get that political house together and then you'll be able to create the kind of economic success.' So we look at Citizen  Potawatomi, a remarkable turnaround from the mid 1970s to the start of the 21st century in that nation's fortunes. Some nations, there are these success stories out there, and some of them are about pieces of nations and we've been fortunate -- in doing this work on nation building -- you come across nations that are doing extraordinary things that you don't hear about. I think often what we hear about are the problems in Indian Country. But some of the...we've talked about the Navajo Nation court system, which is one of these striking successes. The Columbia River Inter-Tribal Fish Commission, another example of nations coming together and solving a difficult problem creatively and effectively. At Fond du Lac, they've got a foster care program that has solved a major problem they had with the placement of tribal kids in non-Native homes. They've come up with a way to deal with that problem. It's effective, it works. These kinds of stories are all over the place out there and in one way or another they are nation-building stories."

Mary Kim Titla: "And then trying to train the young Native leaders, I think the Gila River Indian Community has done an excellent job of that with their youth council and really they're a model for a lot of tribes around the country. Anything you'd like to add?"

Dr. Manley Begay: "The Cochiti Pueblo is another Indian nation that sort of has built these very successful economic ventures. At one point in time, Cochiti, a significant part of Cochiti, was actually under water when a dam was built, and very little seemed to be in the works for how to get out of the situation that they were in. And lo and behold they essentially began to assert a certain amount of jurisdiction and a certain amount of power and authority, and today you find a tremendous amount of success at Cochiti. They've developed one of the top 100 public golf courses in the United States. They have a retirement community where Harry and Martha from Ohio go to retire. And it's a very interesting turnaround. Here a very traditional society is doing relatively well in pursuing certain economic development projects and they've done it with, as we said earlier, first pursuing jurisdiction and decision-making power and authority, and it really resonates to non-Indian society. Often non-Indian society [has] a hard time grasping political sovereignty. The thought is, 'Well, we've got to take political sovereignty away from Indian Country and then we need to tell them what to do essentially.' However, it seems as though that it's in the best interest of non-Indian society to support political sovereignty, because in the long run when economic development takes place in Indian Country, it affects nearby communities, it affects the region and in turn it affects the nation as a whole. So it has this domino effect. So it really is important for non-Indian communities, also governments, to support political sovereignty."

Mary Kim Titla: "Well, I want to thank the both of you. We've talked about a lot of things today, about some of the positive stories that are out there, some of the obstacles that Native tribes are facing and I must say that they've dealt with adversity very well and they have a history of dealing with that. I see a bright future, so thank you for what you're doing. We'd like to thank Dr. Begay and Dr. Cornell for appearing on today's edition of Native Nation Building, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Native Nation Building and the issues discussed here today, please visit the Native Nations Institute's website at nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."

Karen Diver: What I Wish I Knew Before I Took Office

Producer
Native Nations Institute
Year

Fond du Lac Band of Lake Superior Chippewa Chairwoman Karen Diver shares her Top-10 list of the things she wished she knew before she took office as chairwoman of her nation, stressing the need for leaders to create capable governance systems and build capable staffs so that they focus on identifying and advancing nation-building priorities.

People
Resource Type
Citation

Diver, Karen. "What I Wish I Knew Before I Took Office." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 24, 2010. Presentation.

"We hear such good things from the Harvard Project and NNI. I've been so fortunate to be able to study with them in my academic career, have felt it has been really important to have my tribal council hear these messages of building systems. And with the Bush Foundation's help, actually investing in the tribes in the upper Midwest, I've been trying to go through some of this with my entire tribal council, and you are going to hear about that in some detail for two days. And I actually thought I'd take just a little different of a tact and give it to you just the way it meets you at the door every morning when you show up for work. And I was actually glad to see some of you in the room who are not yet elected officials, because hopefully a few of these things might be helpful to you.

