common law

Rae Nell Vaughn: So What's So Important About Tribal Courts?

Producer
Native Nations Institute
Year

Rae Nell Vaughn, former Chief Justice of the Mississippi Choctaw Supreme Court, discusses how justice systems are critical to Native nations' exercise of sovereignty, and sets out some key things that those systems need to have in place in order to administer justice fairly and effectively on behalf of their nations. 

Resource Type
Citation

Vaughn, Rae Nell. "So What's So Important About Tribal Courts?" Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. November 7, 2013. Presentation.

Rae Nell Vaughn:

"[Choctaw language]. Good morning. And I want to thank my brother from Oklahoma for the fine music and words. [Choctaw language]. Thank you. My name is Rae Nell Vaughn as Ron [Trosper] has said and I promise, I am 21. I've worked for the tribe for many, many years in different capacities; however, this capacity as serving as a judge was the most life-changing experience and enlightening moment for me. I served as a judge for 11 years and let me tell you, I definitely came in -- as I heard from one of our colleagues yesterday -- with rose-colored glasses on.

I remember the day when one of the judges came in, and at that time I was working with the Archives Department for the tribe, and she said, "˜Come out here and talk with me for a minute.' So we stepped outside on the patio and she said, "˜Rae, what do you think about being a judge?' I was very stunned at the moment. "˜A judge? What? Are you kidding me? I can barely make a decision for myself let alone for anybody else.' And the conversation went from there. I spoke with my mother and I spoke with my grandmother and my family at that time to talk about --- and of course she was being serious -- and to talk about whether this was the path I wanted to take. No one grows up saying, "˜I want to be a judge, that's what I want to be.' I remember -- she did -- I remember talking with my children and I said, "˜It just...it was on my path.' I just didn't know that it was on my path, but did I know that I was going in that direction?

In hindsight, yes, I see all the signs of where I was going that eventually led me there and gave me the opportunity for the experience, and then building on that experience, allowing me the opportunity to work within the executive branch. And so I say that to say that a lot of the conversations I've been listening to yesterday really validate a lot of the things that I have learned throughout my career and my years of working for the tribe. And let me tell you, it's a struggle at times when you're working for your own tribe, because there's always a tendency...and I know a lot of us have a lot of war stories, I'm sure many of you do, of how there's this sense of you're more on the cross than not, especially with your council, especially with your leadership, your local leadership and it's just almost like, "˜Why am I doing this? Why am I doing this?' But at the end of the day, we know that we're doing this for our future, for our children, just as our grandparents and our great grandparents did for us.

And it's amazing as Ron shared with us his experience with Chief [Phillip] Martin, I had the great fortune of being present, of seeing the evolution of the Mississippi Band of Choctaw Indians, of Mississippi Choctaw from a point of where there was poverty and then a period of prosperity, and like every society of a rise and fall and of a dark period of leadership. So we've had the experience that many tribes have also gone through too, and now we're in another period of our history, of a renaissance, of a new leader rising. We were fortunate to have Phillip Martin, the late Phillip Martin, who passed away a couple of years ago, for over 40 years of leadership and it was an amazing time of vision and of moving forward. And at the time of his...of not being reelected, we had a new leader, and unfortunately that leader chose to lead from a base of fear and created a lot of dissention and it causes people...you get angry because you want your government to succeed, and it caused people to step forward...causes people to step forward, because you know what's right.

So what I'd like to do at this time is talk with you about tribal courts and its role in tribal government and its importance, how it's important for you as leaders to understand the role and the capacity of the court. And there's one thing I will tell you that I have learned and you'd think I would have got that a long time ago, but how your economic development and your court systems, they have to run parallel. If you're wanting to move forward, those things you run parallel.

So let's go ahead and take a look at this slide presentation. And I apologize, I don't have the glitzy slide presentation that Dr. Ian [Record] had. I really like his, it was just zooming and moving about and I only have 30 minutes and Renee [Goldtooth] is going to [be] popping that sign up at me so I'm going to go quickly so that I can allow my co-presenter to present as well. And for those of you who don't recognize it, I love to talk. I love to talk.

Our first question is what role do or should Native nation justice systems play in Native nation rebuilding? Well, the key role I think is that it exercises sovereignty, the pure exercise of sovereignty. You as a government have the right and can exercise it and develop a court system. The Mississippi Band of Choctaw Indians operated under a BIA [Bureau of Indian Affairs] court until the early "˜70s. It was around 1974, '75 when the tribe then took over the tribal court system and it was a very small court, still funded by BIA of course, but we had a special judge who was non-Indian, a law trained attorney, and then we had the tribal judge and we had one clerk. And at that time our population was maybe about 3,000 people, not a very large population. We were still having issues of the local govern...the local law enforcement reaching our lands and coming in. I can vividly remember a time during our Choctaw Fair, which is held in July, of the paddy wagon coming by and we saw...I remember clearly seeing a tribal member sitting in that patty wagon. He was intoxicated and the county police had come and scooped him up and took him out, just did it. And then we began working towards taking on our own systems.

What key components do these justice systems need to possess? Law. How do we define law? We talk about an organic document of law and document can be subjective, written or unwritten. You need customary law, you may need or may not need a written constitution, ordinance and codes and common law, very basic. We have made points to ensure that we interweave tribal law, Choctaw law. Some tribes are very fortunate to have and to maintain and to practice their customary law. Unfortunately for Choctaw, a lot of things were not written or were not passed down as they should have been, but there are key elements that we do follow, values, Choctaw values that we do maintain, but not to the extent of some of the tribes that I know that were fortunate enough to be able to continue their practice. I think a lot of the tribes east of the Mississippi encountered these types of things. But again, those are the key things that these systems need to possess.

Why is it important that justice systems be strong and independent? Justice systems work hand in hand with the executive and legislative branches, and when I say that I say that in regards to the checks and balances of each of these branches. For Mississippi Choctaw, the tribal court is a statutory court. In their constitution, there are only two branches that are recognized, but we had gone over and beyond to ensure that there was a separation of this system. Now could they continue with a court? With it being a statutory court they could easily do away with the court, but they recognized the need of a forum of adjudication of these laws and so we continue with a court system, separate but equal.

What do strong, independent justice systems require? The very first thing, which is primary, is that you would be able to adjudicate with no political interference. Now how many of you have heard horror stories of leadership calling the judge, "˜What the beep are you doing down there? Do you know that that's my brother? We better do something about that.' And the one thing, I had never had leadership, the top leadership ever call me as a judge, but I had had a councilwoman call me and she was having issues with her children in our juvenile court and of course I'm the juvenile judge, and I said, "˜You know, it's already in the system, there's nothing that can be done. I don't think we need to have this conversation.' "˜Well, let me tell you Rae Nell, don't forget who approves your budget and your salary.' "˜Yes, ma'am, I'm very aware of who does. You are one of 16. That's who approves my budget and my salary. You are one of 16.' So I know that it's challenging as a judge, as a judicial officer when you have...when you live in the community, when you're a member of the community, it's very challenging, but we stand strong trying to maintain the integrity of the system, because I want you as a tribal member to feel confident in the system. As my co-presenter and I spoke earlier, there's always going to be a winner and there'll always be a loser. That's the name of the game. There's no...there's not going to be any way where both of you are going to come out on top, it just is not going to happen. I shared with one person, "˜If you don't like what's happening in court, don't get yourself there. Don't put yourself there.'

Secondly, to have the ability to appoint or elect qualified tribal members to serve as judges, and this is a work in progress I know for many, many tribes. We have on our bench currently two tribal members who have their juris doctorate. Our supreme court has two non-member associate justices who have their JD. So we're working towards those ends, of changing the bench, the structure of the bench in order to have law trained judges.

Thirdly, a canon of ethics, that should be a given. I've always shared with our judges when we go over the canon of ethics, "˜It's there to protect you. It's there to protect you.' You always have all these different forces coming at you and to say, "˜No, I can't do that, it's a conflict of interest, it's an appearance of impropriety.' 'This is what it looks like, if it's a duck... What's the saying, "˜If it quacks, if it swims, if it does... it's a duck. A duck is a duck.''

How has your nation remade, how is it remaking its justice system to more effectively resolve disputes? Well, they need qualified personnel. That's for sure. Our code is very broad in its qualifications. However, as I said, it's an evolving process where we're working towards trying to get the best personnel on staff and that's not just the judges itself, it's the support staff. It's your clerks, it's your probation officers, it's your advocates, your lay advocates. Everyone that's involved in that system, you're wanting folks who are coming in qualified in the sense of training, experience, what it is they're bringing to the table and enhancing those skills.

Financial resources. Have you ever been in a position where you're like looking at the budget and "˜Hmm, are we going to make it to the end of the year?,' because you had that one particular case that ate up your transcription fees, that you're having to provide outside counsel for and you're like, "˜This is that big case that really damages the budget, just blows it clean out of the water.' That's where your relationship with the executive and legislative is important in the sense of the administration of justice, ensuring that you have the adequate finances to operate the system because there is an administrative part to your judiciary.

Interdependence, again, talking about the checks and balances and making sure that you have these clean relationships, because you do have to have a relationship with your executive and you do have to have a relationship with your legislative body, but to understand where these boundaries are and of what you can talk about. It's very easy to have a conversation and we're talking about a code section and everything and then the conversation goes into a particular case over an issue that's happening in the community and you're like, "˜Whoa, wait a minute, we can't go there, we can't have that talk right now.' But those conversations of the administration, of their support, those are things that you need to have and it's a balancing act, it truly is a balancing act.

So how do we maintain law and order? Well, for Mississippi Choctaw, the system as I said earlier is a much bigger system than the judiciary itself. We have court services and under the Department of Court Services you have the probation office and you have teen court. Teen court -- for those of you who are not familiar -- is a forum that's available to our juvenile delinquents after they've been found delinquent to give them an opportunity to have their sentencing given to them by their peers and it's a very enlightening process. It also gives those young people, individuals to actually see how the system works. All of the positions in a teen court setting are held by young people except for the adjudicator, the judge, which is one of the judges minus the judge that heard the case who would sit and preside over this.

And I know the very first case that they held when we began operating the teen court, they wanted this juvenile delinquent to stand on the corner with a big sign saying that this is the crime that he committed, they wanted 1,000 hours of community service work. They were just like slamming him because of the vandalism and the offense that he committed and the message that we were trying to share with our youth is that, "˜Yes, this juvenile delinquent committed an offense against a person,' but it's more than that. It's committing an offense against the entire tribe, the effect of it, from the individual and the effect that it has on that individual, the rippling effect. So it's not just one person that you're committing a crime against, it's circular, it comes right back to you as a member, a member of the tribe, a member of the community.

And then we have also other agencies that provide support to the court system. We have a victim's advocacy department or program. We have a children's advocacy program. We also rely heavily on behavioral health to participate as especially with children in need of care, to help get our families reunified. And then of course we have the healing-to-wellness court. How many of you have a Healing to Wellness Court or are aware of a healing-to-wellness court, aka drug court? I see one hand, I see two hands. It's been a very successful, for Choctaw, a very successful forum. I think all of us recognize that we do have to look at other forums to help our people. It's easy to say, "˜Well, okay, let's just find them guilty and put them in jail and let's fine them,' and then they're back again, and then they're back again because we're dealing with these symptoms, we're not really getting into the root of what's going on. And so this has been a very valuable tool for us to utilize. Also it pulls in a number of the agencies that we have available to help us help this individual help themselves.

We look at how we reflect, promote our line with our people's cultural values and why these efforts are so important. Again, it's bringing in the Choctaw values. What's Choctaw? I am a tribal member, I sit on that bench and -- I sat on that bench -- and I would listen and you take it all in and I'm able to as a tribal member, as a member of that community to be able to decipher all of this and I'm able to weigh in on, "˜What is the best path for this person?' We have a traditional form of court, which is the Iti-Kana-Ikbi, to make new again, loosely translated "˜to make new again.' I had the good fortune of meeting the former [Navajo Nation Supreme Court] Chief Justice Robert Yazzie at the very beginning of my judicial career back in 1997. A number of us who were newly appointed had the opportunity to go out to Navajo Nation and to learn, and let me tell you it was a very learning experience, meeting the chief justice and meeting with their traditional court and having great dialogue as to how you create a good system, a great system. And I'm very appreciative of the opportunities that we were able to take to sit in in a court that has a record and had a lot of things going on.

What are the other efforts? It's bringing tribal member personnel in because there's an investment there, wouldn't you agree? It's an investment having your own people working your system because that's the goal. Ultimately, for all of us as tribes, that's the goal, us as tribes, as villages, as pueblos. You want your membership running your government. That's ultimately what we all strive for. Also identifying tribal member mentors and this could be our elders, this could be people who come in with a wide range of experiences to help us with shadowing, job shadowing, having someone to talk to. I think earlier yesterday I think someone talked about they felt good about being able to finally talk with someone about this, this case, this issue, how do I resolve it. And as I said throughout this presentation, it's important to interweave your customary law, your customary values with western jurisprudence, how we make that happen, 'Choctaw-ize' it as one of my mentors always said, 'Choctaw-ize' it.

What role does your nation's justice system play in protecting, strengthening and expanding your nation's sovereignty in advancing its nation building priorities? As I stated earlier, to provide financial resources, to create and support the judiciary and the Choctaw legal community. And when I say Choctaw legal community, our tribe has made the investment of not only supporting a judicial system, but we also have an Office of the Attorney General. On the flip side of that we also have a Department of Legal Assistance, which is available for the tribal...the individual tribal member. We also have available lay advocates who come in and also practice in our court. Secondly, the respect of other judicial systems, local and federal. How many times have you heard, "˜Oh, that kangaroo court'? "˜That kangaroo court.' I have heard that so many times. Have you heard that, "˜That kangaroo court?' Have you been..."

Eldena Bear Don't Walk:

"All the time."

Rae Nell Vaughn:

"All the time. It was never tribal court, it's that kangaroo court. Well, I didn't realize that we were a bunch of animals, but okay. "˜That kangaroo court can never make a decision, it was never stable, it was up and down, depended on who was leadership, you just never knew what was going to come out of there and how the heck did they come up with that decision. That kangaroo court.' That's where we need to work. And unfortunately in Indian Country, there are those systems that don't have the support or do have interference and aren't able to have the credibility and the respect of the membership.

When I say the confidence of companies to do business with the Choctaw courts by entering into contract with the tribe, what I'm saying here is that, as I stated earlier with economic development, if you have a company that is wanting to come in and do business with your tribe, the first thing they're going to ask is, "˜Okay, if we have a dispute, where are we settling it? Do they have codes? What is the law? What's the rules to the game?' And so it's important to ensure that you have those things in place. Choctaw has a mirrored UCC [uniform commercial] code that it adopted back in early 2000, a number of codes that give us the ability to do business.

And of course then there was the establishment of the Supreme Court. I spoke earlier about the inception of the tribe taking over the court and at that point we were a membership of 3,000 and we had the special judge and then we had a tribal judge and then we had a clerk. Well, as the tribe began to grow in population and economically, the leadership then saw the need to strengthen and expand the system, and then in 1997 -- and I'll back up a little bit -- in 1994 we opened our casino. So what does that mean? Boom, the economics jumped up. You had people coming on to the reservation, customers coming in, you had a lot more vendors coming into the reservation, you had a lot of other things happening on the reservation as well. So the tribe chose to reorganize the system and expand it into four individual divisions with a senior judge and associate judge. We were still operating with the lower-level court and setting up an appeal process that would allow the judges that were not involved in the case that was coming up for appeal to sit as arbitrators for an appeal. Well, that wasn't really working well.

So in mid 2000, they chose to establish a Supreme Court and this Supreme Court was made up of three judges who did not participate at the lower court, they wanted to ensure that there was Choctaw values, a Choctaw voice in there so they require a tribal member who met the qualifications of the lower court plus years of experience on the judiciary and to have the associates who sat with the chief justice to be law-trained. And it was a system that worked out very well. On the other side of that, they chose in administrating the judiciary to allow the chief justice to serve as the administrator and there's some pros and cons with that as well. Ultimately, at the end, prior to my leaving the bench, I was operating a court with a budget of $3.5 million and I had 32 staff under me that I supervised. So it shows you the evolution of the system and again it's a growing system.

Ladies and gentlemen, court systems are important and it requires support and it requires attention and it requires the type of people, good people to sit on the bench and to be an adjudicator and to render decisions that are going to be in the best interest of the people, because as you know it's collective, it's for the entire tribe.

And so I thank you for the opportunity. I'm going to now turn it over to my co-presenter and I think we will have questions and answers after her presentation. Thank you."

Robert Yazzie: Traditional Principles of Leadership

Producer
Native Nations Institute
Year

Former Chief Justice Robert Yazzie of the Navajo Nation Supreme Court provides an overview of the traditional Diné governance system and specifically the leadership principles that Diné leaders relied upon to make sound, informed, strategic decisions in consultation with and on behalf of their people. He offers a convincing argument for Native nations to consult their traditional governance systems in order to meet the challenges they face today.

People
Native Nations
Resource Type
Citation

Yazzie, Robert. "Traditional Principles of Leadership." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. November 6, 2013. Presentation.

Ian Record:

"I have the great pleasure of introducing Robert Yazzie, who is...who I've known for many years through his affiliation with the Native Nations Institute. He's been one of our longest serving members of our International Advisory Council. He's a real major figure in the area of tribal justice systems, and in fact I think Rae Nell [Vaughn] and Eldena [Bear Don't Walk] may reference the Navajo Nation Justice System tomorrow because they're really viewed...that system is really viewed as a leader in the process that many Native nations are engaging in in terms of reclaiming the function of justice in their own communities and returning it to a position where it's culturally appropriate and culturally relevant and reflective of culture. And Robert was one of the main architects of that movement, to make that justice system work for the Navajo people in a Navajo way. And we have the great honor...it was interesting, we see Robert a couple times a year and after the last time we saw him he mentioned a desire to come and speak to leaders such as yourself about what he calls the ‘traditional principles of leadership' and basically how you work to instill your own core values in the actions and decisions that you make as leaders, again, whether you're an elected official or just a decision maker within your own community, within your own family, within your own nation. So with that I'll turn the floor over to Robert. He's going to present for about 20 minutes or so and then we want to leave a little time at the end of his session for some questions."

