citizenship criteria

Matthew Fletcher: Defining Citizenship: Blood Quantum vs. Descendancy

Producer
William Mitchell College of Law
Year

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

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

Resource Type
Citation

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

Sarah Deer:

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

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

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

[applause]

Matthew Fletcher:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chris Hall: Cultivating Constitutional Change at Crow Creek

Producer
Native Nations Institute
Year

Native Nations Institute's Ian Record conducted an informative interview with Chris Hall, a citizen of the Crow Creek Sioux Tribe and a member of Cohort 4 of the Bush Foundation's Native Nation Rebuilders program. Hall discusses Crow Creek's current effort to reform its constitution and the importance of fully educating and engaging Crow Creek citizens in that process.

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

People
Native Nations
Resource Type
Citation

Hall, Chris. "Cultivating Constitutional Change at Crow Creek." Native Nations Institute for Leadership, Management, and Policy, The University of Arizona and the Bush Foundation. Spearfish, South Dakota. April 25, 2013. Interview.

Ian Record:

So I’m here with Chris Hall, who is a member of Cohort 4 of the Bush Foundation’s Native Nation Rebuilders Program. Chris, welcome.

Chris Hall:

Thank you.

Ian Record:

Before we get into the questions and discuss your experience in the Rebuilders Program and talk a little bit about your own nation, why don’t you start off by telling us a little bit more about yourself; what you do, where you come from.

Chris Hall:

I come from the Crow Creek in the Big Bend District on the Crow Creek Reservation, born and raised there. I won’t say I grew up there because I refuse to grow up, so that’s just a deal there. But yeah, I’m working with my nation in the hopes of improving our situation.

Ian Record:

So let’s talk a little bit about the Rebuilders Program and what led you to this day today, where you’re here at Spearfish, South Dakota, with no cell coverage, and you’re here learning with folks from other tribes across the region?

Chris Hall:

I think it was the state of our nation. After college, I had come back home after working on the East Coast and going to school, had come back home and really had an interest in getting involved. And when I did start, begin to get involved, I realized that there was some real issues that our leadership was struggling with and just one afternoon in a council meeting offered help. They were indicating they were overwhelmed and they were needing help so I simply said, ‘What can I do? How can I help?’ and was taken up on the offer. And they needed some help with their constitution revision, which hadn’t been done in a while. And so I stepped into that role.

Ian Record:

So you’ve had a few, you’ve been part of a few convenings of the Rebuilders Cohort 4 group now, and from your own personal perspective, what have been the highlights of the program thus far?

Chris Hall:

Oh, you know, the people are incredible, the leadership tools that we’re gaining, the support not just from the Bush Foundation and Native Nations Institute, but the cohort members themselves just has a real family feel and that sense seems to deepen with time. This is our third session out here in Spearfish Canyon and it really feels like we’re a family. We’re talking about getting together on each other’s land bases, reservations, and helping each other in an ongoing effort to just be together, because I think we’ve found strength in coming together. And we all have a commonality in our language and in our situations, a lot of familiarity with each other’s situation and now we have a common language that we can approach that with, and it feels really, really comfortable because we’re with like-minded individuals.

Ian Record:

So you’re not the first rebuilder from your nation that’s gone through this program or is going through this program,

Chris Hall:

Correct.

Ian Record:

There’s been some others, but I would imagine there’s a number of leaders in your, current leaders in your nation that don’t know a lot about this program, perhaps don’t know the value that it can have or perhaps is having for your nation. Can you talk, if you had an audience with the tribal leadership of your nation about this topic, what would you say to them? What would you want them to know about the Rebuilders program?

Chris Hall:

Well, I would assume that they are a lot like me. I would assume that with a desire to help, the first thing you seek out is resources. And one of the resources that I was looking for was information, information for my toolbox, for my toolkit, and I would think that current leadership and future leadership would want those tools so that they could address and compete on a level playing field with other leaders who are speaking the same language and talking about the same constructs, so that again, that we can all get on the same page and we can all move forward together. I’m beginning to see that it’s not each nation on its own path -- inasmuch as that is what’s going on -- but I sense a resurgence amongst all nations, and I feel like we are all gaining ground together and I feel like that synergy is really propelling us forward. So there’s a lot of inertia, and I would just encourage current and future leaders to tap into that, to ride that wave because it’s, I believe, it’s crashing towards a good shore and I think it’s actually going somewhere positive so it’s a good thing.

Ian Record:

So pretend for a second that I’m somebody that works in your nation’s government. It’s the day before the application deadline for Cohort 5 of the Rebuilders program and I’m sort of sitting on the fence. I’m not sure if I want to make this commitment, I’m not sure if I have much to contribute, not sure how much I’ll get out of this program. What would you say to me to convince me to apply?

Chris Hall:

I would say that you could make a lot of decisions in your life that may or may not assist you, but I could reassure you that this would be one that would propel you forward. This is a program -- if I can call it a program -- that really tunes in, listens, and provides you with tools for where you’re at and where you’re really intending on going. So even if you’re riding the fence and you’re not really sure, once you dip your toe in, you’re going to know that that water’s ripe for jumping in and swimming. So I would just say, ‘Put those fears and hesitation behind you and jump in,’ because it’s a real safe environment, it’s, like I say, they meet you where you’re at with your information, there’s no one person that is going to put you down for not knowing. So it’s a really, really positive experience and I think everyone needs that.

Ian Record:

So you alluded to this at the outset, that in recent years you’ve become involved in your nation’s, I would describe it perhaps as an ongoing effort to reform its constitution, perhaps it’s an ebb and flow, perhaps there’s work being done in some stages and just conversation at other stages, but can you first start off by describing the nature of your involvement in the sort of constitutional reform picture with Crow Creek?

Chris Hall:

By nature, what do you mean?

Ian Record:

Like so how are you contributing I guess to the reform process?

Chris Hall:

Oh, okay. Initially, I was the coordinator for a committee which was formed. There was a short time frame where we were allowed to present changes to our constitution, amendments to the constitution. We were asked to formalize those -- put that in writing -- present those for the decision, whether or not to move ahead. So a lot of the initial work that I was involved with was coming to the conclusion of what did we initially want to change, what [were] our top two priorities? And so it was weekly meetings, it was meeting with the community, tribal leadership, sort of cooking all that down and refining our selection to two amendments, which we put forth to vote. So that was the initial stage of my involvement.

Since the election, and the election didn’t go through, and there were a variety of reasons for that but that was...and I sort of knew this on the onset that it wasn’t going to be easily changed, we weren’t going to make two adjustments to our foundational document and then it was going to correct all our ills. So knowing that and having that election come and go and not have anything change, there wasn’t any disappointment on my part, in that we were making effort at changing.

So now this effort continues. There’s community education, leadership education; there’s lines of communication that are open that now need streamlining. There’s a very, very large picture out there that was at first unforeseen. There’s so much involved to wrap your head around that a lot of our citizens struggled with that. So since then, I’ve been working with the community and the leaders on clarifying that picture and clearing those lines of communication and this effort is, as you say, ongoing 'cause the revision process is just that -- it’s a revision process. The last time our constitution had been revised was 20-some years ago and that’s too long.

So the process that I’m involved in right now is an ongoing process of continuing education, of making resources available, clarifying that picture for our citizens so that they realize the importance of our foundational document, which is our constitution so that we can really accurately move forward in a knowing sense, so that we’re aware of what we’re doing rather than just throwing darts at a board, which at first, that’s what it felt like. We were under the gun, we had to come up with two prioritized amendments, and we were under the time pressure and it was just a shot in the dark.

Ian Record:

It sounds like it was a forced process when there needs to be sort of an organic nature to it, right? Where you allow people to fully immerse themselves and engage in the deliberations about this most precious governing document?

Chris Hall:

That’s a wonderful analogy. It does need to be grassroots, it does need to be organic, and I refer to our constitution as a foundational document. It impacts every aspect of our governance, of our culture, of our lifestyle, and people did not realize that at first. They thought this was just a piece of paper, it’s got some rules written on it and people are supposed to follow that if you’re in leadership and it doesn’t apply to the people, the nation. That concept has changed. Their appreciation of the document has deepened. They understand that this needs, that it’s wholesale; it’s across the board. This document affects every aspect of our living and our existence. So the importance of it now, I believe more and more people are becoming aware of that. Now the issue becomes, how do we not only specify in that document what our rules are, but how does that define us and which comes first? Do we define ourselves and then produce a document or is it vice versa? I’m letting people discover that for themselves. I believe I already have arrived at the answer, but I think that self-discovery for our citizenry is really, really important I think.

Ian Record:

I have two follow up questions for you on that. They were not on part of our original list, but this is typically what happens. Somebody says something really interesting and I ask them follow-up questions.

Chris Hall:

No, I think we need to stay on script.

Ian Record:

No, but the first one deals with this mindset you had, this recognition you had with the sort of forced process that you first were involved with, where it’s got to be two amendments and it’s got to be done by this date; that you recognized that win or lose that vote on those two amendments that this process we’re engaged in has some value to it because we’re beginning the conversation in the community and when we revisit this issue in the future, the baseline of knowledge and understanding and appreciation for why this matters will be that much greater. Is that sort of what you were getting at?

Chris Hall:

Yes, exactly. Moving forward in the dark, you grope, you feel your way, you’re unsure, and there’s a lot of fear. The fear of change in and of itself, not knowing what lies within that dark room, creates impediment, creates hesitation. So with the education, with the awareness, with the resource tools, people are coming out of that darkness, they’re shedding some light on the importance of this, the importance of the nation’s desires in proportion to leadership’s desires and the balance of that. So I think this whole process has been very positive, very productive, even though looking in from the outside, it may look like it was a complete failure, contrary to that from the inside, it’s been hard won, but, it’s filled with success, filled with success after success after success. Every time someone approaches me with a question and they get a satisfactory answer, I see that success in their eye, in their expression, in the ‘Aha!’ in the ‘Oh!’ So that’s been rewarding for me.

Ian Record:

So the other follow-up question I want to ask you is this dynamic between do you have the constitution define who you are, or do you define who you are and then have that inform the constitution. And this is a dynamic I’ve seen play out in a lot of other nations that are wrestling with the reform question. And where I’ve seen tribes succeed more often than fail is when the discussion around constitutionalism is paired with a discussion and a lot of deliberation about, 'Where do we want to be?' Not just who we are but where do we want to head, what sort of nation do we want to be 50 years from now, because that’s provides a lens through which to analyze, 'Well, how do we want to organize ourselves, what sort of vehicle do we want to design to get us there?' Is that sort of what you were getting at with that question?

Chris Hall:

Exactly. It’s cart before the horse; that analogy works. How can you create a document that will govern you without knowing either who you are or where you’re headed? So in my mind of course, you have to have a, I’ll go back to the word 'process.' I think we need to make some adjustments in our foundational language document, we also will then adjust as a nation and that will reciprocate back and forth. That’s why it needs to be an ongoing process. We will grow as a nation and if we’re smart enough to create a foundational document which can stay basically structurally the same and allow it to inform our law codes and inform our conduct as a nation, these two can support each other. So ideally, that’s the way it should move forward. Whether or not it will or not, that remains to be seen, because human beings are a very complex creature.

Ian Record:

So let’s backtrack a little bit; we’ve been talking about the reform process at Crow Creek. What prompted the nation to realize, 'We need to go down the reform road'? What were some of the issues that you felt necessitated constitutional change?

Chris Hall:

I don’t think it was my feelings necessarily, but more of different factions within the nation. There were factions that were concerned about our lease and our land use. There were factions that were concerned about our youth and our elderly. There were some gaps in some of our coverage in those areas and there were areas -- which a faction of the population had highlighted -- there was no action being done, there was no one at the bargaining table for some of our greater rights and our sovereign issues. So the issue of changing the constitution grew out of, 'Where are we at, and who’s got our bases covered, who’s protecting us and how do we get this done?' And so the conversation moved around, ‘Well, that all comes from your constitution.’ And there were very few knowledgeable people that had knowledge about our constitution. It wasn’t something that people talked about. They would rather talk about issues over and over again and not having any solution in mind whereas, we know that these issues stem from a weakness in our constitution. So that’s where that comes from.

Ian Record:

So in a nutshell, what’s the history of the Crow Creek Constitution? Where does it come from?

Chris Hall:

1949, it was drafted by Vern Ashley. We were given the choice to accept an IRA [Indian Reorganization Act] constitution, which we chose not to accept, but we were forced to create a constitution in order to interact with outside governments in a mode that was understandable for everyone. So we adopted a constitution -- again, sort of force-fed -- but we are a treaty nation, and we did not really agree to the IRA, although we had to concede to creating a constitution. The constitution that we ended up with was drafted in a language that was foreign to most of our citizens at the time, and which has fallen out of date to the point where it’s very, very, very weak and very outdated.

Ian Record:

So Vern Ashley was, what was his background? Was he a tribal citizen or, ?

