constitutional development

Carwyn Jones: Maori paths for constitutional reform

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Native Nations Institute
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Professor Carwyn Jones of Ngāti Kahungunu descent is a lecturer at the Faculty of Law, Victoria University of Wellington and Co-Editor of the Māori Law Review offers his testimonials on the political landscape for constitutional reform for Māori and other indigenous people. 

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Native Nations
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Jones, Carwyn, "Carwyn Jones: Maori paths for constitutional reform," Leading Native Nations, Native Nations Institute, University of Arizona, Tucson, AZ,  October 22, 2015.

Verónica Hirsch:

 Welcome to Leading Native Nations. I’m your host, Verónica Hirsch. On today’s program, we are honored to have with us Professor Carwyn Jones, who is of Ngāti Kahungunu descent. Prof. Jones is a lecturer at the Faculty of Law, Victoria University of Wellington, is Co-Editor of the Māori Law Review, and maintains a blog, Ahi-kā-roa, on legal issues affecting Māori and other indigenous peoples. Professor Jones, welcome. Good to have you with us today. I’ve shared a little bit about who you are, but could please you tell us a little bit more about yourself.

Carwyn Jones:

Ok so, in Māori society we would identify ourselves by first and foremost saying we are mountaineers, my mountain is a mountain called Whakapūnake. We talk about our river; my river is a river called Wairoa and as you mentioned, my tribe, or my iwi, is Ngāti Kahungunu. Those are places on the east coast of the North Island of New Zealand, centered around a town called Wairoa. The town of Wairoa itself has about 8,000 people living there, about half of those are Māori, half non- Māori. A lot of the members of our tribe live outside their traditional territory, like myself. I live in Wellington and I have a beautiful wife, Nikki, and three beautiful children [Maori names]. I also really inform a lot of the way I think about Māori issues too.

Verónica Hirsch:

Thank you and I appreciate the fact that you acknowledge your homelands, your place, your space and also your family. I think that is important as indigenous people that informs a lot of what we do, so thank you for sharing that with us. I’d like to begin by asking some general questions regarding Māori governance and so I will begin with this question: How did Māori traditionally govern and did governance systems differ among various hapū and iwi?

Carwyn Jones:

So I think the important thing to think about in terms of Māori traditional governance is that it’s very much based around those traditional forms of social organization. So we often talk about the iwi as being the largest…sort of group or affiliation and then the hapū – in some senses it makes sense to think about the hapū more as the nation, because this was the form of social organization that…on a day-to-day, people operated with. The iwi tended in the past to be more of a confederation or alliance of hapū that would come together for various purposes. Now, that’s become a little more fixed and stratified today, particularly as the state government likes to deal with iwi and those large groupings, but you still see a lot of autonomy and certainly when Māori people talk about their governance, they often talk about their hapū live on. Underneath that, ‘hapū live on too’, there’s also what we talk about as being Whānau, and that’s extended family and those are also an important part of Māori social organization. So, Māori governance really operates at those different levels. There are things in which the leadership of the whānau have decisions and autonomy about, there are issues which leadership at the hapū level have decisions about and there are matters where people may come together as an iwi and defer to the iwi leadership. In terms of whether there’s a difference between different hapū and iwi, they have developed some theorizations and I think the kind of basic principles and ideas behind Māori governance recently extended across the different groups, but we see perhaps the most striking example of variation is the Kīngitanga, or the Māori King Movement, which developed really as a response to colonial forms of government and I think the two parallel colonial forms of government by establishing a Māori king. That was established in the mid-19th century and that continues today and is a very important part of the governance of particularly those tribes around the center of the North Island, the Waikato and Tainui peoples, they have incorporated that as a part of their government structures.

Verónica Hirsch:

Thank you. You mentioned how these differing levels of governance all exercised autonomy in different areas; so, realizing that these differing levels would likely – or I’m presuming here – would likely have different leaders occupying these roles. My next question relates to how those various leaders were selected and held accountable?

Carwyn Jones:

So the key concept really in terms of Māori leadership, both in terms of how they’re selected and how they’re held accountable, is a concept called mana and that’s really an idea of power, authority, respect and prestige – it incorporates all of those things. The important thing about mana is that there are different sources of mana. Everybody has a degree of mana, which comes from your ancestors and your ancestry. Everyone also has mana which comes from simply being human, from the Gods, so the kind of degree of human dignity and autonomy. Another key source of mana comes from your own personal actions and attributes and how you demonstrate your skills and abilities, including leadership abilities. At each of those different levels, leaders will be identified in part by looking at their ancestry and the sort of leading families. But not only determined by that, also determined by who has the skills and the abilities to lead. This works to provide accountability because what it means is that Māori leaders, it’s often said, have a very low level of executive authority and are highly accountable to the people because they need to continue to demonstrate their ability to lead. And if leaders are making decisions which are not good decisions or they’re not bringing their people along with them, they will soon no longer be leaders. The job of a leader in Māori society is very much to persuade, to bring the community along with them on their decisions. They cannot command or coerce their people. They may be deferred to in situations for example, of warfare or their skills and knowledge may be deferred to but they can’t command people. The Māori word for chief is rangatira and it comes from ranga, which is the idea of weaving, and tira, which means a group of people, so it’s the idea of bringing the people together, weaving the people together.

Verónica Hirsch:

Thank you. So, I’d like to ask a follow-up question to that. Thank you for explaining the responsibility that leaders have to the people. My questions is then, what responsibilities do the people have then to their leadership?

Carwyn Jones:

People have the responsibility of participating in decisions and usually there will be a number of leaders in a community. So, the leadership isn’t centralized just in the chief, or rangatira, but of course elders have particular leadership in terms of the knowledge and experience that they have accumulated. They have a responsibility to bring that to bare on issues that the community is facing. People also have an obligation or a duty to support the decision of the community. It’s very much a consensus decision-making model but once that decision has been taken, the obligation is to support that decision.

Verónica Hirsch:

Thank you. I’d like to transition into asking a couple questions about how traditional Māori law developed, how it is invoked, transmitted and enforced. As part of that, to relate it to how were internal disputes resolved?

Carwyn Jones:

Māori law is really based on a number of key or foundational principles. One of them is the concept of mana, and that is very important in terms of the accountability of leaders. Perhaps one of the most important is the concept of whanaungatanga, which is really about the centrality of relationships in Māori society. That involves ideas around collective responsibility but also the rights and responsibilities of individuals in relation to the community and vice-versa. There’s also the concept of utu, which is about balance and reciprocity. A concept of manaakitanga, which is the idea of nurturing and caring for others. And perhaps the other sort of two twin concepts that are important under Māori law are the concepts of tapu and noa. These refer to recognizing the spiritual dimension of all things. Tapu is about things that are very sacred or seen apart for some reason and the idea of noa is that the things can be engaged within an everyday kind of manner. So those key principles really independently drive the development of Māori law. Māori law is a quite flexible and pragmatic system so the idea is that in any given situation you try to give the best expression you can to those particular principles but that would very much depend on what the circumstances are. You will often be constrained; you won’t be able to give perfect expression to all of those at the same time. People may decide to give different weight to different principles and so you may end up with a different outcome even in different situations even if the effects of the case remain the same. It’s not a strict system of precedence as we would see in the common law; although, past action is relevant and important to coming to a decision about what to do. In terms of dispute resolution, those fundamental principles are very important and particularly the principles around utu and reciprocity and balance so that if there is a dispute that the issue will be, ‘Well what is necessary to restore the balance in the community?”. Also the idea of whanaungatanga, which is an ancient – that involves an idea of collective responsibility which means the community is involved in the dispute, it’s not just a dispute about individuals. Everybody has a stake in the outcome and the responsibility for resolving it.

Verónica Hirsch:

Thank you. You had mentioned how Māori law is pragmatic, is flexible and is committed to these ideals that support collective responsibility, reciprocity and maintaining what is sacred. And that is very different from introduced legal formats and so I’d like to transition to a series of questions on that topic. My first is, how has the 1840 Treaty of Waitangi impacted New Zealand’s legal system?

Carwyn Jones:

The Treaty of Waitangi is very important in terms of how Māori rights and issues are dealt with in the state legal system. Of course, in 1840 it was very important in terms of providing space for the state legal system to be introduced alongside the Māori legal system. Very much the idea of a sharing of public power was involved in the Treaty of Waitangi.  And so in terms of how its influence today – it’s very much part of New Zealand’s constitution. We don’t have a formal written constitution or a constitution that’s all written down in one place; we have a constitution which is made up of a number of different things, of statutes which might deal with that electoral system of constitutional conventions. The Treaty of Waitangi today is certainly seen as a foundational part of New Zealand’s constitution. Now, that doesn’t mean that  it’s necessarily easy to get adherence or to enforce the treaty through the courts. In fact, the Treaty of Waitangi has probably been used much more as a political instrument than a strictly legal one, but it has become the framework through which Māori rights are addressed.

Verónica Hirsch:

Thank you. You had mentioned that New Zealand does not have this – I’ll call it Constitution with a capital C – but that these documents that guide how the government functions are embedded in various areas and statutes, constitutional conventions in the like. I’d like to also ask you a question – and here I’m going to ask you to maybe compare and contrast the circumstances in New Zealand to those here in the United States – and my question is, what differences exist between Māori and U.S. tribes’ treaty-making histories within their respective political contexts? And are there differences in treaty condition adherence and enforcement, from your perspective?

Carwyn Jones:

I think maybe one of the key differences – or what is often perceived as being a key difference – is that we have…the Treaty of Waitangi is very much a national treaty; it covers all the Māori tribes in New Zealand. Incidentally, even those who didn’t sign the treaty; it seems to cover them as well. It’s very much a constitutional agreement. It doesn’t deal with any specifics about land alienation or those kind of things. It does provide an overall general prediction for Māori land as well as a whole range of other Māori rights. And so, it also, as I’ve mentioned before, operates very much in a political context largely. We have a system where…we’ve never had a system of reservations in New Zealand so there’s never been sort of formally state-recognized territory for Māori tribes. And that’s had an effect on the way in which Māori are able to exercise autonomy because there isn’t – you can’t say ‘we’re going to apply our laws within this particular boundary.’ Even in Māori society, the boundaries were very fluid and overlapping as well. And so what the way in which the treaty comes into play, in terms of usually trying to get government adherence or compliance with the treaty, is usually through a body called the Waitangi Tribunal, which we see happen in 1975 specifically to hear claims based on the principles of the Treaty of Waitangi. And that… that tribunal is essential; its not a court in the sense that it doesn’t make binding orders by large. It usually reports and makes recommendations to government.  Some of the important things about the tribunal are that it has, and has always had, roughly half of the tribunal members themselves, or the judges who are making the decisions, are Māori, roughly half non- Māori. It has a lot of flexibility in terms of incorporating aspects of Māori protocol and procedure into its own processes and so it usually sets in communities, in the meeting house of communities. That’s important in terms of both communities feeling that this is a body which is acceptable and respecting of their own ways, but it also has quite an impact on the way in which the evidence is received when you’re sitting in our meeting house, which has carvings of the ancestors of the particular community all around, it changes the way in which that evidence is heard. So, this tribunal has heard claims on a range of different issues. Its heard historical claims based on land alienation and natural resource issues but also it hears claims based more on contemporary crown policy and law. In the late 1980’s, it heard an important claim about the Māori language and found that there were positive obligations on the government to protect and promote the Māori language and that led to Māori becoming an official language of New Zealand. So, you could use it as a right in court or in any interactions with governments and those kinds of things.

Verónica Hirsch:

Thank you. You’ve done an excellent job of laying out the timeline of these series of development and the context in which these various events occurred. I’d also like a question regarding how the legal and political relationship between Māori and the government of New Zealand has developed over time, in light of some of the – I’ll say watershed – moments you just mentioned?

Carwyn Jones:

I certainly think the establishment of the Waitangi Tribunal in 1975 was extremely important and it did start to change the way in the Treaty of Waitangi was perceived in lore and politics in New Zealand. It gave an opportunity too for the ordinary courts to start using the principles of the treaty. We start to see the principles of the treaty being included in major pieces of legislation and some statutes. We start to see the ordinary courts making the government, in some situations, not all, but making the government at least take account of the treaty partnership and the treaty interests that are involved. Now, if government is engaging in policy that has particular impact on Māori, there will be an expectation that there is good faith consultation with Māori; that the government makes sure that it is informed about what the Māori community thinks about the issue, what Māori interests are in that issue and at least on a procedural level its taking the Treaty of Waitangi into account. I think really from the 1970’s onwards there started to be more of a recognition of the Treaty of Waitangi in law and policy, that recognition that the treaty really is a foundational part of our constitution. Now, we see, for instance, at the university I’m from, in terms of the university council, we’re just going through electing new council members and one of the things that – the kind of skills the council is looking for is people who have an understanding and commitment to the Treaty of Waitangi. You start to see it coming up in public institutions like universities and government sectors as well.

Verónica Hirsch:

You’ve mentioned how institutions like universities and the government sector are now acknowledging, and beyond acknowledging…taking very seriously, the Treaty of Waitangi; but, I’d also like to ask to what extent does the constitutional monarchy and parliament of New Zealand recognize traditional Māori law that predates the Treaty of Waitangi?

Carwyn Jones:

That is reasonably limited and I think this is an issue really that does need to be fully addressed if we’re really going to recognize the treaty partnership, then the state government needs to take much better account and recognition of traditional Māori law. At the moment, it’s very limited so there are opportunities through the New Zealand common law for Māori traditional law to recognized and enforced. The New Zealand courts have started to take that more seriously as well. We’ve seen a couple of issues recently, one of which went to the New Zealand Supreme Court and where the chief justice described the approach ought to be that Māori values are something that are taken into account and considered in the development of New Zealand common law. That’s going to open up some important developments in that area. We do also have some statutory recognition of some Māori concepts so perhaps one of the most important ones is in our Resource Management Act, which deals with environmental planning and consents for activities on land use. One of the factors that has to be taken into account by anyone exercising functions under that act is the Māori concept of kaitiakitanga, which is a Māori concept of guardianship and stewardship. I think that’s important because it’s not just saying, ‘you have to take into account Māori guardianship and stewardship’ but you actually have to take into account the Māori concept. Now, the way in which that’s been done hasn’t necessarily been perfect, but it is an important statement about what is attempted to be recognized as a traditional Māori law concept.