Robert Yazzie:

"[Navajo language]. Anybody here? I have a humor to share with you just as an opener. When we say '[Navajo language],' we always say, ‘Goodness be unto you.' And so I had a solicitor when I was the sitting chief justice, he used to -- he's a white guy, used to see his Navajo wife every weekend. They would go to drive three hours to Albuquerque and when they meet they'll say [Navajo language], hugs and kisses and everything. So around 8:00, she would tell him, ‘Hit the hay.' And then over the weekend when she gets mad at him, she'll say, ‘What the hay?' I know that would get you going. Thank you for the cake. Good for my sugar level.

I would like to talk about the principles of Diné leadership and I want to talk about the definition of how Diné leadership can be understood in terms of its definition, in terms of its qualities, and also the challenges and experience of Diné leadership yesterday and today. So for purposes of achieving a better government, the question is, ‘Can the modern day leadership incorporate the traditional principles of governance from the past?' I think that's a very important question on our table.

So what is leadership? Studies of political systems show a scale of differing patterns, from absolute authoritarian leadership to leadership that's only persuasive. Some leaders exercise command with force and others only persuade. Most form of western leadership are based on the notion of power, to back up a command. In other words, leadership in that respect usually means power, control, authority and coercion. Diné, traditional Diné leadership is not about power, it's not about control or coercion, but a recognition that words are powerful through influence and persuasion. Persuasive leadership is based on compliance with the command or advice of a leader such as a wise uncle or other relative out of respect.

The Navajo word for leadership is '[Navajo language].' I think the concepts really teach us a lot, so I'm going to be talking about concept as a way to understand something about leadership, traditional leadership. So the Navajo word for leadership is '[Navajo language],' which in essence means 'a planner' and it comes from a word base means ‘speaking' [Navajo language]. The word for ‘planning' is '[Navajo language],' refers to talking things out to make a plan. The Navajo word for ‘leader,' '[Navajo language]' arises from power as a speaker and the word for ‘planning,' '[Navajo language]' is about problem solving and discussing plans. An elder would say '[Navajo language],' that it is about learning how to think, '[Navajo language],' learning how to use your thinking when the [Navajo language]. The [Navajo language], the leader uses those elements of thinking and planning as tools for leadership.

We generally understand that traditional leadership is based on possessing wisdom and the ability to speak, create plans for successful outcomes and results, create respect that compels people to follow. It's something like his or her word is law. So given that brief definition, we can ask the question, ‘Well, what are the qualities, what are the characteristics or traits of leadership and how does one get the qualities of leadership and earn respect?' So when we look at the thinking of the leader or for anybody for that matter, we look at two things that are opposites. The simplest way of saying it is you have something good, you have something bad. That's the centerpiece to your thought...to your thinking. So in that respect, our old system of government last seen in operation 1859. '[Navajo language]' means ‘the peaceful chief.' '[Navajo language]' is more of the opposite of a good peaceful chief. '[Navajo language]' means ‘firm.' It could mean something very rough as well. So looking at those concepts helps us to understand the Navajo leadership definitions and qualities according to the early style of leadership we call '[Navajo language].' So if you can imagine a circle, imagine that you have 12 leaders sitting toward each other, one representing the peace, one representing the war. So as I said, that was last observed in 1859.

So the two kinds of leaders traditionally, '[Navajo language]' or 'war leaders,' and the '[Navajo language]' or 'peace leaders,' the word '[Navajo language]' relates to decisions that are prompt, powerful and aggressive. That's the person's characteristics. The speaking done is for...the speaking to that...for that quality is for war. So the ability to immediately evaluate a situation and to speak to a plan to...and speak to a plan of immediate and aggressive action is necessary. Individuals get a reputation of being successful warriors. The word '[Navajo language]' comes from the word '[Navajo language]' basically means 'understanding of something good.' Understand [Navajo language] as a state of perfection. One definition is that [Navajo language] is that state of being where everyone and everything are in proper place relating and functioning well with everything to achieve a state of harmony or perfection. That requires a kind of speaking to achieve a perfect state that is wise and successful.

So Justice Austin who I used to sit with, Raymond D. Austin, who was Associate Justice when I was Chief Justice and after he retired he went to...went back to school. He was a law school graduate and he was a member of the Arizona Bar. He went back to the University of Arizona to earn a...to do his dissertation in Navajo common law. So he has come up with a book called The Navajo Nation Courts: The Common Law and in his book he talks a lot about the duty of a [Navajo language], the duty of a leader, which is to maintain [Navajo language] as a perfect state of condition and he said that could be the theory, but in terms of practice, the leader would identify a problem, a [Navajo language], and that leader has the obligation to engage himself or herself in what we call '[Navajo language].' In English is to say, ‘Think for the people to find the problem.' Identify the causes of the disruption of the state of [Navajo language] and once you have done that, then the challenge in one is to restore [Navajo language].

Individuals who want to be leaders do not appoint themselves. The status is earned. The western notion of advancing one's own name for political office by election makes no sense. Election in a traditional sense is spontaneous and based on necessities. For example, there may be plans for spring planting over a winter fire. So there would be talk of when to plant, who could read the stars to know when that is done and other matters that call for leadership guidance. So people who talk about what would be the best...who would be the best person to guide the planting season; that is a way leaders were chosen.

I served as the Navajo Nation court judge and the chief justice for the Navajo Nation Supreme Court for 19 years. As Navajo judges, we are considered as successors of the traditional [Navajo language], peace chief, because we are chosen for our individual qualities. Traits that make a difference in being a good leader include adherence to the duty of promoting harmony and order and treating people with fairness and humility. [Navajo language] of the past and today are looked upon as role models and the respect for our decision depends upon our personal integrity. Humility is a personal value, which prompts people to respect us judges for our decision not for our position.

One of the traditional terms for leader is that person is slightly higher than others and it reflects the view that leadership and the acceptance of its authority comes from those who conduct themselves well. It comes from individuals who speak well, plan well, show success in community planning or those who can talk the goods in for the people. Humility is not simply self-effacing behavior, but behavior that is consistent with competent leadership that is tempered with humility. Leadership is not for the self, but for the people. The people [are] the source of that power.

What is the traditional Navajo process for planning and decision making for leaders? The way of achieving [Navajo language], the good things, is by talking things out. As I said, the Navajo word '[Navajo language]' means 'to talk,' is related to leadership because of the common expression, as I said, words are powerful. Words of great leaders are powerful because they speak solution into reality. Navajos believe thoughts become action in words and that words create action or reality when they are spoken. Thinking becomes speech become action. That is the thought system where thinking and intuition drive words and speaking. Speaking in groups is planning and action is the result of thinking and planning. The Navajo word for leader '[Navajo language],' which arises from power as a speaker and the word for planning '[Navajo language]' is about problem solving and discussing plans. And there's a word, I'm sure that you have your own word for this concept, called '[Navajo language].' It's a very important concept in the past traditional practice of leadership. '[Navajo language],' which is 'talk things out.' It involves having free discussion among the leader with his people, with the community to clarify relationships, to identify problems and disputes and provides for a method of planning and making decisions. [Navajo language], talking things out process requires that reciprocity, doing things for each other in return, is about his or her obligation to what we call '[Navajo language]' and [Navajo language] is a concept that really can't be translated into English and I believe you have the same...the same experience is true with your language. That one word cannot be said, while '[Navajo  language]' means respect. '[Navajo language]' can mean many, many different things, even a book won't satisfy a good explanation of what that word means, but at best '[Navajo language]' is something like treating people with respect, compassion, reverence. So [Navajo language] or talking things out requires that reciprocity be practiced to ensure there's equal and equitable treatment for the people.

And there's another word that is very important as well, '[Navajo language].'Can you all say that? [Navajo language]. Not today? [Navajo language] is one of the practices for [Navajo language] and as I said, it's understood as knowing how to treat people with dignity and respect. The [Navajo language] as a [Navajo language] is always expected to act as though you have relatives. If you walk around, talk around, walk around and talk as if you have no relatives and the people would always say, ‘That person is forgetting about his or her obligation through [Navajo language].' A [Navajo language], a leader is always expected to honor his obligation through the concept of [Navajo language]. Talking things out with the people helps a leader to learn about ideas, expectation and recommendation of the community. An important aspect of making effective decisions by a leader is being well informed of the issues and concerns of the people. To be informed is to know what the people want. I think that is probably your experience as well when you observe Navajo Nation tribal council in session. Not everybody is there to know...to fully know what the people want, because the more you observe sometimes the more you find out the leader really needs to understand what the people are thinking and what is it that they're concerned about.

The other part, the other issue that was discussed is transparency and it's something that is really difficult to translate from English to Navajo, but at best you can say in Navajo, we say '[Navajo language],' means you can't hide your plans. '[Navajo language],' it means to make clear your plans. [Navajo language] requires transparency, a free flow of information, a duty to communicate, to make known the issues at hand. Planning for action can be transparent except for war way planning so that everyone who is affected can see what is going on and have an opportunity to have a say. Navajo tradition requires energy and good will when putting plans into action so that good intentions reflect positive energy [and] will produce a good result.

What are the challenges and experience of leadership in Navajo country? In 1989, we had a major crisis. The Navajo Nation government was, were nearly as a whole was nearly put on its knees. The Navajo Nation Chairman Peter MacDonald was accused [of] bribery and kickbacks and the Navajo Nation Council proceeded to put him on administrative leave for accusation and for other serious criminal allegations. He refused. He told the Navajo Nation Council, ‘You have no legal basis.' And he was right, but the matter was put before the Navajo Nation Council on a certified question and the Navajo Nation Supreme Court came back with a response and said that...he says, ‘under traditional method of selection of leaders, people choose their leaders [Navajo language] based on trust and confidence. If a leader breeches the trust by wrongful acts, the people would simply walk away.' This practice was what justified the council action to remove Chairman Peter MacDonald from office.

I think one of the questions that really bothers a lot of us is that when it comes to decision-making, how effective are the leaders in making a good decision? I think here's where we can involve the question, ‘Does traditional Diné leadership make a difference in the modern day?' And we talk about the problems we have on the...in Indian Country, that at times the atmosphere towards leadership can be very negative. And you look at the situation in Indian Country, people are living the hard life, frustrated, overwhelmed with trying to make things...trying to make ends meet and because there are no jobs, no money, no educational opportunities people are suffering from domestic violence. People cannot help but feel that leadership is inefficient, ineffective. So here's where we are asked the question, ‘If we were to do something a little different,' for example, look at the question, ‘Do the principles of Navajo traditional governance have a role in this scenario?' That is to say, does the traditional Diné leadership make a difference in the modern day? And sometimes when we need to respond to that kind of question we always talk about journey narratives, we always talk about Twin Heroes.

Twin Heroes were out to help save the people when the bad energy, the bad monsters began to take its toll on human lives. People really struggle, people were suffering, people were living with chaos and disharmony and so when we look at these narratives we can say that there was...that the Twin Heroes came and helped the people in many, many ways. They destroyed almost everything, all of what we called '[Navajo language],' the bad energy. But there were some who say, ‘Please save us. We can help the human race to live a quality of life.' But there are certain type of [Navajo language] that have no mercy on humans and so when the Twin Heroes, before killing the monster, the father, the Sun said, gave instruction and said to carefully study and observe the movement and behavior of the monster. Before you make the attack, thinking before you make the attack is a value that advises leaders today to carefully observe the problem before taking any sort of action. So it's telling us that where there's chaos is to really study the problem, understand the problem before you proceed to say, ‘What are the alternatives?'

So one of the things that we're trying to do within the Navajo Nation is to make some changes. I have a proposed legislation here before the Navajo Nation Council and it's about creating a uranium commission that would help to clean up the abandoned mines. We have so many... so much abandoned mines that it's causing a big risk. It's already causing a lot of health problems and people have died from it. And I was told, ‘Well, could you help us? Could you design a legislation that touches upon the fundamental law of the Diné?' And so it took me a long time to think that when we look at our tribal code, we see a lot of incorporation of state law, federal law and I think the emphasis should be, now that most of our kids are going to law school and are coming back to establish their practice, I think the emphasis is to take seriously and to say, ‘How do we develop our Indian thinking and use it as a tool to craft legislation?' So when I thought about this in terms of creating a commission and I thought about the leadership of that commission, that this leadership should be guided by the fundamental law of the Diné, and also the leadership also should be informed about the laws that we have, the laws from the time of creation. The laws from the time of creation is telling us about what is the natural law, '[Navajo Language]'? Natural law means laws that come from the earth and the universe and that itself, the natural law was like planting the seeds, planting the seeds to develop other forms of law.

For example, we have what we call traditional law, custom law and common law. So the medicine people sat down and said, ‘Well, the natural law should be something that is coming from the water, from the air, from the fire, from things that grow on earth. They have their own independent existence. We are...we come from those elements and then as such we should observe a relationship that is one of respect.' Everything that we learn from those elements we say that '[Navajo language],' means everything is related, we're all related in one way or another and as such we are the elements of nature and the elements of nature is us. So in that respect, we can't dominate those elements and the only thing we can do is to clearly understand that from the time those things were put in place and the time we were created is what the holy people did and said to us, ‘This is the law and I put it in your hand. [Navajo language] in the holy way I put it in your hands. Now you shall become the stewards to take care of these elements. These elements, you take care of them, they'll take care of you.'

So those were the thoughts in terms of creating a commission. I know that a lot of us are concerned that what is it that we should recover from our past? There are sources already that we can learn about, that we can apply, that we can work with and if we proceed to do that, it's amazing how much that can be done, it's amazing how much of an influence it has on the kind of thinking we have. It'll change the paradigm. Like you said, this is the way Navajos handle it, this is the way the Mohawks handle it, this is the way the Blackfeet handle it, is what we will be saying if we were to proceed down this path. And I think a lot of us learn, know our language. And this legislation is talking about a story as an approach to develop a law, but it's not a matter of talking about the story. The story should be to say, ‘How do I use this material to develop something for this modern day? How can I develop this as law so my kids in the future can say, this is the law of our grandfather and our grandmother.' A lot of us are up in age, we are the grandmothers, we are the grandfathers, and a lot of grandmothers and grandfathers say, ‘I have no idea, I have no clue about the creation story.' When the grandkids are asking questions, the response is, ‘I don't know.' But it's not simply that we can't just say, ‘I don't know,' because I know that a lot of us Indian people know a lot about our past and if we take the time to share that and say, ‘How can we revive those? How can we learn to articulate those teachings so that they sound like law in the statutes, in case laws?' Thank you."

 

Donald "Del" Laverdure: Nation Rebuilding through Constitutional Reform at Crow

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, Donald “Del” Laverdure, a citizen of the Apsáalooke Nation (Crow Tribe) and former Chief Justice of the Crow Tribe Court of Appeals, discusses his nation's monumental effort to discard a constitution and system of governance that were not working and replace them with a constitution and system of governance that supported effective, informed decision making and that made sense culturally to the Crow people. He also discusses how his nation continues to work to strengthen its justice system.

Resource Type
Citation

Laverdure, Donald. "Nation Rebuilding through Constitutional Reform at Crow." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 12, 2010. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host Ian Record. On today's program, I am honored to welcome Donald "Del" Laverdure. Del is Deputy Assistant for Assistant Secretary Larry Echohawk of the Bureau of Indian Affairs. He is a citizen of the Apsáalooke Nation, also known as the Crow Tribe of Montana, where he served as Chief Justice of the Crow Tribe Court of Appeals from 2002 to 2006. Welcome Del, it's good to have you here."

Donald "Del" Laverdure:

"Thank you for having me."

Ian Record:

"The bio I provided for you is just the tip of the iceberg. So I was wondering if you could just take a moment and share with us a little bit more about yourself."

Donald "Del" Laverdure:

"Okay. I was born and raised...I was born in Crow Agency at the old hospital, which is the site of the current tribal administration building, was raised by a full-blooded Crow mother and had a Chippewa father who was absorbed into the culture and became Crow himself. And both spoke fluently as did many of my relatives. And so there was dual languages always, growing up and even to this day. I went to a school just immediately off the reservation, a school called Lockwood, and we were some of the first Crows to integrate into the school. And it was quite a learning experience, to say the least, of having Crow culture and language at home, and then going to majority society. It gave many learning lessons over life that have served me well. Eventually, I ended up leaving and coming to the University of Arizona for civil engineering, and then went on to law school. After this time, some important things occurred, most importantly of which, I was given a couple of Indian names, Crow names. I'm part of the Ties-a-Bundle Clan on my mother's side, and we always introduce our self [Apsáalooke language], which is "˜I'm Crow, my name is First Stone,' which was given to me by my clan uncle Chanis (?) Whiteman. And then I was also given a second name more recently called 'Walks High' by Jerome Hugs (?), which is also another...married into our clan. Those have certainly served me well because culturally they've put me in the right context to live up to those names for the family and to try to provide for the next set of Crow generations that come after me. While all this was occurring, I did start to pursue after private practice for a couple of years as a tax attorney. I went into academia and was a [William H.] Hastie Fellow, which was fairly prestigious, to increase minorities in the teaching profession. Then I received, at the time I also taught federal Indian law, ran the Great Lakes Indian Law Center at the University of Wisconsin-Madison, and simultaneously was appointed as the chief justice of the Crow Court of Appeals. Subsequent to that, I went to Michigan State University, was an assistant professor of law, and then co-founded and directed the Indigenous Law Center. At that time, I then took a sabbatical and returned to the Crow homeland to become a general counsel for the executive branch of the Crow Tribe. That was roughly in 2006 and I served for...I resigned as a chief judge after four years, and then became general counsel, and served for three years prior to this most recent appointment with the [President Barck] Obama Administration, as the deputy assistant secretary for Indian Affairs."