Chris Hall:

Vern Ashley is one of our elders and he still exists. He had a legal background, and I’m not sure if he was asked or volunteered or what that situation was, but he drafted and that is the constitution which we have now.

Ian Record:

So where would you say the reform effort currently stands? If you can sort of give somebody the 101 version of where are you at, in sort of the grand arc of reform?

Chris Hall:

I think we’re in the embryonic stage. I really believe that our awareness as a nation amongst nations, we are realizing that this document is important and the document that we have is weak. I think the awareness that it weakens our nation is prevalent now, more so than it ever has been, and I think with that knowledge people are, our citizenry is becoming more and more committed to strengthening our nation and they’re seeing that document as key to that future success. So we are at the beginning of a long road, and we have a map [the constitution] that is an old map and it’s tattered and it may actually be inaccurate for where we’re deciding to go, where we will decide to go.

Ian Record:

So I’m going to backtrack a little bit to some of the examples you shared with sort of what led the nation to decide to go down the reform path. There were different groups within the community that had sort of issue-based concerns on a variety of fronts and it sounds to me like all of those at some level stem from the realization that we talk about how we’re sovereign, but we’re not fully and strategically exercising our sovereignty and then being told that, ‘Well, it’s your constitution that’s preventing you from fully and strategically exercising your sovereignty.’ Is that basically how it was playing out and where the realization was rooted?

Chris Hall:

I think essentially, yeah. I think people were, our citizenry was spending a lot of time pointing fingers, being very accusational -- a lot of negativity -- and I think a lot of that was placed or aimed at our leadership, our elected leadership. And when we would go outside of that circle and ask for an external enforcement, they would, the citizenry would be told, ‘Well, those are your elected officials. You elected them and they’re operating off of their constitution.’ So I think it took several generations of sort of struggling with that, and I think now we’re in a completely different communication era. I think there’s avenues of communication where we can get an avalanche of information whereas before that was not available to people. So people are able to grasp and grapple with a lot more information that’s readily available. I think that has a big impact on people’s awareness so that they have really queued in on this and they’re to the point where they’re saying, ‘We’re not really wanting to blame, finger-point, because our leadership is actually in the same position as the citizenry; they’re not supported by a solid document and our sovereignty suffers because of it, and our leadership has suffered because of it,’ to no fault of the leaders, but because of the paradigm.

Ian Record:

So you mentioned this initial process and the fact that it led to a vote, which did not result in any changes. What do you feel that you and others that have been integrally involved with this current effort have learned from that first go-around? Are there lessons that you’re now applying in terms of how you’re trying to better structure the process moving forward?

Chris Hall:

Yeah. We, of course, we were just so anxious for change and hoping that those changes would fix everything. I think now we realize that we can still be hopeful for change, but that it’s going to take a lot more work. It took us a long time to become dysfunctional -- for the weaknesses within our governance to magnify and manifest them selves into what we have now. So it’s going to take us a little time to work ourselves out of that. We’ve learned some lessons about where the decision-makers are, who those people are, what their motivations are. I think we’ve learned a little bit more about how to move forward through what we saw as a mountain of bureaucracy. I think on the external side, there’s been some change in the bureaucratic end, which has opened itself up to our efforts more. So that has sort of eased some of the path, but it’s still a rough, rocky road that we have to walk. So some of the lessons that we’ve learned we will apply, but there are many more lessons that I’m sure we’re going to bump our heads against, but knowing that on the outset. If you set out on a journey and you know that there’s going to be storms, you’re okay. If you set out on a journey and think everything’s going to be sweet and peachy, you’re in for a surprise. So I think one of the most important lessons we’ve learned is, this is not going to be easy, it’s going to be hard and if we listen to our elder’s teachings, they told us, ‘Life is hard. Prepare, work hard, and you’ll be rewarded.’ I think a few generations maybe thought that this would just be an easy road and one of the hard lessons we’ve learned is it isn’t.

Ian Record:

Yeah, I think this is a common refrain we’ve heard from others, from nations who are engaged in reform is that you’ve got to dial back expectations, you’ve got to be realistic, you’ve got to understand that constitutional reform, the process is thorny and the outcome is not going to be a panacea, that it’s not going to be this sort of newly minted utopian existence the moment the new constitution is ratified, that it’s an uncertain path, but it’s one worth taking.

Chris Hall:

Expectations are a dangerous thing.

Ian Record:

So what are some of the changes -- without being too prescriptive here -- what are some of the changes that have been discussed as, ‘If we change this, if we change that with the constitution, we’ll end up with a stronger government that’s more capable of supporting the nation’s strategic priorities’?

Chris Hall:

Well, we’ve talked about criteria for leadership. We’ve talked about tribal sovereignty being strengthened through taking control of some of the programming that affects our tribal citizenry. We’ve talked about our land use and our resource base and how to step in and control that more for our citizenry’s benefit. We’ve talked about putting our own language in a prologue. We’ve talked about putting treaty language, because we are a treaty tribe, to strengthen that document and to reiterate to the citizenry that, ‘You are a treaty nation, you have rights, and because you have rights, you have obligations. With ownership comes the responsibility and you need to be able to shoulder that responsibility in order to properly own.’ And there are folks who want to own a resource base and own leadership who are not willing to face that responsibility. So those things, if we can instill that in a document, somehow, magically, hopefully that will transfer to future generations of citizenry that can stand firm on a firm document.

Ian Record:

It’s interesting you bring up this issue of obligations. We’re seeing an emerging movement among tribes that engage in reform, not just here in the United States, but in First Nations in Canada in particular, that are consciously reintegrating a sense of civic duty, civic obligation within the constitution, actually explicitly referencing if, here’s the criteria to be a part of us, of our nation, but once you are considered that, whether you’re born into that citizenry or you become a citizen through various criteria that you meet, that once you’re a citizen there’s expectations of you. It’s not just a one-sided deal; it’s a two-way street. Is that sort of the nature of the conversation that’s taking place?

Chris Hall:

Yes. You have to have someone have your six. If you don’t have anyone that you can rely on in tough times who has your back, then you’re not strong. So in order to have a strong nation, we all have to agree on some ground rules, we have to agree on what it means to be a nation and what it means to be a part of that nation, and that’s part of defining who we are and who is amongst us, who we call 'citizen.' So yeah, that’s a very big part of it. It’s a fundamental aspect of being a tribal citizen and not just a tribal citizen, but a citizen of any organized nation that wants to be strong.

Ian Record:

And at sort of an overarching level, isn’t that really ultimately about restoring balance to the nation, where it’s not, it’s no longer the government’s job, the tribal government’s job to support in its entirety the life of the nation, but the citizens themselves have perhaps a greater role to play and the government is there sort of supporting the people as they perpetuate the nation and its culture, and not simply replacing the role of the people in doing that, applying that task?

Chris Hall:

I think for me, philosophically, the government is a small supportive entity within a nation. I think the citizenry is the one who outwardly people see as the nation and they should be the ones that are producing. They should be the ones that are exercising that leadership, that autonomy that says that we’re standing on our own two feet. We are capable and we desire our future to be sustainable and we’re not going to give that over to a government institution and we’re not going to give that over to any large umbrella corporation that may or may not support our desires as citizens and define us differently than we choose to be defined. So yeah, it really comes down to the individual’s impetus of making the announcement and the statement, ‘This is who I am, this is what I stand for and this is what I’m willing to do to be a part of this nation.’ And you need people standing beside you that are like-minded.

Ian Record:

Well, Chris, we really appreciate you taking some time to share your thoughts and experience with us.

Chris Hall:

You’re welcome. I’ve enjoyed this. Thank you.

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

Producer
Indigenous Peoples' Law and Policy Program
Year

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

Resource Type
Citation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

David Wilkins: Putting the Noose on Tribal Citizenship: Modern Banishment and Disenrollment

Producer
Jr. Distinguished Indigenous Scholars Series
Year

The final speaker for the 2008 Vine Deloria, Jr. Distinguished Indigenous Scholars Series at the University of Arizona, scholar David Wilkins (Lumbee) shares his research into the recent and growing phenomenon of disenrollment that is occurring across Indian Country, and delves into the likely motivations behind the efforts of some Native nations to engage in mass disenrollments of their citizens. He also argues that disenrollment is counter-cultural to Indigenous peoples, revealing that his research unearthed few examples of this sort of behavior historically.

Resource Type
Citation

Wilkins, David. "Putting the Noose on Tribal Citizenship: Modern Banishment and Disenrollment." Vine Deloria, Jr. Distinguished Indigenous Scholars Series, American Indian Studies, University of Arizona. Tucson, Arizona. November 13, 2008. Presentation.

David Wilkins:

“Hello folks. Hello folks. All right, you’ve got to be with me here tonight. I’m really happy to be back in Tucson. Tom [Holm] actually had me come in this Sunday so I’ve been here for a fairly long while. But he set it up so that he worked me to death for a day and then I have some time off, and then I get worked to death for another day, and then I have some more time off. So it’s a nice balancing act. First of all, I want to ask does everybody have the tables and the figures? If you don’t, they should be out there at the desk there. You need to have those because this is the data that I really want to share with you tonight and really get you to ponder.

One of the great lessons I learned from Deloria and from Tom and from the other faculty that I had the privilege of studying under when I was here in the early ‘80s was the, Vine especially drummed into us the need and the absolute will to be willing to critique our own. Vine, as you know, from having read some of his publications, he not only attacked the federal government when the government needed to be attacked and the corporate world and various institutions of governance, he would also attack tribal governments when they acted astray or when they violated fundamental norms of justice and fairness. And he drilled that into us as his students and he reminded us to always be willing to challenge injustice wherever you see it. And so I’ve tried to follow his sage advice all these years. And this work that I’m going to be talking to you about tonight is one example of that.

But I really am happy to be back in Tucson and I thank you all for coming out this evening. It’s always nice to come back to one’s alma mater, especially when you’re leaving or fleeing a really cold and already snowy Minneapolis, Minnesota. We didn’t get dumped on like the Dakotas, but we got quite a bit of snow and it’s been really cold up there. And I’m not quite ready for the long slog of a Minnesota winter, but I have to steel up, which I’m down here getting all the rays that I can, trying to absorb as much as I can. It’s nice to be back on this campus and I’ve been piling as much Mexican food in my body as I can. I’m almost bilingual now I’ve eaten so much Mexican food. It’s really nice. There’s not a whole lot of good Mexican restaurants in the Twin Cities as you can imagine. But my wife is Diné, she’s from northern Arizona, born in Tuba City, raised out at Red Lake, Tonalea Chapter. I met her here when I was in my first semester as a student studying under Vine. I wasn’t quite ready to commit at the time, but she came back at the end of my tenure here after I had survived Tom’s seminars and Vine’s seminars and she said, ‘Are you ready now?’ I said, ‘Please take me in, take me in,’ and she did. And so we got married and we have three lovely children who are all practically grown now. But it’s just, she regrets not having come back with me and have a chance to be back here.

It’s been nearly 30 years, as Tom and I were talking over the last few days, since I was, I can’t imagine it has been that long, but there it is. But I thank Tom and Tsianina [Lomawaima], she’s at an ethnohistory conference right now, and the AIS [American Indian Studies] program for bringing me back as one of the speakers. The three previous speakers are hard acts to follow, especially Chief Mankiller, but I will do my best and I appreciate Teresa Spoonhunter for setting up all the logistics for my visit here.

The three concepts that I’ve worked with probably more than any others are the concepts of Indigenous governance, Indigenous activism and tribal sovereignty. And these are also concepts that were close to Vine’s heart and his mind. Although Vine as you know was our -- in using Tom’s words -- our renaissance scholar because he studied virtually everything under the sun. And so we may not see the likes of another Vine for many years to come. But these are the concepts that I work most closely with. They were first brought to my attention when I was a freshman in college in 1972 when I read Custer Died for Your Sins. Hopefully most of you have had a chance to read that. And that book really just sort of pried open my mind and taught me and reminded me of the beauty of our cultures and our languages, of our responsibilities and obligations to one another and the federal government’s politics and laws and so on. And they’re what led me to come here in the first place when Vine called me up and recruited me to the U of A [University of Arizona].

A good friend of mine, Helen Scheirbeck, who’s a Lumbee, worked in D.C. for many years. I had met her at a conference in Raleigh and she said that Vine had just established a program and when she described it, it sounded just what I had been waiting for. And she said, ‘Well, I’ll tell him that you’re interested.’ And I didn’t really believe that she even knew who Vine Deloria was, but she sounded convincing. I said, ‘Okay, well, let him know that.’ And a week later he called me up at my work place. He said, ‘Mr. Wilkins, I hear you want to come to Tucson.’ I said, ‘Is this really Vine Deloria?’ He said, ‘Well, who the hell do you think it is?’ He always spoke very bluntly to you. He described the program and told me Marlys Duchene was already out here and I said, ‘Oh, yeah, I’m ready to come to Tucson.’ And that’s how we got first introduced even though I had heard him give a couple talks in the east.