The first one is around the line of getting a thick skin. The people who didn't vote for you -- some of them really hate your guts. Politics is personal in Indian Country, and after you win, there is no magic that will make them all of a sudden like you. They are going to keep hating you, and they didn't like you before and they are not going to like you now, and that's just the way it is. So get used to it. The other part of it is they are still your tribal members whether they like you or not, so it's your job to get over it, because they still deserve your time, attention, and your work as much as all of the rest of them, so you need to own the fact that they have a right to their feelings, but you still have a job to do.

Number nine on my Top 10 list: Some of the people that hate your guts, they are your relatives. 50-50, maybe. You are going to get taken off the Christmas card list. Some of your relatives think things will be different for them when you get elected because that's the way it used to be. 'Let's elect someone from our family, now we can get stuff.' Well, if you're really about the changing of the government and the way it serves the people, part of that is prepping your family beforehand to let them know that you plan on governing differently and they need to change their expectations, and if they cared about you and the tribe they wouldn't put you in that position. Some of those relatives? It doesn't matter -- you are not going to change their mind. They still think you should give them stuff. Prepare yourself, some of the family gatherings will be a tad uncomfortable.

Number eight: Too many people will want your time. Period. Tribal members, of course, have to be a priority. The federal agencies, especially with [President] Obama making tribal governments and communities such a priority, you could actually spend 100 percent of your time consulting with the feds, because there is something happening weekly where they want tribal consultation and they want elected tribal leaders there, not necessarily staff. The local jurisdictions will come calling. Of course, they see us doing well and building stable communities, basically most of them want to dip in your pocketbook because although they didn't do crap for you the last 100 years, now that you are doing okay, they think they deserve some of that. Prepare yourself. You have all of your employees, and then you will be just lousy with vendors wanting to sell you stuff. Once again, they haven't been a part of building tribal communities' success, but they will sure as hell be wanting to sell you something now. Now where else in America would a vendor think it is appropriate to call the CEO or governor directly and not try to work through one of the staff? But people don't get Indian Country and our level of responsibility, so you need a good gate-keeper to help you prioritize all of this. Obviously, your tribal members, your employment, the people that you need to do your work everyday -- don't feel bad for telling someone, 'No.' They don't get face time with you. You get to decide that, and you don't have to justify it. I have a guy that does that -- you need to talk to them first. Prioritize your time. Well, you might think I'm being a little harsh, or maybe a little high on my horse, but there is work to be done. Is that 15-20 minutes you're getting pitched for office chairs really going to make a difference at the end of the week? No. Prioritize your time and you don't have to feel bad about it.

Top 10, number seven: This is one of my favorite sayings, and I'll admit that I'm guilty of it myself, because we had a real stable government for about 20 years, and then we had about four years where it was different. And whether you thought it was good or bad, it changed a lot of things, people weren't always happy, and then we had a turnover again -- a lot of people who ran on a change agenda. It doesn't matter that I didn't like what was there before I was there, because it's on my plate right now and I need to own it. You only get about six months to a year of saying, 'Well, the previous council did that.' Well, you are the council now, are you going to whine about it or are you going to do something about it? Right? It's on your plate and you need to own it, and if you ran or it's your priority that it should be changed, then get to work because it's yours now. And when you come up for that re-election, that argument of 'I've been here for two or four years but the previous council did it' -- no one is going to buy it, it's yours.

Top 10, number six: Admit what you don't know. The breadth of tribal government is so huge: environmental, public safety, education -- there is no magic wand that makes you know all of this stuff once you are elected. I keep saying that, you know, 'I got the title, we got a nice little meal, but nobody gave me the magic wand to fix all of that.' Well, your magic wand is the people you bring in to help you and the ones that are there already. I have environmental experts. I expect them to teach me and be a good voice. Mostly what I can do for them is advocate for them. If I'm sitting with the EPA and my top notch environmental staff is there, my job is to tell the EPA, 'You listen to my people because they are advocating for my tribe.' You back them up. You don't have to do it.