Verónica Hirsch:

Thank you. I’d like to transition now into asking how and to what extent do Māori traditional governance structures, many of which you’ve kindly outlined for us, and/or practices exist and operate today and whether we’re talking about in a legal context, as you’ve explained or in any other context? Perhaps as relates to some of the roles or responsibilities that you’ve previously mentioned when it comes to leadership?

Carwyn Jones:

I think that there a couple of levels in which we see Māori traditional governance structures operating. We certainly see a lot of internal operations of a community being informed and guided by traditional Māori ideas. If you go into a Māori community, if you go onto our – what we call our marae, so it’s the Māori community spaces where we have our meeting houses – the protocols and the ceremony and the activity is really all regulated by Māori law within a very Māori context. You see the people who have responsibility for managing that are the kind of people you would expect traditionally to have that role, so elders play a very important role in managing and monitoring those processes and protocols. Outside of that, its very much more limited; but, I think we are beginning to see Māori governance. Institutions start to come to the fore a little bit more as we go through a process at the moment of settling the historical claims based on the Treaty of Waitangi. With those settlements, any group who settles their claims will be required to establish a government entity to receive settlement asses, to manage the settlement. As part of that process…again, it’s still constrained by what the government will accept in terms of a government entity and the government has these requirements around them being representative, accountable, transparent and has particular ideas about what they understand representatively, accountability, and transparency to mean. Also, you see Māori communities in the process of developing their post-settlement government entity really try to look to their traditional forms of social organization and those ideas are still very strong. We still very much identify with our hapū, with our iwi, with our marae, so those forms of organization are still very much alive and are beginning to become reflected in the kind of formal government entities that we are seeing coming out of these settlements.

Verónica Hirsch:

Regarding the Māori formal governance entities, to what extent does Māori culture impact leadership roles that individuals within those Māori formal governance entities have, especially in regards to their decision-making processes?

Carwyn Jones:

I would say not enough but I think there are certainly attempts to bring more Māori traditional ideas and processes into those government entities. Now, one of the things you see quite often is these government entities providing a specific role for Māori elders. You might see, as a committee of the government sees to it, you might have a committee of elders and they might have responsibility for any questions regarding maintaining the language and cultural traditions of the group. They might also have particularly responsibility for addressing disputes about membership because they are seen to be the ones who have expertise and the kind of genealogy of the group and who are able to make decisions around membership. So you see those kinds of roles being allocated often to a group of elders. Dispute resolution is another area where you can see these entities trying to incorporate or reflect their own traditions more. Often, it’s left relatively open; it’s nothing something that’s prescribed in the constitution of the government entity but might be given to a dispute resolution committee to determine its own process and procedures. Again, often that dispute resolution committee will either be the committee of elders or will involve membership from that committee of elders to try and inform how that dispute ought to be resolved according to their communities own traditions and processes.

Verónica Hirsch:

You’ve mentioned how committees of elders might be called upon to answer or address or decide on questions of membership, could you please expand upon that a little bit more? How does each hapū, each iwi determine who its relatives are?

Carwyn Jones:

So we have quite a flexible system of membership and that is consistent with Māori traditions. It’s very much dependent on your genealogy, but you have some flexibility in determining how you choose which lines of your genealogy you emphasize or you affiliate with. Its not uncommon for people to choose to affiliate with one particular ancestor in one circumstance and another ancestor in another circumstance. That’s acceptable and legitimate in Māori traditions and continues to be the case as we move into post-settlement government entities that you would expect many Māori would be a member of one government entity and also a member of another one as well, so more than one. That’s seen as being acceptable. Where there are disputes about membership they will largely be questions of, ‘Can you identify your links through the genealogy to the particular ancestor that this group has identified as being important for their own collective identity?’ So that is where the elders who have expertise in their genealogy will be able to make those decisions.

Verónica Hirsch:

Thank you. I’d like to transition a bit and talk about the contemporary relationships between hapū and iwi. So my question is, how do contemporary hapū and iwi relate to each other and exercise governance? Part of that question as well is, we’d like to understand if and to what extent hapū and iwi have distinct or overlapping areas of governance authority? And also, how do various and distinct hapū and iwi communicate among themselves?

Carwyn Jones:

These are the kinds of issues that really do come to the fore when we’re talking about developing our post-settlement government entities because we’re often talking about many different hapū coming together in a single government entity to make decisions. So, there’s a question of how much autonomy remains at that hapū level and how much is organized at the overarching collective. I think there are no hard-and-fast answers as to how that works. I know in my own community when we’ve been talking about these issues, one of the things which comes up a lot is people saying, ‘Well our hapū has a particular connection to this part of the river so we want to have control over anything that happens in this area and have a say here.’ The way I see that being dealt with certainly – informally and traditionally – is that other groups, other hapū acknowledge that and don’t dispute that we have a particular connection here. Also, these other hapū are our relatives, they might also have an interest in what we’re doing here. The way that, informally, these things tend to play out is that if the government were to propose something that was going to affect that part of the river, they might come to the larger entity and consult the larger entity. But, everyone in that would say, ‘This is the hapū, this is the group that has the particular responsibility here. They are the people who ought to really have a say.’ So these things tend to be managed quite effectively, informally. I think actually when we start to try and set those formal rules around it, people become more anxious about how that’ll work. In the same kind of context, one of the other pieces of work I’ve been involved with is a Māori constitutional working group where we’ve been engaged with talking to Māori around the country about what their constitutional aspirations are in terms of a constitution for New Zealand. One of the consistent pieces of feedback we get is that people very much want to retain a high level of local, hapū autonomy but do want to participate collectively in decisions that affect us all. The analogy that a lot of people have used as a kind of United Nations style idea is that people don’t give up their own autonomy but recognize that there are important things that we need to discuss together and work on as a collective.

Verónica Hirsch:

On that topic of the Māori constitutional committee that you just now mentioned and as you shared with us earlier that in fact New Zealand does not in fact have a constitution per say, I’m fascinated by the fact that this work is happening. I’d actually like to ask some questions on that topic. So as you mentioned, it sounds like you and colleagues have then been traveling to various hapū and different regions to ask, to solicit, their input about what their vision is, how they would articulate their vision, however many generations into the future, and how that would then inform, or to what extent it would inform this proposed Māori-wide constitution? Could you provide a bit more story about that? What prompted the creation, the formation? I can imagine many things happened at kitchen tables. What then led to a coalescence of people who are engaged in this work and then making the effort to travel to various communities to solicit input?

Carwyn Jones:

The real key event that took place was there was a large national meeting of Māori, which was discussing various issues including the treaty settlement process, a whole range of issues affecting Māori. One of the sort of … very prominent and recognized leaders amongst Māori, he suggested that if we address each of these issues as they come up, we’re also going to be fighting this reactive fight, we’re going to be doing this again and again and again. Actually what’s needed is a kind of structural change, a constitutional change that provides for Māori autonomy and input into the decision-making of the national state government. At that meeting, they appointed a couple of people to convene a panel or committee to progress this work. The committee itself was made up of representatives from different tribal groupings but also had people who had particular expertise on lore, policy, and political science and related issues to constitutional matters. The person who was really – who led this committee was a person called Moana Jackson. He happens to be from the same iwi as me, from Ngāti Kahungunu, and he’s been – for many years – a very prominent advocate for Māori. His background is also as a lawyer and he really led this committee. We decided on our approach that first of all our job would be to listen to Māori communities and try to get as much information from as many different types of Māori groups and individuals as we could about what their constitutional aspirations may be. Now, over the course of a couple of years there were over 200 meetings held with different Māori groups. I only attended a handful of those that were in my community, but Moana essentially went to almost all of those and so he was really traveling on the road for a couple of years. We’re talking to different kinds of Māori communities so there were meetings which were based around traditional kin groups. There were meetings which were based around other types of Māori organization so Māori student organizations, Māori Peoples with Disabilities Association, Māori people who are in prison. We had, alongside the main committee, we had a group of Māori young people who were also going out and talking to Māori young people about these issues. I have to say that they had a much more dynamic and exciting presentation and discussion than the rest of us did. Even though I only went to a few of these meetings, they were really, I found, inspiring because we were talking to Māori communities and we would have a range of people come and participate in this conversation. Old people, young people often coming out on a cold winter’s night to talk about constitutional issues, which impressed me. Once the conversation started, it was clear that these were issues that people had been thinking about and talking about for a long time so there was a very rich and informed discussion that came out very quickly in those meetings. They didn’t necessarily use the language of constitutional law but in terms of being able to have input onto the things that mattered in their lives and have control and autonomy and decision making powers, these were the kinds of things that people were concerned about and had been thinking about very deeply.

Verónica Hirsch:

In the course of these meetings, and I realize that you were personally only able to attend a few of them as you mentioned specific within your home community area, but I wanted to ask from your perspective, how was any level of resistance to this idea of a Māori constitution at that national level? How was that addressed, explained? And if you could also educate us a bit about how individuals who were part of this panel worked among themselves to devise a standard set of questions or even discussion prompts? Realizing that there a various meetings and it’s really noteworthy that the meetings around various groups…they sound very intentional. Likely, I would presume to address issues that are of immediate importance and pertinent to these various groupings. With that being said, from your perspective, how has any concern, perhaps raised over, ‘Are we sacrificing a measure of our autonomy by agreeing to either help create craft and potentially be governed or recognized the legitimacy of such a document?’

Carwyn Jones:

Generally, I don’t know if we got that kind of resistance in these meetings. People were very keen to ensure that that kind of local autonomy was respected and taken into account in the development of a constitution. I think perhaps the main resistance that we got was around issues of people initially saying, “Well this is not realistic.’ But actually, we were able to talk through that issue and say ‘Well part of the process that we’re going through here is that we don’t want to be limited in thinking about what we’re doing by the current framework. Sometimes it’s difficult to take that initial step but we discussed, we talked about what we meant by a constitution and we talked about traditionally the types of forms and processes that people are very familiar with and we’re really just talking about a set of rules and practices we agree upon that we’ll use to govern ourselves. People quickly got the idea of that and people also did quite quickly move from being limited by the ideas of the current framework to kind of more blue sky and imaginative thinking, which I was really pleased about. We did have a series of questions that we used to try and prompt the discussion. Those were often questions to do with what kind of values people would like to see in the impending constitution. So very much moving from starting off with their values base and then thinking about what kind of mechanisms might give expression to those values rather than moving straight to ideas about well who ought to be able to vote and what a parliament might look like and those kind of things. Starting from that value base and to some extent it wasn’t a surprise that the kinds of values people talked about were the kinds of things that I had mentioned earlier in terms of mana, utu, whanaungatanga those ideas around reciprocity, power and prestige and respect for others, around the centrality of kinship relationships and collective action. So, we worked through those discussions and as I said, people were really ready to have that conversation, that discussion, and were really able to identify very quickly what they saw as being flaws in the current system and thinking about how to address those.

Verónica Hirsch:

Is this work on this envisioned Māori constitution ongoing? Part of my reason for asking that question is realizing Moana Jackson, who you mentioned previously, who really invested himself and has been very key to this effort. If in fact this is an ongoing process, are there new people added to the panel or people who have said, “I’ve been able to commit up to this point in this process and now it’s perhaps time for another person within the community who might be appropriate to be appointed’? And how is that maybe addressed, discussed? Is it still, again maybe, addressed on an informal basis? Not necessarily someone is vying for a seat for instance on the panel, could you speak to that a little bit more? This process, where it’s at, is it ongoing? How folks who have decided to commit themselves to this work, to what extent they stay and if there’s opportunity for new people to come in and lend their expertise?

Carwyn Jones:

It very much is an ongoing piece of work and we’re at the process now of collecting up all the feedback we’ve received from these different meetings that have happened over the past few years and trying to bring that together to inform the development of a constitutional model. One is very much still taking a lead on that work but supported by other people who have been involved in the process and also the young people we’ve had working with us have played a key role; part of this process too is about making sure that they remain involved and engaged in what is going on. This has also led to some connected projects and work around, for example, Māori participation in monitoring our government’s implementation of the UN declaration on the rights of indigenous people’s. There’s been an opportunity for both people who’ve been involved in the constitutional working group but also others to get connected to that kind of work through the more international indigenous rights framework as well. It is ongoing and the intention is that we try to have our mind keep an eye on that kind of succession and how we make sure that different people are involved and engaged and become more involved in different aspects of the work that’s going on. There’s also some work in terms of what we ask the different tribal groups to suggest people to be involved in this work or endorse people to be involved in that work. As the nature of the work is changing, those people that the tribe’s want to be involved might also change. For example, when we were very much in the phase of community engagement, it was very important that we had tribal representative who were very much on the ground and connected to their communities, often elders that were very much the heart of those communities. As we come more to the writing-up work of this process, we need people with different kinds of skills to be involved.

Over the course of this year, we’ve had a kind of discussion document. Drawing on the feedback we’ve received, that’s led us to draw out some key points that people have raised and to try and get some more discussion around some particular issues. There’s been some discussion and more focused interviews and focused group discussions around those particular points. The intention is that in February of next year in time for Waitangi Day, which we celebrate on the 6th of February, that we will be able to present a model constitution and that it will be presented at the celebration of Waitangi for further discussion.

Verónica Hirsch:

Thank you. My last question Dr. Jones, pertains to some of these aspects that you’ve mentioned previously and throughout our discussion today. I realize that your answer to this will likely be ongoing as the work is ongoing but I’m going to ask it nonetheless. What ‘full and final’ treaty negotiation challenges do contemporary hapū and iwi face?