But as Tom and I were working out the details of my visit here, he told me that I would have a chance to speak to a larger audience and the topic that immediately came to my mind was 'how do our nations define ourselves?' and 'how do we determine who can rightly belong to our nations?' And more importantly, 'What are the grounds on which those relations can be terminated or severed?’So the talk is mine, but the title for the actual talk is Tom’s. He actually came up with the title. He said, ‘How does this sound?’ It sounded very good. I’ve never been very good with titles and have to draw upon my colleagues. David Gibbs, who’s here tonight, has helped me with several titles for some of my work. I’m always looking for title ideas.

But as a Lumbee, the issue of deciding who is and is not Lumbee is one that our nation takes very seriously. It is, we believe, an internal decision that outsiders should have no say so in. But since every individual Native person has been recognized as a citizen of the United States since 1924, if not earlier, and we now have three layers of citizenship -- our Native status, our state rights as citizens and our federal status -- our situation is more complicated than any other group in the country. I’m convinced that if we are not careful in addressing this issue, that the federal government may eventually be compelled or will simply choose to act and will intervene again in profound ways, ways that will I’m sure have a devastating impact on the core sovereign power of deciding who has the right to belong to our nations. They’ve done it many times before, especially during the late 1800s and early 1900s when the Department of Interior on many occasions simply stepped in and told tribes to enroll this family or this group or this individual or told them they had to evict those individuals. Under the IRA [Indian Reorganization Act], if you read many of the IRA constitutions, the issue of membership is left to the tribe, but the Secretary of Interior has the ultimate discretionary authority to override tribal membership decisions. So we should remember our history. And under the self-assumed power of congressional plenary power with the court’s blessing, the federal government maintains to this day that they have the authority to intervene in all of our affairs including that of membership or citizenship. So with that as a rather stark opening, let me get to my prepared remarks and share with you the research that I’ve been doing on this topic and then we should have plenty of time for some question and answers later on.

Native nations are in the midst of some profound changes these days that rival and in fact may well overwhelm those that we face historically. The effects of gaming revenue on our communities and our relations with other governments, the ever-increasing level of Native political involvement in non-Indian elections, something we talked about in Tom’s class the other night and in the colloquium. Were you all Obama or McCain supporters? How many Obama supporters in the room? How many McCain supporters? A couple. Any Nader folks left anymore? Do they still exist? Well, we’ll see what Obama does. But it’s interesting that we have that many people very actively involved in the national elections. The increasing international involvement of Indigenous peoples, the recent adoption by the United Nations of the declaration on Indigenous peoples rights and the ratification two summers ago of the Intertribal United League of Indigenous Nations Treaty that was signed in Washington State, which evidences our continuing national and international status. There are of course the tremendous environmental changes that are bringing about profound changes to our lands, our waters, our skies. Just today in the New York Times, anybody catch what the Supreme Court said just yesterday? They handed down a decision in which the Supreme Court by a 5-4 decision told the Navy, ‘Go ahead and use a sonar and all the other equipment you want even if it causes horrific damage to whales and dolphins and other species of the oceans.’ So again, we see what the priorities are of the Supreme Court. And then we also have fascinating cultural and linguistic developments that are having significant consequences for our nations both good and ill. And then there’s a little thing called Wall Street’s meltdown and the financial distress and crisis that the nation, in fact the world is in the middle of and we’re part of that, aren’t we?

So there’s a lot happening folks and all these developments remind me that we live in an ever shrinking and vastly interrelated world, a world that requires knowledge not only within and about our own cultures, but outside our reservation, trust or urban borders, as well. Vine Deloria always emphasized that we must develop a comprehensive bird's eye view of the world, but we must also be able to see the world from a very localized perspective. What Gunnar Myrdal once called 'a frog's eye perspective' and I think we need to have the ability to have that bird's eye view and that frog's eye view and be able to navigate between those two perspectives if we want to be effective advocates of our nations.

Now as I noted earlier, I belong to the Lumbee Nation of southeastern North Carolina. We’ve got a couple Lumbees in the house tonight. Yeah, there they are, sitting right there. We’re about 55,000 strong. We currently lack complete federal recognition as a bona fide American Indian community by the BIA [Bureau of Indian Affairs], but my lovely wife, Evelyn, as I said, is a duly enrolled member, citizen of the Diné Nation, the largest reservation-base First Nation in the country. So even before I joined the academy, I had already because of my two distinctive east and west tribal affiliations embarked on research to better understand Indigenous nationhood, tribal sovereignty and self-determination. And in fact, when our two, when I hooked up with my wife, with my tribe being so large and hers being the largest, we thought we might have 13 children but we stopped at three. That’s all we could handle.

My Ph.D. is in Comparative Politics, but I tell my students as I told the students yesterday that I’m really a “polegalorian” because I combine politics, law and history in roughly equal parts to try and better understand what makes Indigenous politics and governance and law go round. And one of the best books I read in graduate school was Frantz Fanon’s classic study The Wretched of the Earth. It’s a brilliant study of the physical and psychological damage that colonialism unleashes on those who are colonized and on the colonizers as well. And Fanon made one statement that has always resonated with me. He said, and I’m quoting here, ‘Because it is a systematic negation of the other person and a furious determination to deny the other person all attributes of humanity, colonialism forces the people it dominates to ask themselves the question constantly, ‘In reality, who am I?’ And I think that’s a powerful question and that pithy statement still echoes loudly when I see the ongoing social, economic, cultural and psychological problems that are manifest throughout Indian Country.

Vine Deloria raised a related, but even a more comprehensive question in a number of his works. Vine like Fanon was deeply concerned about the manner in which Native nations went about their psychological recovery after decades of harsh assimilation and the persistence of ongoing disparities in political, legal and economic power. In short, he understood that disparities evident in Indigenous state relations were also forcing Native peoples to inquire, ‘Who are we?’ Vine raised this question in a particularly pithy essay in 1974 and he said this, ‘The gut question has to do with the meaning of the tribe. Should it continue to be a quasi political entity or could it become primarily an economic structure or could it become once again a religious or spiritual community?’ Vine emphasized that historically Native peoples were primarily spiritual communities. But he was troubled by the directions that some tribal governments were veering towards where economic, racial, DNA, political and legal criteria were becoming more meaningful than the kinship and clan based spiritual understandings and relationships that once linked our communities solidly together and that enabled us to endure what we’ve been enduring for the better part of half a millennium.

So let me now turn to an examination of this issue, one that appears to be damaging the collective heart of Indian Country -- the banishments, expulsions and disenrollments. 'Disenrollment' is a legal term of our art devised in the 1930s under the IRA in Indian Country that have increased dramatically in recent years. This issue -- the literal, physical reduction in the size of our nations goes to the heart of Fanon and Deloria’s queries to the essence and meaning of Indigenous membership or citizenship or clanship or whatever term you’re comfortable with and directly deals with social justice, civil rights and human rights in Indian Country. Native nations, as one of our inherent powers of governance, retain the right to remove, to exclude or to disenroll people from our nations, from our lands and from our membership rolls; both legally and culturally enrolled citizens and non-Indian and non-member Indian residents as well.

But it wasn’t until I read a 1996 Federal Court of Appeals decision, Poodry v. Tonawanda Band of Seneca, which held that several Seneca, who had been banished, did indeed have recourse under federal law to test the legality of their tribal government’s actions and that’s what convinced me to take a closer look at this issue. This case raised a sticky question of whether Native individuals had the right to use non-Indian courts to contest what their nation had done to them in regards to their membership status. And this -- as I eluded to at the outset of my remarks -- is one of those areas where it’s becoming clear that some federal courts are willing to intervene in these matters because of the importance of membership or citizenship to those facing banishment or disenrollment. As the court said in Poodry, ‘Banishment was indeed a severe enough punishment involving a sufficient restraint on the liberty of those being banished to qualify as what the court said was detention and to thus permit the federal court to review under the Indian Civil Rights Acts habeas corpus rule.’ The issue of citizenship as a fundamental property right may be in the works as well in terms of when the federal courts will get involved. Since property, as we all know, in one’s person is also fundamental to Americans and the economic system of this nation. More recently, two related cases involving banishment and disenrollment among the Santa Rosa Rancheria in California, Quair v. Sisco 1 and Quair v. Sisco 2 have expanded the scope of federal review and may in fact be a harbinger of things yet to come, signaling that the feds are willing, in certain cases, to intervene if tribal governments don’t provide adequate civil safeguards to those it desires to banish or disenroll.

Now what these three cases show is that the federal courts are increasingly willing to enter into our internal decisions on enrollment or disenrollment like they once did historically and with a great deal of regularity. This has, as you can well imagine, some major implications for tribal sovereignty on this most basic issue of self-governance. So with this legal backdrop let me get into the bulk of my remarks now.

After the Poodry decision in ‘96, I noticed that banishments and disenrollments were apparently happening with much greater frequency in Indian Country. I was struck by the fact that as a number of expulsions and disenrollments continued to increase, particularly of tribally enrolled citizens, that many of our governments were justifying such exclusions on the grounds that this was a power they had always wielded and were simply wielding anew. So I began collecting. Like a packrat, I started collecting all the articles, all the cases, all the newspaper clippings I could to see what I could learn about this. With tribes increasingly engaged in terminating the cultural, political and legal identities and citizenship status of some of their own people, Fanon’s query and Deloria’s question of ‘who are we as Native nations?’ loomed in my mind. Are Native nations still in an era of tribal self-determination inaugurated in the 1960s and 1970s by Indigenous self-will and federal policy in which we make decisions based on Indigenous values that respect kinship connections or have we now entered a frightening and novel state of what I call Native self-decimation in which an ever increasing number of tribal nations are cutting off organic parts, members of their own community body by banishing or disenrolling legally and culturally recognized citizens for sometimes specious reasons?

This is I think a significant question to ask because if First Nations are indeed communities of related kinfolk, which is what we once were, then it would appear to me that the grounds on which to sever or terminate such a fundamentally organic and deeply connected human set of relationships would have to be explicit and would in fact rarely be carried out given the grave threat that such expulsions, the literal depopulation of already small communities would pose to our very existence. Unlike Arnold Schwarzenegger’s "Terminator" character, we can indeed self-terminate, ladies and gentlemen, and this seems to be happening before our very eyes. And those charts that I asked you to, that I handed out gives you some evidence that this is in fact a growing phenomena and it has me scared to hell, to be honest with you.

Furthermore, I pondered how and why it was that the United States government, a secular state with the most diverse population of any country in the world, has in place protections that make it far more difficult for the federal government to strip American citizens of their citizenship status. Federal law does allow for the expatriation of American citizens who join foreign military units or act treasonously against the United States, but only where such actions are done ‘with the intention of relinquishing U.S. nationality.’ In other words, according to the Immigration Nationality Act, American citizens are subject to loss of citizenship if they perform certain acts voluntarily and with the intention of relinquishing their citizenship. And a person wishing to denounce their U.S. citizenship must voluntarily one, appear in person before a U.S. councilor or diplomatic officer; two, do so in a foreign country, normally at a U.S. embassy or consulate; and three, sign an oath of renunciation. So it’s not easy to stop being an American citizen, see? Interestingly, an American citizen cannot renounce their citizenship while in the United States. It can’t be done by mail and it can’t be done through an agent.

In contrast, our nations have what is today virtually absolute power, dare I say plenary power, to banish members and non-Indian residents and to disenroll or disenfranchise otherwise bona fide tribal citizens. So on this critical issue, tribal governments are far more powerful than the federal governments and the state governments. But is this what we want to be known for, that we can wield that kind of power over our own relatives? While we endure and have vigorously protested the virtually unlimited federal plenary power that is exercised over our lands, our resources and our rights, many of our own tribal governments are today increasingly exercising an even more pronounced version of plenary power and this in many cases over their own relatives. I find that a frightening reality.

After completing my preliminary research, I then critically examined several related questions in this ongoing research, and I say it’s ongoing because I continue to receive and analyze data. I have friends that have been disenrolled and that are facing disenrollment and they send me all kind of newsletters and all kind of information, they keep me updated and it really is just mushrooming out of control. A colleague and I have compiled a database of 318 tribal constitutions and these include the IRA constitutions, those established in Oklahoma and Alaska and tribal constitutions that post date the IRA as well. And I’ve also over the years collected quite a few pre-IRA constitutions, some of which are going to be in that book that Tom was kind enough to blindly review for me.

Now while the constitutions that mention disenrollment or exclusion contain a variety of statements about how and why these processes may be carried out, as will be discussed in a moment, we found only one instance in all 318 constitutions where a Native nation has expressly declared that it would never banish its own citizens. Does anyone want to take a guess which tribal nation says that in their constitution? Anybody? The Pleasant Point Passamaquoddy. We’ve got a Passamaquoddy here?”

Audience member:

“Half. Half Passamaquoddy.”