Ian Record:

"Well, you've done quite a lot in your young life."

Donald "Del" Laverdure:

"Yeah, that's what people tell me, but the Indian names have accelerated that process. So I've been fortunate and Crow teachings have prepared myself for when the window of opportunity came and when I was called for service not only for the Crow Tribe, but for Indian Country in general."

Ian Record:

"Well we're here today to talk about the Crow Tribe and Indian Country as a whole, and delve into a number of topics. And the first question I want to ask you is a question I ask a lot of individuals, tribal leaders, practitioners of nation building, if you will. And that is to get your response to a quote that a Native leader once shared with us at the Native Nations Institute, which is, "˜The best defense of sovereignty is to exercise it effectively.' And I'm curious to learn from you: how do you view that statement?"

Donald "Del" Laverdure:

"I would say I absolutely agree. I think that one of the enduring lessons of federal Indian law and policy is that by not exercising that residual sovereignty that has been maintained prior to the U.S. Constitution, certainly post-constitution, as extra-constitutional sovereigns, the exercise of that is absolutely essential to protecting it. For example, because criminal jurisdiction is a maze between several governments -- tribal, state, and federal -- by exercising certain authorities in the criminal context at the tribal level, oftentimes there will be deference provided by the local governments and prosecutions sometimes, depending on the crime, will be abstained by the federal government. And that's just one example, but I'm a firm believer that if you exercise it and you exercise it with respect and continuity, then the norms of accepted tribal sovereignty will become day-to-day type of occurrence for other governments as well."

Ian Record:

"One of the most fundamental exercises of sovereignty is constitution making. And back in 2001, the  Apsáalooke  Nation, the Crow Tribe, reformed its constitution. And I'd like to talk a little bit about that. You obviously -- being a citizen of the nation -- you have a firsthand perspective on what it was like before, what it was like during, and what it's been like since the new constitution was ratified and took effect. And before we delve into the specifics of what your nation has done in this particular area, I'm curious to get from you what your definition of what a constitution is."

Donald "Del" Laverdure:

"I view a constitution as a social contract among the citizenry, that the Crow citizens, in this case -- or any citizens for that matter come together -- form a government and set the rules for that. It doesn't necessarily need to be in a constitutional form. It can be simply written laws, codes, etc., as some nations do without a constitution. I think the constitution becomes really the guiding framework for the rules of behavior that are either to be punished or accepted and how we're going to act according to those rules as a set of citizens within that community."

Ian Record:

"In 2001, as I mentioned, the Crow Tribe ratified a new constitution and system of government. I'm curious to learn from you, what compelled your nation to take this major step and what were some of the fundamental changes made and why?"

Donald "Del" Laverdure:

"The move for a new constitution, I think it started a generation before. The proposals were there. A number of older Crow citizens who I've interacted with in my roles within the community have told me that a number of people have wanted to do this. They informed various committees, studied the issues, and I think people, in fact, at the time were concerned about how decisions were made, stability, being able to move forward as a community towards prosperity with economic development. And part of the problem of the prior constitution, which was a pure democracy, was if 100 people showed and had quorum -- and the agenda was set by the four executive officials at the time -- any and all decisions could be made according to that. And in fact, oftentimes there was vigorous public debate among other things: fighting, shaming, etc., when you go on the council floor for an agenda item, and people would have to do the role call and walk down the line and say you're either for or against someone or something. And so it made decision making very difficult. It couldn't be individuals -- it was done by groups -- and it was a significant amount of politics that was involved in almost any decision. So this new constitution, the seeds had been sown, the dissatisfaction with how decisions were made and those who had the authority, I think came to a head after a very long administration prior to that. And then there was a fresh face that came in who was largely apolitical at the time, and he had campaigned on change, much like we see in national politics today. And with that change, there was a movement to move towards that, and I think the community largely embraced the idea, and ultimately the process itself was somewhat flawed, but at the end of the day and in a short time period, a vote was made by some thousand-plus Crows and sixty percent or so said yes. And since that time, it's been a major change in the way the government's conducted."

Ian Record:

"So what are some of the ways that government, governance I should say, within Crow is different now than it was during the what some have called the ''48 constitution.' What were some of the fundamental changes that were made during this reform process?"

Donald "Del" Laverdure:

"I think, and just to step back for a minute on the history of the '48 constitution and the thought process that went into it and then to kind of highlight concrete changes, the Crow Nation has been very proud that they were a non-IRA [Indian Reorganization Act] tribe. And it's been in the history and continues to this day, even for many Crow politicians that they take great pride in the fact that they federal boilerplate constitutions and continued on their own. That was back in the mid-30s and then there was still a need for some set of rules. So groups came together had discussed a...got some help, from what I understand, from a lot of folks' parents and grandparents. Legal aid lawyers assisted them, and so you had some bylaws and a charter, essentially, on how the rules were going to go forward and it was done in this fashion for the '48 Constitution, where it was a pure democracy with the agenda and four elected officials. But the community as a whole had final say, even though those would carry the torch between early meetings or even special meetings. So the process it self, to make any decision was always a quarterly momentous decision and folks would campaign or run on those decisions. And so when you move forward on a development agreement, for example, in the '80s or '90s, coal development specifically, not even a quarter later, there'd be a group that would want to change that or withdraw it for a variety of reasons, good and bad. Today, after the post-2001 constitution -- despite the trials and tribulations of kind of understanding new roles -- a new legislative branch was created with eighteen elected members, three from each of the six districts. And what that did was profoundly change the number of elected officials per capita, per person. And so, I think what you see now is with the four reservation-wide, [at-large] elected executive branch officials, the eighteen district [representatives] in the legislative branch, you have more people with access to the voice that probably weren't heard before. And that part has been largely a success because of access to it. The other thing that occurred in that process is in the exchange or compromises of who had what say, some of the powers from the previous executive branch, the chairperson, were then put as a final say with the legislative branch, for example approvals on anything dealing with natural resources or trust resources. So anytime we worked on an economic or energy development deal, before it would just go through as an agenda item and if 100 people said yes, that's what occurred. Under the new constitution, you have to get a majority of the legislative body. And that begins in the subcommittee process, which they start prior to these quarterly meetings required by the constitution. And so you end up working with that body, through the process, address their concerns, and then there's a very vigorous floor debate on whether in fact final approval is provided or not. And so it's fairly open, transparent. The decisions carry more finality to them and -- at least in my experience there, not only as a court of appeals judge but as general counsel -- the decisions stick. There may be amendments that come afterwards, but they're largely less significant than the overall deal itself. Another thing that occurred was, another important thing is term limits. Prior to that, they were two-year terms limits, and it's probably well documented in the series that it leaves very little time for a ramp-up of experience, and then you turn around and run for re-election. So any of the changes that you get used to, the people that are there can easily be wiped out and the institutional memory is gone. Factions grow and they largely end up winning elections based on certain ideas. So the fact that those were extended to four years then gives people a real platform to learn, make decisions, govern, and then run on your record subsequent to that. So too with the legislative branch, the four-year terms are very helpful, and the fact that they're staggered, one-third of the legislative branch would be up every fourth year and then two-thirds every fourth year, so you retain that institutional memory of policies, procedures, what deals were done, why they were done, and that adds to the, I think, the strength of the decision making and the fact that they don't change very quickly. Final thing is, under Article X of the new constitution, the Crow court system was recognized, albeit with some caveats on some issues that have occurred since then. But the fact that it was constitutionally recognized was extremely helpful as a kind of third-party decision maker on important issues of day-to-day things, from small criminal issues to civil issues, and also in the commercial context as well."

Ian Record:

"I'm curious, you've already...you've touched on this a little bit, but I'm curious if you can paint a picture for folks of what exactly decision making looked like prior to the 2001 constitution taking effect. It was a general council system as you mentioned. Can you kind of paint for folks what the typical meeting, how it transpired, what went down?

Donald "Del" Laverdure:

"There would be a lot of informal meetings among families, clans, others. Usually there was kind of a regular system of politicians, if you will, and they would talk with the elected leaders or however they got their jobs in the government, and then they would work together to set an agenda. And setting the agenda is half the battle. And the fact that you would either get something on the agenda for a vote, or delay, or not have something on the agenda, carried particular force. And so even that part was very political. The notices or announcements would go out that a tribal council meeting would be held on whatever the agenda items were. People would go in and you'd sit in a round hall with bleachers, everyone would sit around. Then the chair would preside over those meetings with a variety of people that worked with them. Then discussion would be had, people would have debate, and people would either walk in knowing they had a certain vote or not, and they call it "˜walking through the line.' They would be made public on what issue they stood for or not. And there were all sorts of issues associated with that: shame, embarrassment, public fights. People I think...people who liked confrontation and who liked to be in the middle of the big debates enjoyed it, but I think for the average citizen who may not know exactly what was going on, it was a very arduous and difficult process. So not as many participated, as they say, as they do today."

Ian Record:

"And then, from what you're saying, from what you've shared already about the new system, there seems to be, as you mentioned, much more finality with the decision making, that the decisions that are made can then be built upon by other decisions that advance the nation forward, where it sounds as before there was a lot of difficulty generating much less sustaining momentum.

Donald "Del" Laverdure:

"Yeah, I would say that's accurate. The fact that there was these quarterly council meetings, decisions would be reversed very quickly. Major corporations who had invested in, say for example, drilling commitments on oil, gas, coal bed methane, or coal, then would say, they would hear a story from two or three of those companies, and then they would say, "˜Crow Nation is not somebody you can deal with because there's no stability, and we're willing to invest millions and be a partner here, but we don't want to continue forward based on that experience. So through the new constitution, the fact that the rules are out there, they're in public just like the '48 constitution, but in a way they know the process, it's different. You've got to go through various levels of approval from cutting a deal with the executive branch and their attorneys, to the subcommittee, and then the legislative process. And ultimately, then Bureau [of Indian Affairs] approval if there's trust assets involved. But it has been a marked change.

Ian Record:

"I'm curious: you've achieved reform, your nation has achieved reform, what sort of challenges did your nation encounter during the reform process, and how did it overcome those challenges?"

Donald "Del" Laverdure:

"Well, there's been a number of cases that have been litigated over the constitution itself, from voting rights of off-reservation Crows, to the process, the votes, the fact that there was only a thousand despite having some 10,000 enrolled citizens. And almost universally, all those cases have not stood the test in the federal court system. Some of them have been remanded into the internal tribal court system because it is an internal tribal sovereignty issue. Those were kind of some of the news flashes of what had occurred. The other thing was after the constitution went in, there was now going to be a vote on who was going to be the new chairman of this newly elected body and there was supposed to be a grandfathering in of the existing, but then there was an indictment that came down. The chairman resigned, the vice chairman stood in, so there was a new election and that was just six months after the constitution had been passed. And so you had this dynamic of political parties saying they were either for or against this change, and it was a very close vote. In fact, I think it was 100 votes out of 4,300 people and ultimately, Chairman Carl Venne won over the then-vice chairman Goes Ahead. That was significant because the existing vice chair, sitting chair had campaigned on continuing with the change, and he narrowly lost. The challenger, Carl Venne was [saying], "˜Go back to the old constitution.' And the irony of it all is at that point when he came in, because I am one of his clan nephews, he asked me to do an assessment. And so I worked with him very closely, and what I stressed to him as an educator at the time, before I was appointed to the bench, was that this was largely a very good thing to go forward with and that he still maintains certain authorities, but they had to go through approval processes and transparency was also a very good thing. And over time, his views softened and he learned to work within a system and ultimately accepted it. And I think that was significant in our contemporary history because somebody who campaigned against the very change that was there learned to accept the change of reform. And then we then started to develop and work very closely with the legislative branch after my judicial experience. And ultimately, it's still in a process of change. But the other area that we had many problems with was our court system. We had popularly elected judges at the time with an appointed court of appeals. With the new constitution passing, the administration at the time then removed all the judges and put in several appointed judges with legal experience, because these were non-legal, tribal Crow judges who were fluent in the language, often times former police officers, and there was a battle between what is the appropriate role of the court with this new constitution. I sat on the...I was appointed shortly after, and I sat on the judicial ethics board of the chairman, and we developed a set of rules on how we would test whether somebody was legitimately removed or not. At the end of the day, we did reinstate the formerly elected judges, who then later were subject to recall. We had a series of hearings, and then why in one case to resign, and another case we removed, and yet in another case there was a court case that I think went to settlement more recently. And so the fact that the tribal court it self was subject of the political branches and we needed to determine exactly where the judicial system sat. And at that time, I'm actually pleased to say I was part of trying to bring a stable process to how we select judges and move forward as a nation."

Ian Record:

"How has the judicial system at Crow changed or been strengthened by the new constitution?"

Donald "Del" Laverdure:

"To be honest, this is a difficult subject. I think the other branches and the delineation and the scope of the roles and duties, responsibilities is much more clearly spelled out in the constitution and what's expected. The judicial one, I think, is very thin because it's only four or five sentences in Article X. All it says is there will be a Crow [court system], however it did say that they would be subject to the Crow Law and Order Code, which is part of the tribal statutes that's subject to changes by the two elected branches. So I think there's an inherent weakness in the structure of the court. However, having gone through all the processes I mentioned, I think there was a long learning curve of, that the tribal court is an indispensible part of our government, and that it has to exist, and it has to set rules fairly and act upon them in a consistent manner in order for us to be legitimate and accepted by the outside world, and also to be the third party when the two political branches disagree. And we did have court cases on this and ultimately, we did come to an agreement. However, the tribal court system remains underfunded and is not completely independent, but I think it is fairly strong considering the circumstances."

Ian Record:

"So what sort of, and you touched on some of the growing pains that you've... you've already touched on some of the growing pains that the Apsáalooke Nation, the Crow Tribe has experienced since 2001 when the new constitution was ratified. It's interesting: we've talked with a number of tribal leaders across Indian Country whose nations have gone through reform. And there's kind of this stark reality that reform is only the beginning of change that you have to continue on with the process of change. Particularly, in many cases, you have nations and communities where all they know is the old system, and it's hard to change that overnight."

Donald "Del" Laverdure:

"I couldn't agree more. A famous writer said, "˜Be careful not of the wishes that have gone by or the prayers that have been unanswered, but be careful of the prayers that are answered.' And I think [in] Crow's case, maybe it was answered, and now reform and change is very difficult. And to change people's understanding of how we govern ourselves and how we view ourselves takes not only a lot of education, but just experience and building up in trust, expectations, and then ultimately confidence, and that their government works and that it serves the people, all the people, all the Crow citizenry, not just a few. And having gone through that process, I think we've made a march toward progress, but by no means is that change even near completion, and it's going to require a lot more hard work for another generation, I would imagine."

Ian Record:

"Both you and I were participants today in an executive forum on constitutions and constitutional reform in Indian Country. One of the topics that was discussed in great detail today was this issue of legitimacy and specifically ensuring that a nation's constitution is culturally appropriate. Can you speak to that issue relative to your nation?"

Donald "Del" Laverdure:

"Yeah definitely. I think the fact that the new constitution expressly cites our treaties of Fort Laramie -- which is really the foundation of the Crow's relationship to the federal government and then everything else flows from that -- we have an 1851, 1868 cite and do recognize that there is federal law which is debatable on whether it should've been in the constitution or not. But nevertheless, saying that we're Apsáalooke people, have our name said and listed in Crow, and that we list all the districts according to how we understand them. For example, Lodge Grass is in Crow '[Crow language],' which is the word for "˜Valley of the Chiefs.' Many chiefs were there historically. And having those types of things in there is important to our identity, our culture, and the future aspirations of where we want to be as governing not only Crows, but anyone within the territory and boundaries of the Crow Nation. In addition, one of the things I think has been, may have been a missed opportunity, could be subject to further amendments in the future, is the centrality of language for the Crow people. Some two-thirds are fluent, whether that be oral or verbal, and I think a nod to who we are as a people could've included some references to how the language is so important to who we are as a people. And so many fluent speakers, and we're having a generational change now where we have a lot who understand but don't speak as fluently as those 35 and older, and that we somehow incorporate and expect that from our officials. And I'm proud as a Crow person to say that many of the day-to-day governing things that occur, from business permitting to discussions with committees to phone calls back and forth are conducted in the Crow language. And the vast majority, super majority of all officials speak it and they speak it to each other when we conduct meetings. And we'll utilize English at times, but that's more the lawyers than it is the Crow politicians. And I think just that the essence of who we are as Crows does revolve around the treaties, the land, the language, and our clan system. And all of those things are critical to understanding and having legitimacy for all the Crow people."

Ian Record:

"Yeah, I mean, incorporating things like the districts as Crow people see them, that sends an unmistakable message to the people that "˜this is our constitution,' does it not?"

Donald "Del" Laverdure:

"It does. And perhaps in the future, through the legislative process that we would return more control at the local level, which I think it was historically through clan systems in certain areas, and the fact that we have those six districts and now we have three from each of those districts represented in Crow agency, the capitol, interacting with the executive branch I think does send the message that it is uniquely Crow and it is under our own rules."

Ian Record:

"I want to turn to another topic now and that's tribal justice systems. As I mentioned in the open, you served for four years as the chief justice of the Crow Tribe Court of Appeals. And I'm curious -- we've touched on this issue a little bit already -- but I'd like to get more of a thought from you on this topic of what roles can the tribal justice systems play in the rebuilding of Native nations."

Donald "Del" Laverdure:

"Well, I think they are as important as the political branches, the executive and legislative in this case. I think the court is the institution that enforces law. And we're going to have this new constitution, this reform, this change, and all that flows from it, the new dynamics, personalities, recognition of culture in many ways at the court, in and of it self has to be viewed as a legitimate branch of government that should be fully funded, and applies the Crow law or organic law to all the situations that are there, and that they interpret the Crow constitution from a Crow perspective. And that is absolutely critical, not only most importantly for our own Crow citizens, that they in fact feel safe and secure in their homeland and all the rules are the same, applied equally to everybody in similar situations. And then also to the outside world -- that we do have a system that is a check on the other branches, that if there's a commercial deal that is legitimate and lawful, that that continue and be enforced. And I think that all of those things become absolutely critical just in the social functioning of our society. And having some 4,000-plus cases per year go through that court system is very significant, and so it's a player in everyone's day-to-day life."