Carwyn Jones:

I think there are many challenges that iwi and hapū are facing in the context of these treaty settlements. Personally, I think there are number of quite fundamental flaws with the way the settlement process is set up. I think the very fact that it’s based on the idea of being ‘full and final’ settlements is almost predicated on the idea of extinguishing your rights to be able to make claims under the Treaty of Waitangi is problematic. But, there are also the kind of ongoing questions around representation and participation in those governance and the government entities that are going to be managing these settlements. Many of our Māori communities are in very urgent need of better social services, of better employment, of better health, better housing. So, all those issues are not going to be resolved by these treaty settlements. I think the challenge for tribes in engaging in this settlement process is how to use the platform that the settlement provides as a mean for engaging further with government and others in partnership to work on some of these issues and using them as platform for starting to exercise their self determination more effectively. Now, I think the settlements by themselves, the value of the settlements is far too small. I think the fact that the settlements don’t really engage in a serious way with Māori law and Māori legal traditions, I think all of that is problematic. That means that they don’t, by themselves, provide for self determination but the challenge for the tribes is to make sure that they try to use them as a platform to develop and progress towards better self determination.

Verónica Hirsch:

Thank you, thank you so much Dr. Jones.

Carwyn Jones:

You’re welcome.

Verónica Hirsch:

That’s all the time we have on today’s episode of Leading Native Nations. To learn more about Leading Native Nations please visit NNI’s Indigenous Governance Database website, which can be found at www.IGovDatabase.com. Thank you for joining us.

Kristopher Hohag: The Challenge of Governance

Producer
Native Nations Institute
Year

Kristopher Hohag, former Vice Chairman of the Bishop Paiute Tribe, recalls his experiences as a young leader participating within tribal government. He provides a brief history of the Bishop Paiute Tribe and recounts the tribe's endeavors to provide a better way of life for the people. Hohag offers his perspective of tribal government and constitutional reform. In addition, he provides insight as a part of a younger generation of elected tribal officials.

Native Nations
Resource Type
Citation

HohagKristopher, "The Challenge of Governance," Interview, Leading Native Nations interview series, Native Nations Institute for Leadership, Management, and Policy, University of Arizona, Tucson, AZ, December 10, 2014.

Verónica Hirsch:

"Welcome to Leading Native Nations. I'm your host Verónica Hirsch. On today's program we are honored to have with us Kristopher Hohag. Kris currently serves as the Vice Chairman of the Bishop Paiute Tribe in Bishop, California. Kris, welcome. Good to have you with us today. I've shared a little bit about who you are but why don't you start by telling us a bit more about yourself."

Kristopher Hohag:

"Thank you, Veronica. I'll start by introducing myself in our language. [Nümü language] What I had said to you was my name is Kristopher Hohag [Nümü language] is my Indian name. I live in Bishop, California. I'm from the Owens Valley of California which is the deepest valley in the country on the eastern side of the Sierras in California and I feel really good to be here with you so thank you. I'm honored to be here."

Verónica Hirsch:

"Thank you. Kris, what did I leave out in the brief introduction I provided, I prefaced our conversation?"

Kristopher Hohag:

"Right. Well, yeah, this year I currently serve as the Vice Chairman of the Bishop Paiute Tribal Council. That is only a year-to-year title. We have elections every year where if the council and the people want you to remain in a position that'll happen, otherwise we have an option to switch it up. This year I'm also currently the Vice Chairman of the Owens Valley Paiute Shoshone Board of Trustees which is the governing body of three reservations in the Owens Valley–the Bishop Paiute Tribe, the Big Pine Paiute Tribe and the Lone Pine Paiute Shoshone Reservation. I'm an educator by background. I really don't consider myself a politician but that's kind of the role I've been put in so I work with the youth, that's kind of the main thing that got me up to this point in my career I guess you could say. I have a master's in education from the University of Washington in Seattle and I've also worked as a Native American recruiter for the University of Washington recruiting Native students to go to college. And I have a bachelor's in Sociology from the University of California Irvine. So prior to moving home, back to the rez and working with my community, I really worked in higher education. I worked with young people in other communities but I would always come home. So after doing that job up in Washington, in Seattle, I was just...I got the feeling I wanted to be on the community side of things. I'd go into these communities and I would talk with people and try to get their kids motivated to pursue something that meant something to them and that they could give back to their community and I'd dialogue and I'd interact with these mentors of theirs, essentially the point people. I'd say, ‘I want to be like that person. I want to be a person that sees our young people grow up and help them along.' So I ended up moving home to go that route and I essentially work with various entities on the reservation working with youth outreach, convention work, worked for the education center, worked for our health project and also just did volunteer community organizing, helped...was instrumental in co-founding the Bishop Tribal Youth Council which is still in existence today and overall just trying to help provide some healthy opportunities for youth in our communities."

Verónica Hirsch:

"Thank you. I'd like to transition now into some questions that have to do with Native nation building. So I'll begin by asking for your opinion. How do you define nation building and what does that mean for the Bishop Paiute Tribe?

Kristopher Hohag:

"Personally I define nation building as anything that it takes to build a healthy, thriving nation and all the various components that make that happen. So whether it's our education department, our economic development department, food sovereignty, our health of our people, medicine, both Western medicine and traditional medicines. Whatever the needs of our people are to be self-sufficient, how do we move towards that to get...to be a healthy, thriving nation. We've had all these generations of surviving but how do we thrive in a healthy way. I think that's what nation building is about."

Verónica Hirsch:

"Thank you. Based upon your experience, what are the unique challenges of being a council member of a Native nation?"

Kristopher Hohag:

"Good question. The unique challenges of being a council member? Well, your constituents are your family, your relatives. I heard someone say people that maybe didn't like you when you got there aren't going to like you when you get there. But I just think the breadth of information, the breadth of knowledge that you have to either have or acquire. I think it's constantly a learning process. I'm a young council person but I know everyone goes through it, is what...how do we grasp all of these various issues that we have to tackle as nation leaders so whether it's the federal government, learning all the acronyms was...like the first year was just a big education of navigating those corridors of government whether it's state, federal, inter-tribal, building those relationships. They're all unique challenges. I think I kind of come up with a unique challenge every day. Collaborating with our council, it's challenging to have a unified council. I've only been a part of two councils so far but they're very different and having to kind of learn everyone's personalities, everyone's I suppose you could say agenda, interests, priorities and how do we synthesize those and actually get stuff done for the people."

Verónica Hirsch:

"Thank you. How do Bishop Paiute Tribe citizens choose their leaders?"

Kristopher Hohag:

"We choose our leaders by popular majority vote. Every summer we have a primary election. People are either self-nominated or nominated by other community members at a nomination meeting and then several weeks go by and we do a primary election and then we do a general election about a month later. And so it just gets narrowed down and whether there's three openings or two openings, the top vote getters then become the next council members and then... We have five council members in Bishop on the tribal council and so among those five we determine the chairman, vice chairman, secretary and at large members."

Verónica Hirsch:

"And how are those offices determined?"

Kristopher Hohag:

"Well, unscientifically. It's a mixture between who really wants it and I think the abilities and knowledge that are present within that group of five."

Verónica Hirsch:

"Among that group of five are those who are selected or elected to serve for instance as chairman or vice chairman, is this through consensus?"

Kristopher Hohag:

"Yeah. Yeah, at least in my experience. I'm sure there are some times where two people might want so and so and three people want another and then you've got to work it out that way but in the time that I've been on there it has been consensus who the chairman and vice chairman and so on going to be."

Verónica Hirsch:

"Thank you. On this topic of leadership and also bearing in mind that leaders themselves enforce law and also help make it, my question is this. How does the Bishop Paiute Tribe make and enforce law?"

Kristopher Hohag:

"Well, it goes through the council. If it's a new... We're an ordinance based tribe. We're going to talk about that later I know but essentially if there's a new ordinance that's going to be coming about, there's obviously a need for it. Maybe it's community members have expressed need, maybe it's department heads, influential people who have said, ‘We really need to put in this dog ordinance or this fireworks ordinance or something that is going to benefit and support the safety of building a nation.' And so then we go through a series of public hearings for the community. I believe three is the minimum and we get input from community members who will come and we'll have a meal and just essentially have a public hearing about the issue. And so we kind of narrow down what do people want in there, what do people not want, come back with drafts at the next meetings and we kind of narrow it down. And then once we've gotten to final draft, the council will then pass it into law at a council meeting and it becomes official common law that way.

Verónica Hirsch:

"And how are such laws then enforced?"

Kristopher Hohag:

"Well, we have of course the tribal council are the officials of the tribe so we are charged with that and then we do have a tribal police department so they're obviously going to enforce to the extent that they can and that's actually fairly new having a tribal police department on our reservation so we're working through how that is probably done most efficiently. But it's very unscientific how these laws are enforced but I know that for sure. We have a small reservation, it's 877 acres. It's less than one square mile located within essentially the town of Bishop. The city limits are just east of us but we still have neighborhoods to the north, the south and the west and so we have a small little nation surrounded by a town, surrounded by a county, surrounded by a state. And being a PL280 state there are many laws that apply on the reservation, in criminal cases so our tribal court for instance does handle civil issues, civil law issues but I think that's always been a challenge, how the council enforces law on the reservation. I believe that it's been a challenge and it's still something we're working on today."

Verónica Hirsch:

"You mentioned how the Bishop Paiute Tribal Court does handle civil cases and I'd like to ask a question, in the instance of an infraction of a particular ordinance, let's say it would fall within the purview of a civil case. Are there any fines associated perhaps or any other type of repercussions?"

Kristopher Hohag:

"For sure, yeah. Yeah, there could be. Depending on the issue there are fines attached to certain issues and so those are the guidelines that of course our tribal judge would hand down a sentence or a decision."

 

Verónica Hirsch:

"Thank you. Can you discuss how the Bishop Paiute Tribe relates with other tribal communities and governments? What is the relationship between the Bishop Paiute Tribe, the Paiute Shoshone Owens Valley Board of Trustees and the Owens Valley Career Development Center?"

 

Kristopher Hohag:

"Well, as I said before, we are located in the Owens Valley of California. It's a fairly remote part of California because of the geography of the state. The Sierra Nevada Mountains, 14,000 foot peaks right next to us. We are located at the base of the Sierras and so we're somewhat removed from the rest of California although in past years I know there's been strong collaboration with our area but I know we're kind of... That's something I think we're working on right now is getting back into it. We work with other tribes regarding gaming compacts and such and such but oftentimes we're kind of left out there on our own working with other tribes in the valley. You mentioned the Owens Valley Paiute Shoshone Board of Trustees. That predates each of our tribal councils actually so that was...we had a land exchange on our behalf, the 1937 Land Exchange between the Indians of the Owens Valley, the federal government and the City of Los Angeles which essentially gave the City of Los Angeles huge portions of our traditional territory in return for very small reservations in the valley. And so that exchange and then subsequent ordinance that came after that, 1962 Land Ordinance, there's a big gap there but that ordinance essentially set up governance, a very loose governance on each reservation and it...originally the intent was to govern land assignments and help provide housing assistance. So that was a governing document for Bishop, Big Pine and Lone Pine Reservations. There's two other reservations in our area, in the valley which is Fort Independence and Benton but they were established separately with different documents and essentially a slightly different history. And so we have this document, this Board of Trustees, which included five members from...representing Bishop because Bishop is by far the largest reservation in the valley. We have just under 2,000 tribal members and my understanding it's the fifth largest tribe in California but on a very small reservation, less than one square mile. And then Big Pine has a representative on that Board as well as Lone Pine as one representative on the Board of Trustees. And so historically that was...it was put together in that way with five from Bishop, one from Big Pine, one from Lone Pine to represent the size, the populations. That has sense fluctuated a little bit. I think Big Pine's definitely larger and they probably deserve more than one member at this time. But as time unfolded you had...within that ordinance we have Indian committees and those evolved into the tribal councils that we have today for each reservation, those representatives that we elected by each of those respective reservations. And so the Board of Trustees still is in existence today. Our role has...I believe it's fundamentally changed because the capacity of the reservations, the tribal governments have really grown such that each reservation essentially handles their own land assignments and housing situations so the Owens Valley Paiute Shoshone Board of Trustees goes through that only in relation to the Bishop Tribe now. Big Pine and Lone Pine have both pulled out and they have their own ways of going about that. We do too through Bishop but that's just an extra step where we still follow that ordinance and we still go to the Board of Trustees kind of just as a final approval of those land assignment situations. But our role now has mainly transferred into being a governing body for the Owens Valley Career Development Center and that's an organization that is based off the Bishop Reservation but serves every reservation in the valley as well as six counties in California surrounding the Sierra Nevadas on the east and the west side. And so with the Board of Trustees we oversee this large social services, educational organization, the Career Development Center and that runs the third largest tribal TANF program in the country. And so it's a big social services organization helping our tribal families in reservation, urban and non-reservation environments."

 

Verónica Hirsch:

"what do you wish you knew before you first began serving on your nation's elected council?"

 

Kristopher Hohag:

"Well, I think there's a lot of issues but if I could narrow it down to one main one I really wish I had a better grasp on finances, financial management because it's so key to everything that we do at a board level whether it's at the tribe or if it's on the Board of Trustees or any other board that a tribal leader may be called to sit on, I think financial management always comes into the picture and I didn't consider myself to have a strong financial background being an educator, working with facilitating, learning an education, I really didn't invest a ton of my time into learning about maybe business and things like that. Fortunately, I do really like learning so I'm picking it up as I go but I wish...I do wish I had a better grasp on that coming into the position and I really would encourage anyone considering getting involved in tribal leadership to get a healthy understanding of financials on a large level, much larger than personal finances. I'm dealing with amounts of money that I would never deal with as an individual. That's what I would say."

Verónica Hirsch:

"Any other major areas that you wish you knew prior to serving for your nation on the elected council?"

Kristopher Hohag:

"Wish I knew. Well, there's a lot. I wish I had more experience, I wish I was older, I wish I was an elder, I wish I had the experience of my ancestors to bring forward to today but that's really the need to engage the community and hope...be accessible to community members. When I first got on council I got a lot of advice, some good, some not so good but everyone wants to give you input. And I think that's valuable to an extent but you've also got to be able to filter it and see what's practical, what's useful and what's applicable. But all in all I feel fairly well prepared, at least in bigger picture thinking of what nation building means, where we should be headed as a tribe. I've been fortunate to have I think pretty strong mentors, not just in my own community but in other communities that have helped me always see that this is a very important thing for all of our people and I kind of figure that eventually I will come back around to working within a role similar to this. But issue specific, I don't know. It kind of is one of those things where it's like dive in and start swimming and you'll figure it out."