David Wilkins:

“Well, there you go. In their 19, in your 1990 constitution, it says, and I quote, ‘Notwithstanding any provisions of this constitution, the government of the Pleasant Point Reservation shall have no power of banishment over tribal members.’ That’s the only one that says that. And when I first discovered that clause I got on the horn. I called the Pleasant Point and I tracked down one of the authors of their constitution and I said, ‘What compelled you to insert this clause? You’re the only tribe that has this in your constitution.’ And he said, ‘We felt that it just, we had to do this. It wouldn’t be right for us to say we have the power to decide who no longer is one of us. We’re not going to be in office for long. What if somebody comes in after us and decide that we’re not members?’ But he said, ‘I have to be honest with you. We’re having so many problems with drugs in our community we’re beginning to think we might have to revisit this.’ So I don’t know how long even this provision might last.

So as I prepared to write an article about this as I finally felt I had enough data, these are the four questions that I came up with that guided me as I entered this shaky area. The first one is, how do the current disenrollment or banishment proceedings compare or contrast with the traditional means, if that is even discernible from a documentary or oral history available, that First Nations once used to banish or remove tribal citizens, assuming that they did that? Second, why are disenrollments and banishments occurring at the intensified rate that they are? What’s moving that, what’s making that happen? Third, what are the rationales being used by tribal officials to justify the expulsion of tribal or non-tribal individuals and families? And then fourth, how do current disenrollment, banishment proceedings comport with the tribe’s constitutional provisions, if the tribe has a constitution, because half the tribes in the United States don’t operate under constitutions?

So these were the four questions that I was pondering as I moved into it and immediately, having studied this stuff for a number of years, three incongruous premises I was reminded of as I got into it. First, as sovereign nations, our governments retain as one of our central powers of self-governance the right to decide who can be in our nation. The Supreme Court said that in what case? 1978. Come on, folks. Some of you have had Robert Hershey or Tom Holm’s classes. What Supreme Court decision said in 1978 that tribes can decide their own membership? There, thank you. Yes, Santa Clara Pueblo v. Martinez. That’s the linchpin decision on that. Second, many tribal nations, under their powers as governments and landowners, also reserve in their treaties and constitutions, the right to exclude non-members from their reserved homelands with stipulated exceptions for certain federal officials. But then third, and here’s the kicker, the federal government, under the constitutionally problematic doctrine of plenary power, has reserved to itself the power to trump both of those first two premises and to overturn or interfere with any tribal nation’s powers including citizenship, membership decisions when it suits the federal government’s desires to so intervene.

It’s this third premise that our governments must always bear in mind, because nothing we do can ever fully be said to be completely immune from the scope of federal interference, notwithstanding the doctrine of tribal sovereignty or the absence of constitutional markers granting such unlimited authority to the United States government. And more disturbing, as we move deeper into the 21st century, is the fact that state governments increasingly, with the explicit and precedent defying sanction of the Supreme Court, are increasingly moving into tribal territories and jurisdictional realms and are imposing their authority over our lands, our rights, our resources. In fact, the states are beginning to act like they have a form of plenary power over us and if we don’t find some way to deal with that, we’re really going to be caught in a vise, ladies and gentlemen. So as a comparative, let me give you some background to this broad topic of banishment because as [Rene] Descartes once said, although I may be misquoting him here, ‘Intentionally, I think therefore I compare.’ I think that’s what he said. I could be wrong there.

Now, worldwide the political, religious or military leadership in societies have reserved to themselves or shared the power to authoritative expel certain individuals, families or sometimes even entire groups from their respective nations or states as a punitive measure for what they considered grave offenses. As such, enforced removal from one’s Native land entailed a devastating loss of political, territorial and cultural identity for those expatriated since those evicted were utterly deprived of the security and comfort of their own family, community, religious or ethnic group. One of the earliest recorded and arguably the most widely known case of formal exile according to Christian tradition was what? God’s banishment of Adam and Eve. I mean, Eve had to have that apple and God got a little bit ticked off and what happened? They got banished, they got evicted from the Garden of Eden for their act of disobedience. That’s a fairly ominous precedent to follow, don’t you think? Another famous exile also involved God. Cain’s killing of his brother Abel compelled God to banish him and to place a shaming mark on Cain. So that’s where it all sort of begins at least from a Western tradition. Early Greeks and Romans used exile as a form of punishment appropriate to major crimes such as homicide, although ostracism, a milder variant of exile was sometimes imposed for political reasons. Among Romans, physical exile was one way for an individual to avoid the death penalty with voluntary exile allowing the accused to cope with prolonged if not always permanent absence from their country of origin. So along with involuntary exile, voluntary expatriation is another dimension to immigration where what is sought is not primarily the advantages of the place to which one goes, but essentially freedom from whatever disadvantages prevailed at home. Sometimes we just choose to leave. That’s voluntary immigration. Now I’m addressing that particular aspect of Indigenous exile, although it’s clearly a matter that deserves attention because where do 60 percent of us now live? In urban areas. Why have we left our homelands, why have we left our reservations, our trust lands? Well, there are lots of reasons why and that would make for some interesting studies right there. So M.A. students, Ph.D. students, ponder that.

Historically, some Native nations occasionally exercised the power to banish members. However, there’s not a whole lot of documentary or even oral data on this. I searched real thoroughly because I wanted to find out, is this something we used to do and if we did, who did it and why? We do know that the Iroquois Nations, if you read the Great Law of Peace, it has several provisions regarding banishment. If a chief kills another person, that individual is banished forever. And that’s in the Great Law and there’s another provision for regular people if they commit crimes, they can also be banished although they were given an opportunity to be brought back in at a later time. The Cheyenne people on rare occasions also banished individuals who committed horrific offenses. Llewellyn and Hubbell’s book talks about their banishment procedure. But the few available sources that document the power to banish or forcibly exclude show that it was a practice that was rarely used since Indigenous communities focused on mediation, restitution and compensation to deal with problem-causing individuals. No one in tribal society wanted to be ostracized, least of all banished or exiled, and certainly tribal leaders were very careful in exercising power that might lead to such dismissals since in most cases they were probably related to those they were getting ready to banish because we were always about restorative justice, not in a punitive measures.

So with that as a background, I then moved into -- with my computer friend’s help -- a search of our tribal constitutional database to see what if anything tribal constitutions say about this. And what we found was that the terms banish, exile and exclusion do not appear in any of the 318 constitutions. But we did find the phrases loss of membership, the word expel and the word expulsion a number of times. The loss of membership was found in 150 tribal constitutions. So there are ways we can, individuals can lose their membership. Typically it’s for excessive absences if you’re a tribal official or if you have sort of a diluted blood quantum, which is another dimension. Interestingly, the term disenrollment was only found in six constitutions typically involving tribal members who had gotten themselves enrolled in more than one tribe. That’s really frowned upon by our nations, huh? You have to be all Diné or all Yakima or all Lumbee. You can’t belong to two tribes even though many of us have multiple tribal ancestries. Non-Indians and non-member Indians could also be expelled from tribal lands if they were deemed to be disruptive to tribal stability or for other related reasons. In fact, many Native nations retain the explicit right in one or more of their treaties to expel or exclude from tribal lands any non-enrolled Indians or non-Indians except those specifically authorized to be there. The Navajo Nation’s Treaty of 1868 empowers the Navajo Nation to exclude or to expel non-members from their lands if they want to do that. And I’m going to just read you a couple of examples in which, of some of the language in a few tribal constitutions that deals with the issue of exclusion.

The Abenaki people of Maine, their constitution says this, ‘The tribal council may recommend permanent disenfranchisement of any member for serious violations of any of the provisions of the constitution or bylaws made pursuant thereto and the majority vote of the members present at will, will be necessary to call such member to be permanently disenfranchised.’ The Alabama Coushatta constitution says, ‘The tribal council may, by an affirmative vote of five members, expel any members for neglect of duty or gross misconduct. Before any vote for expulsion is taken on the matter, such member shall be given an opportunity to answer any and all charges at the designated council meeting, but the decision of the tribal council shall be final.’ So a number of tribes have provisions in which they lay out very explicitly the grounds on which you can lose your membership; again, the most common phrase in many of the constitutions.

Now what this abbreviated cross-section of constitutions shows is that not surprisingly, there is a significant amount of diversity regarding the rationale used by tribal officials to formally disenroll or physically expel tribal members. In some cases, those facing expulsion or disenrollment were entitled to a hearing so they could learn the reasons they were going to be forced to leave. More often provisions for loss of membership in IRA and later constitutions tend to emphasize a voluntary angle in which tribal members might decide to emigrate from their nation in order to permanently separate themselves from their birth nation. Now it’s important to note that provisions regarding a tribe’s power to exclude non-Indians or non-member Indians from tribal lands are far more prevalent in tribal constitutions than language regarding the actual disenrollment of bona fide tribal members. In other words, when I lived on the Navajo reservation, I made sure I kept a clean nose because I didn’t want to get escorted off the rez by Mr. [Raymond] Austin or somebody in the police force. So I was always aware of that.

1978 was a watershed year for Indian rights with the Supreme Court handing down two major decisions that affected tribal sovereignty, internally and externally. In Oliphant v. Suquamish, the Court deprived tribal governments of the external power to prosecute non-Indians who committed certain crimes, while the Santa Clara case held that tribal governments retained the internal power to decide their own citizenry. Santa Clara in fact appears to have been sort of the beginning point that has emboldened tribal governments to be more emphatic or proactive or in some cases retaliatory in their efforts to clarify their tribal citizenship or membership roles because it’s in the wake of this decision that we begin to see a slow rise in the number of banishments and disenrollments, a rise that increases dramatically in the 1990s when gaming revenue becomes a major stream [of revenue] and when crime in Indian Country just takes off dramatically.

In studying contemporary law and literature, there appear to be four major reasons relied on by tribal governments to justify the banishment or disenrollment of tribal members. One, family conflicts; two, racial criteria and alleged dilution of blood quantum; three, criminal activity including treason or drug sales or gang activity; and then fourth, and finally, financial issues, whether it’s the distribution of per capita gaming assets or judgment funds or something like that. Of course in some disenrollment cases, enrollment committees, tribal councils, judicial bodies, may invoke more than one reason to justify the disenrollment of individuals or families. In other words, disenrollments may be politically motivated, economically motivated, racially motivated or culturally motivated or some combination of the above. For example, just last month the Mille Lacs Band of Ojibwe up in my wintery state banished four band members for five years based on a number of assaults and weapons violations. In this instance, the banished individuals are still entitled to receive their yearly share of casino profits, about $7,000 a year, although they can’t actually set foot on the reservation to collect the revenue. Someone had to send the check to them, it had to be mailed to them or something. And they can request reinstatement to the tribe in 2013 if they’ve lived a clean life and held steady jobs. So this was just last month, four people up in Mille Lacs.

Throughout Indian Country banishment and disenrollment proceedings have indeed increased, and as you know from the table, one of the tables in California alone, especially Laura Wass's table, you can see that at least 16 native communities have or are currently involved in the process of disenrolling sometimes significant numbers of enrolled tribal citizens. And California’s joined by Nevada, Iowa, New York, New Mexico, Minnesota, Washington, Rhode Island and other states as well. And not surprisingly, the reasons for contemporary disenrollment or expulsion of tribal members -- not to mention the disenfranchisement or expulsion of non-Indians or non-member Indians like the Black Seminoles or the Cherokee Freedmen in Oklahoma -- coincide with the ones discussed previously ranging from those steeped in traditional philosophical values to those that reflect new economic and societal forces. Each Native nation that is actively engaging in expulsion or disenrollment of enrolled citizens or non-enrolled citizens of any country deserve specific and detailed assessment. But time and the lack of comprehensive and comparative data does not permit such a systematic and comprehensive inquiry at this point. I’ve tried, but it’s not easy. Efforts to secure factual information about banishments and disenrollments is not an easy process and tribal governments are sometimes reluctant to share this kind of data with outside parties, especially nosy Lumbees, because they say, ‘Hey, you’re not a member. You don’t have the right to know.’ Moreover, the role of Bureau of Indian Affairs is vital on this issue, but attempts to secure information from that body are equally difficult since the Bureau generally insists that those are internal matters to the tribe. And of course given the Cobell litigation, I don’t know that we could even trust the information coming out of the BIA if we were able to get any information from the BIA.

So what is evident is that historically the power to banish or disenroll tribal relatives was utilized, but only in the rarest of circumstances and even then, with the expelled usually having the opportunity to be readmitted if certain conditions were met. Since Native nations were in effect extended families of related kin, the idea of permanently expelling one’s own relatives was not a decision made lightly since traditional values and norms sought strenuously to use much less traumatic forms of punishment to restore proper social behavior. However, as tribal nations continue to expand, with our citizens becoming more differentiated through intermarriage, exposure to and appropriation of certain western values via popular culture, mass media, democratic institutions, and with the oftentimes disruptive role of capital generated from gaming institutions, smoke shops, claims settlements, some tribal governments have felt compelled to consider more dramatic sanctions like banishment and disenrollment as one means to cope with an ever-changing landscape.

