checks and balances

Todd Hembree: A Key Constitutional Issue: Separations of Powers

Producer
Native Nations Institute
Year

Cherokee Nation Attorney General Todd Hembree discusses the critical role of separations of powers in effective Native nation governance, and provides an overview of how the Cherokee Nation instituted an array of separations of powers in the development of their new constitution, which was ratified in 1999.

People
Native Nations
Resource Type
Citation

Hembree, Todd. "A Key Constitutional Issue: Separations of Powers." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

"First, let me introduce myself. My name is Todd Hembree. I am a Cherokee citizen. I live in Tahlequah, Oklahoma, which is the capital of the Cherokee Nation. Originally from Greasy, Oklahoma, which is a very poor rural, highly Native population in southern Adair County in Oklahoma. I grew up on a cattle ranch there and we kind of ran a general store. I went to college at Northeastern State University, went to law school at Notre Dame, and then began a law career. This is my 20th year in my career. My passion has been Native American law. I have had the pleasure to consult and represent tribes across the nation. My crowning achievement I would say in my legal profession has to again have the pleasure to represent the Cherokee Nation tribal council for the last 12 years. I recently changed roles, which I'll talk about later on in my talk, to that of the Attorney General. So my position now is, I've moved from the legislative branch to the executive branch, which is a new and sometimes difficult role for me.

But here we are to talk about separation of powers. Listening to the very good speakers that we've had so far today, I've kind of thought about, well, you know, I need to incorporate something about that in my talk, and one thing that reached out to me was when Steve [Cornell] said that someone had told him that we need to either decide whether we're going to be traditional or constitutional. And in that context of separation of powers I thought, "˜Well, what is it about the Cherokee Nation or the Cherokee traditions that had separations of powers?' Well, maybe it is part of our culture and that got me to thinking in that, yes, in the historic ancient Cherokee villages we had a peace chief and we had a war chief. The peace chief was what was often called the "˜white' chief and usually came from the Long Hair Clan. The war chief was the "˜red' chief that usually came from the Wolf Clan. And they had distinct, separate duties and responsibilities, and they did not mix and you knew who was in power in the council house because you either had a white painted pole or you had a red painted pole. So yeah, there are instances where our separation of powers are engrained in us. We just have to look for them. They're not necessarily a western constitutional mode.

But you look at the concept of separation of powers, and again in our history I would consider myself an amateur historian, but I wanted to read two provisions of separation of powers that came from constitutions. First is Article 2: "˜The powers of this government shall be divided with three distinct departments, the legislative, executive and judicial. Second, no person or persons belonging to one of these departments shall exercise any of the powers properly belonging of either one except in here after expressly directed or permitted.'" And here's another, this is Article 5, Distribution of Powers: "˜The powers of the government of the Cherokee Nation shall be divided into three separate branches, legislative, executive and judicial, and except as provided in this constitution, the legislative, executive and judicial branches of the government shall be separate and distinct and no branch shall exercise the powers properly belonging to either of the others.' Now the first one, Article 2, was drafted and written in 1827. That was the first constitution of the Cherokee Nation. The second was drafted in 1999 in Tahlequah, Oklahoma. We talk about generations and how they are connected, my great-great grandfather John Ross helped draft the 1827 Article 2 in New Echota, Georgia, and me, his great-great grandson, helped draft Article 5 Distribution of Powers in Tahlequah, Oklahoma, in 1999. So it is part of our culture, it is part of our heritage, it's part of our history. So they are not necessarily just pure western concepts.

Now, separation of powers. My idea of separation of powers, and if I misspell something, please forgive me. I'm a lawyer. My idea of separation of powers is separate the power from the powerful. We need to have a concept of separation of powers...and also checks and balances, and they're not necessarily the same thing. We always have that check, but the separation of powers and checks and balances is to avoid or at least limit the concentration of power into a limited few or even a one. So that is why in my concept we want to separate the power from the powerful. We want to decentralize that concept. Now the one thing that...also to limit power to a limited few is also to avoid conflicts of interest, and most importantly in my opinion to avoid the perception of a conflict of interest. Now when a person wears many hats, and they are a member of a tribal council that will perform sometimes executive, legislative and even judicial functions, we may have the perfect person there that is able to delineate each one of those powers. They will say, "˜Well, I can make this decision in a vacuum and this one and this one.' I know there are people out there that can do that. But it's the perception that your people have, and perception is reality. And so when you have an individual who is wearing three different hats and calling all the shots, what are the people going to think? Well, they're going to think, "˜Well, they're all in total control'. So separation of powers in avoiding even the perception of a conflict of interest is very important.