Also, when you're bringing in people, it's not always your staff. You bring in advisors -- some of them are vendors that are coming around now and want to sell you on all kinds of stuff, but you also have legal council right? You might bring in a financial consultant to look at fees or some things like that. Remember that when advisors give you advice, they don't make a decision. You don't have to listen to them. Their job is to teach you so you understand. Their motive is supposed to be to help you, and to help you learn and grow and make a good decision. If they are telling you what to do, get new advisors. I had an argument with an attorney once and he was saying, 'You know, I really don't agree with this decision, we've been going down this path.' I'm like and I explained. 'This is what I understand.' And he said, 'Yes.' And I said, 'The way I look at it, this keeps you in the job for a little bit longer. Adjust, advocate for your client's opinion, or get the hell out.' You're paying him. Are you going to pay him to argue with you? No, you pay him to teach you and help you make a good decision, so keep your head about it. Just remember that it is not a weakness to ask for help. It is a weakness to not seek that help out and not get what you don't know. Ask the questions, teach yourself.

Number five, and this one may sound like a stupid one. Maybe it's geared more towards chairs and presidents: Read your own mail. Yeah, you're prioritizing: all these people are coming in, you will get so much email and mail, it's just crazy. I find out so much really cool stuff reading my own mail, I know it sounds kind of silly but it's true. I heard for years that there wasn't a chairman that didn't open their own mail. Well, guess what? You sign almost every grant and contract that goes out of your agency. Guess who official communication comes to? You. It might say HUD [U.S. Department of Housing and Urban Development], and you might not even open it and route it over to the housing director or maybe you'll have your secretary do it, and maybe that letter told you that you were non-compliant in 72 different areas, and they were thinking about putting you on probation and sending somebody in to do something. You don't know. It helps me hold my staff accountable, it helps me set their priorities because I hear about opportunities that are coming up, we are able to have a seat at the table because we will be able to delegate that and send someone to it. By the time it gets routed -- I don't know how big everybody is, everybody's different, I have 2,000 employees -- by the time it gets where it needs to go, that might have been a time passed. There is a reason they are communicating with the chair. You prioritize whether they get your time and attention or not, but at least you know what to expect out of the people around you.

Number four on my Top 10 list of things: Keep political drama away from your staff. Whether I'm a council of five -- some of you have larger councils -- your staff, a lot of them will last longer than you in their positions, and a lot of them have been there longer than you have been there. They deliver services to your tribal members, they are knowledgeable about your different systems, whether they are education, whether they are health and human services. None of them deserve to feel vulnerable in their positions just because their leadership has changed. They are your assets. You let them do their job and they don't feel like quitting, or god forbid somebody gets elected who hates them and they are trying to fire them. Having good people around you makes you look good. It's a fact. Keep the drama away from them. People work because they have real lives and real bills. They shouldn't go home from work at four or five o'clock and really worry about whether or not they are going to be able to pay their bills because they don't know if they are going to have a job next week. That is not conducive to doing their best job, and if you care about your people, you don't undermine the system that serves them. 

Number three on my list: Being on tribal council doesn't need to be a way of life. And I've heard that for years, 'It's way of life. You're on call 24/7.' Well, no I'm not. When I get home, I'm a wife, a mother, a daughter. That's not to say I won't pick up my phone if you need me, but I've just been at work from 6:30 a.m. to 5:30, 6:00 o'clock. Boundaries, people! We are elected officials, not your mother. But first of all, you have to show up for work, and no offense to anybody, but we've seen the people that don't show up to work. This is a job. They are expecting you to do a job. If you are there and you treat it like a job, you can have people teach them to have the boundaries that treat it like a job. What I tell people is, when I get home at 6:00 and I'm being a wife and a mother and all those other things, that keeps me healthy, so when I'm back there at 7:00 in the morning I can do my best job for you. It's changing the perceptions of how people see tribal council. I am not there to fix your whole life. I'm there to run your government and create systems that help you do the best you can. But I am not your social worker, your therapist, your bail-you-out-of-jail, your fill-your-propane-tank-at-two-in-the-morning person. You need to keep some boundaries. First of all, so you can be healthy and do that best job. Otherwise, who wants to do this work? But most of all, it is because tribal council is what you do, and it's not who you are. Keep in mind who you are, because it is your heart that will serve your people. Don't let them wear it out.