There are a number of brazen examples where tribal governments have acted maliciously and I believe unjustifiably to disenroll or banish some tribal citizens on the most spurious of grounds including inter-personal feuds or grabs for raw political power or sheer economic greed. In one of the harshest cases that’s on some of the tables that you have in front of you, the Picayune Rancheria of Chukchansi Indians in California have disenrolled 900 of their 1,500 citizens. Now think about that, ladies and gentlemen. More than half of the nation has been disenrolled. They no longer exist for political and legal purposes as Chukchansi. Now what does that say about this community? And those individuals have lost not only their tribal citizenship, but also their primary source of income, health care benefits, etc.

And a few months ago there was an article describing a recent ordinance by the Rocky Boy Tribal Council in Montana that makes it an offense ‘for any person to engage in communication that harms the reputation or integrity of another.’ And according to the ordinance even the mere allegation of slander or liable are sufficient grounds for the tribe to take action. And that action might lead if convicted to loss of all that person’s real property and a five-year exclusion from the reservation and a fine of up to $5,000. And a second offense is punishable by relinquishment of enrollment and permanent exclusion from the reservation. When I first heard about this, I researched that a bit more and I learned that apparently that ordinance was passed after several anonymous letters were passed around the reservation alleging that some tribal council men were buying trucks and four-wheelers with tribal funds and were misusing tribal credit cards. So there you have it. Someone has since told me that they think that that ordinance has been rescinded. I haven’t been able to verify that. I hope it has.

Now when Native nations overreact like this, such actions I believe violate not only tradition of values, but they also profoundly violate the basic civil and human rights of those disenrolled, if the disenrollees have been wrongly disenfranchised. Yet today, a wave of banishments and disenrollments have been unleashed, leading to the legal, political and cultural exile of thousands of bona fide Native citizens. As our nations continue to evolve, it is imperative that we carefully consider and follow our own traditions and values and consider those of other enlightened communities that focus on fairness, justice, moral equality and respect before engaging in behavior, disenrollment of duly enrolled citizens, that profoundly violates our peoples’ human, social and civil rights and further exposes our already vulnerable nations to outside forces ever intent on limiting what remains of tribal sovereignty. Finally, as John Maynard Keynes once said, and I’m quoting here, ‘While the means we use may be molded by the ends we seek, it is the means we use that mold the ends we achieve.’ So we'd better be careful. Thank you very much, ladies and gentlemen.”

Carole Goldberg: Designing Tribal Citizenship

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutions and Constitutional Reform - Day 2 (Q&A)

Producer
Native Nations Institute
Year

Presenters from the second day of NNI's "Tribal Constitutions" seminar gather to field questions from seminar participants on a variety of topics ranging from citizen education and engagement to the role off-reservation citizens can and should play in a Native nation's present and future.

Resource Type
Citation

Hill, Anthony, Ruben Santiestaban, Melissa Tatum, Joni Theobald, and Angela Wesley. "Constitutions and Constitutional Reform - Day 2 (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Q&A session.

Audience member:

"I have a question for Ruben [Santiesteban]. When you were doing your process to teach your young people, did you have any opposition from anybody from your sitting council or from your community?"

Ruben Santiesteban:

"No, actually I didn't. The youth council had been around before; it just didn't have a facilitator. And so Joni [Theobald] in the Education Department, I was doing the Tribal AmeriCorps Program at the time and with the Education Department, and so during my volunteer hours, that was kind of my task to kind of bring some youth together. And the only...I'll tell you things I seen was, and you can probably...you guys know this, but some of the problems or issues that we face in Indian Country, what I seen was mostly with the parents. The parents, if I had anyone objecting, it was kind of them. Like, am I picking the right kids? It was open to everyone. I think you always get that. Are they the right ones? Are these the next leaders? What are they doing? What are their grades like? And I think it went way beyond that in the teachings that we were doing for them. And with the parents, what I got to see was that the generations that have come before us, especially my parents and their parents before, haven't had a chance to lead, haven't had a chance to make decisions of their own. And those are the bigger issues I guess I faced with working with the kids."

Joni Theobald:

"Sure. I think what we find in our community, and I'm sure in some of the others is when you have the youth moderating or leading or kind of taking charge, it neutralizes a lot of the, I guess, the turmoil or whatever, the disagreements. Even though you want positive, I guess, disagreement and discussion, it was a way for...you're on a certain type of behavior. With the youth council we also had expectations. In the beginning, when we first had the first year, some of that expectations went into strategically having them present in dress. We have a workforce investment and a youth component and some of you may have that WIA [Workforce Investment Act] program, but within mind with that we talked about what is professionalism? So our youth council would come to tribal council meetings or whenever they conducted business or came together, even during their meetings, they dressed what we call dressed appropriate, which with guidance we kind of...they all had their suits. We also financial supported that so whenever they present, they're dressed professionally. And I think when they're approaching council we have the council that...which it's not right or wrong, but have the plaid and have the t-shirts and I think they kind of almost...it gave them...the way they perceived and looked to our youth who were coming and presenting who were dressed up. So there were many things that I think even in presence and presentation that the youth council brought to the council and even the community."

Stephen Cornell:

"Other questions or comments?"

Joan Timeche:

"I have a question and this is to any of the presenters who, particularly the tribal representatives. You had to do a lot of one-on-one contact with the community and we know that it's not always in a positive environment. So did those people that were going out and doing the one-on-one contact or doing the public education with the citizens, did you have to go through any kind of training about how to handle...? There's always going to be that person out there who's going to yell at you and how to deal with that kind of stuff or how you talk to someone who just doesn't want to listen or pushes you off? I'm interested in what kind of skills and prep you had... people had to have before they went out and engaged with community."

Ruben Santiesteban:

"Okay, I'll take it. What I found out in Indian Country, especially on our reservation in Lac du Flambeau, it actually was good. I think when I campaigned I probably knocked about 700 doors and I felt that was the best way to go right in people's homes and talk about my different concerns and what I could do for the community and get their perspective. And it went really well for the ones...I think we just have to remember is people who generally don't like you just aren't going to like you anyway, but they listen anyway because they don't really talk until you're gone anyway -- that's usually the way it goes -- but they listened. And I think I turned a lot of minds because, unfortunately, in Indian Country we have the rumor mill and if you don't get out there, the perceptions of what someone may have told someone about you is all they're left with. So I do encourage you to get out there and talk to your community so that you can stamp out any of those things and represent yourself well. What helped me get through that kind of stuff was, I was a Kirby man so I sold Kirby vacuum cleaners and I knocked on a lot of doors; being in sales and marketing for a long time really helped me build that thick skin, but in Indian Country it actually goes pretty well. They actually do listen and welcome you into the home."

Angela Wesley:

"That's a great question, Joan. I think that in our community we didn't do that at first when we started with our constitution. When we got into our discussions around treaty because of what we did learn, we did make sure that we had some communication, specific communications training in a lot of areas for our team that went out there. I'd certainly recommend it to anybody who's going to do that just to give some safety and security to the people who are going to be going out and doing it. Another thing after this wonderful young woman that I talked to you about, one of the things I would never do again is send somebody out by themselves, if only just to be able to support each other and to be able to sort of verify information that's gone out and that kind of thing. People respond in different ways better to some people than they do to others. So I've seen other nations, and it's something that we've encouraged other nations to do as well, and they have brought in professionals to come in and talk about...do a little bit more of the formal kind of training. We didn't have the time or the resources at the time we were doing it and I think we just didn't really think about what we were getting into. It would have been very beneficial to have had that kind of training, especially for our younger people."

Anthony Hill:

"One of the important things is that all...you need to make sure all your task force members are on the same page because when they go out, you don't want one segment not getting the information that the other segment is getting. What we did in our group is before we went out for each public round of meetings or door-to-door sessions is we actually practiced in our committee meeting and we would have talking points. "˜These are the points that you want to hit when you go out in the community.' So that was really important. And when they reported, we had standardized reports for all the committee members to report the same information to different audiences so that no one is left out. I think that's really important."

Stephen Cornell (moderator):

"We've got a question here."

Audience member:

"Just kind of an expansion on some of those thoughts. Is there a role for like a campaign manager or lobbyist in the process of looking at, especially where your laws come from? We have off-reservation members and so the jurisdictions that they're in have different requirements; there's different people in offices that have their history. So I'm wondering is there an appropriate role for someone to help guide you in what their backgrounds are, their histories and really, who...partners exist out there? And then as far as like citizen participation, again, is there a role for expertise in marketing? It may sound like it's counter-intuitive, but we've really got to market to the citizens. Is there a role for professionals in marketing?

Stephen Cornell:

"Anyone? He wants to know if you're looking for a job."

Anthony Hill:

"If you'll recall, part of the action plan was to take us through the election itself. And so what was going to happen and our plan was once we turned over the document, we would switch into basically campaign mode -- yes, mode -- and that it would be our responsibility to go back out, let the community know the merits of this new constitution and urge them to support it. And that was...essentially that was going to be our job. Unfortunately, we never got around to doing it, but that was what we were planning on doing. So whether...it's questionable whether or not you want your committee or commission to undertake that effort because some people thought, "˜Well, you did your job in writing or drafting the new constitution, step back and let the people themselves decide for it,' but that was what our plan said. We never got to implement it. And we always had help from...we have a communications office with the community and they were always helping us put together our posters, our flyers, our newspaper inserts, things like that. So we were lucky we had those resources."

Stephen Cornell:

"Question here."

Mohammed Fardous:

"Hello. My name is Mohammad Ferdoz and my question goes to Mr. Anthony [Hill]. You mentioned a good point before in your speech that I was real attracted [to]. The question is here that how did you get the people involved with the government and constitution who are not on the reservation? And you said that you had a meeting with tribal members in Los Angeles and how did it help to have the people work on the reservation or to be involved with government institutions and government all?"

Anthony Hill:

"That's a good question. I'm going to get off this thing because it has...I'm sitting on springs. It's just my weight. It's really important to make sure you get those who don't live on your community involved and like I said, the way we did it, we did it in a number of ways. The eighth person that was on our task force was from the Phoenix area and we have a large presence in Phoenix. We reached out to our members in other areas across the country because our enrollment office let us use the addresses for all our enrolled community members so we got their addresses. And the only reason that we knew they were updated was because it's the same address you get your per capita check at so everyone knows, everyone updated their addresses so we knew they were right and we sent flyers out to them. We went to Los Angeles and San Francisco about three times during the course of this exercise. The first time was to acquaint them with the project, the second time was to get their input on a draft, then the third time was to present the final draft. The way we enticed people in the non-reservation areas was we brought along other tribal departments. We brought along the enrollment department and they brought their portable ID-making equipment. So those who needed a tribal ID but who couldn't physically come to Phoenix to get one, they came and they were able to get one. We brought along our elections department. If you wanted to update your elections file and your registration, you could do that there. So literally it was this bandwagon of people going from L.A. and going to San Francisco and it was like a circus. Somebody from another department ran into a bicyclist in San Francisco and the police got involved and we were, "˜I don't know those Indians over there.' So that's what we did. And we also kept in contact with them through the internet. We had a web page that we utilized and they were able to check back for updates. So that's the way we kept our tribal members informed off the reservation."

Mohammed Fardous:

"How could they help the government and was the [unintelligible] for people on the reservation because this is unfortunately a challenge for most of the tribes today because the tribal members just maybe immigrate or go to other places and maybe they don't have enough human resources or [unintelligible]. So how could this plan help the government?"

Anthony Hill:

"You mean the revised constitution, how would it help the government?"

Stephen Cornell:

"I think the question is how can those people who live off the rez help the government on the rez? How can they be beneficial to you?"

Anthony Hill:

"Okay, I get that point. Thank you. It's interesting because in our constitution it says, "˜If you are away from the reservation for 20 years, you are automatically disenrolled.' Now, that's a big...that's a lot of people and when we went out to the people who didn't live on the reservation, we pointed that out and says, "˜Technically, a lot of you, we could probably disenroll you.' Now the community has never done it. Let me be perfectly clear, we never did it. No one ever exercised it, no one ever sought to do it, but that's scared a lot of them and they wanted to see that taken out. The other thing was is that they were concerned because they were enrolled community members yet they weren't receiving the benefits that came with living on the reservation and they were saying, "˜Well, you're using my enrollment number to help get casino machines, but yet I don't get the benefit from it just because I choose either to live off the reservation or you have no place for me to live on the reservation.' And their concern was, "˜How do you include me in that? How do you include me in the education programs? How do you include me in the housing programs or the health programs,' things like that? So it brought a lot of people out and we actually brought some elected officials with us to these meetings and they were asking them, "˜How can you help us be more connected to the government and how can you help us because we need help off the reservation, too.' And that conversation started...I don't know where it went, because unfortunately our leaders never went back out after they sort of tabled the constitution. That whole thing kind of died out, but that's the sad part of the whole thing I think because we had a good dialogue going with them; they were eager to see us. I met some people who were my relatives that I didn't even know that lived in other parts of the country. It's an open book still and it's not finished yet, but that's where I guess I have to leave it."