Ian Record:

"So I'm curious, it sounds like from what you've been saying that Crow is moving towards having one day a fully independent, strong, robust court system, that you're kind of on your way. And I'm curious to learn from you, what in your view, in your experience, does a strong independent tribal system look like and what does it need? What does it need to have?"

Donald "Del" Laverdure:

"I think it needs independent decision-making authority without political interference, first and foremost. Secondly, I think it needs to be fully funded. My experience among tribal justice systems -- and I have served on a handful and also helped create a number -- is that they need the funding to have the staff, the clerks, the recorders, the people keeping track of the files. It's absolutely critical for all of the day-to-day functioning. The third thing, I think, for them is to apply that nation's law according to how they view it. And I think the Navajo Nation really has emerged as a leader in fundamental or Diné law in their statutes, interpretation of those, and it's widely accepted by the community. I think we're making steps there. It's always two steps forward, one step back. And I think if we have all of those markers, then it'll be the institution that we need to be independent and stable. Certainly, having good serving people looking out for the public. And the other part, kind of those hallmarks of what we view as independent, stable judiciaries is I think in the tribal context, the least, I think it applies in a number, but at least at Crow, they have to be from the community, and they have to have compassion, because you're dealing with peoples' children and grandchildren, and you have to be a part of that community in order to have the reputation as a '[Apsáalooke language]' -- a good person -- and that you work with people and you're there to help them. You're not there just to sit as a third-party judge in another system where society is anonymous, whereas in our society, everyone is known and there are clan rules and clan systems in place. And if that judge can integrate all of those things in addition to those, then I think we'll be where we want to be as a Crow Nation judicial system."

Ian Record:

"You mentioned as the first key to an effective tribal judiciary, the insulation from political interference. What does political interference do? And I guess...let me back up here. What happens when politics do interfere in tribal court jurisprudence?"

Donald "Del" Laverdure:

"I think it delegitimizes the tribal court, number one. Number two, I think it creates a corrosive effect internally to the tribal court, the personnel itself, that when they make a decision, they're going to be overruled, and it could be for arbitrary reasons or favoritism, familial connection, kinship, etc., and that kills morale for folks working hard trying to make the standards the same for everybody. And so those two things more than anything, I think, are the effect of political interference."

Ian Record:

"And doesn't it send a pretty clear message to investors? And when I say investors, I'm not just talking about folks with dollars to invest in the nation. I'm talking about citizens of the nation who are considering a career working on the reservation, whether it be as a teacher, within tribal government and that sort of thing, all kinds of investment."

Donald "Del" Laverdure:

"Yeah. I think investment in the larger sense, not just third-party dollars for energy deals, but peoples' investment of human capital in themselves to a community. I think it does send a very poor message that this isn't a place where you want to put your life and your family and to contribute all that you have to make the governing system work well, efficiently, and be representative of uniquely Crow values. So I do agree that it would have a very harmful effect."

Ian Record:

"So I want to back up a little bit and talk about what Crow governance was like prior to colonization, prior to the establishment of the Crow reservation, the Crow agency. What did it look like prior to that time?"

Donald "Del" Laverdure:

"As far as my relatives and older folks in our clan system, what I've been told anyway, is that we did function as the original clan system, born on your mother's side and you're a child of your father's side. And just to get into specifics about roles, of how that looked because it does go into governance of how you live as a community and as a family and survive and prosper. On the mother's side, you would have the other folks on you mother's side have the right to...they usually brag you up, make you feel better, bring your ego up. And then you have the balancing act on your father's side, which is to tease you, to shame you, and to bring your humility back into check. And you have these checks and balances of the family. There would be, within the clan system, usually a clan elder who largely was respected among the family connections. They're typically the ones to speak and lead. In fact, in Crow culture, which has a fair degree of existence today, is the right to speak in public even with those systems, and there are rules and responsibilities that go with the clan system in there. And you're not to violate those. The enforcement mechanisms have probably disintegrated a bit -- you know, the American government bringing in different rules and breaking up the families –- but before it would be, the expectations were [that] you're to follow these rules and that everyone had a role. And these older individuals would then conduct ceremonies, they would decide family disputes, or pick people. They would always go by consensus decision-making, which was really important –- as opposed to top-down, vertical -– and always were viewed as people that were very good listeners. You can hear something, but you may not listen, and to listen is to learn and to share information about resolving these disputes. So it was really this family nucleus, kind of, at its core. And these families then would follow certain band chiefs, and we had band chiefs throughout our historic homeland. And the band chiefs were [Apsáalooke language], you know sub-chiefs, whatever, they were good men. And groups of families would follow them and they would largely –- if that person continued to conduct themselves in a good way, treat people with respect, listen, make good decisions, be thoughtful, etc., have patience, wisdom -– groups would follow them and they would live as a community in various parts and survive together. And if they didn't perform or if they weren't the type of leader they thought they were, then people would leave and go elsewhere. So that structure was always based on locations within the Crow Nation's territory, and so you would have pockets of this. And law and order was kept as such, the women ran the camp, the kids were to follow them, etc., etc. And so I think it was more of an understanding based on our traditional culture and clan system and then it would break into further roles for scouts and warriors, etc."

Ian Record:

"And so how, just speaking generally, how did colonialism impact that system?"

Donald "Del" Laverdure:

"I would say that certain parts of it have been corroded or negatively affected. Many people do still follow clans in some ways. But with the creation of the first agency out in Livingston, because the rations were given and following up on the treaties, many families were broken up, and they would take jobs or try to get the rations, so they would settle in new areas, and it broke up that family-clan unit that used to govern itself. And then it was changed to Crow Agency, the present-day capitol of the Crow Nation, Crow Agency. And so a number of people came there, and of course through the larger federal policy, were made into farmers, enticed them to do things and settle and have homesteads and break up the tribal land base. And all of those things had the corrosive effect of really disintegrating the clan leaders, the sub-chiefs, and it still existed to a large degree, even through this...and the language is fading a bit, but it's still fairly strong, the clan system is still respected, some of the societies have also disintegrated. There are some that are still active. And so, our culture, I think, has evolved in reaction to all this schism of internal conflicts of federal policy. One minute, let's try to help the Indian and we know better paternalism to, "˜Let's make them into '[Apsáalooke language],' which we say is "˜white.' So all of those issues have created what we've seen in the past, which is –- and continues today -- is high unemployment rates, mental health issues. We've got a checkerboard land jurisdiction, so everyone's fighting over authority to decide. And, ultimately, through a lot of this, there's a lot of passive lessee, lessor-lessee relationships, where other people have gotten wealthy off the great landholdings of the Crow. And so it's really up to us to try to get the healing back. It starts with the constitution and other things, and then reintroducing the culture, education, set roles and responsibilities back. But there has to be the healing, to get us back to where we were before."

Ian Record:

"I want to finish up with a brief discussion of an arena in which you're directly involved in your current position, and that's intergovernmental relations, federal-tribal relations. And this is a...it's interesting, over the past 30 years or so, particularly with the advent of the Indian Self-Determination Act, we've seen this exponential growth in this area, where Native nations across Indian Country are engaging to a greater degree than ever before in formal relationship building with other governments, with other jurisdictions, with federal agencies, with state agencies, with local municipalities, with private interests even. And I'm curious to get your view of that arena of tribal sovereignty, if you will, of tribal governance and kind of where you see it at currently and where you see it headed."

Donald "Del" Laverdure:

"First from the tribal perspective, then I can probably speak more from the limited federal, in a year. From the tribal perspective, I think it varies on the community and the leadership and their expectations. In some cases, intergovernmental agreements don't work, or they view them as a denigration of sovereignty, giving away sovereignty. I think for the most part, at least in my personal experience, has been that they've been beneficial, by and large. For example, in the tax area, we have to deal with federal Indian law where state and local governments have been given more and more say to tax value on the reservation that's been generated and move it off the reservation. By having intergovernmental agreements, you can have kind of a unified view of who has what piece of the pie, and you can divide it up however it's going to be subject to negotiation. But you have that one for a duration of time, and then you can use that to move forward on development or other things because oftentimes, uncertainty is the key to kill a financial deal. So that's one aspect. I think law enforcement's another at least in, again, speaking from the Crow tribal perspective -- and there are differing views of this -- but I think with scarce resources, underfunding, the number of police per capita is much lower than it is almost anywhere else, some rural areas with an exception, sometimes one third as many for an area that's very significant. In our case, it's two-and-a-half million acres. Not enough cops -– sometimes one or two at night -- and that's a frightening proposition. So law enforcement makes sense, but there are passionate views about that. In terms of kind of intergovernmental agreements in general and the diversity of them, I do see them growing substantially across the nation. And I think to deal with the federal Indian law and the rules that keep changing -– you know, we talk about rules in governance, but the U.S. Supreme Court, as anti-tribal as it is in the last 30 years, they're changing the rules constantly. And so tribes are almost forced into intergovernmental agreements to deal with all these changing rules so that they can have a set of rules, whether it's, you know, law enforcement or tax or any number of subjects. And so I think it's a healthy way to deal with it. Some people view it –- you know, you've got to have the fight, the bloody fight and go down swinging for pure tribal sovereignty -- but I think at the end of the day, citizens expect services, and they want accountability, and this helps bring that for many. One of the caveats more recently in the Midwest, for example, is those deals that were struck before –- water, sewer, trash service -– these intergovernmental agreements that were so good for tribal sovereignty and worked, many of those governments are now rethinking them because they're reacting to new case law that's coming out. And so it's turning into litigation, instead of two sovereigns coming together and working on a deal for the benefit of the larger community. So we're starting to see an added wrinkle in all that and people rethinking relationships and it's unfortunate because of the instability largely created by the federal court system. So I can't really blame people depending on the scenario that they have. Either they have a trustworthy other government partner or they don't, and that's the key to intergovernmental agreements is confidence that once you sit down, negotiate, make the tough compromise, that you're going to stick to your end of the deal and you're going to hold your word. And that is important, not only at the tribal-state level and tribal-other government level, but ultimately, where the origin of the relationship is the tribal-federal level. We have to do and say...we mean what we say and we do what we mean. And that's critical for relationships with Indian nations. Speaking now from a federal relationship for a minute, and I'd like to say in my current role as an Obama appointee is we have two roles. If the tribe wants us there, under the trust responsibility and this historic federal-tribal relationship, we should be there and we should bring the resources to bear. If tribes, as they are now are becoming more sophisticated, that they have figured out the rules of the game, if they don't change, and they become very good and adept them and very creative and entrepreneurial as they progress and move forward and they don't need us and they say you need to get out of the way, then I think that's our job, is to get out of the way and to cut the bureaucracy and second-guess even decision making from the federal perspective for Indian nations and let them become truly self-governing, sovereign entities. And so, you can see that it's a somewhat convoluted answer, but it depends on the perspective you're speaking from and it makes a significant difference, I think, in the entire tribal-federal relationship."

Ian Record:

"You mentioned this new wrinkle that where essentially, some other governments, some other jurisdictions are rethinking their relationships with Native nations, or abandoning those relationships altogether because of the emergence of new case law that I guess maybe tilts the game more in their favor. Don't these, making sure that these intergovernmental relationships, whether they take the form of an IGA [intergovernmental agreement] or some other form, don't they require essentially ongoing, constant maintenance to account for those sorts of developments, to account for political turnover, for instance?"

Donald "Del" Laverdure:

"I think they do, at least if folks are thinking long-term. You have, whether it's now today, gaming compacts for example. Ten, twenty [years], some of them no duration time period, that they expect these rule to be in place and for this part of the revenue to be shared, and they expect state and other governments to hold their end of the bargain. So too with gas tax agreements, tobacco agreements, should tribes be subject...want to enter into them and negotiate them, that period of years, regardless of decisions, of federal court decisions, should continue for the duration of the term and then they can sit down as partners and renegotiate, should there be a change in circumstances. So I still think they have a critical function. And Indian nations' role vis-í -vis all other American governments...at the end of the day, they should be the ones driving those relationships and what they expect of them, and that the relationship can then take on a view of being reciprocal, as opposed to one-sided."

Ian Record:

"Now you mentioned this perspective on the part of some tribal leaders, some tribal citizens perhaps, that when you engage other governments -- particularly governments other than the federal government -- in any sort of formal partnership, formal relationship, that you're somehow denigrating your sovereignty or somehow giving up your sovereignty. It's been our experience that we're seeing that perspective less and less. That replacing that perspective is a perspective that when we engage in these relationships, it's an act of sovereignty because we make the sovereign choice to engage with those other governments on terms that are acceptable to us in order to advance our goals. Are you seeing more of that dynamic at play in recent years?"

Donald "Del" Laverdure:

"I think I have seen that not only from prior academic life, but on the ground. That I think, just by virtue of exercising that authority, that they are asserting their sovereignty. That's the camp that I'm in, but there are other purists, the treaty folks who have their societies, and they view any other agreement with any other government as violating fundamental treaty law. And so they're going to have, there's going to always be at least that in the Plains area, where I know there are many treaty folks, and up in the Midwest. But I definitely -– there is that element -- but we argued exactly what you have just summarized. And at the end of the day, some of the agreements did go through and some of them didn't and it just, it depended on the subject matter. But I think across Indian Country as a whole, I think that view is becoming much more prevalent and being exercised."

Ian Record:

"You mentioned the Supreme Court as a very uncertain arena, and that's putting it mildly. A very uncertain arena to, I guess, resolve disputes between jurisdictions, resolve disputes between governments. Given the current composition of the court and essentially how long that composition will continue to exist, doesn't it make it incumbent upon tribes to think negotiation first, to think relationship building first before litigation because of litigation's uncertain outcome?"

Donald "Del" Laverdure:

"That's...it's a complicated...I'll give you a complicated answer. It depends. That's something everyone hates to hear, especially tribal citizens from their lawyers. I used to think that. And even as a general counsel, I use to believe that, but now having seen such a diversity of hundreds of government's interactions, litigation forces positions and you can...and very few cases ever make it up to the U.S. Supreme Court; it's a tiny fraction of a percentage. And so the real question to me is, is this happening at the Circuit Court of Appeals and the lower federal court levels? And that's a judge-by-judge selection on whether they're knowledgeable about tribal sovereignty or not. And if they are knowledgeable, then I think in some cases it's still, it would be appropriate to the community, but litigation is leverage against other governments. And if you win a lower court ruling, more often than not, that's going to be settled. And so going straight into it, if you have a partner who's favorable, who's knowledgeable about Indian nation sovereignty, and they're willing to truly compromise, and it's something they can accept on behalf of their community, that makes sense. If they're not, and in those other situations where they take account of those other factors, the intangibles, the biases, etc., then I would say it would behoove you to take less if you can proceed forward in a situation that makes sense. And I've seen that in a number of contexts, especially at the federal level. So my view is a little bit different than it was previously."

Ian Record:

"And we've seen a lot of tribes that we've worked with who hedge their bets and do both simultaneously. They're going the litigation route, but then they're also trying to work out a negotiated settlement to...because often litigation takes years to unfold. It's interesting, Billy Frank, well-known leader up in the Pacific Northwest, he tried to capture this, I guess this challenge, if you will, by saying, "˜We need to be peacemakers when we can and warriors when we must.' And I'm curious to get your thoughts on that perspective."

Donald "Del" Laverdure:

"That's a really good description, and I certainly would defer to his having lived through and experienced all the fights of the Boldt litigation and the aftermath, and now having seen him come up to D.C. quite a bit and advocate for their intertribal organization, co-management of fisheries, and usual accustomed places. I think that's correct. And I think peacemaking has its function not only from an intergovernmental standpoint, also internal disputes. Peacemaking makes a lot of sense, and I hope to see a return of that from the judicial context and something that I helped some communities with. And then the warrior part, which is you've got to stand toe-to-toe and give it your all and even if you lose, just waging the fight is going to create that confidence from the people who are at home, who don't have the voice or the resources or the background to wage that fight themselves, but they feel it. They know it, they've experienced it, and they like to see people who would take that position so they can feel good and confident that they did assert themselves, and somebody who understands them move forward on that basis."

Ian Record:

"I had one final wrap-up question and that is based upon your vast experience in a number of different areas that are critical to tribal sovereignty, critical to tribal governance, what do you see as the future to tribal sovereignty and tribal governance?"

Donald "Del" Laverdure:

"I think the future looks good to be honest. I am more than hopeful that the change that we are seeing in the diversity of those rethinking, questioning, wanting to instill their own values and culture into how they have to conduct their lives everyday I think is going to continue and is going to continue at a very rapid pace. And I say that because having been through the university structures that I have, I was in school for nine-and-a-half years formerly, then taught and then getting into politics, the trend that I see is that more and more Native youth who are becoming trained and educated, not just educated in the Western sense. It's fine to have a degree and accomplish something and to kind of have a Western view of what life is about in a four-month period and then you wrap those all up in a number of courses, but to have understood the teachings of where you come from. And when you combine that and that is the center of your universe is where you are from, where your teaching is centered, and that you are that Indian nation citizen first, Indian second, and a student third, in that order. I see unlimited possibilities for the rebirth of and reformulation of Indian Country as we know it. There are just more and more youth coming out like that, which I think is the key not only for this next generation, but for all the future generations of Indian country. I'm simply one dot in the sand of the ocean and I happen to have tried to make a contribution and a difference and I think many others are going to be like that coming forward."

Ian Record:

"Well Del, we really appreciate your time. We've run out of time unfortunately, I feel like we've just scratched the surface of your wisdom and your experience and we thank you for joining us."

Donald "Del" Laverdure:

"Thank you for having me."