Number two (I'm amost done): Communication matters. Talk to your people in as many formats and ways that you can. We actually had quarterly open meetings, we started doing them monthly. I was actually elected to a partial term in the beginning, so I was like a vulnerable candidate right off the bat. It was the worst year and a half of my life. I got yelled at frequently by some of the people who hated me, but it didn't matter. I sat there once a month and I let people tell me what they needed to say and I listened. But there was never a question -- unless it was about personnel matters or legal matters -- it didn't matter whether they snarled that question at me or not, I sat there and I answered it and I did it with respect. I started putting a column in our monthly paper. I actually did a column recently. It was one of my best, well-received columns of 'Rumors I've heard around the Rez: Is the grapevine accurate or not?' 'You gave yourself a big raise.' 'No, we didn't. We have a committee of citizens who set our salaries, we're still following it. Number two...,' and I went through all the rumors that I had heard. People appreciated that, you know, I didn't let the grapevine get out of hand and let it spread. But basically that there was nothing that was sacred. If you wanted to know, this was your government, then you deserve to know. And you can stop all of the political behind-the-scenes stuff just by telling people, 'You can ask me. Ask me as often as you want and I'll answer you in a public way.'

And my oumber one on my Top 10 of What I Wish I Would Have Known, and this one actually came in handy, and I think I borrowed it from a movie line. I can't tell you which one. I told people in that first year and a half I was going to focus on doing my job instead of keeping my job. I had to run for re-election and I was actually okay with not winning, but I had that year and half, and I was going to make it matter. Because if I didn't get four more, there was some things I wanted to accomplish, and that was cutting off some of the graft that was going out of the door. That was political freebies in the forms of emergency assistance, comping rooms, all kinds of stuff. I wasn't going to be a part of a system that did that, because I actually think I managed the people's resources, and if I can't share them equitably, I wasn't going to do it at all, and it meant telling a lot of people, 'No.' Some of them people who hate my guts, who were really loud, yelling at me once a month. But I needed to do a job, but I always did it with the most respect I could. What I told people is, 'I'm not going to comp hotel rooms, because if I can't do it for all 4,300 of my members, then I can't do it for you.' And it's a business. We're supposed to fill it up with people who pay. 'No, I can't give you an emergency food voucher, because that's a hundred dollars, and unless I can give every single band member a hundred dollars, then I can't do it for you. But what I can do is set up a program at social services.' Because there's a bigger story here. 'You're having an emergency need, right? Something got you to this point where you have an emergency? Somebody needs to hear your story, because there might be a bigger fix we can help you with. And I can give you food today, but how can I make sure you're not going to be hungry again in two weeks? And unless I hear that story, then I'm doing you a favor, I'm not providing you a service, and I would rather provide you a service.' So it's not just saying 'No,' it's telling people you care enough, but I'm actually building the institutions that provide that safety net for our people back home. But it's fair and it's equitable, and it doesn't matter if your last name matches mine or not. Your job is to build the systems of governance, and you heard that from the slides earlier. Build systems of government. It's not about making decisions, just decisions. You can make a list and check everything off everyday, but have you created an equitable and just and transparent system where everybody knows how to play by the rules? Too often we think we have to solve that thing that's happening right there in front of us now so it goes away and I can get on to the next thing. No, sometimes 'No' is the best answer because you can step back and think, 'Is this a part of a bigger picture that needs fixing?' That's where you get the lack of transparency, the lack of consistency and the perception by the tribal members that things aren't done fair, because they weren't done by the systems, they were done by the decisions.

So with that, that is my Top-10 list of practical advice that either one, bit me in the butt already and I learned a lesson, or we've learned from being there, that tribal members appreciate in terms of doing a good job."

Two More South Dakota Lakota Tribes Advance Toward Their Own Foster Care Systems, Intending to Replace the State DSS System

Year

The Lakota people have taken another positive step toward preserving their cultural sovereignty and solving the persistent foster care crisis in the state as two more tribes have joined the movement to apply for available federal funding to plan their own tribal-run foster care system...