Now, how do we get there based on a system that is sometimes even foreign to us? Historically tribal governments have been largely spiritual, holistic, oral, clan-based, family-based, and consensus-oriented. The leaders were often felt to be facilitators or even respected guides, but sometimes they weren't considered "˜decision makers.' Tribal citizens often had a direct say in the runnings of their governments. So how do we deal with the system as it is, when it may be foreign to our concepts? And we have heard several times today about the IRA, Indian Reorganization Act and the Oklahoma Indian Welfare Act, and there's a lot of bad things or the history of the IRA, but I'm not here to completely decry it, because it was better than the alternative. The alternative was extermination. So at least in 1934, there was a concept that Indian tribes should reorganize and should exist. That has not always been the policy of the United States both before the IRA and after the IRA. But there is a legacy of the IRA that we have to deal with, and that is as has been mentioned earlier today the concept of the cookie-cutter constitution. IRA constitutions you could pick, there were hundreds of them, but you could pick any ten and they're going to look pretty substantially similar. They're going to have a clause about territory, they're going to have a clause about membership, they're going to have a clause about a governing body and that governing body is going to either range from three, five or seven members, and that governing body is going to both have legislative and executive functions and sometimes even judicial functions. They'll have a referendum and recall provision. They'll have a provision in there about elections. And then sometimes later, they had a judicial function almost put in as an afterthought and most IRA tribes did not have a constitutional judicial function.

So this hybrid that was created and this bleeding of the powers of the three branches did not suit us well. It might have been good in the 1930s for a limited amount of tribes, but it definitely is not good for us in the long run, and often, well, in almost all cases, there was very little if any consultation with tribal members and tribal citizens about the creation of this. These constitutions were insensitive to the tribes' culture, history, heritage, size of the tribe, the resources that it had. Basically it was, "˜Here's your constitution and good luck,' and some people and has been mentioned earlier think that that was by design, that the United States government did not want a decentralized form of government that had been part of our history. They wanted someone to talk to. They wanted someone to make deals with. They wanted businesses as said, timber companies, railroad companies, someone, a structure to have a government entity that they were familiar with to make their deals with. They had a square peg and they wanted to have a square hole to put that peg in....And also in these IRA constitutions, and you can look through them, is federal approval for this, federal approval for that, and that you can do this, mindful that the president or his representatives will give approval for it. It was almost full of "˜Mother, may I's...?' It's the mother of "˜Mother, may I's...?' And so we have dealt with that, and even if you're not an IRA tribe or an OIWA [Oklahoma Indian Welfare Act] tribe, that has been kind of the model that we've kind of adopted. Well, [due] in no small part to the people in this room and your predecessors, Native American tribes are going through a constitutional resurgence. We have begun in many instances to throw off the paternalistic yoke of the Bureau of Indian Affairs and if there are members of the BIA in here or you formerly worked for the BIA, I apologize in advance for offending you because I may do so at certain times during this presentation. But we have started that process.

Now, how many tribes here have a constitution? I know not all of them, but raise your hand if you've got a constitution. How many of you are currently going through a constitutional reform? How many people in here perceive that their constitution is perfect? No one raises their hand. You wouldn't be here listening to the good speakers today if you thought that your constitution was perfect. There's not a document made by man that cannot be improved, but as we go through -- and many of you raised your hands that you're going through a constitutional reform and may in some instances even rewrite your constitution -- the concept of separation of powers will be at your forefront. And let me tell you folks that this topic, separation of powers and checks and balances, it's the most important topic of this conference, so feel free to leave after you're done here today. I say that in jest, but obviously it is of extreme importance. Okay, Todd Hembree, why? Why is separation of powers and checks and balances so important? Well, I will tell you with every bit of conviction that I have and every fiber of my being that there are tribal leaders in this room who are caring, who are dedicated, who are selfless and want to help their people. I can guarantee you that. I can also say, with the same amount of conviction and every fiber of being in my body, that there are tribal leaders in here who are selfish and irresponsible. Now how do we protect ourselves from the latter? You do that through a system of checks and balances, of separation of powers.