Melissa Tatum:

"My husband is a citizen of the Cherokee Nation of Oklahoma and the Cherokee Nation allows citizens who are outside the boundaries to vote and there are I believe it's two at-large representatives on the council. And what they do is they have set up a system that you can...there are official satellite communities where there's a critical mass of Cherokees who are living outside the boundaries and each satellite community has regular quarterly meetings. We have four meetings a year. They're on regular certain Saturday of the month. So people have it on their calendar, they expect it. Then the Cherokee Nation arranges programs, usually a potluck supper, but they bring representatives from council out, they have Cherokee history and culture classes, the at-large representatives come and speak and report on what's going on so that the satellite communities feel connected. So that's one way that Cherokee does it."

Stephen Cornell:

"Just to add to that very quickly ma'am before I come to you...there are a number of nations now doing this and we heard the first morning of Citizen Potawatomi, which has eight seats on their council from Potawatomi County, Oklahoma and eight seats, which can be filled by any Potawatomi anywhere in the United States and they run their council meetings with videoconferencing. So you'll have a Potawatomi councilor living in Los Angeles County participating in a council meeting on a video screen on the wall in the council chambers real-time voting on proposals, participating in the debate. And what Citizen Potawatomi says is, "˜Any service available to a resident, to an enrolled Potawatomi from this nation should be available to any enrolled Potawatomi no matter where you live.' So they have a home ownership loan program, they've got a small business startup program; they funded Potawatomi citizens to start businesses in Phoenix, in Kansas, all over the place. So that's part of their effort to do exactly I think what Anthony is talking about, re-link all these people to the nation and give them a sense that they have a stake in your future and the future of the nation where you are and there's power in that. Yes, ma'am. Sorry. Go ahead."

Audience member:

"I just have a comment to make to his question, too. When you have tribal members that are living off the reservation, because we have a lot in Fort McDowell that are in other states, we treat them like a regular...they're treated equally as anybody else living within our boundaries of the reservation because those people, most of the time, are going to be your most educated people because they have to follow other rules that you don't follow within your tribal government. Those people are very big assets to your community and all the tribes you should understand that because we use those people. Because when we have to go to D.C. to fight, a lot of those other senators sit on Indian Affairs commissions and boards and other things and you use those people that say you have a senator from Minnesota that's on an Indian Affairs. You tell your tribal member, "˜Write to your senator on behalf of your tribe over here because we have something going on in Arizona that we need their vote.' So that's why to us it's important on our reservation that we treat everybody the same because we use them, they're assets to our community and I think a lot of...like I brought up before, I didn't know there were tribes up there that had different classes of tribal members that whether they don't give you benefits or they don't because in our...in Fort McDowell ever since I was little, I've always known our Yavapai people to treat everybody the same because we're all family oriented and we don't tell one person, "˜Because you don't live here or you haven't been here that you're limited, your benefits are limited.' At one time that was brought up, but I'm proud of my elders that stood up and said, "˜No, those people are important just like you and we have to treat them the same.' And like you said, like us, we use them for very important things because we know that they know how to live off the reservation versus me as a tribal member that lives on the reservation. We have many benefits on our reservation and some of our tribal members, I don't think they could make it if they lived off in the city of Phoenix and Mesa because they got a lot of taxes they got to pay, city taxes, trash tax, water tax, all these other things that sometimes in the tribe it's a benefit to you. And sometimes you have to rely on those people, but that's just a comment that I wanted to let you know that on our tribe a lot of our people living on and off...the people off the reservation are very important to us."

Stephen Cornell:

"And I bet this lady on hold here, ma'am do you have a comment or a question?"

Audience member:

"When you're going out to your community members and talking to them about, educating them about a constitution, it says in the thing here that they'll say, "˜How does that impact my life?' What specific examples do you have that your people when they were talking to community members, what did they say to them that how this constitution impacts their life? Could you give any examples about that? Do you understand what I'm asking?

Angela Wesley:

"I'll start a little bit. It sort of ties in with the people that live away from home; when we do go away and have regular meetings with our people who live away from home, that's always the question is, "˜How is this going to impact me?' It really comes down to the constitution gives us the ability to make decisions for ourselves and like this lady was saying, just because people live...our people have been forced to live away from home doesn't mean they're not a part of us anymore. But the way our funding structure was from the Department of Indian Affairs is we were only allowed to spend money for people who were living at home. So that was something that we thought was really critical to us governing ourselves is that we would be able then to earn some wealth with resources that we were getting through treaty and to develop our economy so that we could start to provide services to people who live away from home, whether that be housing, health, education, increased medical services or dental services, that kind of thing, but we always said that's up to us. So many of those things were up to us and that we had to continue to have those conversations as we built our wealth so that the money is being put to where the people want it to be. In terms of reaching out to people and just talking to them and why we would do that, what they can bring, part of what we wanted to do with 85 percent of our people living away from home is to start to build that vision in our people, that just because you live away from home doesn't mean that your future generations aren't going to come back. Like you said, those educated people that are out there that can come with different skills to bring into our community when we start to be able to rebuild our economy. So we really wanted not just to make the linkage, but also to encourage people to start thinking about coming home. Our vision talks about strengthening our culture, strengthening our language, trying to reincorporate our traditional way of governing ourselves; people have to be home for us to do a lot of those things. So we wanted to start to build that notion in people's minds that yes, it will be possible. We don't have schooling right now, we don't have healthcare right in our community, but let's work so that we can so that we can start to attract some of those people to come back home and live comfortably in our territories. That's part of our vision is that our people are able to live at home. And we recognize that not everybody is going to do that, but we want more people to be able to do it."

Jill Doerfler: "No Easy Answer": Citizenship Requirements

Producer
Native Nations Institute
Year

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

People
Native Nations
Resource Type
Citation

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

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

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

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

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

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

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

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

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

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

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

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

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

Jill Doerfler: Constitutional Reform at the White Earth Nation

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

"And you're also a published author."

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

"Absolutely, yes."

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

"I think they do."

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

"Wow!"

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

"Right."

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Jill Doerfler:

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

Ian Record:

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

Great Tribal Leaders of Modern Times: Jayne Fawcett

Producer
Institute for Tribal Government
Year

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

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

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

People
Native Nations
Resource Type
Citation

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

Kathryn Harrison:

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

[Native music]

Narrator:

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

Growing up in Uncasville

Jayne Fawcett:

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

The museum today

Jayne Fawcett:

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

On becoming Christianized Indians

Jayne Fawcett:

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

The story of Gladys Tantequidgeon

Jayne Fawcett:

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

School choices and the experience of prejudice

Jayne Fawcett:

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

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

Jayne Fawcett:

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

The impetus behind the Mohegans seeking federal recognition

Jayne Fawcett:

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

Choosing the Bureau of Indian Affairs process over the congressional route

Jayne Fawcett:

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

Aspects of the BIA process

Jayne Fawcett:

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

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

Jayne Fawcett:

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

Allies and friends in the recognition process

Jayne Fawcett:

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

Response of government officials

Jayne Fawcett:

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

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

Jayne Fawcett:

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

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

Jayne Fawcett:

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

Citizenship in an Indian tribe

Jayne Fawcett:

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

Fawcett’s husband and children

Jayne Fawcett:

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

If there is a down side to prosperity

Jayne Fawcett:

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

The casino, Mohegan culture and the church on the hill

Jayne Fawcett:

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

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

Jayne Fawcett:

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

The United South and Eastern Tribes, USET

Jayne Fawcett:

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

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

Jayne Fawcett:

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

Electoral politics on the tribal level

Jayne Fawcett:

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

And partisan politics on the national level

Jayne Fawcett:

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

The most deeply rewarding work

Jayne Fawcett:

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

And greatest sadness

Jayne Fawcett:

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

The future of the United States and of Indian tribes

Jayne Fawcett:

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

Fawcett loves her role as Ambassador of the Mohegan Nation

Jayne Fawcett:

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

The Mohegan Congregational Church and tribal culture

Jayne Fawcett:

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

The legacy she would leave for her tribe

Jayne Fawcett:

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

When non-Indian view her story

Jayne Fawcett:

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

For the celebration of federal recognition, Fawcett wrote a song

Jayne Fawcett:

[Fawcett singing]

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

[Native music]

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

Editing
Green Fire Productions

Photo credit:
Jayne Fawcett
Mohegan Nation

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

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

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

© 2004 The Institute for Tribal Government

 

John "Rocky" Barrett: A Sovereignty "Audit": A History of Citizen Potawatomi Nation Governance

Producer
Native Nations Institute
Year

Citizen Potawatomi Nation Chairman John "Rocky" Barrett shares the history of the Citizen Potawatomi Nation and discusses its 40-year effort to strengthen its governance system in order to achieve its goals.

Native Nations
Resource Type
Citation

Barrett, John "Rocky." "A Sovereignty 'Audit': A History of Citizen Potawatomi Nation Governance." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 11, 2012. Presentation.

"[Potawatomi language]. It's nice to see all of you emerging tribal leaders. That's wonderful. I like to think of myself as emerging, hopefully on a constant basis. I was first elected to office in 1971 as a 26-year-old whatever I was at the time. I was selected as vice chairman. I was named to finish a term and then I was...the two year terms back then. Then I was elected about seven months later for a two-year term as vice chairman. Vice chairman of what was hard to say at that time. My uncle was the chairman. My mother and her eight brothers and sisters were agency kids. We grew up...they grew up on the BIA [Bureau of Indian Affairs] Agency. My grandfather was the BIA marshal then or the tribal...or the BIA police. And so that area...I am one of the eighth generation of my family consecutively to be chairman of the tribe. Back in those days when that vacancy came up, it came up because my uncle had been named chairman because...he was the vice chairman and the chairman had gotten removed from office for carrying around the tribal checkbook in his hip pocket and writing checks to the grocery store for groceries. And we only $550 in the bank and he used about $100 of it to pay his grocery bill and the feds got him. So he was removed from office and my uncle was made chairman, which created a vacancy in the vice chairman spot and so I was named to it.

And we went over to the BIA Superintendent's office. Now you've got to understand my uncle grew up on the Agency and the BIA in 1971 was the law. And he didn't believe you could have an official meeting of the tribal government without the Agency superintendent in the room and that the minutes of our meetings were not official unless they were filed with the BIA. So we went over to see the Agency superintendent and he was going to tell the superintendent that we were going...the tribe was going to appoint me as vice chairman. Now why, I don't know. But we go in and the Agency superintendent starts trying to talk him out of it and he finishes up by saying, ‘Now the last thing I want to do is hurt you guys.' And so as we're going out the door, my uncle turns to me and says, ‘That means it's still on the list,' to hurt us.

So I got the drift about then and, but...became the vice chairman and served two terms then I became director of the inter-tribal group. The State of Oklahoma forced all of the tribes -- the federal government forced all the tribes in the ‘70s to create inter-tribal corporations that were chartered C corporations or non-profit corporations in the State of Oklahoma. The federal government would not give money to an Indian tribe back in the start of the old [President] Lyndon Johnson program days. So you had to be given to a corporate entity that was in the state. And the state even tried to take 10 percent off the top of every federal dollar that came to Oklahoma as a condition. The issue back then was whether or not tribes were responsible enough to manage the money and everyone...I was the youngest person on the business committee. I was the only high school graduate; I was one of the three out of five who could read. All of the people on the business committee were smart but they were not educated people, but they had all grown up...of course, I'm not smart enough to know how to operate this damn thing. There we go. I did a good job of that, didn't I? Side to side or up and down? Ah, okay, that was the problem I went... I killed it. No? Ah.

But the Citizen Potawatomi Nation back then was the Citizen Band of Potawatomi Indians of Oklahoma, was the name of our tribe. The 'Band' was something the BIA stuck on us in 1867, actually 1861 when we separated from the Prairie Band when we were all one tribe. We tried to get Band out of our name for almost 75-80 years after that and finally were successful. We still can't get the BIA to stop calling us that even 20 years later. But we're the Citizen Potawatomi Nation; implication being that 'Band' is not a full-blown tribe.

But what's described as this audit of sovereignty -- we weren't that smart. We didn't just all of a sudden one day decide, ‘Oh, we're going to audit our sovereignty. Where are we sovereign? And where are we not sovereign? And here's what we're going to do about it.' We weren't that smart. We really didn't know what sovereignty meant. Remember, everyone on the committee, and this includes me, we were all children of the ‘50s and the ‘60s. Primarily, except me, were children of the ‘40s and ‘50s. You've got to remember what was going on about then. 1959, Senator Arthur Vivian Watkins of Utah chaired the Interior Committee of the Senate...Interior Committee on Indian Affairs and helped shepherd through House and Senate Concurrent Resolution 108 was provided for termination of tribes. The Secretary of Agriculture, who was also from Utah at the time, in the interest of doing something good for Indians, were tremendous proponents of termination and got it done. The McCarthy hearings were on about then and anybody who held things in communal ownership was probably a communist and that included Indian tribes. Yeah. And if you were an Indian leader and you didn't like the way the federal government treated you, it wasn't that you were saying that you didn't love the government, it's when you discovered that your government didn't love you is when all of a sudden things got rough.