The Lower Brule and Flandreau Sioux Tribes became the two latest tribal governments to complete their Title IV-E Federal Planning Grant Applications to fund the planning of their own foster care programs. The two tribes, joining a coalition of South Dakota tribes attempting to wrest control from scandal-wracked South Dakota, brings the total number of tribes to seven, with another tribe, Rosebud, already having received their planning grant...

Resource Type
Citation

Native News Online Staff. "Two More South Dakota Lakota Tribes Advance Toward Their Own Foster Care Systems, Intending to Replace the State DSS System." Native News Online. August 22, 2014. (http://nativenewsonline.net/currents/two-south-dakota-lakota-tribes-adva..., accessed August 22, 2014)

Harvard Project Names 18 Semifinalists for Honoring Nations Awards

Author
Producer
Indian Country Today
Year

The Harvard Project on American Indian Economic Development recognizes exemplary tribal government initiatives and facilitates the sharing of best practices through its Honoring Nations awards program.

On March 3, the Harvard Project announced its selection of 18 semi-finalists for the 2014 Honoring Nations awards (listed below). Programs are judged on their significance to sovereignty, their cultural relevance, their transferability and their sustainability. Honoring Nations financial awards will help them provide models of success...

Native Nations
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Citation

ICTMN Staff. "Harvard Project Names 18 Semifinalists for Honoring Nations Awards." Indian Country Today Media Network. March 4, 2014. Article. (https://ictnews.org/archive/harvard-project-names-18-semifinalists-for-honoring-nations-awards, accessed May 31, 2023)

Where Tribal Justice Works

Year

In 2011, a man in northeastern Oregon beat his girlfriend with a gun, using it like a club to strike her in front of their children.

Both were members of the Confederated Tribes of the Umatilla Indian Reservation. The federal government, which has jurisdiction over major crimes in Indian Country, declined to prosecute.

So the tribes stepped in. The man was convicted in their courts and sentenced to 790 days in federal prison.

But had the assault happened a week earlier, the case could never have gone to trial.

The Umatilla tribes had recently enacted new provisions from a federal law, the Tribal Law and Order Act, that allowed Native American courts to try their own people for felony crimes instead of relying on the federal authorities.

Without those provisions, once federal prosecutors declined the case, the woman would have had no other legal recourse...

Navigating VAWA's New Tribal Court Jurisdictional Provision

Year

President Obama signed into law the reauthorization of the Violence Against Women Act (VAWA), a federal statute that addresses domestic violence and other crimes against women. As initially conceived in 1994, VAWA created new federal crimes and sanctions to fill in gaps, provided training for federal, state and local law enforcement and courts to address such crimes, and funded a wide array of community services aimed to protect and support victims. In a historic move, this new version of VAWA recognizes and affirms that tribal courts have jurisdiction over criminal cases brought by tribes against non-members–including non-Indians–that arise under VAWA. This is the first time since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), that Congress has recognized and affirmed tribal courts’ criminal jurisdiction over non-Indians...

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Citation

King, Winter and Sara Clark. "Navigating VAWA's New Tribal Court Jurisdictional Provision." Indian Country Today Media Network. March 31, 2013. Article. (https://indiancountrymedianetwork.com/news/opinions/navigating-vawas-new-tribal..., accessed April 1, 2013)

American Indian tribe OKs same-sex marriage, lets gay couple wed

Year

The head of an American Indian tribe in Michigan signed a law approving same-sex marriage on Friday, joining at least two other tribes nationwide in doing so, then immediately wed a gay couple who had been together for 30 years but never thought they would see this day come...

Resource Type
Citation

Leitsinger, Miranda. "American Indian tribe OKs same-sex marriage, lets gay couple wed." NBC News. March 15, 2013. Article. (https://www.nbcnews.com/news/us-news/american-indian-tribe-oks..., accessed March 1, 2023)