Verónica Hirsch:

"Thank you. I want to transition now into a discussion regarding some of the content that you already mentioned, ordinance based and also maybe contemplation of constitutions. And with that I'd like to ask or rather state and then ask, the Bishop Paiute Tribe does not possess a written constitution. Can you please describe the tribe's current governing structure and has the current structure been impacted or shaped by certain historical and/or legal circumstances? If so, in what ways?"

Kristopher Hohag:

"Well, absolutely historical circumstances as I eluded with the land exchange and our land ordinance that governs the reservations and how we moved from a valley wide governance system to kind of like each reservation has come to stand on their own. I think we have a long way to go still as far as that question's concerned. I think right now the councils...on our reservation...this is definitely not the case on every reservation...so Lone Pine and Big Pine have...Big Pine has a constitution, Lone Pine a general council. Bishop is a little in between. We don't have a written constitution, we're also...it depends on who you ask about general council. We have general council meetings but they don't operate in the same way that they used to generations ago. And so in a lot of ways the council is kind of, for lack of a better term, the judge, jury and executioner as of now. We have to look at the future and how do we want to separate our powers so that we have a healthy governance system for our people moving ahead regardless of who the individuals in office are. And so we do have a tribal court which is intended to be a part of that separation of authority and responsibility. But largely our governance structure really starts and ends with the council making decisions on behalf of the people; putting things into law, making directives and essentially making sure that the needs of the community are met. I wish there were more variables to that but we're moving in that direction."

Verónica Hirsch:

"Thank you. How are governance roles and responsibilities defined and delegated within your current framework? You mentioned briefly about general council and the fact that the Bishop Paiute Tribe does in fact have a tribal court. You also mentioned that there is a move, hopefully a steady move towards this exercise of separation of powers within the current framework. Can you provide a bit more detail on this topic?"

Kristopher Hohag:

"Well, everyone has a general understanding of the role of council but it's a loose understanding, you know what I mean? So my interpretation could be completely different than the next person's interpretation and maybe the limits and how broad our power, authority, what have you goes really depends on the individual. So we talk about constitution, I think that's really important because it sets very clear rules and definitions behind what we are meant to do so that there's clear understanding between me as the elected official and my citizen who has an expectation of me because a challenge that I find is I have an understanding of my role to help set rules and enforce law without personalities getting in the way, mine or someone else's or preference because of an individual connection but other people have different interpretations of what your role is in there and I think without that being written down, defined for all of us without any questions asked, I think we're always going to have that challenge of interpretation. And what I've found is it's definitely different on this side versus that side. There are certain things where you become privy to so much information as a council member that you don't fully see the picture if you've never been in that role. It's kind of like an iceberg where you think they should be doing all this but you don't realize everything else that's also on their plate. So I would love to see a constitution because as one tribal member that would really provide some clarity as to how I can hold my leaders accountable and as a tribal leader how I can then perform up to what obvious expectations are for everyone else."

Verónica Hirsch:

"Thank you. Can you discuss the role of tribal elders and youth within the Bishop Paiute Tribe decision making process?"

Kristopher Hohag:

"Yeah, our elders and youth are very important facets of our population of course, in all communities. We revere our elders and we take care of our youth and we want to educate them and show them what it means to be Ní¼í¼mí¼, a Paiute person and send them off to get an education to come back and do what we're doing. We don't have a lot in place within our governance structure. I think how the question is framed is how...within our...we don't have, like I said, there's no ordinance that says the elder's committee is going to advise the council. We have an elder's committee that's for the elder's program and we have...oftentimes we have committees that are formed at the need of a grant or a requirement like that. I would love to see it move towards the direction of where maybe we have an official elder's advisory committee to the council. We do have a Bishop Tribal Youth Council as we talked about before that I did help start and I definitely envision that having a much closer role to the actual tribal council as we move ahead because our youngest tribal members who are just learning how to become leaders themselves, they're going to have insights that the council members are not just ‘cause they're in a different place in their life and same with the elders. They're going to have things that we maybe didn't think of or they're going to have to set us straight and so I would love to see that maybe included in that constitution. But right now it's completely informal. They definitely have a role at meetings and input when they see us around but it's not written down and very defined in that way."

Verónica Hirsch:

"Thank you. You've mentioned previously that in your personal opinion a written constitution is necessary and I wonder if you could please expound upon that. Why do you believe a written constitution is necessary?"

Kristopher Hohag:

"Well, I just think it would clear out a lot of clutter and confusion and as I said before interpretation. There's always going to be interpretation of course with anything written down but I think it would really help clarify roles, responsibilities, expectations, successes, and failures just like any job description. This is what we expect of you and if you don't do these things because this is in your job, then you're not doing your job properly and you now that as opposed to with those things not written down it's kind of a...it's a little bit of a hit and miss. It depends on the individual, it depends on the makeup of the council and I just think a constitution provides some safeguards for those things. I think it provides some clear, definite rules that hopefully everyone can agree to. We know our playing field at that point. We know the rules, we know what our limits are, a boundary and we know how to do our job better I think in that way and therefore our people can hold us accountable better."

Verónica Hirsch:

"Thank you. As of 2014 the Bishop Paiute Tribe is in the process of creating the constitution's committee. Can you please describe how this new committee is being formed and are specific strategies being employed to encourage a wide range of community and family representation on this committee?"

Kristopher Hohag:

"Well, the committee is being formed...similar to many of our committees which are based on interest, people signing up, putting in a letter of intent why they want to be on the committee and then the council appoints them and so this is no different in that way other than it's a very specific issue and cause and objective. So people that are going to be on this committee are people who are engaged in the community, who are involved in boards already, who understand the history of the tribe, certain elements of governance, who just have a good understanding of the inner workings of the tribal government and obviously are community people. And we want a good, healthy representation of the community. Not a big reservation, not a huge tribe but big tribe in relation to other tribes and we want it to be so that as many people as possible can have input or can get information. So we know by experience the majority of people don't come to meetings, the majority of people do not show up at public hearings and make their voice known as we would like but if we can make this committee representative of the families on the reservation, maybe certain areas of the reservation, then the intention is that hopefully those committee members can then reach out to their relatives, neighbors and such and such and provide information of what's been happening, where they're going, some updates and they can get input from those people who may not otherwise show up and provide input themselves. So that's the intention. We have...I don't know if we have appointed officials but we know who's going to be on that committee. We did have a sign up very recently and it's quality people who've had history within the tribe and have an understanding. I think it's going to be good. In a small community you tend to get a small population of that group that is involved in almost everything. So I think we have a knowledgeable group of people that are going to really help us move forward. That's our goal. Hopefully...the plan is by...in the next six months so we'll see what happens. It's now on record."

Verónica Hirsch:

"Thank you. On this topic of how to encourage or foster representation of various areas within the Bishop Paiute Tribe's community to participate on this constitutions committee, are there specific strategies being employed to engage or to encourage participation? Has it been something that's been more organic in process or has there been a discussion of how or who to approach, to encourage, to foster this type of engagement with the intent of having broad representation on this committee?"

Kristopher Hohag:

"Well, I don't know if we have any certain strategies. I'm sure we're going to move forward was we've done things up to the point with certain committees and then there's definitely going to be some new ideas infused. We have yet to talk about any like best practices type of situation. I think maybe once again I would love to see that actually. If anyone out there has some best practices on how to make a committee more efficient and creative I would love to hear but I think it'll go the direction of the individuals. One of my strengths I feel like is facilitation of dialogue, of issues. With my background as a teacher I always felt like facilitating people moving in a common direction is what I hope to do. I would hope to get involved in that way but we'll get them together, we'll educate them a little bit. We may use some Native Nations Institute resources to help them get a broader understanding of what constitutions are about, maybe what other tribes are doing and really just have conversations, bring them up to speed, make sure we're all on the same page, see what we have maybe from our previous drafts and try to put it together in something that the people will see fit to pass in another election and then it'll become another document that guides us."

Verónica Hirsch:

"You mentioned the existence of previous drafts. Are those previous drafts of a constitution for the Bishop Paiute Tribe? Can you provide a bit of back story on those previous drafts?"

Kristopher Hohag:

"I don't know a whole lot about them to be honest with you. I think there's at least two drafts from previous years. Depending on who you talk to there's been anywhere from two committees to 10 committees over the years and with decades. The most recent one was in the mid-2000s, the first decades of 2000s and that one actually went to a vote and was voted down. In conversations with my council it sounds like it's a good constitution. I think there's certain elements within or maybe we're taking off too big of a bite with something that's going to go to a vote. For instance, if we were going to write a constitution and incorporate all of our existing ordinances or maybe try to bring in some laws, a lot of these things each individual issue typically goes for vote so people are used to tackling it in little pieces. And so I think some of those first attempts have kind of been in essence biting off more than people were able or willing to chew. And so part of the strategy moving forward is how do we make it clearer, more digestible for the voter so they make an informed, educated decision on this. I think the direction we're going to go...as I said, we have ordinances so that probably won't be included, maybe peripherally that will come under it. But I think the drafts are going to be heavily relied upon. There may not need to be huge changes but just some strategic changes that like I said make it more digestible and so that we can move forward. We can always tweak things here and there. We can always make amendments but something that the people can comprehend and agree is really important. We don't want it to be so convoluted that 99 percent of it's great but one percent is really iffy and that's going to get it voted down. So we'll use it to inform the ways that we move forward with it, those drafts."

Verónica Hirsch:

"From your perspective, what means could be used to convey the drafted or the proposed constitution's content to Bishop Paiute tribal citizens in a way that will be clear, will be concise and will foster a greater understanding of that content?"

Kristopher Hohag:

"What means could be used? Well, I don't know if we're going to do this but we could obviously mail it out to every community member, every household. Then they would have it. The challenge then is how do we get active participation and working with that draft of getting people's input and for that we would definitely have to call a community meeting similar to things we've done in the past, have drafts on hand for people ready to edit at will and then have a dialogue as a group and then come back together and maybe do several of those and just kind of whittle it down to the core essence of what we're trying to get at and essentially a working committee, that's what this will be. And we'll do a lot of that and I foresee the committee then having larger community wide meetings to then update on what some of those changes are but I think it's anticipated and expected that when we work on something of this magnitude, it's a smaller group of people that are working on the document that's going to affect everyone and that's just the way things are. So I think the committee is going to be obviously the driving force in the action, in the work. But people will be invited to definitely provide their input as we go along. It's not going to be an overnight process but we're going to get on it and really stay on it, get going in the next month and hopefully have regular, regular meetings and updates for people to be involved."

Verónica Hirsch:

"Can you discuss key issues that in your opinion will be addressed by the perspective Bishop Paiute Tribe constitution?"

Kristopher Hohag:

"Yeah, I think the big one is going from two year terms which we currently have for our tribal council members to four year terms so effectively doubling our time in office and making sure that there's a removal clause. I know that's really important to our tribal members in case a council member is not performing up to par or is abusing their authority. We really need to have that. I don't think it's controversial at all but it's very key and I think it's probably the single most important element that's going to be in there other than like I said the defined roles and responsibilities. Eluding to a previous question we had maybe it's one of the challenges to previously passing was...I think 99 percent of it could be great, fine and dandy but we had something where we were fundamentally changing the name of the tribe and I think that's probably what could have been a big reason why it changed, trying to go back to our traditional name so currently we're the Bishop Paiute Tribe. Well, culturally, historically Bishop has nothing to do with the people. Paiute is essentially...it's not our word. I don't know where it came from, couldn't tell you that. We call ourselves Ní¼í¼mí¼ and all Paiutes essentially have a variation of Ní¼í¼mí¼. So our constitution that didn't pass several years back was going to redefine on our terms who the people are in our words. But I think there's major outreach and education that needs to go into something like that. It is a paradigm shift in thinking about yourself, your identity and who you are, especially if you've been raised your whole life like, ‘I'm a Bishop Paiute Indian, Bishop Paiute tribal member.' If that doesn't exist anymore, that's a pretty big thing I think. I think it's a good thing with the proper education. I would love to see it happen as we reclaim our identity and re-indigenize our terminology within our government and beyond. I'm a huge proponent for that type of thing because I think identity is super key to our youth and our existence as tribal nations. But that takes I think serious educational efforts to remind people why it matters, the positive benefits they're going to see in the future and maybe at the same time say, ‘This is how it's been instrumental up to this point, why we should change it.' Maybe it's a strength based change. So I think there's just more fundamental outreach and education that needs to go in something like that because it's wonderful. I would love to do that because I...it's empowering to learn on your terms from your language, from your ancestors from your land, this is who I am but on the federal register it says something different. We have to correct those type of things about who we are and we're in the process and a lot of tribes are still in that boat. Some are changing as we speak, some have done it recently and maybe some will in the future so I think we can go in that direction but that was probably a pretty major obstacle to getting it passed the first time around."

Kristopher Hohag:

"Successes and challenges of our current governance structure. Well, there have been successes over the years I just...it's...without a clear cut definition of roles and responsibilities it really kind of does this pendulum swing of we'll have some very good years of economic development and building up maybe our education system, our housing, our services for our tribal members and then there'll be years where it's not a whole lot. And so some of the...the stability I think is a big challenge; stability of the government, stability of our economic development to support our nation. Those are definitely challenges that I see I've been able...just being...within my role now and being able to take a good look at the whole tribe and all the departments and understanding that consistency is really important and so that's why I think these four year terms are really going to help provide some stability to that. Not to say that those have been just challenges all the time. We have some very successful organizations. The Bishop Education Center was the first Indian education center in California as part of a...I can't remember specifically but Senate bill that essentially funded all of the first Indian education centers. We were the first ones to get that and we had a traditional health board of tribal elders in our area who were very instrumental in forming health programs over the years that then informed California Rural Indian Board, that then informed...you've got Toiyabe Indian Health Project which is...I think prior it was like a tri-county type something or other but essentially serves all the Indian communities on the east side of the Sierras in California. And so that's a very good thing that's come about through our governance over the years and the Owens Valley Career Development Center. That provides huge much needed services to families in our areas educationally and just supportive services and just getting by and helping them get careers and educated so that they can then go out and be productive members of society and our community. So I think there's been some really big successes over the years but there's been an ongoing host of challenges that I think really the root cause is the instability of the governance and hopefully we'll be able to address that pretty soon here."