Ian Record:

"Well, that is it for today's program of Leading Native Nations. To learn more about Leading Native Nations please visit the Native Nations Institute's website at nni.arizona.edu. Thank you for joining us. Copyright 2010. Arizona Board of Regents."

NNI Indigenous Leadership Fellow: Rae Nell Vaughn (Part 2)

Producer
Native Nations Institute
Year

Rae Nell Vaughn, former Chief Justice of the Mississippi Choctaw Supreme Court, shares how her nation methodically re-integrated Choctaw core values into its administration of justice, and how Mississippi Choctaw's creation of a fair and efficient justice system is paying social, cultural, political and economic dividends. 

Resource Type
Citation

Vaughn, Rae Nell. "NNI Indigenous Leadership Fellow (Part 2)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 22, 2009. Interview.

Ian Record:

"So the term 'Choctaw self-determination' is the motto of pretty much everything that the Mississippi Choctaws do. And I was curious to learn from you: how exactly does the tribal justice system, the court system that you were for a long time a part of, a reflection of that motto 'Choctaw self determination'?"

Rae Nell Vaughn:

"Self-determination, in and of itself, has been key for Mississippi Choctaw. It's been the driving force of who the tribe has ultimately become, this very progressive tribe providing so many different services and outlets for the people, but it's so much more than that. It comes down to the very individual Choctaw member as to how you guide the people individually towards their destiny of being a successful people. There have been a number of areas in which self-determination has been very evident, one being the court system in and of itself. Within the court system, there could have always been the easier way of just allowing the tribe to go with state rule actually and just using the state system. What's the point of setting up your own court system? But just the mere exercise of sovereignty and having the ability to create your own laws and to develop your own court system is the very essence of self-determination and within that allowing your tribal members themselves serving in different capacities as a judge, as a bailiff, as a law enforcement officer, even as an attorney again only further defines for tribes and this tribe in particular self-determination. It's the mere exercise and expression of it."

Ian Record:

"So back in 1997, the court system underwent a significant revamping and strengthening, and it came at a critical juncture where Mississippi Choctaw had grown tremendously since the "˜60s and early "˜70s, particularly with their economic development initiatives and had come to this point where it said, "˜If we want to continue growing, we've got to do this.' Can you talk a little bit about that, and are you of the opinion that Choctaw could not have become what it has today if it were not for this strong and independent court system?"

Rae Nell Vaughn:

"I think that the continuing development and evolution of the court system was key to every aspect of the tribe in regards to its development. The tribe in its forward thinking knew that with the growth of the population, which was very dramatic, it jumped significantly after 1994 once the gaming doors opened of our casinos and then we began generating more revenue and our population, the membership increased dramatically. Currently, we're at close to 10,000 members versus back in the early 19th century when we were less than 1,000, so it's been a very significant jump. And with the increase of population obviously comes with it social issues, social ills, offenses committed against property and people, civil matters, civil issues as the tribe in its economic growth begins venturing further into business, and those issues of litigation with those businesses ultimately will land within the well of this court. So because of that, it was key for -- and I believe was the government's vision -- to strengthen and provide to the court system the ability to execute justice properly and at a much higher standard. And again, the tribe could have just said, "˜Let's just follow the state motto. Let's just hire state judges and let's just go from there,' but they didn't. They knew again -- going back to self-determination -- how key it was to have tribal members sitting on that bench. Granted, the bench itself was very diverse. You had non-Indians, you had non-tribal members, and then of course tribal members sitting on this very large diverse bench, and the ability to have that exchange for those who weren't members of the tribe to teach them Choctaw customary law, culture, and of the people and of the community and the area, and how important and significant it is to just maintain that body of knowledge and it continues today, which I'm very grateful for."

Ian Record:

"So with respect to this, 1997 -- that seemed to be the watershed year in which the tribe made a very calculated decision to say, "˜In order to manage this growth, in order to continue to grow, we have to expand the powers, the jurisdiction and the authority of our court system, equip it with what it needs to be able to carry out justice,' as you say. So there's an expansion in terms of the types of cases it takes on, in terms of the kinds of skill sets that it's bringing into the court system, etcetera, but also during that time there was a concerted effort underway to more fully incorporate Choctaw values as you mentioned into the court system. Can you talk a little bit more about that and specifically discuss this project that you were involved with, which was documenting those core values in the form of oral histories provided by your elders? Maybe talk a little bit about how they've worked to inform the incorporation of those values into the court system."

Rae Nell Vaughn:

"I believe that it was a lot of hands of fate that guided me into where I ultimately ended up serving as a judge, which I was very honored and humbled by being asked to do this. I worked in various areas within tribal government of the 23 years that I worked. I worked in the health area, in education and in the cultural center area, and all of these experiences, I believe, prepared me for that. So having said that, giving you that backdrop, once I got into the position as judge and ultimately serving as the principal judicial officer for the system, there were different projects that I felt would help us retain a lot of what we and who we are as tribal people in regards to what this thing was called, 'customary law.' Well, what is it? For the common person on the street looking at the general provisions of the codes, it's there, but what is it/. It wasn't tangible; it was an abstract thought, customary law. So how do we make that more concrete? And so with that I began looking at different models. Well, what's out there in Indian Country? What information has been generated and collected for the respective tribes? And I saw different models and I thought, "˜We can do this. We can do this here at Choctaw.'

And so we initiated what we call the Indigenous Law Project and this project basically...the original objectives of this project was to gather as much information from our elders concerning customary law, issues such as probate, disciplining of children, the structure of our society and how important -- being a matrilineal society -- those duties and responsibilities of individual members of the family and how important those things played in the role of the family, but not only the family, the community and the tribe as well. Now we weren't as fortunate as a number of the tribes west of the Mississippi to have been able to maintain and continue practices of traditional ceremonies and clan systems and things of that sort. However, there were few aspects that we continued to carry on that we needed to document. Now it goes against what normal translation would be in the sense of oral history, passing it down orally from one generation to another. Unfortunately, society has given us other opportunities with technology, unfortunately and fortunately, because the unfortunate thing is that we're not practicing this oral history, we're not sitting down and talking as a family. We're too busy texting one another half of the time. And so it seemed to me that the best thing to do is put the technology...benefit from this technology and use it. And so we initiated a number of interviews for, I believe, about three summers of just collecting interviews. And what I got away from the information or the exchange was how willing the elders were wanting to sit down and talk. Of course it was warming them up, putting them in front of a camera and the mic and all of this and of course we'd ham them up a little bit. "˜Well, you're going to be on TV,' and all of that. "˜You're the next movie star.' And so once they warmed up and you began asking questions, all of the outside distractions faded away and they went right into it and to be able to go back and pull all those memories and all of what they have been taught, that sense of pride of, "˜I'm proud of who I am and this is who...this is what I was taught and I'm so glad I'm able to teach you.' Now I did get my hand slapped at one point because I was asking my auntie, my great aunt, a question and she said, "˜You should know this.' I got put in my place real quick. "˜You should know this,' and as I sat there and I thought, of course I sat up a little straighter after she did that, but after I thought about it, I said, "˜Yeah, I do.' I had to go back and think because we weren't having that sit-down and we weren't having those opportunities without all the other distractions going on, of just sitting down and talking. And that's what we don't do anymore.

And so I say all that to say this: we got a wealth of just raw information, just conversations, and then...so what do we do with this? We begin extracting values out of each of these interviews and we're able to construct this circular...and we put it in a...we intentionally put it in a circular model because it's never ending. Our core values are never ending. And we developed about 12 core values and I can't think of each of them right now, but I do have that information, but it all centered around the family. It all centered around the family and one of the other objectives that I had...I had another project within the cultural center was, "˜Well, okay what do you do with information? How do you get this information across to the audience, the target audience you're shooting for here?' And so I looked at this project two-fold. One for the practitioner, the attorney that's coming into the court who may be arguing a child custody case and not understanding the matrilineal society rules as it were. And so there's a document that he can cite as he argues in court. Of course obviously -- if all things are equal with both parties -- society dictates...the tribe dictates traditionally that children would go into the custody of the mother. Discipline would continue with both sides, but the mother's brother, the uncle of the children also stepped in and took a role as well, whether it be a division... dissolving of a marriage or just within disciplining children. And so having that documented in a court opinion is very significant because it lays out for you customary law and it's there in black and white.

But the other objective, again two-fold, is how you use this information and we're always looking at... again, and it just... everything interweaves with one another, self-determination, and it's getting this information to the younger generation. "˜Well, how do we do that? How do you use this tool and where do you use it?' The most ideal place to use it was within the school system and we're fortunate enough to have a tribal school system. And so the next phase of this project was to develop a curriculum to incorporate this information into the school system starting at the very earliest level of elementary school, because you're in elementary school pledging allegiance to the flag -- to the [United States of America] flag. You're learning about presidents, you're learning about government, you're learning as you move along civics and your duty and responsibilities as a citizen of the United States of America, but what about your duties as a tribal member, talking about the importance of voting, the responsibilities of a leader, as chief, your council? Do you know exactly how many members are on your council? Do you know exactly how many and why there are three council members in one community versus only one in another? These are the things that need to go hand in hand with the instruction of state government, of local government and how state, federal and tribal all interplay with one another, and we don't have that, unfortunately, across the boards, across Indian Country really, you really don't have that. So my intention was using Indigenous law, this project, to relay what customary law is, but also incorporating information about government, tribal government, the judiciary. Because if you look at tribal government, Choctaw tribal government, we are so different from the U.S. government because we're a two-branch government. And, well, why is that? And then it goes into the IRA [Indian Reorganization Act] constitution, it just...it just dominoes in information. And that's what's key. And so that was one of the projects that I initiated there as well.

Another project I initiated, again, and it interweaves with self-determination is the internship program, which was very important for us because we were looking at...with every tribe you want to have as many tribal members in professional positions as possible. We're a membership of almost 10,000 and there's only so many Choctaws and not everybody wants to be a doctor, not everybody wants to be an attorney, not everybody wants to be an accountant, but you also needed to provide a place for career exploration to say, "˜Well, maybe I might not want to be a judge, but I might want to be a probation officer or I may want to be a paralegal or I may want to be an attorney or I may want to be a judge or I may want to be a court administrator,' but giving them that opportunity. So I set up this project during the summer and it was a three-tier project. It started with your...the high school students, your juniors and seniors. We partnered with Boys and Girls Club. They have a leadership component to it called 'Keystone Club' and we opened it up to those individuals if they were interested and then of course to just the general population of that age group if they were interested to come in.

And we also had the second tier, which were college students who may be interested, and of course opening it also up to law students just to have an opportunity to see Indian law in action at the local level. It was a 13-week project. I partnered with a program called Youth Opportunity Projects with the tribe, which helped us with funding because money's always an issue and kids need money for the summer. So that was an incentive. We also partnered with a number of universities, Millsaps College, Southern [University], Mississippi State [University], Bellhaven [University] for those students, Memphis State University. For those students who were coming in at the college level, I didn't want them to waste this experience, and if there was an opportunity to utilize the internship program for them as well to gain benefit, I welcomed that. But also it provided us this window of opportunity to educate even the colleges as well, and so it's been a really great thing to see this thing progress. We've hit some dips here and there. Again, not everybody is wanting to go into the legal field, but we've had a number...we had a really large number.

Two years ago, we had maybe about four individuals going through. And then the year that the Edgar Ray Killen case was ongoing -- that was that summer of the 40th anniversary I believe, if I'm not mistaken, of the slaying of the three civil rights workers. That was just so important and a part of their internship program was to go and sit in that hearing and listen to testimony and to see...to look across the well of this courtroom and to see a diverse jury sitting there of African-Americans, of just the members of the community, which you would never have seen 40 years ago, obviously not. And to listen to testimony and to hear what had happened during that time, for them it's just...it's history, but it's something that people of my generation...I was born in 1964 and the things that I experienced growing up in the South during that time, not knowing how much of an impact it was going to have on me later once I understood, "˜I'm being denied service.' And so I want the young people to understand how difficult it was for the tribe to move forward, to get to where they are. They had so many different obstacles. And again, all these projects -- the Indigenous Law Project, the internship program, teen court -- all of these different projects have recurring themes of, 'Remember where you've been, how important your role as a tribal member is to our society.'"

Ian Record:

"You mentioned teen court, which is what I was going to ask you about next, as well as some of the other initiatives that grew out of the 1997 reform and particular initiatives that incorporated consciously the Choctaw values that you've discussed. So tell us a little bit about teen court and specifically, why was it developed, how does the process work, perhaps how does it engage those young people and work to teach them the value of their role in moving the nation forward?"

Rae Nell Vaughn:

"It's very interesting how teen court developed because we were in pretty much temporary housing and we were very limited in regards to detention space and we were seeing more and more of our young people getting into trouble at various degrees of severity and some of them very minimal, but still required some type of sentencing of sorts. And we weren't making an impact simply because our young people have been desensitized. "˜So I'm going to go to jail, so what? I'll go do my time, I come out.' And then secondly, because we weren't able to house them on site, on the reservation, we were having to use outside facilities that made it even almost more enticing. "˜Hey, I got to go to Scott County and be with the really tough people,' and that type of mentality. And so we were struggling, we were struggling. And within the youth code, it said that using detention was the very last alternative, but that's all we were using and we needed to find some mechanisms of using other alternatives to help deter juvenile delinquency.

And we were looking at other models. I'm real big about "˜look at a model.' There's no sense in reinventing the wheel. If something is working somewhere else, let's pull it in and let's pull pieces out to see if we can 'Choctaw-ize' it as it were and make it our own. So we investigated a number of models of teen court, a diversion program, which gives the youth court the opportunity to of course allow the juvenile delinquent a sentencing, but it's more so by his peers. The way the process starts out is the juvenile delinquent is brought before the court, goes through adjudication. If the court finds the delinquent...the juvenile delinquent of the offense, then if the judge feels that this is an issue that can be handled in teen court, then the case is then transferred into teen court. Teen court is more of a sentencing court of the teen's peers. Also we have members of our teen community who come in and serve in different capacities, as prosecutor, as defense counsel, bailiff, members of the jury panel, but the only adult that's in there is the judge himself or herself -- I've served as a teen court judge -- and the diversion coordinator. Those are the only adults that are involved, as well as the party's parents who are coming in. And so they go through this process, the go through the hearing, the case is presented to the judge again, but the jury ultimately decides.

And it was very amazing to watch the process when we set up a mock hearing or it was even the actual hearing, the actual first hearing. We'd gone and done some training with them and gave them the tools of what they needed and then we had an actual case. Well, they came back with a very severe sentencing. I can't recall exactly what the offense was, maybe breaking and entering or something of that sort, but they were given multiple hours of community service, they were going to write this letter of apology, they wanted them to stand at the corner of an intersection and say, "˜This is my offense,' and everything. And so we had to kind of reel them back in and say, "˜Let's really think about this.' And so when we initiated it in early 2000, it was very slow going because it's like, "˜Oh, what is this? Do I want to be a part of this? Is this geeky or what?' But as it moved along, people got more involved in it and we had more young women who were involved in it and we were really pushing hard to recruit young men, and eventually it's grown now. I went to their banquet last month and they have a total of 80 active members of teen court.

One of the other components within the sentencing of the juvenile delinquent is that he or she is to also serve three terms within a setting so if during a semester that there's three cases, that individual has to come after he's completed what he has to do for his sentencing, he's got to get in there and serve as a juror too, which was initially done by design to get him on the right track, him or her, on the right track basically and get them involved in that process because I want young people to see the other side of the bench. I don't want them to be only...their only point of reference is standing in front of the bench. I want them to know what happens behind the bench and so again, giving them that opportunity. Do some of them take it, they do and then they just kind of...either they embrace it or they don't, just like with anything else. But it was always good to see when you had success stories in that regard, because we know nationally that normally children who enter into the youth court arena eventually move into the adult criminal court setting, and you try really hard to get them out of that track of sorts. And so that was an alternative that we looked at, "˜Well, what else can we do?' Because obviously traditional form of court was not working, the adversarial form of court was not working. They were getting desensitized. It wasn't having an impact. So what do we do? And that's one of the things under my leadership I continuously looked at, "˜What are other alternatives that we can look at to help curb a lot of the offenses that are going on within Indian Country to create healthy communities locally at Choctaw and across Indian Country and so several different programs began cropping up. One of them was Healing To Wellness which..."

Ian Record:

"I was just going to ask you about that."

Rae Nell Vaughn:

"Yeah, which was just phenomenal for me because we have such a high rate of offenses that were committed under the influence of alcohol. So what do we do? All we were doing basically was having this revolving door of people just coming through, domestic violence cases, public drunk, DUIs, so many different things happening and we recognized it was revolving around alcohol abuse. And so what do we do? So we looked at this model, we applied for an implementation...planning grant and we went to a series of trainings and found that this model meshed with the core values of this tribe and we eventually were able to receive a grant to start us off for three years. That grant has no longer, now has ended and we're no longer under that funding source. However, we presented to the tribe once our three years was up, "˜This program has ended and we really want to continue it.' And that's one of the issues that tribes face all the time is sustainability. And so how do we sustain this?

Well, we were able to present to the tribe how successful it was and that we were able to hit all the benchmarks that we had proposed in the grant. And a lot of...because it's a multi-disciplinary approach where an individual may be a first offender of DUI or alcohol-related crime and the judge feels that this may be a case that's prime for Healing to Wellness and then we'll transfer that case over into that program. It's a year-long process, which means the individual has the opportunity to opt in or opt out with it if the judge wants to transfer this over because they may say, "˜Forget it, I know I'm not going to be able to do this, let me pay the fine, let me do my jail time and let me move on.' But then you have those people who are really ready for change or who may be at the crossroads of their life and say, "˜I do need help and I do want to change.'