And this was a tough period of time and everyone on the business committee, all five of us, were all a product of when self-governance and self-determination, that was the language of termination. Self-determination and self-governance meant termination. That's what they said they were going to do. And in those days you had to prove that you were going to be too broke and too incompetent to run your own affairs to keep from being terminated. If you had a business and you had money and you were conducting your affairs in some semblance of order, then you were eligible for termination and we were on the list. Why? I don't know because we had neither pot nor window. And it was...it was absurd that all the Potawatomis got thrown in there together 'cause we were down to $550 in the bank and two-and-a-half acres of land held in common, in trust, and about 6,000 in individual allotments. We were down to nothing and they were going to terminate us. And my uncle, listening to the Choctaw chief at that time who -- remember, the Choctaw, Chickasaw, Cherokee, Creek, Seminole chiefs were appointed by the president until some 20 years after that. They were not elected. So the Choctaw chief was a big proponent of termination. He believed that was the right thing to do. My uncle didn't think that we should be terminated but didn't even really know what we were being terminated from 'cause we didn't own the building where we met. It was a trailer that the [Army] Corp of Engineers had abandoned on a piece of land that the BIA had and they were letting us use it. We were pathetic, pitiful people.

And so when they started these hearings on Indian stuff and the outcome of it was Senate Resolution 108 and the Flathead, Klamath, Menominee, Potawatomi, Turtle Mountain Chippewa and all the tribes in the State of California, New York, Florida and Texas were to be terminated. Now 108 didn't terminate them, but it authorized the termination and then the BIA started working up the list. When I said earlier that the BIA superintendent said, ‘The last thing in the world we want to do is hurt you, but it's still on the list.' So, that was the mindset of our business committee and when I took office of our tribal government. Senator Watkins had the support of Senator Robert S. Kerr, the owner of Kerr-McGee Oil Company, to date the richest man who's ever served in the United States Senate and was the most powerful man in the U.S. Senate and coined the phrase what we call a Kerrism and that's still in use in Oklahoma is that, ‘If I ain't in on it, I'm ‘agin it.' And that's how he got in the uranium business. All that saved us was we sued the government in 1948 under the Indian Claims Commission Act and that lawsuit settlement was pending and tied up in the courts and if it hadn't been for that they would have terminated us 'cause you can't terminate someone who's in court suing the government cause it looks like you're trying to get rid of them to get rid of the lawsuit and that's all that saved us.

Very quickly, we came from Newfoundland down the Saint Lawrence River 1100, 1200 mini-Ice Age, ended up in Michigan, split from the other...the Ojibwa, Odawa, Ottawa people. We were all one tribe called Anishinaabe, we came into Michigan and settled. In the war with the Iroquois over the beaver trade they drove us all the way around the lake until the French armed us and then we drove them back to the east coast. We were in refuge in Wisconsin from the Iroquois attacks when the French, John Nicolet showed up with some priests and we helped unify the Tribes of Wisconsin against the Iroquois invasion and that group was able to drive them back once armed with the French connection. The French connection through a series of alliances, primarily inter-marriages and the inter-married French and Potawatomi became the Mission Potawatomi who became the Citizen Potawatomi.

But this area was an area that we controlled quite a large area, though it didn't show up on the slide, but it was a very large area around the bottom of Lake Michigan and then because we sided with the French against the British, with the British against the colonies, we ended up under the Indian Termination or the Indian Relocation rather, Andrew Jackson's Indian Removal Act and we got marched to the Osage River Reservation in a march of death along this route and the ones that didn't die on the walk, another fourth of them died that winter. My family survived it on both sides and in 1861 after the Copperhead [U.S.] President Franklin Pierce allowed settlers to come into Kansas on top of the reservations anyway without a treaty. We were on the Kansas/Missouri border. We were part of the Underground Railroad to help hide runaway slaves and transport them up north. And so we were part of the depredations of the Civil War from Missouri, a slave state, into Kansas.

And so we ended up getting out of there, separated from the Prairie Potawatomi in 1861, sold the reservation to the Atchison-Topeka and the Santa Fe Railroad in 1867, took the cash and bought this reservation for gold south of the Canadian River from the Seminole Reservation line to what's called the Indian Meridian that divides the state in half between the North and South Canadian rivers, became our reservation that we purchased. And we took United States citizenship as a body in 1867 in order to protect the ownership of that property as a deed. We were denied access to the courts in removal from Indiana. We had lawyers hired and people trying to stop the removal from Indiana and we were part of the group that was...the ruling was that because we were not United States citizens we could not plead our case in the United States courts. And hence the name Citizen Potawatomi was to defend the purchase of this property.

We came to a place called Sacred Heart. We had the Catholic Church with us and helped them form the first Catholic university and school, settled in Sacred Heart. We had a division over the Ku Klux Klan. We had a Protestant and Catholic business committee. Of course the Klan was as strong in Oklahoma and Indiana as it was in Mississippi and Alabama and it caused a great deal of trouble. The Shawnee Agency government in Shawnee where the Indian Agency was basically after the tribe was able to heal the split, we didn't have a headquarters after we left Sacred Heart. The trailer that you see on the bottom was a...belonged to the Corp of Engineers and it set on a surplus piece of property. I want to get a little larger version of that picture because it's so much fun. Car and Driver Magazine certified the three worst cars in U.S. history were the Ford Pinto, the AMC Gremlin and the Opel Cadet, and all three of them are parked right there. First thing we did was out of the 550 bucks, we spent $100 of it on that air conditioner 'cause it was too hot to sit in this trailer. The guy who got removed for writing those checks got drunk with his brothers and came to whoop us all at the first meeting and the chairman...I mean the guy who was supposed to succeed, because I got appointed he showed up, is how I got appointed. But he showed up to become the first choice appointee and he kicked a hole in the back of it right here 'cause this was the only door to get away from the impending fist fight. But it was mostly conversation, nothing happened. But that was us in '73 on a gravel road. That was all we had.

In 1982, I had left the inter-tribal group and left tribal office and gone back to the oil field and in 1982 my grandmother whose father and grandfather and great grandfather and great-great grandfather had been chairman and my mother's father and my grandfather also on his side had been and my grandmother called me up and told me that I needed to come back and I said, ‘I've already done my piece, grandma. You've got 26 other first cousins. Why don't you get them to do it?' And I got that silent thing and she scared me to death with that so I went back out there in '82, in 1982 because I'd had the previous history in office and as running the inter-tribal group. Became the tribal administrator in '82. I served until I ran for chairman in 1985.

But in 1984 there was a set of tribal statutes that were being promulgated by a now famous Indian lawyer named Browning Pipestem, the late Browning Pipestem. Browning Pipestem and William Rice, Bill Rice, made a presentation to us. Now I was the tribal administrator. The chairman at the time had a reading disorder so the way that business went of our tribe was he would go out in the hall and his wife would read it to him and he would come back in and reconvene the meeting and we would handle that piece of business. This meeting started about 5:30. It was about 1:00 am when Browning Pipestem and William Rice finally got the opportunity to speak. Browning Pipestem was married to a Citizen Potawatomi. He was Otoe Missouri and he started the meeting off, 'cause he'd been cooling his heals out in the hallway for about five or six hours, by saying, ‘I own more land than the Potawatomi tribe. I have more trust land than you do. My children have more trust land than you do. The area over which you govern, my family owns more than you do.' Well, it was kind of an odd thing to say, but I knew Browning was...he was a riveting speaker, and I knew he was going somewhere with this and he said, ‘You guys are known up north as the shee shee Bannock,' the duck people, because we were so good with canoes. Supposedly Potawatomis invented steam bending the keel of a canoe to avoid knocking a hole in the bough on rocks on rivers. ‘You guys are called the duck people by the other tribes 'cause you got around in so much active in trade and so much commerce and you got around so well on the water.' And he said, ‘Well, here's what sovereignty is. If it walks like a duck and it talks like a duck, it's a duck most likely, and sovereignty is the exercise of sovereignty. It's not something that you get, something that you buy or something that someone gives you. It's like your skin. You had it, you are a sovereign, the United States signed treaties with you, 43 of them, all of them broken, the most of any tribe in the United States, the most treaties of any tribe. And they don't sign treaties with individuals and they don't sign treaties with oil field roughnecks. They sign treaties with other governments. You are a sovereign government with the United States and sovereign means the divine right of kings.' Well, he lost us there and he went on to say that...explaining that ‘unless you take on the vestiges of a sovereign government and exercise the authorities of a sovereign and recognize where you can exercise your sovereignty and where you cannot and what it is, then you're not. But if you do, you are.'

Well, for me the lights went on about then because the Thomas-Rogers Act constitutions in the State of Oklahoma, all the tribes in Oklahoma adopted the Oklahoma Indian Welfare Act Constitution and it basically...that was back in the days when it was the fad, we all had to be corporations. I'm the chairman of the tribe and we have a vice chairman and a secretary/treasurer and we have members of the business committee, like a board of directors of a corporation. And somehow they thought that our way...best way to govern is that we would all get together in this thing called the general council that would be the supreme governing body of the tribe and that we all got together and everyone had an equal voice, the 18-year-old had an equal voice with the 65-year-old and everyone would get together and democratically design the best thing for the tribe, which is utter nonsense. Absolutely utter nonsense. We never governed that way in our history. If you got up in my day as a young person and had something to say in council, your grandpa would and could and should grab hold of your pants and jerk you back down and apologize for the fact that you spoke at all without asking the permission of your elders.

Of course our government, because it was a meeting...now we didn't have anything, we were broke. We didn't have any land, didn't have money, we didn't have anything but we could meet in the one general council that we had annually on the hottest day of the year and the last Saturday in June at our annual general council that convened about 1:00 and we'd keep going ‘til about 7:00 when the low blood sugar kicked in and it would come to blows. And as a result of that, we couldn't get a 50-person quorum. We had an 11,000-member tribe. We couldn't get 50 people to come to council. We used to have to get in our cars and delay the start of the meeting to go around and force your cousins to get in the car so we could get a quorum so we could convene the general council meeting. No one wanted to come and I don't blame them. I didn't want to go either. If I hadn't been in office, I wouldn't have gone. It wasn't government. It turned into a bad family reunion. That's all it turned into. And so the...what happened out of that, calling that government, was the more acrimonious the meeting became, the less people wanted to come, and the less like government it was. And it wasn't a government. We weren't governing, we weren't sovereign, we weren't anything.

So first thing that came to us is, ‘We've got to change this Thomas-Rogers Act thing.' The supreme governing body of the tribe can't be a meeting, and we could call special meetings of general council with a petition and 25 people could call a petition and you could get another meeting and get 50 people there and 26 of them could change everything that the previous one did. So one family could all get together and we could back and forth have these special general councils and we could reverse this and change this and chaos, utter chaos. So we decided to redefine what the general council was, if that was to be the supreme governing body of the tribe, it had to be the electorate, it had to be the people who were eligible to vote, the adults of the tribe. And so that was the first thing we decided to do, but that evening it ended about 2:00 and we all went home.

But the next few days we started talking about, ‘What does a tribal government do? What are we supposed to be doing here? We're getting a few bucks from the government here and there to try to keep the lights on.' We had $75 a month coming in of revenue and it kept the lights on but, ‘What are we?' So we got it down to three things: the land, the law and citizenship. What land do we govern? What's a law? So it was about three years and I got elected chairman in 1985. I came back in '82, I ran for chairman in '85 and have been in office since then. We've amended our constitution five times since then. One really major one and we have been to the United States Supreme Court three times, to the 10th Circuit Court of Appeals seven times. We have been in litigation every year since 1985. We're still in litigation. I'm a lawyer's dream -- not one penny in tribute and millions for defense. That's not my saying.

When we talk about the land, how much land do we govern? Now we had that two-and-a-half acres of land that was held in common, we had about 60 acres that was in fee that was old school land and then we had about 6,000 acres of land that was held in trust that had a whole variety of heirs, very few people living on it. And you could fly over the countryside of Oklahoma on our reservation and here'd be a whole bunch of land that was all in cultivation, people making hay and raising cattle and then there's be an 80-acre piece right in the middle of it that was overgrown with blackjack trees and weeds and trash and no fences and crummy looking un-utilized piece of property and that was a Potawatomi allotment. That's how you could tell because with so many heirs no one actually owned it, no one actually used it. It was in the fourth generation of ownership of a family that was split up to where it wasn't happening. Plus the fact the government at that time, there was a big move that tribes that were allotted tribes that didn't live on Indian Reorganization Act reservations like most of you guys weren't really tribes and really didn't have a definable jurisdiction. That was before the federal definition of Indian Country.