Verónica Hirsch:

"Can you discuss the general council's efficacy? You mentioned it before. What are the successes of the general council, past successes and what are some of the potential pitfalls that maybe the general council going forward in your opinion could do well to avoid?"

Kristopher Hohag:

"I don't necessarily feel like I'm the best person to answer that. Yeah. I wish I was 40, 50 years older. I would have a much better answer for you. Because yeah, I don't think... In my lifetime general council hasn't really had quite the influence that it used to have as far as big decisions of the tribe. Certain issues will go to vote and then obviously that comes down to general council decision. But the majority of the business that takes place on the reservation comes to council and so general council has informal input on a lot of things and then when things go to vote they obviously have official approval or denial but some of those things I think are real historical in nature and I wouldn't be the best person to say this but what happened to the good and the bad and the ugly. My grandpa would have some stories of that."

Verónica Hirsch:

"In your opinion does the Bishop Paiute Tribe utilize certain strategies to facilitate tribal citizen engagement whether at the general council level, at the constitutions committee level that we've already discussed or in some other capacity, perhaps in an informal environment?"

Kristopher Hohag:

"Well, yeah, council members are very accessible. We're around and living in the community like anyone else so informally all the time. Informally we're constantly getting input. A little more formally we have public hearings on...usually on issue specific things if we're going to be passing anything or there's things just to update people on we'll do multiple public hearings either on week nights or if it's an extra large issue we'll do week days...weekends I mean. We do have periodic general council meetings we call them but in recent times they really haven't been...there have been action items on the agenda, more informational but there'll be maybe a whole day or whole morning on a Saturday. The committees as we touched upon a little bit, those are ways for people to get engaged."

Verónica Hirsch:

"Can you discuss Bishop Paiute Tribe efforts at either including language within the yet to be created tribal constitution and/or emphasizing language, language revitalization as necessary for nation building?"

Kristopher Hohag:

"Yeah, I think it's vital when we're talking about nation building to incorporate your language as much as possible ‘cause it is one of those characteristics that we cite that makes us a nation is we have a very distinct culture, language, geography so I think language is key to that. In the state that our languages are in nationally, internationally, globally, it becomes an issue that I think we always have to think about. From a tribal perspect...I speak on what I feel personally and what I would like to see from a tribal perspective, I do see us prioritizing it right now. It hasn't always been that way. I think there's been times of real strong activity with regards to language revitalization and there's been times of dormancy. But I've certainly seen since I've been on...in my role been bringing it up and it's become more of an issue. I'm glad to see that. I don't take credit for that but I'm glad it's happening and I get to witness it. We do have a language nest getting started as we speak but sometimes the bureaucracy that we create gets in the way of these things getting done when they're just...it's not about rules, it's about this needs to happen. We need people to be talking to each other, we need people to be speaking to our babies so that they're digesting and inputting it. It has nothing to do with rules. You want to create parameters that are going to keep it safe and any liabilities in a situation but it shouldn't get in the way of the issue at hand. So I'm really glad to see we actually have a community member who is just doing it and we're going to support him any way that we can because... We have a language program that operates under the Owens Valley Career Development Center and so they do focus on Paiute language of the Owens Valley in our area and they also work on other languages in other regions that we serve there but locally... I used to work for the language program. I was an intern while I was in college and then I did study language revitalization when I was at my grad school, studied what other people are doing to do that and we've done great work in terms of documentation and archiving. So we have a lot of good stuff to work with, working with some of our fluent first language speakers before they had passed that were active and willing to document so we've got some really good archives in that way and now it's turning the page and how do we get it into the minds and hearts of our babies so that they're going to help us bring it back. There's a very clear distinction between adults trying to learn it and babies trying to learn it. There's just two different minds at work. And when adults are making those decisions, sometimes it's harder because there's an intimidation factor if you don't speak it. My mom, my parents, it's not...their generation lost it. They didn't lose it but it wasn't passed to them for all these factors that many of us are aware of and therefore it didn't come to me either but if we remind people why it matters and I think we really can engage people that this is as important an issue as anything that we face is our identity's at stake, our connection to our land, our connection to our ancestor's spirits, spiritual things, the language holds so much for us and I think it should be at the forefront of everything that we do as a nation and being that so few of us do speak it's really an ongoing challenge. We try to bring in speakers to make the language available and open and accessible so as many people can hear it as possible. At council meetings we have someone do the prayer in the language. That's ideal. We do have classes in the community both for people who are working and people that aren't working. We have language teachers going into our Head Start and just in the last year or two our daycare and our education centers are really ramping up their use of the language. Very evident, I can see it, just night and day. And the kids, kids are just soaking it up. I think...my personal feeling is it's one of those things that it...and just in my community maybe because we haven't gotten to the stage of certain communities at revitalizing it. I think it's going to happen, it's just a matter of time. We've got to keep plugging away but it really takes some massive commitment to...not only from an individual perspective of speaking if you only know a word or only know a sentence or can only introduce yourself, be proud of that much and try to learn more and share it as much as possible with the children, with each other. It's just...it's cool to see people even just greeting themselves a lot more commonly as of late and for non-natives to hear it. When they realize that we still have that, that people are still speaking it ‘cause a lot of times they hear it so infrequently or everything is English that they just assume that's a gone part of who we are. We need to remind them, no, it's still a very important part of who we are and in fact it's an element of who we are that's getting stronger and will continue to get stronger so get used to it. There's going to be some signs around here. You're going to have to start to learn Paiute. You are in Paiute Country even if our reservation is only 877 acres. I think that's something that I see. As a leader of my nation I think we have to think beyond the borders of our nation sometimes because our traditional homeland is so vast and yet our jurisdiction is so small, well, I realize that my jurisdiction is only this big but I can't have my mind only within this small box. It's so limited. We go to Hawaii, everyone says Aloha whether you're native Hawaiian or not. It's the language of the land and I feel the same way about our areas. I think people should learn the language in the land that they're at and show respect for that and I think we as people, I hope that's a prideful effect on us and our children."

Verónica Hirsch:

"You've mentioned briefly the challenges of boundaries and I was wondering if you could provide your opinion about the challenges for a Bishop Paiute tribal member who is living away from the community who may want to be very much engaged within the Bishop Paiute Tribe's local process, specifically with regard to voting. In that scenario I've described, what challenges to exercising his or her right to vote in tribal elections might that person encounter?"

Kristopher Hohag:

Yeah, I think it's a really important issue. I have some personal experience just having lived away from the community and I know a lot of people are in the thick of, as we speak. In our community, based upon our enrollment ordinance you have to live on or near the reservation in very prescribed areas in order to be...have the privilege to vote about anything–the tribal leaders, any issue at hand and the exception is if somebody's in college at a school or in the military. So that leaves a lot of people out. That leaves a lot of people who...we have a lot of tribal members but many of them are not authorized to vote under those exceptions. Maybe it was economic purposes that sent them away which totally understandable in our area being as secluded as it is and away from major industry and so...or college students that go away and find a career that they couldn't pass up and they're building their skills with the intention of bringing it home to our people to help us build our nation. But, in the meantime they have no say at home. Just having been in that scenario and knowing numerous, actually a good amount of people today that are in that way, I think it's really important that we keep them engaged on a regular basis. To me as we chatted about, to be off the reservation doesn't make you any less who you are. For me to be in Seattle or to be in New York doesn't make me any less Ní¼í¼mí¼ or Paiute from this community. I will always be a part of that community. I will always have the well-being of that community...our community in my heart and what I'm trying to do but I think it's really important to facilitate that engagement still because those are our minds, those are hearts of our people that are going to be contributing to the innovation that we need today to be a thriving nation. We talked...is nation building is a healthy thriving, nation...building a healthy, thriving nation, then each one of us is a key element to that and we have...if we have people out getting their PhDs and their master's degrees and they work in the university, well, you can vote as long as you're a student but once you start working that job, sorry. I think we really should emphasize keeping them engaged because not to say that the people living at home on the reservation don't have a lot of valuable input as well but I think to make the most of our citizens or to make the most of our nation we need to engage all of our citizens to the greatest extent possible and keep them engaged and along with that continue to do our best to facilitate their return back home when it makes sense because currently it kind of...we might force you to return home if you want bad enough to participate, to have some input, know who your tribal leaders are and the issues at hand, to get some land, to get a house, you better get home. Never mind all those other goals you had out there, you better get home because you don't have those privileges if you're out there in the world. I would like to see us find a balance there where we continue to encourage our citizens to succeed at their potential and shoot for their goals and dreams and acquire this expertise and experience out there that's going to benefit us all in the end. If we could facilitate not only their education ‘cause we certainly do our best...I think probably all tribes do their best to educate their kids in one way or another that makes sense to them. Sometimes that's sending them away to college. Sometimes it's not. That's why tribal colleges are so important if they're located within a nation's territory and is grounded in their educational values. I would love to see that in our area as well because for us it's necessary to go to...to leave if... To go to a four year university I can't stay home. It's not possible. Have to go at least four to five hours away and then if you want to go further, you've got to go further. So I would love to see more dialogue around facilitating their return so that they can contribute to the nation as a whole. I think that only benefits us all. As a tribal member who's been in that position at one time and may be in that position again in the future, for myself and for my children, you want them connected back home and I think the tribal government should keep that in mind and do our best to facilitate that connection to the greatest extent possible."

Verónica Hirsch:

"Thank you. From your personal perspective could you provide some suggestions for engaging those Bishop Paiute tribal citizens who for multiple reasons have or currently live away from the community, how to both encourage their return home to the Bishop Paiute Tribe homelands and also how they can, to whatever degree you believe appropriate in your opinion, remain engaged within Bishop Paiute tribal election processes?"

Kristopher Hohag:

"Yeah, I think some easy things to start with would be get them on the mailing list, allow them to receive every newsletter, every information packet that other tribal members receive just so that they're aware. I think it should be accessible to them to receive language materials or anything that's connected back home to the identity of who we are. Maybe that's language CDs, something that makes them build that connection while they're away, don't let that connection get any stronger or any weaker, let's build that connection so that when they come home they feel a part of the community and they're eager to not only contribute but to learn more rather than maybe they feel like an outsider. I don't know that that's going to be the case with anyone but let's work towards strengthening that connection and that tie. Perhaps we have...some tribes will have like an annual election where everyone...everyone's eligible but you've got to make it home and then you can vote. That's an option. I think that's a potential option as long as everyone's aware of it. Make sure you know where they're at. If they're a tribal member, we have their address, let's keep them informed of the happenings and say, ‘If this is important to you, this is when it's happening and you are welcome to be a part of it and provide some input but it's happening here.' So that's an option I think. And then many things that are issue specific. I think mail is just fine. I think a lot of people just appreciate being connected and knowing what's going on from the government as opposed to, ‘I've got to call home and see what the issues are.' That's how we do it now but I think it would go a long way to say, ‘Hey, you're one of our citizens, we know you're out there in the world but we know this is your home and so these are the things we're dealing with. What's your opinion? How can you support this and add to the dialogue to help us become stronger?' I don't think that hurts us in any way myself."

Verónica Hirsch:

"Thank you. In a previous conversation you mentioned positive, inter-governmental working relationships. You've also mentioned some of the current relationship that the Bishop Paiute Tribe has with the Owens Valley Career Development Center as well as the Owens...excuse me, the Paiute Shoshone Owens Valley Board of Trustees. I wonder if you might also provide a bit more information on the positive relationship that the Bishop Paiute Tribe has cultivated with the Bureau of Land Management."

Kristopher Hohag:

"Yeah, definitely. In just my limited time in tribal politics I've learned and come to understand that there's a lot of challenges with tribes working with federal agencies, state agencies and it's not always a real healthy relationship to say the least and I think we have a fairly healthy relationship at least with our area offices of the Bureau of Land Management and the United States Forest Service. On our small reservation we do have an area that's set aside for economic development that is occupied by the BLM and Forest Service. They have their area office buildings on our reservation as well as the California Department of Motor Vehicles office is located on our reservation. These are developments in the last 10 years and I think they've been really positive in terms of facilitating regular dialogue. We have quarterly meetings with the BLM and the Forest Service which is facilitated by our THPO which is the Tribal Historic Preservation Officer and that person has regular dialogue with them about issues that they're working on. And so I think those regular consultation prove to be really valuable and at least locally the people...the staff are very mindful of how their work is impacted by the tribe's and vice versa. And so there's just a willingness to reach out and say, ‘Okay, this is what we've got going on. Is this okay?' or ‘Do you guys have any input about this or that?' So I think that's a really good thing and a lot of it is personality based. I think sometimes maybe you get a field director in there that, ‘My way or the highway.' That happens. But right now I think we're in a very...we have a positive, healthy relationship with those particular federal agencies and that's really key for us because it's such a small reservation and in our particular area much of the land is public lands so they have the jurisdiction over a lot of that area. For instance, one of the outcomes of this positive relation is we do have a memorandum of understanding with the BLM for co-management of I believe about 70,000 acres just north of the reservation which is...they call it volcanic table lands and what it is, it's essentially traditional hunting territory of our people and at one point it was slated to be the reservation of our valley prior to the land exchange which was like 60,000 acres for the reservations. No, 3,000 acres for the reservations. That was one of those strokes of the pen that really affected our present status. But I think to be in that collaborative agreement, to have that MOU about co-management is really a good thing moving forward and we're still pretty early on in that relationship of co-management. I believe it's only been about two years and so we still have a lot of room to grow within that and hopefully we can get our tribal members out there helping them to do...fulfill their responsibility of those lands but we as a tribe take some of that responsibility as well."

Verónica Hirsch:

"In your opinion how important or appropriate is it to include Bishop Paiute Tribe Indigenous language within government documents or to employ it within the context of general council and tribal council?"