And so the individual then enrolls into this program and they have a multi-disciplinary team that works with them on a weekly basis and they go through the rigors of the program itself. Yes, they're required to meet with their probation officer, they meet with a behavioral health person, the judge is also involved, the Healing to Wellness judge is also involved in this. So you've got about maybe six to seven people that come together once a week, they review cases and then they have all the individuals, it's a group effort where they all come in and they go over what was the expectation for the week, what they were supposed to do, did they accomplish those things and then if they didn't, there are penalties and you're not able to phase -- it's a four-phase project -- you're not able to phase out so it just takes longer for you to move through the program.

And at the end of it, I've gone to a number of graduations. It's always been very emotional for these people because they see where they were going and they now know and have the keys basically because for them if they were...if this was a really big issue for them, dealing with alcoholism that it was going to be a day-to-day process. And so having those relationships developed with people in behavioral health was going to be more key for them, but we also recognize that we would have to cut the tether and that they themselves were going to have to make good choices. And so it was really...it was a really good exercise for them and for us as professionals within this area and also as community members to see this happen, because you want success, you want them to be successful and you want them to have the success not only for themselves, but for their family as well, because you know that there's a lot of them that come from very dysfunctional homes and they're the primary person who's bringing the income in and how important it is too, if not for yourself for your family, as well."

Ian Record:

"So these sorts of initiatives, the Healing to Wellness court, the teen court -- those are directly geared towards restoring health within the community and then there's the challenge of handling all of your relationships with outsiders that particularly grow out of economic development and all the commerce that involves outside entities, whether they're vendors, whether they're employees who are non-tribal who live off the reservation, whatever it might be. So when you guys really moved forward full bore with your economic development you had to be ready. And so you've put in several rules, policies, institutions within the court system, within tribal government to ensure that your justice is prepared for that challenge to meet the growth, the challenge of managing that growth. And I wanted to have you talk about a few of those and first off are a couple of things internal to the court system itself and that is the qualifications of judges. Can you talk about the qualifications that are mandated in the Choctaw tribal code for judges, how they're selected, approved, removed, and what sort of requirements do they need to be able to sit on the bench?"

Rae Nell Vaughn:

"Well, the process itself, this...the judgeships are appointed positions. They are nominated by the leadership, by the chief, presented to the tribal council, the council then confirms them, but you have a list of qualifications that helps you filter through those individuals who may be interested or who you feel that might be qualified and able to sit on the bench. There's an age requirement, 35. So that tells you I'm over 35. You have to have a minimum of two years of college, a tribal member, which is key. One of the other requirements that -- because we had to have on the bench law-trained judges -- was that the chief has the ability to waive the membership. And so that's how we were able to have non-tribal members sit as well as non-Indians sit so that we could be able to provide, again to be able to handle the types of cases, the complex cases that would be coming in in regards to commercial law and civil jurisdictional issues on this bench. And so we were able to strengthen our civil division to be able to handle the types of cases that we anticipated coming before this court.

Another thing that the court did or the council did as well, which was earlier on in the mid to late "˜80s, was incorporate a canon of ethics. Initially that was set up primarily for the judges. And again, I think at that time it was more of setting the code up, "˜So let's get some models,' and so there never really was any deviation from the ABA's [American Bar Association's] canons of ethics. So they're pretty straightforward and mirror exactly what ABA states as well. Back in, I believe it was early 2000 or the late "˜90s, because the...no, it was the early-2000s era, because our system was growing, our staff was growing from a staff of prior to reorganization of maybe five to six people to now a staff of 32 people -- 12 members on the bench and support staff -- we felt that it was very important for them to also understand what it was to serve as a judicial officer and that they too needed canons of ethics to follow as well, although those should be inherent as just being people of the court and understanding why we're there, but we felt that they too were a part of this larger system of justice and needed to also have these canons as well. And we also shared with them, "˜It's not to hinder you. It's to also protect you because you will have other forces coming at you,' and so, "˜No, I can't. That violates my canons of ethics.' There you go, it's a shield. And so we incorporated and put that through the process of review with the Judicial Affairs Committee, which is the legislative oversight of the system and eventually brought it before the full council for approval and it was approved. There continues to be challenges because of where we sit within the organization of government, serving as a statutory court. Well, then you also are bound by your administrative personnel policies and that lack of understanding. Well, there are these things called canons of ethics and it's like this, what do we do with it kind of thing. We haven't really had any violations of canons of ethics on the judicial side of it, so we have not ever initiated any kind of mechanisms of removal, but the code is clear. If there are clear violations of the canons of ethics, that is grounds for removal and there is a process within the code, but beyond the language within the code, there isn't actually step-by-step processes, which was, as you know, there's a long laundry list of things to do and you just can't get to all of them. And so that was one of the other things that needed to be looked at. Well, you have this body of law, but there are no processes to...once the mechanism is triggered, what do you do? And so that was one of the other areas that needed to be worked on and hopefully they will at some point get back to that."

Ian Record:

"So there's this issue of the court ensuring its own integrity, essentially building those shields against either corruptive behavior, self-interested behavior -- whatever it might be -- and then there's this issue of, "˜Well, how do we help to neutralize any political impulses that may come from outside forces to actually interfere in the court's jurisprudence?' And so, specifically, there's a couple things that have been put in place to help mitigate against those impulses specific to the council and any behavior they may exhibit. So there's a couple things that you guys have put in place. Can you talk about those things? How has Choctaw worked to try to control any sort of political interference from the outside?"

Rae Nell Vaughn:

"Well, even you as a judicial officer get inundated with a lot of ex parte[communications]. As I shared with you earlier in our conversation, as a judge you don't have the ability to just blend into the general populace; you can't. You've got people you see at the grocery store, at the post office, down the street at the gas station while you're pumping gas for your car and then someone will come up and say, "˜Hey, this is what's going on. Can you help me?' Or you have families that are in crisis and the only thing as a judge you can say is, "˜I can't help you, you need to get an attorney, you need to get advice from an attorney.' And that's one level, but then there's the other level of when you have tribal council crossing the line and wanting to apply pressure at making changes of decisions or in regards to possibly constituents in incarceration and things of that sort.

And I want to believe that council members are coming with good intentions. It may be the man who is the only person that works in this family of five and he's gotten picked up and he's got to serve 30 days in jail, which means the possibility of his...of losing his job is great, which means there will be no income coming in and so you have the councilman that is saying, "˜Can you reconsider, can you make this change?' And so I want to...all of these issues put it in the light of they're really looking at the best interest of the constituent. That may not be so, I also recognize that as well, and the code is clear in regards to tribal council members. They're not allowed to come into court and practice as an advocate. They cannot come and represent a tribal member within court. Just the mere presence -- and that was hard for them to understand -- because just the fact that you're sitting in the well of that court can be perceived as applying pressure on a judge because the judge is not naí¯ve; he knows why you're there. You don't come to court every day to sit and watch tribal court in action simply because you don't have anything to do. And so just the appearance of it really would...the messages are sent. And so having that in place, as well as not allowing council members to sign bond or post bond and bail for individuals in incarceration was also another body of law that they put into place. That was really hard for them to understand, that you can't...you're just not allowed to..."˜I can't accept your money,' you're just not allowed to do that. And what it also provided was this means of insulating the two bodies, the judicial body and the legislative body, from that appearance of impropriety. It's a hard call because you're shifting, your code and your law is shifting in such a way that you have all these very specific things and it's like, "˜Why can't I do this? I'm trying to help the people.' And the unfortunate thing is that you may be doing a disservice for them by not allowing them to pay the price, the consequences of their actions because it's obviously detrimental, possibly if this is a habitual person who are not making change. They need to go through the process; maybe we get them into Healing to Wellness.

There are just...you've got to allow the process to take place, you can't interfere with process because that's the entire premise of this sovereignty, is allowing process to take place to allow us to interpret law and to perform and to render decisions. And if you're not happy, another thing that we also put into place was strengthening the supreme court, because initially it was set up as a court of appeals with the lower court judges serving as the reviewers of the case minus the division that the case came out of and it didn't quite work well. And so because of all this growth and the economic development, the population and everything, the idea was, "˜There needs to be a higher tier of court totally separate from the lower court.' Has it worked? It has worked. Has it had problems? Yes, it has had problems because we're still trying to figure out the role of the chief justice because even internally that role of the chief justice, which I struggled with every day, was the fact that I served as the principal judicial officer. I had two roles: I was the judicial officer, the chief justice for the supreme court, but I also was the court administrator over all of this system. And so you had issues of conflict at times whereas, okay, there's a complaint coming in from a judge on a particular case; procedurally, as their supervisor, administratively, I would receive these complaints. And so we had to look at another means of getting this information around so that someone else can be a reviewer, but then as a supervisor how can I get in there and evaluate performance if...you might have a judge that just sits there and sleeps through the entire session and then just drops the hammer and says, "˜Guilty!' And so how do you do that? And it was a constant struggle. We looked at a number of models, and the unfortunate thing is we weren't ever able to execute a way that I could administer fairly without that appearance of becoming involved in cases that had the potential of moving into the supreme court and that continues to be a struggle because you certainly -- and again, I'm real bad about talking out of both sides of the mouth -- you certainly don't want to have a rule for everything. You've got to be able to use some judicial discretion in judgment."

Ian Record:

"So there's this challenge internally of building a strong and independent court system, demonstrating it in practice, and then there's the further challenge of having to serve as an advocate for that system and go out and actually educate not only your own community but outsiders to say, "˜Hey, you need to take us seriously. We're a strong and independent court system. We can provide fair and effective justice to not only our own members, but outsiders as well.' You and your colleagues within the court system have made a concerted effort over the years to advocate for the court system, to build those relationships with outside entities, intergovernmental relationships that have really served the tribe and the court system very well. Can you talk about some of those?"

Rae Nell Vaughn:

"Yes, that's always a challenge when you're having to lobby for the court. It's a juggling act because again, it's that relationship and you're presenting to your council who approves your budget of the activities of the court, the increases of the docket and, "˜Well, why do you need this much money? All you're doing is sitting there and providing justice.' Well, it's so much more than that with operations and looking at other alternatives and means to provide wellness to the community. Going to the area of education, that is what is key because people don't understand the system and it's a very...it's not a difficult system, but it is a tedious system because you have to go just...my question always is, "˜What happens when the paper hits the window of the court? Where does it go because that is not only paper, that's a party, that is a person, that is an issue that is happening out in the community. What happens to it? Where does it go?' And it goes through so many different steps and council members, the legislative body, just really doesn't understand why it takes..."˜Why does it take so long? Why does it take so long to get the case before the judge?' And so it's educating them. We initiated a symposium back in 2001 and we had tried to do this on an annual basis for our practitioners, but also for the general public to understand Choctaw justice, the judicial system and the legal community itself and to help them navigate through it and to also bring to them very specific issues such as issues of gaming, the latest cases that are coming before the Supreme Court, where they are and the impacts they may have on us individually as tribes. We also looked at a topic of economic development and the importance of having our practitioners prepared for maybe minimal cases in the sense of you may have a salesman coming through the tribe selling his wares and for whatever reason it doesn't work out and it ends up landing in court, all this commercial information. And then also, whenever we had new laws that were put into place, this was the forum to get that information out and also for them to have their bar meeting. No, it's not a very large bar, but we also wanted to keep in touch with them to let them know what was happening because as an attorney you're going through the daily rigors of it and it's pretty...it's the same stuff over and over basically of what they're dealing with and so it's just preparing them for whatever may pop up and then when you least expect it, it happens, a membership issue, possibly a challenge -- things of that sort. And we also provide for the council an opportunity to have a summit to sit down and talk with them during the session of things that they may want to...and this is more in closed doors so that...I've always believed if we've got issues that we have to deal with that, let's deal with it here at home because we certainly don't need it out in the public. One, there in the community because then it questions the trust of the system, but two, out in greater society because then it really may reflect a negative connotation of this thing called 'justice' on the reservation. And so if there are issues or problems, let's hammer it out here, let me know what may be an issue or problem and also we can also reciprocate with that and share with you what some of the challenges that we may be facing. For example, as we talked earlier, this issue of ex parte [communications] or trying to get to the judge to make changes and how important our integrity as a court system needs to remain intact. And so we were fortunate to be able to have those communications, but even more so that we were able to reach out beyond our own jurisdiction to the jurisdiction of the state and that was one of the very key things that happened during my tenure with this court was the ability to open that door with the Supreme Court for the State of Mississippi.

I had this visit where Chief Justice Jim Smith and his associate Jim Waller, Jr. came down and they wanted to have a conversation. And we sat down and we talked and I shared with them what our system was all about and we...and that's what initially began the conversation and then he invited me to come in and talk with a group of municipal judges at their annual association and then we invited him to our symposium to serve as our guest speaker. We also invited the state attorney general to come in and serve as a speaker and so we've been able to have that give and take and I've always believed...it's like, "˜Well, why didn't it happen earlier? Why didn't it happen way before my time?' But I truly believe it's time and place that really plays a key role and we were both open to having this dialogue. What else has spun from that, on the federal side we're able to have...because of relationship building more so with the leadership and at the federal level we have the ability -- which we may have already talked about earlier -- having a U.S. District attorney come to the tribe and office with us one day a week to handle cases that may be going through the federal system, which is unheard of. You don't have that across Indian Country if...I'm sure it's very few, if any, that have that ability to have a U.S. District attorney come in on the reservation and sit. We also have a U.S. probation officer that comes in as well. And again, that was developing relationships, [intergovernmental] relationships."

Ian Record:

"And don't those have really powerful benefits in terms of understanding because you have these outside entities that for many tribes have long interfered with tribal justice systems and now they're -- instead of being adversary or a constant source of irritation or interference -- they're now potentially an ally, or at least saying, "˜We recognize your authority, we recognize your competence,' etc.?"

Rae Nell Vaughn:

"Exactly and I believe that is, that's the clear message that it sends and that we are all partners now in this. And also we've experienced the same type of relationship building with the county system as well. We had two tribal members who had an issue in county court and the judge picks up the phone, and it was an issue he felt that could be handled in our peacemaking court and he says, "˜You know, I think that you could better deal with this than I can,' and he transferred a case out of county court to tribal court. And I don't...it never...for some people they just never really wrapped their mind around that, and I'm like, "˜Can you believe that even happened?' That was just something that was just really, to me it was historic, it was something you just don't...you wouldn't even think it could happen and it happened. But again, it goes back to that...the thinking that this is a stable system, this is a court system of integrity. You will receive fairness in this system. Some people may not agree with the system all the time, but they know they got a fair shot in there. And so if anything that's the clear message."

Ian Record:

"I want to wrap up with a quote from former Chief Phillip Martin and he made this statement a few years back. He was delivering, I believe, delivering a talk at Harvard and he was asked by a student, "˜Are you at all concerned that all the economic growth you've experienced has had a negative impact on your culture?' And he said -- he thought for a second -- then he said, "˜I don't know. It used to be everyone was leaving and now they're coming home.' And really what he was talking about was through this economic growth we've had an opportunity to create stability and to bring opportunities to our people. Can you comment on his statement and perhaps address specifically the role of the justice system in creating that environment of stability and opportunity?"

Rae Nell Vaughn:

"With the dramatic growth, you have your members coming back in, but how does this relate to the system, to the justice system? Twenty years ago, you would never have...I would never have had the opportunity to come as a tribal member and sit in a position of authority to assist our people in regards to justice. It may not have ever happened. I completed my college education. I could have easily left, but I chose not to; I chose to stay and become a servant of the tribe and to provide that service to them. And had the landscape not been such where I could have had that opportunity, it wouldn't have happened. Where would we have been had things not taken place, we probably would not have moved mountains as we have now. And so it just sounds so much like Chief Phillip Martin. "˜Yeah, they're coming back, they're not leaving anymore.' And if anything it strengthens who we are as a people. And we have so many talented people and now there's an opportunity to show that talent, for them to step up and take on these roles of leadership in different capacities. Not just the ultimate leadership but leadership within your community, leadership within the work that you're doing, leadership even within the State of Mississippi coming in as an entrepreneur, bringing employment and economic diversity to not only the tribe and the state. So yeah, they're not leaving, they're coming back and there's something to come back to and that's home."

Ian Record:

"Well, great Rae Nell. I really thank you for your time. It's been quite an education. That's it for today's program of Leading Native Nations. To learn more about Leading Native Nations, please visit nni.arizona.edu. Until next time, I'm Ian Record. Thank you for joining us. Copyright 2009 Arizona Board of Regents." 

Honoring Nations: Robert Yazzie: The Navajo Nation Judicial Branch

Producer
Harvard Project on American Indian Economic Development
Year

Chief Justice Emeritus Robert Yazzie of the Navajo Nation Supreme Court talks about the Navajo Nation Judicial Branch's application of Navajo common law in its jurisprudence as an example of the importance of Indigenous cultural values and common law into the governance systems of Native nations.

People
Native Nations
Resource Type
Citation

Yazzie, Robert. "The Navajo Nation Judicial Branch." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Sante Fe, New Mexico. February 8, 2002. Presentation.

Andrew Lee:

"Thank you, Steve [Cornell]. Now I'd like to call to the podium Dr. Manley Begay, who's also a co-director of the Harvard Project on American Indian Economic Development and he's also the director of the Native Nations Institute at the University of Arizona who will introduce our next speaker."

Manley A. Begay:

"Good morning everyone. Hope everyone had a real nice sleep. I did. For those of you that are about six feet, three or four inches or taller, I have a real important question to ask you. How do you stand underneath those showerheads? It's a real funky showerhead. Did you guys notice that? When you turn it, it turns off and you have to have it going down. I thought it was kind of interesting.

Let me just sort of say a little bit about what Steve mentioned. When I joined the Harvard Project back in 1988, it was really quite interesting that these two white guys were out running around Indian Country trying to figure out things. And they were actually lost. And when I showed up, I showed them the way. Sometimes I regret it. I've known these guys for so long, we joke about one another. They joke about me. They say, 'We've known him for so long that we remember when he had dark hair.' So I say, 'Well, I remember when they had hair.' It's very interesting how things have occurred down through the years.