How much land do we govern, what are our boundaries, what authority do we have over our land, can we buy more and will it become subject to the authority of our government and what's the difference between allotted land and tribal trust land? We didn't know that. We didn't know. We didn't know that allotted land was subject to the authority of the tribal government even though the only thing we had were resolutions. We didn't have statutes, we didn't have a code, we didn't have a court, we didn't have police, we didn't have the vestiges of the government, but we had resolutions. That's how we decided what to do and we could do a resolution that would have an impact on tribal trust land if you could survive the political outfall. We didn't know that. We didn't know that our boundaries where we could take land and buy the residual interests in the allotted lands was the original jurisdictional boundary of the reservation, the 900 million acres that we lost. What authority did we have over the land? We didn't know we had authority over anything. Remember, we thought we had to have permission from the Agency to meet. So it was the discovery and the inquiries that we began about what our land base was, what our boundaries were, where could we buy land and get it put into trust; we were told by the Agency superintendent that no individual could put land into trust. And the reason was that you had to be incompetent for them to put individual land into trust. And if you were smart enough to ask to get your land put into trust, you weren't incompetent. Catch 22.

The law. We didn't know we could pass a law. We were passing resolutions; we didn't know they were laws. We have a resolution, ‘We're going to meet next Friday and have a pie supper.' We didn't know that was the law. We didn't know a tribal resolution was law. When we enrolled someone, we didn't know we were behaving lawfully. We knew we had to follow the constitution. We thought the constitution was the only law we had and if it wasn't in there it didn't exist. If it wasn't in the book, in the constitution book, it didn't exist. How we enforced law. We didn't have police. The BIA had police but we didn't have police. We didn't know you could have police. We didn't have a judge for sure. The CFR courts hadn't even been invented.

In CFR, the Court of Federal Regulations, that didn't really start happening until about 1981, '80, in Oklahoma. Can we make white people obey our laws? Can white people come onto our land and shoot game? Can white people lay a pipeline right across our land and not tell us or get permission? Can they run cattle on these allotments which they were doing. Can they produce oil off of those allotments and not pay us? All of those things, we didn't know how to do that. Does the BIA, whose law...do we have any impact on the BIA, do they have to do what we say? Does the State of Oklahoma? And if we have laws is there a Bill of Rights? Can we pass a law that says that my political opponent needs to be put in jail for being a fool and is there an appeal? And worse yet, the big scary one, the word, the 800-pound gorilla in the room, the one word nobody wanted to use was can we levy taxes? Whoo hoo hoo. Taxes.

Citizenship. We knew we could amend our constitution because they told us that the only way we were going to get this payment from the 1948 Indian Claims Commission, the 80 percent of the settlement that had been tied up since 1948, in 1969 is we had to have a tribal roll and the BIA told us that the only way you could be on the tribal roll was to prove that you were 1/8th or more Citizen Potawatomi. Now the blood degrees of the Citizen Potawatomi were derivatives of one guy from the government in a log cabin in Sugar Creek, Kansas in 1861 who was told to do a census of the Potawatomi, the Prairie Potawatomi and the Citizen Potawatomi. And he told everyone that they had to appear. And as they came in the door, he assigned a blood degree based on what color their skin was in his opinion and full brothers and sisters got different blood degrees, children got more blood degree than their parents 'cause they'd been outside that summer and those were the blood degrees of the Citizen Potawatomi. There was a full-time, five-person staff at the central office of the BIA in Washington, DC, who did nothing more than Citizen Potawatomi blood-degree appeals, about 3,000 of the blood-degree appeals when I first took office. When I became chairman, it had grown to 4,000 or 5,000 and I was in the room when a guy named Joe Delaware said, ‘I have a solution to the Potawatomi blood degree problem. We'll resolve all this. The first mention in any document, church, federal government, anywhere, anyhow that mentions this Indian with a non-Potawatomi language name, he's a half.' Well, they were dunking Potawatomis and giving them Christian names in 1702, full-blooded ones. If you were dealing with the white man, you used your white name and if you were dealing with the Indians you used your Indian name, like everybody else was doing. And so it was an absurd solution. I told him, I said, ‘That's nuts. That's just crazy. You're going to get another 5,000 blood-degree appeals over this.' He said, ‘Well, that's the way it's going to be.' Well, that was the impetus for our coming back and establishing, ‘What are the conditions of citizenship?' And we stopped called our folks members like a club. They're citizens. And it finally dawned on us that being a Citizen Potawatomi Indian is not racial. It's legal and political. If they...according to the United States government, if a federally recognized Indian tribe issues you a certificate of citizenship based on rules they make, you are an American Indian, you are a member of that tribe. And you're not part one, not a leg or an ear or your nose but not the rest. You're not part Citizen Potawatomi, you're all Citizen Potawatomi. The business of blood degree was invented so that at some point that the government established tribes would breed themselves out of existence and the government wouldn't be obligated to honor their treaties anymore. That's the whole idea. That's the whole idea of blood degree and we're playing into it all over this country, now over divvying up the gaming money. But I'm not going to get into that. But the business of blood degree, the 10 largest tribes in the United States, nine of them enrolled by descendency and that includes us. We changed it from blood degree to descendency, which was the only reasonable way to do it because we had no way to tell because of this guy in the log cabin in Sugar Creek was what we had. And then we had permutations of that over the next eight generations that became even more absurd and Potawatomis had a propensity...we're only 40 families and all 31,000 of us had a tendency to marry each other. So when one Potawatomi would marry another Potawatomi, I'm not saying brothers and sisters or first cousins but when they'd marry another Potawatomi then you got into who was what and it was... And this business of the certified degree of Indian blood was ruled to be unlawful, to discriminate against American Indians in the provision of federal services based on CDIB. It's supposed to be based on tribal membership, not the BIA issuing you a certified degree of Indian blood card. A full-blooded Indian who is a member of eight different tribes, whose family comes from eight different tribes, not any white blood, would not be eligible to be enrolled in many tribes. They had absolutely no European blood, would not be eligible simply because he was enrolled in multiple tribes.

The other thing about citizenship is ‘where do we vote?' The only way you could vote in an election at Citizen Potawatomi was to show up at that stupid meeting, violent meeting, and the guys that were in office would say, ‘Okay, everybody that's for me stand up.' Well, nobody could count that was on the other side so everybody would kind of creep up a little bit so you could count. Well, they counted you 'cause you creeped up a little bit so you voted against yourself. So the incumbent would say, ‘Okay, everybody that's for this guy stand up. I won.' Well, that's not how to elect people. That's not right. Two-thirds of our population lives outside of Oklahoma, one-third of it lives in Oklahoma. Those people are as entitled to vote as anybody in the tribe, so the extension of the right to vote and how we vote and whom we vote [for] and what the qualifications of those people and the residency requirements of those, that was an issue of citizenship that we needed to determine.

So we went through a series of constitutional amendments. We redefined the general council as everyone in the tribe over 18, is the general council and that is the electorate, that's who decides all issues subject to referendum vote. Everyone in the tribe can vote by absentee ballot if they register to vote in an election. We established tribal courts that are independently elected just like the chairman and vice chairman and the members of the tribal legis...and secretary treasurer and the members of the tribal legislature and that the tribal courts have authority over all issues relating to law enforcement. We adopted a set of tribal statutes and we used the ability under the Indian Reorganization Act that we recede the authorities of the IRA in our new constitution to have a tribal corporation in addition to the tribal government, two separate entities. An incorporated entity and the sovereign entity is the Citizen Potawatomi Nation government. Next amendment was to change the name to the Citizen Potawatomi Nation from the Citizen Band Potawatomi. ‘Cause back then when you had Citizen Band, people would say, ‘What's your handle good buddy? 10-4. What's your 20?' Remember all that stuff that went on back in the day with the Citizen Band radios? Or what instrument do you play in the Citizen Band? That was the other one I used to get all the time. We changed our name and we went to descendency citizenship and we enrolled everyone that needed to be enrolled if they were descendents of the original families, 41 families that made up the tribe in 1861.

I issued an executive order that we would hold council meetings in every area, city or metropolitan area with more than 2,000 members of the tribe. And so we began a series of meetings in 1986 in Houston, Dallas, Washington, D.C., Kansas City or Topeka area, Kansas City/Topeka area, Portland, Oregon, alternating with the Seattle/Tacoma, northern California -- the prune-pricker Potawatomis. We met in Sacramento, in southern California -- the oil field Potawatomis. We met in Los Angeles or somewhere, Bakersfield or somewhere down there. And we met in Phoenix, Arizona, for the rich Potawatomis. But we started having these meetings and we started going to hotel rooms and ballrooms like this one and buying a meal ‘cause we had a little money coming in from bingo and selling cigarettes and we started having these meetings and we found out something, that if you have a meeting and you feed Potawatomis, they won't fight with you. So as soon as I started serving food at the general council back home, never another cross word, never had another fight, never any issues of that.

But the revision of 2007...in 1985 was the big one. I almost...I'm out of time. We separated the branches of government with a true separation. There is an executive branch, a legislative branch and a judicial branch. We now have 16 members of the tribal legislature, eight from Oklahoma and eight from outside of Oklahoma. While it's a one-third/two-thirds population, the way we balanced that is that of the eight from Oklahoma three, the chairman, vice chairman and secretary/treasurer, are elected by everyone in the whole United States. So there is a nod or an impetus or balance given to the population outside. The fact that our jurisdiction, that the area over which we govern, our revenue, is all based in Oklahoma on the reservation is recognized by the fact you have to be from Oklahoma to be chairman or vice chairman or secretary/treasurer. Legislative districts. The whole United States is represented. We eliminated the grievance committee. The grievance committee existed because we didn't have a tribal court and the grievance committee created grievances. We had staggered terms of four office...for four-year terms of office, staggered terms of office. The old two-year terms of office where we turned over the majority of the government every 24 months, crazy. The legislature has total appropriation control of the money. But the legislature can't even answer the phone. It speaks and acts by resolution and ordinance only. They can't run the government ‘cause they can't even answer the phone. The legislature speaks and acts by resolution or ordinance. They appropriate the monies for a specific purpose, but the executive branch spends it and runs the tribe. I have a veto, I have 10 votes out of 16 not counting mine so 10 votes out of 15. And the BIA no longer has to approve our constitutional changes. Each of our constitutional changes took the BIA over four years to consider.

So that's where we are, that's the old bingo hall, that's Firelight Grand Casino. It's $120 million operation, we're doing $150 million addition to it now. Everywhere in our tribe we have these symbols of corn plants. Don't eat the seed corn. We do not make per capita distributions. We fund 2,000 college scholarships a semester, we provide free prescriptions to everyone in the tribe over 62 wherever they live, we do home loans for people, we do all of those things based on need, not actual checks. We believe we're like a family. No one comes homes, sits down at the table, brings the kids and wife and sits there and says, ‘Okay, I'm going to divvy up the paycheck.' They don't do that. They pay the bills first, they address the needs of the family first, and then if there's discretionary income they decide whether to save it, invest it or spend it and that's the way we do ours. But we consider the money from gaming to be found money; it's seed corn.

We bought this bank on a gravel parking lot. It was a prefabricated structure and it was failing. We bought it from the FDIC, the first tribe in the United States to buy an operating national bank. It took the government six months to decide whether to let the bank fail and break all of the depositors or let us put a million dollars in it and save it. They finally decided to do that and now First National Bank is the largest tribally owned bank in the country. We have seven banks, seven branches and it's $250 million back from the original $14 million. If you're going into the bank business, be a little more financial healthy than we were ‘cause if the tribal chairman has to go repo boats and cars at night, that's an ugly business. That's no fun. We had a repo guy named One Punch Willie and boy, he was a tough...he could steal a car in 30 seconds and I went with Willie out...Willie Highshaw, went out on the lake with Willie Highshaw, a great guy. We went out and repoed cars at night when people wouldn't pay us.

These are our businesses. We have a $50 million-a-year grocery business; we have a wholesale grocery business. We have Redi-Mix Concrete. We have a number of enterprises of 2,040 employees. These are our government services. We operate the largest rural water district in the area. We are retrofitting all of our facilities to geothermal, ground source heat pumped geothermal with our own business.

This is my advice: press on. Three steps, two steps back is still one step forward so just stay at it. I've been at it a really long time. I love what I do. I'd do it if they didn't pay me. The first 11 years, by the way, they didn't pay me. But plan. And once you get plans, decide. Even if you decide wrong, it sets in motion the mechanics to get something done. But indecision just locks you up. Fix your constitution. Don't try to patch around it. We did it for years. Fix the constitution. If you have problems with not getting process at your tribe and it's because of the structure or because of something that is happening with the government that isn't fair or right or honest, fix the constitution. If you're not in the constitution-fixing business, you're not in economic development, you're not in self-governance, you're not a sovereign. Thank you."