Kristopher Hohag:

"My opinion is it's vitally important. I think it is. Some may say it's just semantics and maybe it's just a gesture, it's symbolic and that's true too but I think it's an important symbol. I think it's important to say, ‘This is who we are, this is our intentions and this is how we present ourselves. This is our language.' As you eluded to, ‘These are our responsibilities as Indigenous peoples of this land,' and I think those should preface all of our government documents, remind people. If people weren't aware of it, maybe it's new to somebody, ‘Oh, this isn't your standard government document. There's something very unique about this. This is a sovereign nation with its own language, with its own customs, with its own history and belief system.' Being that so many of those things are embedded within our language, our cultural world view, I think it's vital that it be included in our government documents as well however symbolic or practical. I kind of think that's irrelevant. Obviously there's a spectrum of how practical it is depending on the community and how many people actually speak and understand their language but coming from a government point of view I think it should just be clear cut and dry include your language in that.

Verónica Hirsch:

"Thank you. That's all the time we have on today's episode of Leading Native Nations. To learn more about Leading Native Nations, please visit NNI's Indigenous Governance Database website, which can be found at igovdatabase.com. Thank you for joining us."

Ian Record: Constitutional Reform: Some Perspectives on Process

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Native Nations Institute
Year

Dr. Ian Record, NNI Manager of Educational Resources, provides a broad overview of the inherent difficulties involved with constitutional reform, the different processes that Native nations are developing to engage in constitutional reform, and some of the effective reform strategies that NNI is encountering through its work with Native nations in this area. He also discusses the appropriate roles that attorneys and legal advocates should play in the reform process.

People
Resource Type
Citation

Record, Ian. "Constitutional Reform: Some Perspectives on Process." Indigenous Peoples' Law and Policy Program, James E. Rogers College of Law, The University of Arizona. Tucson, Arizona. April 15, 2014. Presentation.

“The reality is that in the era of nation building, the era of tribal self-determination, what we’re seeing is a growing number of nations realizing that if they want to fully exercise their sovereignty, if they want to fully exercise their jurisdiction, if they want to be serious about tribal self-determination and self-governance, they have to look first and foremost at the constitutional basis of their governance systems and once...when they do that, what a great number of them are finding is that the constitutions that they have for a variety of reasons aren’t theirs, were imposed upon them by outsiders, typically the federal government through the Indian Reorganization Act, through the Oklahoma Indian Welfare Act and other types of legislation and acts. And what they’re finding is that they don’t own them, they’re not theirs, they don’t make sense to them culturally, and also in many cases, they don’t meet the challenges of the day. They’re very structurally weak, they’re ill equipped to enable Native nations to achieve their goals, to negotiate the complex governance challenges that they face in the 21st century.

And so what we do at the Native Nations Institute is we spend quite a bit of our time working directly with a growing number of native nations, in particular in the region of North and South Dakota and Minnesota in this realm of governance reform and specifically constitutional reform. So often we are called to come in, and at the very beginning of a process, when the nation may just have come to the decision that we’re going to tackle this constitutional reform challenge. And often we’re brought in after a reform process has failed. Often we’re brought in to help a nation design a citizen education campaign around a new constitution that they’ve already created. So what we’ve been in the great position to do is to really see at various stages of the constitutional reform process what is working and what isn’t.

So what I wanted to talk about today, to spend a little bit of time on, is what we’ve learned when it comes to not so much what kinds of constitutional changes that tribes are making, but more how they’re doing it. Because fortunately or unfortunately, what we’re seeing is there’s a lot more nations that recognize that they need to make constitutional change happen than are actually doing that constitutional change because it’s an incredibly difficult process. And it’s often difficult for the very reasons that I already talked about, these legacies of colonialism, which I’ll get into in a little bit.

So here’s some of the outcomes that we see, and this is sort of done in conversational style, but we see a variety of outcomes when it comes to nations engaging in constitutional reform. Some actually succeed. Some actually succeed to the scope and to the degree to which they actually embarked upon.

So they say, ‘Well, at the beginning of the process we’ve decided we’re going to get rid of this constitution we have because for the reasons I put out it doesn’t make sense to us, it doesn’t meet our needs and they actually succeed in developing an entirely new constitution. Other say, ‘Well, yeah, I guess you could say we succeeded, but we only did minor changes. We didn’t do nearly as much as we had hoped to do because perhaps some of the bigger changes were too controversial, our people weren’t ready to really accept what a major change in a particular area was going to mean so we kind of...we did the easy stuff. We did the more pro forma stuff.’

Sometimes we hear tribes say, ‘Well, we completed reform but our citizens didn’t really have a full sense of ownership in the process and they didn’t really care what the outcome is and things are sort of proceeding as they did before.’ And that’s a real dangerous place that you don’t want to be in as a Native nation.

Sometimes we see tribes say, ‘Well, we completed reform, but the community is now only more divided than it was before. We engaged in this process because there was division within the community, there was a lot of factionalism going on, we felt that at the root of that factionalism was our governance system and the inherent inadequacies in it, but this reform we’ve engaged in has actually made things worse.’

Often we hear this, ‘Our process started and then it stalled.’ And there is a variety of reasons we see for that. I’d say the biggest one probably is the political turnover challenge. Often, in these nations that are wrestling with constitutional reform, if you look at for instance the standard boilerplate IRA (Indian Reorganization Act) constitution system of government, you have two-year, non-staggered terms of elected office. So if you think about that, you have a very small window. If you have a group of leaders that decide, ‘We want to push constitutional reform, maybe that was the platform we ran on our campaign and we really feel like we’ve got this short window to do this,’ and if you’re thinking about two-year, non-staggered terms, you’re looking at maybe 12 months of real meaningful work that you can do before it’s time to get ready for re-election and try to run on some sort of platform of progress.

And then often we see, ‘We can’t even get the process started.’ And in these instances typically what it is is there’s widespread recognition in the community, there’s widespread recognition among elected leadership, there’s widespread recognition among people working in tribal government that, ‘The system we have is not working. We can’t make this work, we can’t move forward as long as we have it, but we can’t seem to get off the mark in terms of figuring out how to actually change it.’ So these are just some of the common outcomes.

So why is it so difficult? Constitutional change is difficult everywhere. If you look at a lot of the examples coming out of Africa for instance in the last 20, 30 years, if you look at those former Eastern European Soviet Union block countries that got out of the Soviet Union when the Soviet Union fell apart, they’ve been struggling for the past 30 or so years trying to figure out, ‘What’s going to be the constitutional basis of our government?’ And there were a number that simply pulled one off the shelf and they very quickly found that, ‘It’s not working for us. We’ve got to develop something that is ours, that makes sense to us.’ So it’s difficult everywhere.

The legacies of colonialism complicate it. Often the very policies that nations are trying to get out from under by engaging in constitutional reform are the actual things that hinder constitutional reform, things like I just mentioned, these short, non-staggered terms of elected office. Often in these nations you have a lack of separations of powers, division of responsibilities, so you can have one leader or a couple of leaders just say, ‘If we’re not buying into this process, we can derail the whole thing,’ because they have that much power and authority. So the legacies of colonialism complicate it.

Time is often short. I mentioned that. And I wanted to share this example with you and this is in your packet here. This is...I actually took this screen capture. This is from an email that we got from a tribe that we’ve been working with on and off for the last several years. They were basically emailing us asking us to provide them assistance and this is what they laid out as their timetable for starting a constitutional reform process and actually having a new draft constitution in hand, upon which time they could have their citizens vote on it. This is a nation with more than 13,000 citizens, spread out all over the place. More than half of them live off reservation.

So they had it in mind, the particular elected leader who was leading this initiative, had it in mind that between early May and mid-June, roughly six weeks, that they would initiate a constitutional reform process with an initial training of their leadership followed by a community forum to discuss and review the current constitution, a team meeting to draft the new constitution, a community forum to review that draft and offer any feedback, and then the presentation of a petition and proposed revised constitution for signatures at general council to basically put it up for election. All this they were going to do within six weeks, an entirely new constitution.

And what we responded to them was, we said, ‘You need to take a step back and take a deep breath and think about what you’re trying to accomplish. You’re trying to essentially revolutionize your entire system of governance in six weeks, a system of governance that your people has lived with for the entirety of most people’s lifetimes on the reservation and you’re going to give your community, your citizens, one opportunity really to express their will about what they want to see in a constitution and then one opportunity to respond to how they think they see their will captured in that document. And also they have to be physically present and there’s only going to be one chance each time. So if you’ve got a schedule conflict that day, too bad, you had your opportunity.’

So this is the sort of thing we sometimes see nations struggle with because this elected leader says, ‘If I don’t get this done during my term in office, then it’s not going to happen. So I’ve got to sort of build this artificial timetable that does not allow for the people to gain ownership in the process.’ And often really that’s at the root of the problem in many of these constitutions is the people don’t own it. They don’t feel it’s theirs, they don’t believe in it and they don’t believe in the system of government that the constitution creates and so they tend to try to rip off that government for everything it’s worth instead of actually supporting it and supporting the elected leaders who are elected to lead it. So time is often short, that’s a huge challenge.

Cultural match, which is one of the NNI research findings. That is often very difficult to achieve because it’s very difficult to go back to the way things were 150, 200 years ago. What I often stress when I work with tribes in this area is you need to go back and understand how your nation governed itself before the legacies of colonialism began to have an impact, federal policies began to have an impact. What was your nation’s constitution, written or unwritten? What was it? How did the people actually organize to get things done, to sustain the life of the nation? And then also how did your nation’s current constitution come to be? Because those are tools, those are informational tools that nations need as they begin this...to engage this question of reform.

And then another challenge of why reform is so difficult is that you’re not reforming your constitution sort of in isolation. You’ve got to do it with some thought about, ‘How do we relate with other governments? How do we relate with the United States government?’ And what’s really cool is what we’re seeing is we’re seeing a growing number of nations for instance that are removing any reference to the United States in their constitutions, they’re removing any reference of the U.S. Secretary of Interior and their ability to approve changes to the constitution within that constitution. So it is a difficult challenge.

So here’s some other reasons that we’ve encountered. There’s not enough citizen education. And this is really an inherent issue that is larger than simply the constitutional reform process that many nations try to engage in. Often they’re starting at a deficit because they don’t...there isn’t in the community a tribal civics education taking place where young people in the community are learning about how their people governed themselves traditionally, how their current government works, what their current constitution says, they’re not learning that. And so you’re sort of starting with a knowledge gap in many Native communities that is difficult to overcome and really takes a lot of forethought. And that sort of is a bigger challenge than simply saying, ‘Okay, we want to change the constitution.’ If you’re engaging your people about that question, first they have to understand, ‘Well, what are we starting with? What are we starting with? You’re asking us to consider changing something, we don’t even know what that something is.’

So often that’s an issue. Often there’s not enough citizen participation and ownership. It’s that example I just showed you. ‘Eh, we’ll give our citizens one shot at the apple and after that we’ve at least given them the opportunity and then we’re going to move forward.’

And then there’s this question of politics. Reform has to start somewhere and typically it’s going to start with one group of leaders, elected leaders, who are saying, ‘We think this is important. We think if the nation’s going to move forward we’ve got to go down this constitutional reform road.’ No matter what, there’s going to be some in the community that’ll say, ‘Well, this is their political agenda. They’re not doing this on the nation’s behalf. They’re doing this for their own political gain.’ So there’s sort of an inherent distrust and often it’s, again, this is one of the many ‘Catch 22s’ in this area, often the distrust of government in many of these communities has been exacerbated over the decades by the fact that they have a weak constitution. And so when these nations or these leaders say, ‘Well, we need to strengthen our constitution,’ that’s when that distrust tends to rear its ugly head.

And then there’s just simply fear of change. Fear of change. Like I mentioned, in many communities there’s a widespread recognition that the constitution and system of government they have is not adequate, it’s not appropriate, but at the same time a lot of those people feel very comfortable with the way things are. It’s not the best it could be, but they’re comfortable with it, they know how it works, they know the system and if you come to them and say, ‘Hey, we’re going to turn this thing completely upside down on its head and we’re going to create an entirely new governance reality,’ that’s pretty scary for folks.

And there’s parallels around the world. Just look at like the Affordable Care Act. That was a major change in terms of how the government, how the U.S. government serves the U.S. citizens. Basically saying, ‘We’re getting into the health care field. We’re going to get more forcefully into this area.’ That was a huge change and a lot of people still aren’t satisfied with it.

So here are some strategies we’ve come across. We’ve seen tribes tend to be more successful with constitutional reform when they think really hard at the outset about who is going to be in charge of the process. Who is going to be in charge of the process? And we’ll get more into that. They think long and hard about, ‘What are the best ways we can educate our nation’s citizens,’ and this is really critical. That ‘s’ is underlined for a reason. Tribes tend to be more successful when they develop a multi-faceted approach to citizen education and engagement. So basically they do much more than that example I showed you where they just said, ‘Well, we’re going to have a community meeting. We’ll make sure it’s well publicized. Whoever shows up, shows up and whoever doesn’t show up, you had your chance.’

Well, we’ve seen nations like White Earth for instance, who recently went through the development of a new constitution up in Minnesota, who said, ‘We understand our people. We understand the different ways they learn. We’re going to try to develop multiple pathways by which our citizens can learn about and contribute to the development of this new constitution. It’s going to be several cycles of community meetings held in different locations where we know our people live, whether it’s on reservation or off. We’re going to have a website specifically dedicated to this process where we have things like explanatory videos that discuss key aspects of the new constitution, etc. We’re going to be active on social media because we know that’s how young people access information.’ So a multi-faceted approach to educate and engage the nation’s citizens about this critical topic.

And then culturally appropriate methods, culturally appropriate methods. So for instance Ysleta del Sur Pueblo, a Pueblo nation in Texas that I’ve been working with, they’ve incorporated, they don’t have a written constitution, but one of the things they’re engaged in is redefining their citizenship criteria, which you could argue is a major constitutional change because they’re changing how they’re constituting themselves by seemingly...it looks like they’re going to be abandoning blood quantum and moving to lineal descent. So that’s a major constitutional change.

Well, what they’ve been doing is they’ve been incorporating their citizen education and engagement strategies into their existing cultural activities. So for instance, I think it’s every three months they have what’s called a ‘Pueblo Junta,’ which is basically a large gathering of all the community members and that’s where they’re updating citizens on what they’ve been learning about -- the surveys they’ve been doing of community members, engaging them, getting their feedback and so forth.