This next presentation, what's every interesting about this is that you have essentially, under some trying circumstances, an individual or a group of individuals that rose to the occasion to really set up a mechanism by which to ensure that government, the Navajo government in this case, had a checks and balance system and had a separation of powers. And it was really an outgrowth out of some trying circumstances, essentially a mini revolution. It's unbelievable to hear the stories underneath the story. The amount of courage, the amount of tenacity, and the amount of foresight that was used by Chief Justice Robert Yazzie and the other judges in the midst of some turmoil in the Navajo Nation, and it's not unlike countries throughout the world. And in this case, in the world's most wealthiest nation, you have these problems and issues. And interestingly enough, the Navajo Nation, through the leadership of Robert Yazzie and others, rose to the occasion and handle issues, resolve disputes that were pressing to Navajo Country and they set their mark.

It was really a story about how we as Indian people can resolve our own issues without outside interference. And stories we hear about problems and turmoil throughout the world really points to the make or break characteristic of nation building, which is a strong and independent judicial system with strong and also well trained leaders. And I think the Navajo Nation court system is an example of that among other court systems as well out here in Indian Country. I would venture to say that the Navajo Court System is as strong or stronger than some of the best court systems throughout the world. And it's because of that the Navajo Court System was recognized. And interestingly enough, Robert Yazzie and others stood their ground and created for all of us an innovation, a creation that will last for a very, very long time rooted in Navajo common law as the law of the land, which is the way it should be. It's really an example of a culturally appropriate leadership as well as a culturally appropriate institution.

And with that I'd like to introduce Robert Yazzie. He is Bit'ahnii, that's his mother's clan. His father's clan is Tódichí­í­ní­í­. His nalí­, or his relatives on his dad's side, is Kinyaa'aanii and on his mother's side is, his mother's father's clan is íshiihii. So íshiihii and my clan, Ma'ii Deshgizhnii are the same clan so we call each other Cheí­í­ or grandfather. Chief Justice Yazzie has been on the bench for 16 years and has been a chief justice for 10 years. He's a graduate of the University of New Mexico Law School back in 1982 and also is a graduate of Oberlin College back in 1974. So with that, the Honorable Chief Justice Yazzie.

Robert Yazzie:

Yá'át'ééh! I was going to say como esta? I have to say something like that in Santa Fe. I wish to thank Mr. Andrew Lee -- and I always have to look up to him when I talk with him -- for this opportunity to invite the Navajo Nation judicial branch to give...to make comments about the contribution of the branch to good governance.

As an opening I would like to talk about Justice [David] Souter's concurrent opinion in Nevada v. Hicks, which is very troublesome to all of us. He said, when this past summer, Associate Justice O'Connor, Sandra Day O'Connor and Justice Breyer came to the Navajo Nation to observe the Indian justice in Indian Country. And much of what they said is different from what the way Justice Souter said in his concurrent opinion. He said, 'Non-Indians are in danger of unwarranted intrusion on personal liberty in Indian courts.' And he gave a basis for that and said, 'The U.S. Bill of Rights does not apply to Indian nations. And when you look at the Indian Civil Rights Act, it does not include all its guarantees. Indian courts apply customs, traditions and practices.' And he said, 'This is very difficult for non-Indians to work out, to understand.' He said, 'There is no appeal of a tribal court decision in state or federal court or removal to the federal court.' And the last one he said is, 'Tribal courts are often subordinate to political branches of tribal government.' All he's saying and all what Justice O'Connor and Breyer said, 'We don't trust you, period.' So it's interesting what Justice Souter had to say in his concurrent opinion. It flies in the face of the work being done by the Harvard Project on American Economic Development and its members. While that's the case, if you read the reports, the studies, testimonies of the project, and what we just heard just now, it works. And that's how we see it and that's our position and it's very important and the only thing that we need to do is go to Congress to undo what the U.S. Supreme Court did to us. We have to show to Congress that we have evidence that sovereignty works. If federal court doesn't trust Indian courts, then Congress must.

It is interesting that the contributions of the Navajo Nation judicial branch has made to good governance involves the very thing Souter complains about: customs, traditions and practices, and we call it Navajo common law. He said, 'This is unusually difficult for outsiders,' and I don't agree with that whatsoever. When we look around we see people, people who are of fine mind, people who are distinguished, who say that the approach, the traditional Indian law, is the best you can ever have when it comes to approaching problems. And there are articles, for example the American Journal of Comparative Law, Robert Cooter, Wolfgang Fickinger of the University of California at Berkeley. They praise the system and there are other writers who say that when you look at the Indian world, you find models like Navajo peacemaking is a leading model. And if you look at our Navajo common law jurisprudence, you will see that we have something in common with state courts of last resort decisions.

In [the] 1970s, U.S. Supreme Court gave a very strict reading to the U.S. Bill of Rights. They denied certain civil rights and liberties. State courts reacted and said, 'Well, then, we're going to read similar provisions in our state bill of rights in a way that will better serve the rights of our citizens.' And when you look at the Navajo situation, you will see that we do have a Navajo Nation Bill of Rights. And if you just look at the Navajo notion of basic rights, you will see that there's more protection given than what the U.S. Constitution has to offer. The Navajo, the 1985 Navajo Nation Bill of Rights, guarantees the right to life, liberty and property as fundamental right and we have the Equal Rights Amendment to guarantee gender equality.

Life, liberty and property, who's definition should we use? When American law talks about life, it talks about situations where the government takes someone's life. When we [Navajo] talk about life, we say iiná, and iiná is not just about living. It's about a way of life. Iiná is located in the west and if you have life after you prayed about it and reflected to form good thoughts from the east Nitsáhákees, the thoughts. Your mind starts from the east every morning and if you develop a good plan based upon prayer, reflection and discussion, what we call nahat'á from the south direction. So life means much more in Navajo thinking than it does in American constitutional law. What about liberty? In Navajo we say t'áá bí­ bóhólní­í­h, t'áá bí­ bí­déét'i'. It means, 'it's up to him.'

The Navajo Nation Supreme Court has made it clear in several opinions that the Navajo concept of liberty guarantees more freedom than the Anglo concept. And when we talk about property, I have seen paranoia in discussion over Navajo Nation economic development because people say they are afraid of the Navajo Nation council messing with home site leases that are mortgaged. Some refuse to recognize the Navajo Nation courts would not permit that under our Bill of Rights. In addition, we recognize customary property rights and Navajo common law is very concerned about individual's right to property. So as the Navajo Nation, we've talked about individual rights, we also talk about collective rights, and those two are not isolated. They work hand in hand and they work very well. As it is with several states, we give a more expansive and better reading to our Bill of Rights. It is one which responds to Navajo expectations. The Navajo Nation Supreme Court has said that the expectations of the Navajo people are a source of law under our due process clause. So a question here, do American courts say the same thing about the expectations of American people in decisions.

In 1982, things weren't working out quite as well with the courts. The cases were going up and up. Today we have 76,000 cases and people are becoming more and more dissatisfied when we as judges render decisions, lawyers are forever fighting. So what about looking at what we used to have 200-300 years ago? There is a system that lived, that was in existence at that time. Locked out was just locked behind closed doors. When we look at the system that was there from time immemorial, we saw that there were decisions made about people. Who makes the decisions about important aspects of people's lives is an important aspect of Navajo common law is what we learned in 1982. While we adopted an adjudication system, adversarial system where judges make the decision, or all decisions, we also had a method for people to make their own decision and we find out that the more you do that there's good decisions, there's strong decisions, there's better decisions, decisions that last a long time, something that does the job, something that gets to the bottom of things. So we have referred cases to that system where the people can look at it, make the decision. Something that we couldn't resolve in court we'll resolve over there.

So who would have thought in 1982 that by the year 2002 the United Nations would be looking at a traditional Indian method of dispute resolution as a model? Who would have thought that today legal scholars would be taking a serious look at traditional Indian law as a source of law and justice and vengeance? One of the very positive aspects of the Harvard Project on American Indian Economic Development is the fact that it not only promotes Indian nation sovereignty, it points out to Indian traditions as a source of economic success. So when we talk about good governance movement, we have to be serious because it is something, it is a movement that's going on at the international level. There are positive aspects of it in the international law as people are talking about subjects such as inclusive government, participatory democracy and the rules of law.

What contributions did we make to good governance in the Navajo Nation? Now you see Navajo legal terms and opinions, legislations and law articles. When we look at our Bar Association, we have 400 members; we have non-Indian, non-Navajo, as well as Navajos. So as a justice when we hold oral argument, we now can see that people are bringing claims for defenses based on Navajo common law and they even use Navajo legal word or two in oral argument in court. We now have a body of case law in published opinions that answers Justice Souter's concern about understanding traditional Indian government. We spell it out clearly in decisions written in English that are available for any interested reader. As for federal judicial review of the fairness of decisions, what is there to review? Our decisions are clear. They show the principles which apply and why and they give predictability to court decisions in the future and people are very happy about that.

At end, what we call sovereignty isn't something given to us, you or I. When you read the law definition, it's pretty bad because it talks about absolute power, absolute authority. Our definition is quite different. It speaks to the dignity and individuality of everyone. It talks about sharing and caring. It embodies respect for the individual. It promotes participatory democracy. Question: do we face any dangers? Answer: certainly. There are some people who forget the role of a court is a step between the individual and his or her government when there are abuses. There are those who would deny that judges have a sacred obligation to uphold fundamental rights guaranteed in both Navajo Nation Bill of Rights and Navajo common law. There are a few who mock our interpretations of due process from a Navajo point of view. They are not Navajos. If due process is fairness, then what is fair? There's a saying in a cartoon. The character says, ask the magic mirror, 'Mirror, mirror on the wall, who's the fairest of them all?' The answer, 'The Supreme Court.' We like to think it's the Navajo Nation Supreme Court. That is our challenge: what's fair [and] what our traditions and sacred wisdom tell us as they have handed down to us in our oral traditions.

We were honored by an award based upon the Navajo Nation judicial system's promotion of Navajo common law principles and procedures. That is a high honor indeed. As you know, the late Al Harris received that honor. He's no longer with us today, but he did his best to get us where we needed to be. It is somewhat frightening too because the honor is a challenge to maintain our efforts. The first justices of the Navajo Supreme Court have now retired. They have set the high standards for which we were honored. I follow them, others will soon follow me. I can only hope that the standards we have put in opinions, court rules, judicial policies on Navajo common law will stand the test of time and I think they will. Why? If Navajo common law itself has stood the test of time, surviving imposed government systems, imposed courts and other imposed standards and the tax on our sovereignty, it will survive. People like Kit Carson are alive and well, and all that stands between us, and a distinction as Indians, is our law. That is why we fought for it and put it in place in our judicial system.

What is good governance? If you make reference to your Indian mind, in our case to the Navajo mind, you can look at all four directions and you can read things and one thing that you can read for sure is when you look at yourself you know who you are, you know where you've been, you know where you're standing, you know where you're going, that you are a reflection of what's out there, the four directions. It is the Navajo common law principle of order within the four sacred mouths. So we say bee haaz aanii and that's a word to say it's Navajo, it's law. But if you look at the term bee haaz aanii and ask the question, what does it mean? It'll take you a lifetime to explain what it means. Simply it...life comes from it. Bee haaz aanii does not mean you cannot do this, you cannot do that and you cannot do that. Bee haaz aanii means, what is permitted. Bee haaz aa. So if we stand with that, we know where we are, we know our foundation, we know our future. Thank you."

Honoring Nations: Tim Mentz and Loretta Stone: Standing Rock Sioux Tribal Monitors Program

Producer
Harvard Project on American Indian Economic Development
Year

Tim Mentz and Loretta Stone of the Standing Rock Sioux Tribal Monitors Program present an overview of the program's work to the Honoring Nations Board of Governors in conjunction with the 2005 Honoring Nations Awards.

Native Nations
Resource Type
Citation

Mentz, Tim and Loretta Stone. "Standing Rock Sioux Tribal Monitors Program." Honoring Nations Awards event. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Tulsa, Oklahoma. November 1, 2005. Presentation.

Loretta Stone:

"In the year 2000, the Tribal Monitors Program was instituted and partially funded through a programmatic agreement with the Army Corps of Engineers. The Tribal Monitors cover 2.3 million acres of land within the Standing Rock Reservation, which includes land covering two states, North and South Dakota. The sites we protect, survey and document are varied. Sites included are archaeological, which are burial, spiritual, sacred, village and massacre sites; historic, which would include Pre Pick-Sloan Dam; and paleontology, which includes at least 11 dinosaur sites all within Hell Creek Formation. Of these 11 sites, Tribal Monitors have discovered four. We have 66 documented village sites and the oldest one on Standing Rock is known as Potts. This village is estimated to be between 11,000 and 14,000 years old. Because of the site's documents age and it is along the river, it is a vulnerable site. This site is layered upon previous villages spanning thousands of years so this draws serious looters. Most of our villages run along the bank of the Missouri River. Ensuring that these sites are protected and treated with respect consumes a lot of our time but there are also numerous sites within the interior of Standing Rock that require our attention as well. The elders that we rely on have shared knowledge and purpose regarding effigies and inlaid sites. Their construction was and is the foundation of our spirituality. The determination of our spiritual leaders has withstood hundreds of years of weather, cattle, looting and neglect. Our spiritual people made sure that they had left visual reminders of our obligations to ourselves as well as our people. The elders within our communities have helped the Tribal Monitors understand the history and the stories associated with each of these sites. With regards to documented effigies, we have three turtles, one salamander and five snakes. The 400 documented inlaid sites consist of constellations, ring sites, rattles, medicine wheels and sundials to name a few. All of these particular sites held powerful spiritual reminders for all that utilized them. They serve as markers of where we are spiritually and where we need to be. They are presently being cared for by family and tribal members, just as they had been for hundreds of years. They are fed and prayed with perpetuating the cycle of spirituality. The Tribal Monitors have documented 10 individual massacre sites. These sites don't contain one or two burials but hundreds. These sites are particularly vulnerable because of the documented notoriety. Documented massacres within Standing Rock include but are not limited to the Crow, Arikara and Sioux Bands. We as Tribal Monitors keep a close eye on these sites because they are river sites with easy accessibility. We have 40 documented burial sites and the largest is Rocky Ridge. This site contains over 1,000 burials spanning over two miles of interconnecting hilltops. Rocky Ridge is both powerful and spiritual and a constant reminder of why we as Tribal Monitors do what we do. Rocky Ridge has had minimal site damage either by cattle or looting and it is the most well preserved site on Standing Rock. Rocky Ridge defines what we do because of the magnitude of the site. Within Rocky Ridge there are burials, sundials, crescent moons representing fasting sites, there is a stone alignment encompassing a hilltop; although it is now partially intact, it remains a powerful symbol of determination. Four of the five snake effigies are found on Rocky Ridge. The snakes encompass the base of two hills and are facing each other. The snakes represent the animal nations. Rocky Ridge contains a wealth of history and spiritual information. All of our dinosaurs are located within Hell Creek Formation. Because of the isolation and the distance of these sites, it can take a day to go out and check and monitor them. Because of the badland type terrain, it is usually impossible to go out and check with a vehicle. It's more feasible to use ATV. Of the 2.3 million acres, less than two percent has been surveyed, so in regards to inventory we have taken and documented 1,155 sites."

Tim Mentz:

"The Tribal Monitors Program continues to be a growing tribal regulatory function for the Standing Rock Sioux Tribe. Other tribes with a certified Tribal Historic Preservation Office are using their cultural knowledge to assist in the betterment of stewardship of their lands and sites and preserving and managing cultural and spiritual areas similar to how our ancestors once did. In our cultural resource code, the Tribal Monitors are the legal conduit representing the Tribal Historic Preservation Officer with federal agencies on federal undertakings. Within the Great Plains, the consistency of applying common law by these tribes with regulatory authority on these areas and the continued use of the natural laws of our grandmother by tribes have made federal agencies recognize the expertise of a tribal monitoring program and staff. Today, monitoring of significant cultural and spiritual areas is the only defense against looting and destruction of our cultural sites. With the identification of these sites, monitoring is the only practical way to manage these vulnerable areas. The tribal monitoring impact involving sacred and burial sites have been so great that the national policy has recently changed to adjust for more tribal involvement in management of areas significant to its people. We take pride in the fact that our program has shaped the way federal agencies are changing their management responsibilities with these areas. Because of this, we are sharing our procedural process with the other six tribes along the Missouri River to start a monitoring program this year. The regulatory authority and the jurisdiction of this office promotes good stewardship of ancient sites and allows for planned economic development in a structured process. The monitors locate and document areas significant to our tribes. Allowing our people to use spiritual areas long since standing idle has revitalized our youth and people to visit these areas. Numerous spiritual rides have taken our youth to visit these sites and to learn and understand how our ancestors once used these sites. Our spiritual riders are now making the annual Chief's Ride to include these particular areas that are very significant to our tribe. Tribes are taking control of lands within the reservations as old societies once did. These areas where our ancestors are buried and where they had their vision quests were protected by our warrior societies and were an important reason why the Indian wars occurred in the 1860s within the Great Plains and in other areas. Results of these violent wars against western expansion led to the treaty process for most tribes and the loss of using our spiritual areas' ancestral lands. With the Tribal Monitors Program expanding the responsibilities, the program has developed a plan and will create a stewardship program to put the elders, the youth, the spiritual practitioners back into the sacred areas of our reservation. [Lakota language]. 'One heart, one mind, one people.' That's our mission statement for our tribe and our office. [Lakota language]."