Now, we're not going to go through just your normal civics lesson, but I'm going to give you examples of how my nation dealt with it, the Cherokee Nation, and we have a tribal councilor, Ms. Julia Coates, who will be talking about what we did and why tomorrow, but for now I'll just briefly go over it. Now we wanted to insure that there was copious checks and balances in our government and a true and complete delineation of the separation of powers. We had, some may say, the [misfortune], but I say it was fortunate that we had our constitutional convention during a time of great trial and tribulations in our government. So there was an era of mistrust, so therefore that concept was truly on my mind and I was a delegate to the Constitutional Convention in April of 1999, and I had the fortune of serving on the Constitutional Commission also. So how did we build in that separation of powers? Well, obviously we had the executive, legislative and judicial branches and eighth-grade civics, the executive branch enforces the law, the legislative branch passes the law or makes the law, and the judicial branch interprets the law. Now what we did is we -- as I earlier read Article 5 -- we made sure that no person can exercise the powers of the other unless specifically allowed in this constitution. But how do we go about making sure that that's done? Well, we put in there an attorney general and marshal, constitutionally created offices that have a term of five years. Now the principal chief and deputy principal chief have a term of four years. The legislative branch, the councilors have a term of four years. We wanted to build in an extra layer of independence that the chief is going to appoint an attorney general for five years, so insuring that that attorney general will serve at least one more year into the next chief's tenure. The same with the marshal -- that these are not going to be concurrent with the other officials. And that's important, because that again leads to the aura of independence. Also, which I think is very important, is that the attorney general can't be fired by the chief. The marshal can't be fired by the chief. They can only be impeached through a process that is set up in the constitution and in our legislature. Again, the aura of independence and the actual safeguards that we won't have, oh, with President Nixon's Archibald Cox, the Saturday Night Massacre. "˜I don't like you, you're fired.' You can't do that in our system. If I make a decision that the executive branch doesn't like or the legislative branch doesn't like, that's tough. The only way to get rid of me is by a two-thirds vote in the council after a complete due process of charges being brought against me. I think that's very important, and that's when you go and you're in your constitutional reform, the independence of a legal representative not just for the tribe, or not just for the chief or the legislature, but for the entire tribe. That independence is important. And the same it is for [the] marshal to actually commence the criminal process. Now what other things are indicative of checks and balances? These are separations of powers. These are checks and balances.

Also in our constitution we have a constitutionally created election commission, "˜cause where are you going to have your most fights, folks, in Indian Country? Normally, elections. So if we have an independent election commission that we have -- through our codification or ordinances or laws that we've passed have -- insured that they are independent, that cannot be, no influence by either the executive or legislative branch can influence this election commission, that's important. We heard about just very recently the tribal conflict with Bush v. Gore. We just went through that with a Cherokee Nation election. We had an instance where the principal chief was elected by a mere seven votes in the first election. Well, there was a challenge to that. We went to our courts and the courts determined that there was no mathematical certainty, no, that the election could not be determined by a mathematical certainty, so you know what, we had another election. And in that other election, a new chief was elected. But we didn't break out the guns, tanks weren't rolling in Tahlequah, the system worked and there was a peaceful transition to power in a very contentious and hotly contested election. Regardless of who won, you had to be proud of the fact that the system worked, that people actually...that violence did not break out. And again, that's because, as said earlier, the constitution is embedded in the culture of our people, that our people respected the rule of law.