So where we see nations really say, ‘What’s appropriate for our people culturally?’ For instance, ‘If we’re really serious about engaging our elders, what’s the most culturally appropriate way to do that? What’s the most culturally appropriate way to get their input on what we want the new constitution to look like?’ So we’ve seen that bear some good fruit.

Where we’ve seen tribes stumble is when councils dominate the process. It gets back to that politics challenge. You don’t want your elected leaders seeming like they’re at the helm of the reform process. That’s not to say they don’t have a critical role to play in sort of setting up the process through, for instance, enabling legislation. They could pass enabling legislation that actually formally creates a constitutional reform body and then make sure that that constitutional reform body has a life that transcends any single administration or any single term in office. But it’s really a supportive role. Where we’ve seen tribes be successful is when they set up an independent constitutional reform body. It can be a commission, a convention, a committee -- whatever you want to call it. The name doesn’t really matter. It’s the independence that matters, the independence of that entity that matters.

And we’ve seen tribes take a variety of approaches to this. Tribes are really being innovative in terms of how they’re making sure that this constitutional reform body is representative of the entire nation because they understand that at the end of the day, if this reform process is going to be successful, it needs to have the trust of the people and the ownership of the people or else the outcome won’t matter. And so they’re saying, ‘Well, how do we achieve that?’

Well, for our nation it might be, ‘Let’s do it by district. Let’s do it by political district because that makes sure that...that ensures that we have...every district will have representation.’ Or they might say, ‘Well, let’s do it by demographics. We want to make sure we have a young person on there. We want to make sure we have an administrative, bureaucrat type from tribal government on there who can sort of bring that perspective. We want to make sure we have an elder on there. We want to make sure we have an off-reservation citizen on there. We want to make sure that we have somebody who’s a descendent of a tribally enrolled citizen, but may not actually be a citizen of the nation because one of the things we’re thinking about doing is reforming our citizenship criteria and if we do that, that person would then become a citizen of the tribe. So we want that perspective as well.’

So there’s a variety of ways that nations are approaching this representation issue, but ultimately what it needs to be is independent. It needs to have that sort of stand-alone...that stand-alone persona in the community where the average Joe Citizen will look at that reform body and say, ‘Okay, this is not the creature of the council or this particular elected leader. This has its own force to it that is independent and distinct from the current holders of political authority.’ And it’s got to be well funded and it’s got to be respected.

What we’ve seen in some instances is nations will do a really good job of this kind of stuff, the independence questions, the representation question, and then they get down here and they say, ‘Well, we didn’t really have a lot of money for this.’ When what we’ve seen, where these efforts tend to be successful, they take two, three, four, five, six, seven years. They take an extraordinary amount of research, meetings, sometimes travel, sometimes these nations are sending delegations to other tribes who’ve undergone reform and learning from them. So this can get pretty costly and a lot of it depends on how big the tribe is, how many of their citizens they’re trying to reach and get engaged in this.

And then it has to be respected. It has to be respected. Unfortunately what we’ve seen is in some instances tribal leaders will pay lip service to the fact that, ‘Yeah, we’re for constitutional reform. We’ve set up this commission,’ and then they’re out at the powwow and they’re chatting up their buddies, they’re bad mouthing the commission’s work and basically that begins to derail the process because people begin to think, ‘Well, if the leadership really isn’t truly behind this, why should I be?’ So that issue of respect is absolutely critical.

I kind of covered this already about this question of legitimacy of this reform commission, of this reform body. One leader of a nation we’ve worked with in this area said, ‘We went into this process with the very explicit thought in mind that we wanted to have this commission maintain an aura of independence,’ was the term they used. An ‘aura of independence.’ That it’s separate and distinct from sort of the normal political back and forth of the day. That this was going to be about the nation and not about faction A versus faction B.

So here’s some just responsibilities that we see these members, whoever ultimately serves on this commission, what we see as some of their key responsibilities. One of the things we really impress upon tribes... And again, it’s hard for tribes to get outside of their own box, to kind of get their head out of their own issues, their own constitutional problems and say, ‘Well, what could we learn from other nations?’ And so what we really impress upon the nations we work with on this is, ‘Go out. Learn from other tribes. Yeah, we can tell you a little bit about what Tribe A did and Tribe B did and Tribe C did, but you could learn a lot more yourself by going and learning from them directly.’ And it’s not to say you go out and you meet with them and you learn from them and you just simply take everything that they’ve done and you implement it wholesale in your nation, but you may learn a lot of valuable lessons about process, you may learn a lot of valuable lessons about the particular types of constitutional changes that those other nations made and why they made them, and are they working or are they not working. But again, that kind of thing takes funding so you’ve got to think about that up front.

They developed drafts of constitutional changes for feedback and this is critical -- drafts plural, drafts plural. The constitutional drafting process is not a one-shot deal. We’ve seen tribes tend to be more successful when they go into it thinking, ‘We’re going to keep drafting and redrafting and redrafting and redrafting until we get this right because it gives us an opportunity to continually, again and again, solicit the citizens’ thoughts, capture their will on this issue and then incorporate it into this document.’

And part of the...I touched on the citizen education challenge a little bit more, but where we see tribes focus a lot of their energy is trying to help the people understand the answers to these questions. They need to understand that the average Joe Citizen who’s maybe a single mom with three kids, just struggling to put food on the table, get propane in the winter, that kind of stuff, you’re asking them to care about the constitution. You’ve got to make the argument, ‘This will improve your life. This will improve the life of your children and their children.’ And you really need to then educate them about what role does the constitution play in the lives of the people, because if you’re not making that argument, then you’ve lost them even before you get out the door. And then you’ve got to say, ‘Well, if we change the constitution, here’s how we think it will benefit you. Here’s how we think it will strengthen your role as citizen of the nation.’ And here are some of the things we see them focusing on in terms of explaining the purpose of this to the people.

And we see them adopt a number of really interesting strategies. We’re seeing...I’ve been working a lot with the tribal colleges across the country in getting them to use our online curriculum and what we’re seeing is a proliferation in recent years of tribal government classes, of history classes specifically about that nation’s government and that nation’s constitution. We’re seeing some tribes really use their media outlets, whether it’s their newspaper, their tribal newspapers, their tribal radio stations, they’re using them to great advantage.

For instance, one woman I know, she’s from one of the Dakota tribes and she’s got a radio show and she’s on the constitutional reform committee. And so each week she does about 30 minutes on the nation’s constitution and she interviews people on the constitutional reform committee and has them provide updates on where the conversation is on the new constitution and so forth. That’s a really good example. And there’s a lot of tribes that have their own radio stations or at least have access to airtime on radio stations that they don’t own.

Youth councils is another emerging trend we’re seeing. Nations really thinking, ‘This challenge of rebuilding our nation, it’s not going to happen overnight. It didn’t take us a year to get to where we’re at. It’s not going to take a year to change things for the better, so we’ve really got to view this as a long-term proposition. And if we’re going to be serious about nation rebuilding, about making...building a stronger government that is more culturally appropriate, we’ve got to start young. We’ve got to start with our young people.’ So just here in Arizona, there’s some of the most innovative, award-winning tribal youth councils anywhere in Indian Country. Gila River, Tohono O’odham, some really good examples there.

So here’s what we sometimes see and this is an unfortunate thing. And again I think, as we move forward, I’ll talk a little bit more of where we see the role of lawyers, of attorneys, in the constitutional reform process. But this is something really important to keep in mind that you really have to have the citizens on board before the constitutional reform train leaves the station or you could end up with a situation where reform fails and you have your citizens even more apathetic about government, even more alienated, and that’s not where you want to be. Particularly when you embark on constitutional reform, it’s often to improve or strengthen the relationship between citizens and government. Often constitutional reform is attempted precisely because people in positions of authority and of leadership realize that ‘our people are completely disengaged and at the root of that disengagement is this inadequate constitution we have.’

So here’s some reasons why people won’t participate and why the citizen engagement challenge is so difficult. I’ll talk about this. I sort of touched on this. Often people just say, ‘I’m too busy. I’ve got too much going on. I don’t have time to deal with this.’ And so where we see tribes succeed is where they recognize early on that, ‘We can’t expect the people to come to us; we’ve got to go to them. We’ve got to go to them.’ As the leader of one nation that we work with said, ‘If your entire constitutional reform process is predicated on the flyer approach, then you’re dead before you even begin because where you’re simply posting flyers saying, ‘Come to this meeting about constitutional reform,’ nobody shows up and you said, ‘Well, they had their chance,’ that’s not good enough. You’ve got to go to them.

‘It’s not my constitution.’ I don’t know how many of you guys read Indianz.com on a regular basis or Indian Country Today. I don’t know how many of you’ve been following the saga up at Blackfeet. But they are...I was just reading a story today and that refrain was coming out again and again and again. ‘Why are we even dealing with this constitution? It’s not ours. Why are we even abiding by these rules? They’re not ours.’ And so I think again that’s where that history piece is so critical, is people need to really understand sort of the detail of that. ‘Well, yeah, you understand it’s not yours, it was something that was imposed upon you, but what does that mean? What does that mean for how you actually go about changing it? And if it’s not yours, then what would be yours?’ Because often, there’s not a lot of conversation about that. There’s a sense of, ‘Well, we know that’s not our government, we don’t believe in it and we understand that’s at the root of our dysfunction,’ but there’s less conversation about, ‘Well, what is ours? What is our constitution if this is not our constitution?’

‘It doesn’t impact my life.’ You could ask any average American citizen that and that would probably be what they would say about the U.S. Constitution. ‘It doesn’t impact my life.’ Sure it does, just not in a way they can readily see. So again, that’s part of the citizen education and engagement challenge is you’ve got to educate people about how it does in fact impact their life.

‘I don’t trust the process. I don’t trust the process.’ And I want to focus on two things here. Sources of mistrust, one of them is commonly dominance of lawyers in the process. How many of you guys like reading constitutions? Come on, raise your hands. Ray, you like reading constitutions? Nobody likes reading constitutions, right? Even you lawyers to be, not really a lot of fun to read constitutions. Imagine your tribal citizens, your average tribal citizens who may have a tenth-grade, twelfth-grade, maybe a tribal college...a couple years of tribal college education. When lawyers tend to dominate the process, the accessibility of the conversation about constitutions tends to be way above their heads. And so we see a lot of mistrust bubbling up when the lawyers are sort of front and center in the reform process from start to finish.

I’ll give you a good example of this and I may have shared this at the seminar. I was actually teaching with some of my colleagues at an executive education seminar with a tribe who has sort of the boilerplate IRA constitution, system of government-style tribe. We had these lawyers show up to this seminar during the second day and they said, ‘If you have some time at the end of your agenda, we’d like to have the floor so we could talk to the elected leadership and community members and some of the key decision makers,’ that were assembled there in the room. And so we did and they actually got up and they said, ‘Well, we’ve been working on this new draft constitution for the tribe and we got it all done. Here it is. It’s all finished. We want to just give you a quick overview of it.’ And before they got more than about 20 or 30 more words out of their mouth, they got shouted down by the people in the room because nobody knew they were even working on this draft constitution. And so there was no ownership in it and the people that had assembled in the room didn’t even care what was in it, it didn’t matter because it was sort of a done deal. And the feeling was, ‘Well, you’re showing us that this constitution’s a done deal and we weren’t even consulted on it. How dare you.’

And so the ways to overcome, some of the ways to overcome that mistrust is transparency, transparency and transparency. You have to expect that the lawyers are going to respond to the community needs and concerns instead of expecting the community to follow the lawyer’s lead. And what’s absolutely critical is that you create a safe environment for real dialogue. And again this comes back to the role of elected leaders. If you’ve got your elected leaders at every single community meeting about the constitution, about the drafting of a new constitution, and you’ve got a bunch of people that care about this new constitution and they really want to share their thoughts and feelings, but the last time they did it in front of an elected leader they lost their job or something like that, you’ve got to question, ‘Do we really have a safe environment for real dialogue?’ And the elected leaders have to think, ‘Well, me even being here, not even saying anything but me even being present at a community meeting about a new constitution, is that appropriate? Is that going to stifle real dialogue? Is that going to stifle frank input from our citizens who we really need their input if we’re going to have a constitution, a new constitution that is going to have the ownership of the people in it?’

So I want to spend a couple more minutes about some of the things I think that you as attorneys to be need to think about when it comes to tribal constitutional reform and the process by which tribes engage in constitutional reform. Because I would imagine that at some point in your careers -- as I mentioned at the outset -- at some point in your careers you’re going to get involved in a constitutional reform process or you’re going to be engaged on a constitutional question or you’re going to be asked to review the constitutionality of something, of a tribe’s constitution, and that could be in the constitution, it could be in its codes, it could be in resolutions or something.

And I thought this...I wanted to share this quote with you because I thought that it’s very telling. One of our colleagues was having a conversation with the leader of a nation who was engaged in reform and he said that, ‘The law comes from the constitution, therefore the lawyer should come after the constitution.’ I thought that that’s a very telling quote because what you want to think about as an attorney and as a lawyer is, ‘What is my role in assisting a nation in developing a constitution, implementing that constitution, living with that constitution, interpreting that constitution,’ it needs to be a supportive role. It needs to be an advisory role, not so much a creative role.

So one of the things to think about in terms of the appropriate role of lawyers in the reform process is to become an expert on tribal constitutional reform. And there’s a couple threads here that I think you should think about. The first is, have a sense of the landscape. What are tribes doing in the area of constitutional reform across Indian Country? What are the major trends that they’re showing as they develop new constitutions, ratify constitutional amendments, etc.? Where are they focusing their activity, their energy? Things like separations of powers, which is an Indigenous concept. Re-instilling that back into their governance systems. Things like removing the Secretary of Interior approval clause from their constitutions, where if a tribe wants to change its constitution, amend its constitution, it has to go get Secretary of Interior approval to do that. A lot of tribes are just saying, ‘Let’s get that out of the equation. We’re going to amend our constitution to take that out.’