JoAnn Chase:

"Thank you so much. I have a great appreciation for the program. Certainly it has personal resonance for me as well as a member of the Mandan, Arikara, Hidatsa Nation. I have a two-part question for you. The first part of the question has to do with what I think has been a really impressive building of relationships with a number of different entities including but not limited to some of those very federal entities and agencies which in large part have created some of the problems that you are addressing, the Army Corps of Engineers, the Bureau of Indian Affairs, the U.S. Forest Service and so on. I wonder if you might speak just a little bit more to how...what measures you have taken and what measures you will continue to take to really ensure the promotion and protection of and continuation of tribal sovereignty and of self determination, particularly with respect to building relationships with those agencies. That's the first part of the question. The second part of my question has to do with sustainability of the program, and I'm really pleased and honored to see your tribal chairman here, which I think is an important statement of support for the extraordinary work that you're doing. But I also know that sustaining this kind of work can be very challenging and that in large part you depend on a number of volunteers. And I'm wondering also if you would please just talk a little bit more about how...what challenges you might see and how if you...how you may address those challenges in sustainability and if in fact there are plans underway to increase even the tribal support for the program that's in place now."

Tim Mentz:

"Thank you for that question. It's one that's very rooted real deep into Indian Country. First of all, we're dealing with the common law system or the federal legislation and those enactments of laws that created if you will a shroud of uncertainty related to how a federal process or a legislative process could enhance or at least identify and address those types of areas that are most particularly sensitive to the tribes, and that's the spiritual aspect or the natural law system with that aspect of a site given within these areas. Historically, we've looked back at how we have managed to progress all the way up to 1978, where the American Indian Religious Freedom Act had shaped a different understanding from a federal perspective, particularly with federal agencies. Since that time, from 1978 until today, we still continue to struggle to educate the federal system and the federal process, particularly when they start asking questions like, 'Would you be able to give us more information? Would you give us and allow us to hear what your understanding and knowledge is in relation to this site that we're looking at?' And usually we have to separate the archaeological context of that question versus the natural law system or the system that we grew up with. Obviously we have people at our home reservations that have a different knowledge that's not paper-based or what we call a degree. So we have to separate those and have to educate the process in itself. The hurdles that we have taken, from 1978 until today, has led us to understand that we cannot quantify our spirituality. We can't quantify these certain areas that we say that are very significant to us. So it's been a long road in relation to all the federal agencies, particularly the federal land-managing agencies that can very well say that, 'You do not have a piece of paper to go along with what you're saying in relation to this site.' But we say from the other side that, 'Grandmother has taken us this far.' We understand the natural laws that come along with it bridging the culture and the language to these sites is what we promote. That does not mean that the federal process has a space for that, but now with an enactment of the NAGPRA, the Native American Grave Protection Repatriation Act, and the '92 amendments to the National Historic Preservation Act has allowed us to progress to the point now where tribes are dealing with the federal agencies and we're stepping back also and looking at our people and saying, 'You know, how far do we go? How much knowledge, the sacred knowledge as we call it, do we divulge? Where's the fine line at? What can we document and what can't we document?' So those parts of that process has been included to get into what we call the consultation process of the federal system. The second part to your question is we have a number of elders, particularly our spiritual people that are now, we are setting them down and we're saying, 'Forgive us for asking these questions, but now the federal system has forced us to take a step forward and to address certain things that most generally we never talk about in public.' We don't divulge these types of sacred knowledge in public, but the question gets back to what I reiterated earlier, where's the fine line? So now we have our spiritual people actually stepping forward now and saying, 'Yes, maybe we're at the point now where we do have to document some of this knowledge that we have in order to protect these areas.' Until we can achieve that and that understanding from that perspective, it's growing now to the point that we want to have our children coming along with that process, with that discussion and now they're taking a step forward now with these youth rides, putting the horse back into these areas, putting that horse with the responsibility that leads with the horse and putting them back on the horse and getting back to the understanding of our warrior societies protected and fought these and they protected it very jealously, these types of areas. But now we're to the point, now it's the power of the pen and now bringing our spiritual people and our youth and elders together and now they're taking the point now where it's okay now to sit down and talk openly on our reservations now and talk about these things. So now we're pooling a lot of volunteers, particularly our elders that are stepping forward and saying, 'Yes, let's sit down and talk about these things,' and now creating a huge following that now is borne not only on leadership but the spiritual aspect."

David Gipp:

"One other question that I had. With what you're doing with the Tribal Monitors Program at Standing Rock, what other...how does this serve as a model for other tribes and I guess is there an effort, growing effort relative to other communities that you've had contact with on this kind of an effort?"

Tim Mentz:

"Yes, it has. Originally when we started talking about the 92 amendments we pushed for those types of procedures knowing that a procedural process has to be defined by tribes. Hence, we took those steps to know in the '92 amendments that it's okay to identify these people within the tribal structure to take steps similar to the National Historic Preservation Act that identifies Tribal Historic Preservation Officers that have [been] willing and have included in taking steps to do these types of areas and basically sit down with our people and say, 'Where are we going with this issue in relation to our cultural knowledge and our culture?' Hence that has broadened since the '92 amendments to include now that every reservation, particularly reservations, have a certain knowledge, a certain expertise and now we're bridging those gaps together and to form these types of collations and we're moving on a coalition right now in the Great Plains to gather all our cultural people and our cultural knowledge and now we have now affected and enhanced the process by bringing federal agencies and working collaboratively to educate them first off, but secondly to make them understand that we do have the expertise out there. Hence, programs are growing through the federal process, through the federal agencies that are recognizing our importance to the process, our cultural knowledge to the process, but more importantly the sustainability, that part of her question was, 'How do we sustain this process?' It's through our youth. We've got to put our youth back on the land. We have to put them back to the sites. We've got to let them take...walk off that black snake they call the pavement and they've got to walk over the hill. Hence, all these creations of these new programs that are happening on the reservations is a component that's going to not only enhance and enrich the process, but it's going to help us live on and bring those types of peoples together before that cultural knowledge is lost. Before our elders take it to the grave, we want to recapture it." 

From the Rebuilding Native Nations Course Series: "What Do We Mean When We Say 'Constitutions'?"

Producer
Native Nations Institute
Year

Harvard Project on American Indian Economic Development Co-Director Joseph P. Kalt provides a definition of 'constitutions' in the context of nation building.

Native Nations
Citation

Kalt, Joseph P. "Constitutions: Critical Components of Native Nation Building." Native Nations Institute for Leadership, Management, and Policy. University of Arizona. Tucson, Arizona. 2012. Lecture.

“One of the points, I’ll say it a couple of times I’m sure -- this word ‘constitution’ is kind of a quintessential sort of western European idea. I learned about it in high school here in Tucson, Arizona in high school civics. I learned all about the constitution. Right? But many nations in the world don’t even have written constitutions, and yet they have constitutions: fundamental systems of organizing ourselves, or any community, for making those community decisions that allow us hopefully to move toward shared goals. And so I’m going to talk about constitutions in a quite broad way. I’m not talking about it just in the form of my high school civics textbook, but rather much more broadly about the fundamental systems of governing that people adopt. I was teaching last week a session very much like this in El Paso with the Tigua tribe in El Paso, Texas -- Ysleta del Sur [Pueblo]. And they’re one of the traditional Pueblos. They don’t have a written constitution. And I posed the question to them, ‘Do you have a constitution?’ And this is all the tribal council and city managers, and they got in a big argument. ‘No, we don't have a constitution!’ ‘Yes, we do have a constitution!’ And what it was it about, well they eventually said, ‘We do have a constitution. We have a very fundamental law in our nation about how we're going to run things. We’ve never had to write it down because everybody knows it. But we know how we select people who are going to lead.’ And many nations in the world don’t have written constitutions. Very successful places. Israel doesn't have a written constitution. Great Britain doesn’t have a written constitution. Navajo Nation doesn’t have a written constitution. Fundamental laws are in place, but nothing you would hold up as the constitution. So when I’m talking constitutions today, I want you to really recognize we’re talking about -- whether written down, whether embedded in deep traditional culture, whether sitting on somebody’s computer, or just in ceremony -- what we’re talking about is the fundamental systems of organizing and governing a self-determined community.” 

From the Rebuilding Native Nations Course Series: "What Strong, Independent and Legitimate Justice Systems Require"

Producer
Native Nations Institute
Year

Native leaders and scholars discuss what Native nations need to do to create strong, independent and culturally legimate justice systems.

Native Nations
Resource Type
Citation

Fineday, Anita. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 5, 2010. Interview.

Jorgensen, Miriam. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Spearfish, South Dakota. Apil 19, 2011. Interview.

LaPlante, Jr., Leroy. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

Laverdure, Donald "Del". Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

McCoy, John. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Cambridge, Massachusetts. September 18, 2009. Interview.

Tatum, Melissa L. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. January 25, 2012. Interview.

Vaughn, Rae Nell. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 15, 2009. Interview.

Yazzie, Robert. "Why the Rule of Law and Tribal Justice Systems Matter" (Episode 3). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy and the UA Channel, The University of Arizona. Tucson, Arizona. 2006. Television program.

Leroy LaPlante, Jr.:

“I think a strong, independent tribal justice system, first of all, is tribal. I think that it should be tribal in the sense that it knows how to deal with tribal issues. And yet it’s diverse enough to handle and adjudicate all matters that come before it. I think you should have competent judges. I think that you should have strong advocacy for clients. And it must have a way of measuring its performance. But yeah, a strong tribal system should be tribal in nature. In other words, what I mean by that is, it shouldn’t just be a boilerplate replication of what a state court looks like and promulgate those laws. But those laws should be traditional in nature. It should reflect our customs. It should reflect our customary law, our traditional laws, and we should know how to deal with those and inject those viewpoints into our decisions.”

Melissa L. Tatum:

“I don’t think I could draw you a picture of a strong and independent court system, because they can take so many different shapes and many different forms. I can tell you what the support beams are, and then the way the drywall and the paint and the decorating is going to be different. And the support beams may be put together in a different way to form shapes for different tribes. But you’ve got to have an independent judiciary, you’ve got to have the funding to be able to resolve the disputes, you’ve got to have someone to make a connection between the past and the present, and you’ve got to have the capacity to solve the disputes the community brings before you in a way that everybody accepts as legitimate. And that’s what a strong and independent court system looks like. Now that may be a peacemaker system, that may be an Anglo-style adversarial court, that may be a hybrid of the two. That may be, you know, the court may be in a single-wide trailer; the court may be in the most absolutely beautiful, technologically up to date building. But it can take a wide variety of forms. Its function is what’s critical.”

Miriam Jorgensen:

“I think that we oftentimes trip immediately to saying, ‘Oh, that justice system has to be a sort of Western-style court system.’ And in fact, I almost always find myself using the word court. But, it doesn’t have to be a court with the judges and robes and the bench and all that kind of stuff. It has to be a dispute-resolution mechanism that’s effective and efficient and transparent about the way decisions are made, and that can hold people to those decisions. But it can be as indigenous as you like. It just has to be one that works to meet those standards.”

Donald “Del” Laverdure:

“I think it needs independent decision-making authority without political interference, first and foremost. Secondly, I think it needs to be fully funded. My experience among tribal justice systems -- and I have served on a handful and also helped create a number -- is that they need the funding to have the staff, the clerks, the recorders, the people keeping track of the files. It’s absolutely critical for all of the day-to-day functioning. The third thing, I think, for them is to apply that nation’s law according to how they view it. And I think the Navajo Nation really has emerged as a leader in fundamental or Diné  law in their statutes, interpretation of those, and it’s widely accepted by the community. I think we’re making steps there. It’s always two steps forward, one step back. And I think if we have all of those markers that it’ll be the institution that we need to be independent and stable.”

John McCoy:

“They have to be independent. They have to be independent and not worry about political consequences. So consequently at Tulalip, the court system comes in, here’s the budget. So normally, without hesitation, they say, ‘Okay, here’s your money.’ They can’t tell them how to spend it; they just give them the money. And then the court administration then takes care of the budget. So you have to give them that autonomy.”

Anita Fineday:

“Well, you need to have a few things. Number one, you need to have independence from the tribal council, from all elected officials, whoever they may be. And this is a struggle in Indian Country, as we all know. It routinely happens that tribal judges are replaced if they issue a decision that is really unpopular. And so the tribal court needs to be independent, and it needs to have adequate funding. That’s the other thing that happens is I’ve seen tribal councils say, ‘Well, we’re not going to get rid of the judge, but we’re going to cut off all funding to the tribal court.’ So no one is getting paid any longer. So you need to have an independent stream of funding. You need to be independent of the elected officials. And you need to not fear that if you issue a decision that’s unpopular, that you’re going to lose your job.”

Rae Nell Vaughn:

“It’s just so important that when we have issues that come up through tribal court systems, that as a judiciary you’re giving well thought-out opinions, and it’s ironclad so that you can’t -- it won’t be unraveled. And there you go, you’ve lost more jurisdiction.”

Robert Yazzie:

“When Navajos go to court, they expect certain things to happen. One is to say [Navajo word], which means ‘my mind will become at ease’ when this problem that I have is addressed. And people look for a satisfied result. And so when people feel confident with the court system, especially establishing a relationship with the judge, knowing that the judge’s role will be carried out to bring peace to the problems at hand.

From the Rebuilding Native Nations Course Series: "Justice Systems: Key Assets for Nation Building"

Producer
Native Nations Institute
Year

Professor Robert A. Williams, Jr. discusses how an effective, independent justice system can play a pivotal role in a Native nation's efforts to exercise its sovereignty and strengthen its communities.

Native Nations
Citation

Williams, Jr., Robert A. "Justice Systems: Moving Your Nation Forward." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. 2012. Lecture.

“And so when you think about the key assets for Native nation building, so that you can have practical self-rule, you think about -- first and foremost -- the constitution. It starts with your constitution. It’s your governing document. And as I went through that history, many of you have inherited constitutions that really weren’t very well-suited to your needs 50 years ago, how well do you think they are suited to your needs today? Ask yourself, ask your grandmothers, ask your grandfathers: ‘Have we grown any better into our constitutions in 50 years?’ And I think every answer, in every instance is, ‘No, it still does not fit. It still doesn’t feel right.’ And the same discomfort that you've had with those constitutional clothes is the same discomfort that your grandparents had -- that prior generation -- and until we learn to throw off those bad-looking, ugly clothes that don’t fit, and figure out what it means to have a tribal constitution, we are never going to be very comfortable in our constitutional skins. So you have to take the process of constitutional reform very [seriously].

What's the second necessary element for practical self-rule? You've got to have laws. And by these I mean all sorts of laws: your own customary laws, customs and tradition, your own statutory laws. Go through your tribal code book and try and figure out where your juvenile code came from, where your criminal code came from. I bet you eight out of 10 times some consultant, or somebody in your tribal attorney’s office went to the state juvenile code, put it up on a word processor, knocked out ‘The State of Arizona’ and put your tribe in there. And sometimes the tribal attorney will say, ‘Well, this way our tribal code on juvenile justice harmonizes with the state code.’ That's a scary thought. But you ask. And so tribal law means that you have taken on the responsibility of passing laws that make sense for you -- just don’t accept anyone else's hand-me-downs that don’t fit very [well].

Are you not only legislating, but are you regulating? I know one reservation I work with has over 40 different agencies generating codes and you can’t find them in one place. So imagine, if you want to do business on that reservation, you have to knock on the door of 40 different regulatory agencies just to get your business started. And foreign laws [are] also a piece of a practical self-rule. The Indian Civil Rights Act, the Indian Reorganization Act -- many areas of foreign law that are a part of the process.

And so when you think about those key elements of practical self-rule, what’s the key institution that makes it all work? Tribal courts. You need an independent judiciary interpreting and enforcing the constitution and tribal law. All of these elements are absolutely crucial, and the only way to make them work is to have an independent judiciary.

From the Rebuilding Native Nations Course Series: "The Importance of Cultural Match"

Producer
Native Nations Institute
Year

Dr. Manley Begay provides an overview of cultural match, which the Native Nations Institute and the Harvard Project have identified as one of the five keys to successful Native nation building.

Native Nations
Citation

Begay, Jr., Manley A. "Introduction to Native Nation Building." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. 2011. Lecture.

"Cultural match, really interesting piece of the research that took place. To be effective, governing institutions must have legitimacy with the people. In other words, the people have to think and believe in the government that this is the way that Ysleta Pueblo operates; this is the way we have always done it; this is the way Laguna operates their government; this is the way Navajos really do it -- this is the Navajo way; this is the Blackfoot way; this is the O'odham way. There is this perception, there is this belief that this is the way we do it, so that sort of sends the message that the government is legitimate in the eyes of the people. It is a reflection on who they are as a people.

They have to match Indigenous ideas about how authority should be organized and exercised in the contemporary sense. Look at the third and fourth bullet points: in the contemporary sense. You go to Flathead reservation where there are three tribes -- Pend d'Orielle, Salish, and Kootenai -- and if you are thinking about putting together an Indigenous idea about authority at Flathead, whose culture do you follow? One of three? All of the three? Two of the three? How do you do it? So it has to be in the contemporary sense because we've changed in a lot of different ways, and our kids have changed as well, and they are going to change even more so. So how do we think about it in a contemporary cultural setting? Places where traditional culture is still very strong -- like at Cochiti Pueblo, or like at Jemez, and a lot of the Pueblos, and a lot of the other tribes. Like at Iroquois with the Onondaga, where the traditional culture is still very strong, they've incorporated that type of thinking into the government itself. At Navajo, where I come from, we have the fundamental law of Navajo incorporated into our judicial structure. Not necessarily in the legislative branch, or the executive branch, but clearly in the judicial branch. It's present there, so decisions that are rendered by the Supreme Court judges at Navajo are based on fundamental laws, customary law, custom law, traditional law, natural law. So it's based on our creation stories, it's based on how we think about the world. But if you don't have that present, you sort of basically have to re-invent yourself and think about: how do we think about it in a contemporary cultural sense?

The same with economic strategies -- the last bullet point there. Some tribes go [with] tribal enterprise economic systems where the tribe owns all the businesses, some tribes go [with] private entrepreneurship where they support individual entrepreneurs, some tribes have done both and those have cultural ramifications as well. How we think about the world determines what kind of economic strategy we choose, because if it is going to be legitimate, it gets the support of the people rather than tearing it down. So culture matters."