In this room here we have, I've read through the list of them, we have tribal council members, we have election commissioners, we have people representing business entities, we have the most honored title, citizens, of Native American tribes, and you're here for a reason, and that reason is that you're to go about the task of reforming your constitutions, which is in many cases hard, long, thankless. You've probably made more enemies than friends by volunteering for this process and you're to be commended. So it's gatherings like this where people and the other good speakers can give you nuggets of wisdom as you go about your task. I will attempt to give my perspective and I will say it's a unique perspective. I've been a drafter of a constitution. I've been a delegate to a constitutional convention. I've been a tribal council or a tribal judge. I've represented the tribal council legislative branch for 12 years, and you could not find a more strong advocate for the legislative branch than I have been. And here recently I've been made attorney general, so I've changed roles. I've gone over to the executive branch. This was interesting. Early on in my tenure, in the first couple weeks, we were dealing with what is called a FOIA request, a Freedom of Information Act, that there's a process where citizens can get information from our tribal government. And there was a FOIA request from a tribal councilor, and I'm sitting there and wondering, "˜Well, is this information that can or should be put forthcoming?' And one of my attorneys that works in my office came to me and we were all sitting around the desk and he was spouting this proposition that would tend to lend itself to the disclosure or the releasing of this information. I said, "˜Well, that's ridiculous. That's a bad train of thought.' And he said, "˜Well, sir, it's from a 2002 memo that you wrote when you were representing the legislative branch.' And that was an awakening to me, that was an epiphany. More appropriately it was a slap in the face that yes, you're right that it's not just the perspective, it's not that the perspective changes of where you sit, it's just doing what is right and following the rule of law. I'm so glad -- things happen for a reason and that epiphany that I had early on in my career I'm thankful for, because it instilled to me it doesn't matter where you're at today. It matters where you and your predecessors are going to be tomorrow, "˜cause I can guarantee you one thing, ladies and gentleman, in 50 years I will not be the Attorney General of the Cherokee Nation. I still want to be alive, but at 96 I don't want to be practicing law and I don't want to be the Attorney General of the Cherokee Nation. I can also guarantee you this folks, in 50 years you will not be holding the positions that you have today. We're merely occupying these seats. We're occupying these seats that our ancestors held before us and that our future generations will have from here on out. So when you're going about the task of reforming your constitution or rewriting your constitution and you're putting in these safeguards, it's important to understand where you are today and where your tribe will be tomorrow, because we won't be here, but I guarantee you your tribes will, I guarantee you the Cherokee Nation will be here in 50 years. The Cherokee Nation will be here 500 years from now. So it is these little steps that we take when we're drafting these constitutions and trying to create a system of government that is going to last generationally.

Also, before I forget, we're talking about checks and balances here. Now there's more to it than that, and I'll go back here briefly. We have a constitutional office of treasurer, which handles the money. There's a song by Warren Zevon that says, "˜Send lawyers, guns and money.' Well, we don't have guns to send, but we do have lawyers and money and we are protected in the constitution as to that. Now also we have a recall provision in our constitution and those are important, that you have the power of the people to provide yet another checks and balances. You have the power of referendum and initiative, that if the legislative branch is not doing their job or they're not doing it correctly, the people can come in and provide a system of checks and balances on this. We have impeachment. That if there's not enough people for recall, we have a system of impeachment that can go about the task of removing an elected officer or appointed officer if they've done wrong. Now notice on impeachment, I only have executive and legislative on here. We have something that's unique in our constitution, and I've read hundreds of them and I haven't seen it in any others. It's called the Court on the Judiciary, and obviously I didn't spell any of this right. That's the benefit of having messy handwriting, people can't tell when you misspell something. But we have the Court on the Judiciary, which is a constitutionally set-up, independent body that can only remove the judges. Again, an attempt to de-politicize the impeachment process and adding another layer of independence to the judicial branch. And again, as we've just heard, in many constitutions we have a general council of membership or citizenship that can watch over everything. It may be an elders council, it may be a general council, but is, as I would say, the all-seeing eye over all of this process, the watcher of the watchers. So in my opinion, you cannot have too many checks and balances to insure the well running of your government.

Now a lot of you can say, "˜Well, Todd Hembree's a Pollyanna. He has 12 lawyers in his office, he has a support staff of 18, the Cherokee Nation has an annual budget of over half a billion dollars, their businesses have another half billion dollars in their budgets. You have the resources, Todd, you have the luxury of talking in these high-minded ideas. You don't know where we're at. We're in the middle of the Utah desert where we have to drive an hour and a half to get to a gas station to fill our tanks up. We don't have adequate housing, we don't have the ability of adequate education. We have two or three people who are really interested in actually forming the government. We can't have all these separations.' And I hear you, I get it. I've done consulting with tribes across the nation. I've been down there where the rubber meets the road, but to me I tell you, you don't have the luxury to not think about these ideas and to not incorporate these separation of powers and checks and balances, because as was said earlier, you're looking at an investment in your future and the way you're going to have that investment pay off is by having a good system of government. I've always liked this saying is that, "˜Well, what if we're doing good? What if we don't have that system, but we're still doing good?' A benevolent dictator is still a dictator. That's why you have to have these systems of checks and balances in there, and how you go about doing that is through, as I said, the diffusion of power on multiple levels, the decentralization of power in your constitution. Use your history and your heritage, use your traditional communities, your clans, to incorporate into your constitution. One of my favorite sayings from my grandfather is, "˜If there's a stone in your shoe the foot is the first to feel it.' Your communities, where you're down in the trenches, if you incorporate them in your government structure in a diversification of your power, it's going to serve you well. And I know I'm short on time and I'm going to open it up for questions, but in the next couple days take advantage of this opportunity. Everyone in this room and their tribes, they have made mistakes and they have had successes. Talk to each other, learn from those mistakes and those successes, because again, I always like to quote my grandfather, he said, "˜Son, you don't have to touch the stove to know that it's hot. If someone's already touched it and been burned, you don't have to go up and do it yourself.' So learn from the people around you. We've all been through this process, sometimes several times. And with that I thank you. I'll open it up to questions and appreciate your invite here."

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."

As old ways faded on reservations, tribal power shifted

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Year

Long before the 1934 Indian Reorganization Act transformed tribal government, before nepotism and retaliation became plagues upon reservation life, there were nacas.

Headsmen, the Lakota and Dakota called them. Men designated from their tiospayes, or extended families, to represent their clans when they came together for larger tribal matters, such as where to hunt that year...

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Citation

Young, Steve. "As old ways faded on reservations, tribal power shifted." Argus Leader. April 27, 2014. Article. (http://www.argusleader.com/story/news/2014/04/27/old-ways-faded-reservat..., accessed March 3, 2023)

Tribes across the country are re-examining their constitutions

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Erma Vizenor is not exactly a revolutionary. But like America’s founders, she’s on a mission to ratify a new constitution in her homeland – the White Earth tribal nation. Most Americans don’t realize that tribes have their own constitutions, which set down rules for everything from tribal government to citizenship. But many were built on models written by the U.S. Department of the Interior nearly 80 years ago. Times have changed, tribal leaders say. Today many Indian nations are expanding their economies, experimenting with gaming and hoping to include their own cultural touchstones and collective priorities in the document that governs them. As Minnesotans celebrated Independence Day last week, tribes across the nation were re-examining their own constitutions and looking for ways to recreate them for the 21st century...

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Hopfensperger, Jean. "Tribes across the country are re-examining their constitutions." Minneapolis Star-Tribune. July 6, 2013. Article. (http://m.startribune.com/tribes-across-the-country-are-re..., accessed July 10, 2013)

Tribal Immunity, Tribal Court Jurisdiction, and Separation of Powers

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There are two active cases out there involving Florida tribes that raise interesting questions relating to tribal courts and tribal immunity in federal and state courts. The two cases, Miccosukee Tribe v. Kraus-Anderson Constr. (which is currently pending before the Supreme Court – an invitation brief from the OSG may be forthcoming soon), and last week’s district court decision in Contour Spa at Hard Rock v. Seminole Tribe. It is our understanding that both tribes have unusual government structures (unusual by federal and state standards, and to most but not all tribes) in which the tribal legislature serves as the appellate court of final resort for the tribal judiciary. This is less common, we think, than it once was in Indian country, but a goodly number of tribes retain this structure...

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Citation

Fletcher, Matthew L.M. "Tribal Immunity, Tribal Court Jurisdiction, and Separation of Powers." Turtle Talk. April 5, 2011.  (https://turtletalk.wordpress.com/2011/04/05/tribal-immunity-tribal-court-..., accessed February 9, 2012)