It’s things like strengthening justice systems. And as lawyers who are going to be probably dealing in that realm quite a bit of tribal justice systems, it’d behoove you to know, what are tribes doing in this area to strengthen their justice systems? How are they doing it? How many tribes are bestowing upon their appeals court or their supreme court the ability to review the constitutionality of legislation that the tribe ratifies, that the council passes? So become an expert in tribal constitutional reform. And I would argue also become an expert on...if you envision yourself -- whether you’re an attorney general or maybe you’re a lawyer that’s on retainer with the tribe or maybe you’re consulting a number of tribes -- become an expert on what’s the oral history, what’s the record of that nation’s constitutional reform and that nation’s current constitution because often there’s a lot more in the back story to that nation’s constitution than what’s written on the page. Because you might read a provision that says, ‘Well...’ that articulates a separation between the executive and the legislative and it may be a bit innovative in how it words it, but that doesn’t give you enough to go on. You might need to understand, ‘Well, why did they decide to take that approach to that separations of powers question?’ And so learn what you need to learn to understand how that constitution and specific provisions within it came to be.

Help to fine-tune the final constitutional language. So for instance, there’s one tribe we’re working with right now and what they’re moving towards through their citizen engagement process on constitution reform is they’re envisioning, ‘At the end of the day we’re going to end up with basically a terms sheet.’ It’s basically going to be in very layman’s terms, ‘Here are the dozen or maybe two dozen key things we want to see in our new constitution. We want it to protect the language and preserve the language of the people, the native language of the people,’ or something like that. ‘We want a clear and distinct separations of powers between the executive branch, the legislative branch,’ whatever that might look like, whatever it might be. So there might be sort of layman’s terms-style provisions that then need to be taken by a lawyer who understands the legal language that might...that might be the role for you is, ‘How do we fine tune this?’ Another thing is to provide advice as to the legality of the new constitutional amendments. Because often constitutional amendments, if they’re not worded correctly, they might conflict with other laws that the nation has on the books. They might conflict with the actual constitution. An amendment might actually conflict with the rest of the constitution. So that might be a role that you as a lawyer could play.

Help the nation navigate the secretarial election process. So for a lot of nations, as I mentioned, who have that language in their constitutions that says, ‘If we want to change our constitution, we have to have the Secretary of Interior approve it.’ You actually have to go through a secretarial election. It’s an incredibly complex, thorny process and that’s where an attorney can play a role to say, ‘Okay, how do we navigate this process. Maybe there are other nations who’ve recently gone through this. I can call up their attorney and say, ‘What worked for you, what didn’t? How do we streamline this process? Are there certain people at the Bureau that I need to talk to who will be responsible on this thing so we can move this thing forward so our people aren’t waiting 18 months to get an election on something they already agreed to at the tribal level”?’

One of the key areas is you’d advise a nation on, ‘How do you actually implement this constitution?’ Because often these new constitutions or these constitutional amendments will mandate the creations of bodies of law by which those constitutional provisions are then enacted and it might be your role to say, ‘Okay, well, here’s how we actually implement these changes. We need to create laws for this and laws for that. We need to reconcile these conflicting laws we have or else we can’t fully enact this particular provision.’

And then you have to understand how the changes that the nation is either contemplating or the ones they’ve already made, what is it going to mean for how the nation can now exercise its jurisdiction and sovereignty? Because often if you look at some of these IRA constitutions, they’re very, very limited. They have a very limited conception of the nation’s sovereignty and suddenly when that nation then creates a new constitution, it really argues for a much broader, much fuller expression and exercise of sovereignty. So in your role as legal advisor, you’ve got to think, ‘Well, what does that mean in terms of how we deal with other governments, how we deal with private parties for instance? How does that...what does that mean we have to develop in terms of law? Does this mean we structure our contracts differently?’ So there’s this huge ripple effect that comes from constitutional change where the attorneys are going to be front and center.

So here’s some other things we’ve seen when it comes to constitutional conventions and public hearing processes. I’m not going to spend a whole lot of time on this but...one of the things I wanted to mention briefly is that it’s important for nations who are going down this constitution reform road to not automatically treat it as a one-shot deal. Often because of those political pressures, often because of the short-term windows, there’s a sense of urgency, there’s a sense of...and often it’s because of responding to crisis. There’s this sense of, ‘We’ve got to get it all done at once. We’ve only got one shot at the apple on this. We’ve got to collapse absolutely everything into this constitutional reform process that we’re currently engaged in. It’s basically an all-or-nothing proposition.’ And where that can really handicap tribes is almost invariably there’s going to be one issue or a couple of issues that are so divisive, that are so controversial that at some point they’re going to threaten to derail the process altogether. Often it’s things like citizenship. ‘Do we want to reduce our blood quantum criteria for citizenship? Do we want to get rid of it altogether?’ I can guarantee you that’s going to be controversial. It can be things like elections, it can be things like terms of office, it can be things like, ‘Do we want our elected officials to be fluent in the language of the people, the first language of the people?’

I worked with one tribe where that blew up the whole thing. They agreed on a bunch of other stuff, but the reform committee was divided right down the middle over that question and instead of saying, ‘Well, let’s set that one aside and proceed with what we agree upon,’ they said, ‘No, because we understand we’ve only got one shot at this, that’s our thinking, then it’s all or nothing,’ and it turned out to be nothing. And I read their draft constitution, it had some amazing things in it, some amazing things that only would have come from them. It is not something that any federal government bureaucrat would have ever dreamed up. It was definitely unique to them, but all that was lost because of disagreement over one thing that probably could have been tabled and an innovative solution could have been crafted over time and it could have been voted on separately.

And then when we’re seeing tribes abandon the Secretary of Interior approval clause and basically saying, ‘We’re going to leave it up to ourselves to determine how our constitution is going to be amended moving forward,’ a lot of thought needs to be given to that because you don’t want amending the constitution to be too easy because then it can be subject to the political whims of the day, the political, internecine fights of the day. You want to make it pretty difficult to change. Not impossible to change, but pretty difficult to change.

Another thing that more and more tribes are considering are older cultural solutions. If you look at some of the new constitutions that are being developed up in Canada by First Nations who are developing new constitutions either by abandoning the Indian Act or often they’re developing them in conjunction with these treaty processes that they’re going through with the provinces up there, some amazing innovative efforts to re-integrate governance principles, time-honored governance principles that are Indigenous to their own cultures. And it’s really fascinating and I think often we see First Nations in Canada looking to the tribes in the United States to learn from them about how do you engage in nation building, how do you engage in governance reform? And I think what we’re starting to see is that tribes in the U.S. have a...can learn a great deal from First Nations in Canada when it comes to constitutional reform and re-integrating culture. And not just culture in sort of the abstract, but culture in the ways that Indigenous nations lived traditionally, in the ways they thrived traditionally, the sophisticated governance mechanisms they had developed and honed over centuries and millennia to ensure their survival, ensure their prosperity. They’re bringing those things forward and they’re sort of tweaking them, they’re adapting them to meet the challenges that they face today in the 21st century.

So just some more information about some tips on the referendum process and again I think as attorneys this is where you’ll likely play a role. There’s the question of the secretarial election process, which is a federal election and then there’s the tribal election process where the tribal citizens come together and vote on this new constitution. And I won’t go through all these, but here’s an overview of some of the emerging best practices we’re seeing when it comes to the process of constitution reform.

And the one I added here is that when nations, and in particular constitutional reform bodies that they set up, have this conscious thought in mind that, ‘At the foundation of the work that we engage in on constitution reform and in the process of engaging the people about reform, we really need to set it up around two litmus tests of success and that’s trust and ownership.’ And basically the thinking is that, ‘We’ve got to do...we know the people, we’ve got...we know what the deterrents will be to them fully engaging this process. We’ve got to figure out, 'How do we overcome those obstacles, how do we engender in them a sense of trust in the process, which over time will ultimately lead to ownership in the result?’ Trust in the process and ownership in the result, and if you don’t have those things, you’re going to end up with that outcome where it was worse than what you started with."

Joan Timeche: The Hopi Tribe: Wrestling with the IRA System of Governance (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Defining Constitutions and the Movement to Remake Them," Joan Timeche (Hopi) discusses how the Hopi Tribe continues to wrestle with an Indian Reorganization Act constitution and system of governance that runs counter to its traditional, village-based system of governance and that currently does not represent a significant percentage of Hopi citizens.

People
Native Nations
Resource Type
Citation

Timeche, Joan. "The Hopi Tribe: Wrestling with the IRA System of Governance (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation highlight.

"My tribe has 12 villages that were autonomous before the federal government came in and they didn't want to talk to not just those 12 village chiefs, but we have a very complex religious...religion and cultural ways that we have multiple societies, there's chiefs of them, of all these societies, we have ceremonies, there's chiefs of those functions and basically they didn't want to have to deal with all the multiple chiefs. They said, 'We need...we want one person.' And a lot of...and we see that...we've heard of this in a lot of other nations where they really wanted to get to the resources of those people and they wanted to deal with one person, one chief who could put their fingerprint on those documents because they didn't want to have to deal with too many chiefs.

And so in this case, when our constitution was established, it's an IRA [Indian Reorganization Act] constitution, in 1935, we had four of our villages who never willingly accepted that form of government and today have no representation on our council. They consider themselves to be traditional. One of those villages constitutes about 25 percent of our population. Can you imagine that? And then so we have...and now we're going through some political turmoil still and now we have only about five villages who are making decisions on behalf of the entire nation. So we have that hybrid that exists there. You have outside to...anybody on the outside sees the Hopi tribal council as its form of government. But internally, in my village and many other villages, we know all the decisions get made at the village level and the council has not much to say over the land base or what happens within the villages. So you see the hybrids that still continue to exist throughout even today."

Stephen Cornell: Defining Constitutions (Presentation Highlight)

Producer
Native Nations Institute
Year

In this highlight from the presentation "Defining Constitutions and the Movement to Remake Them," Stephen Cornell provides some basic definitions of what a constitution is and the role it fundamentally plays -- or should play in the life of Native nations.

Native Nations
Resource Type
Topics
Citation

Cornell, Stephen. "Defining Constitutions (Presentation Highlight)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. Presentation highlight.

"...What kind of future do you want for your people and how do you get there? That's what a constitution is. It's a tool. It's something that a nation uses to achieve its goals.

So let's start just thinking about what is a constitution and why does it matter. And I'm going to give you a definition here, it's just one definition. I think if you canvassed everyone in the room, you'd probably come up with a number of alternative definitions, but here is one version. 'A constitution articulates the most fundamental rules by which a nation and its people intend to work together to achieve their goals. The most fundamental rules by which a nation and its people intend to work together to achieve their goals.' A constitution lays out those rules. It's about who you are as a people, how you intend to make decisions, which relationships to the land, to the spirit world, to each other, to other nations are most important. What is it you're trying to protect, to defend, to sustain? What is it you're trying to change, make better, make different? A constitution is like a roadmap. It says, 'This is how we work together, this is how we get things done.'

It's about governing.  And if...you know, what you want to be...when you undertake the task of governing a nation, you have to think very carefully about, 'What are you governing for?' When you start to make a constitution, think of it as that tool, but what kind of house are you trying to build with that tool? What kind of future are you trying to build with that tool? Those are the sorts of things you need to think about when it comes to constitution making. Why are we doing this? What's that future we want for our grandchildren, for other generations yet to come? These are big issues, but you can't go into a constitution just thinking, 'Gee, we've got this crummy constitution that some bureaucrat in D.C. came up with and we need to fix pieces of it.' What you really want to do is say, 'Where are we trying to go? Do we have the tools that'll get us there? And let's think about what those tools should be.'

Another way to think about it, and this I put together just from the dictionary, 'To constitute, to compose.' We're composing ourselves as a nation or we're recognizing what we've already known for generations what kind of nation we are. Bring together pieces into a whole. Are people going off in different directions? There's conflict, families who don't talk to each other, a history of fragmentation because of the stomping that you were subjected to by the U.S. government, the Canadian government, some other government, some colonial system. How do we take those pieces and bring them back together, to constitute yourselves as a nation? 'To establish or create.' So, to constitute ourselves as a nation or community capable of organized action, we want to be able to act. We want to make our dreams a reality. Now we've got to think about what tools we need to do that."

Sarah Deer: The Muscogee (Creek) Nation's Approach to Citizenship

Producer
William Mitchell College of Law
Year

Sarah Deer (Muscogee), Co-Director of the Indian Law Program at the William Mitchell College of Law, provides a brief overview of the Muscogee (Creek) Nation's unique approach to defining its citizenship criteria, which essentially creates two classes of citizens: those who run for elected office, and those who can't. 

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

People
Native Nations
Resource Type
Citation

Deer, Sarah. "The Muscogee (Creek) Nation's Approach to Citizenship." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"What I'd like to talk about just very briefly is...first of all, I'm a citizen of the Muscogee (Creek) Nation and I probably...by the way I look, you can tell I'm a lineal descendent as opposed to having a high blood quantum. And I want to talk a little bit about that because one of the things I think -- especially in Oklahoma -- they kind of joke about us. I'm not Cherokee, but they joke about the blonde-haired, blue-eyed Cherokees, and one of the things I think that's really important for someone like me to acknowledge is that I have privilege because of the way I look. I can walk into a store and I'm not treated as an Indian because people don't see me as an Indian.

And when I was talking to one of my mentors, an elder who works to help me try to learn my language, she talked a little bit about that with me recently, about...when she grew up in rural Oklahoma in the 1950s, the level of painful racism in her memory is still very palpable, being treated as second class because of her skin color and because of her name and so today when she sees people who can pass, who don't acknowledge their privilege, who say, ‘I'm a tribal citizen, but I'm just the same as you,' when I didn't go through the experience of racism is painful. And I think we have to talk about that when we talk about lineal descendency because I get the privilege of passing. I get to tell people I'm Indian if I want to and if we don't acknowledge that painful history, I think we're going to continue to have a lot of controversy about what this means to potentially open up citizenship. So I wanted to say that at the outset.

And the other thing that I think is interesting is that I'm asked often what my...how much Indian I am, my blood quantum. But the only people who tend to ask me that are non-Indian people. What Native people ask me is, ‘Who is your family?' So it's...the blood quantum itself is something that is of interest to people, but in my experience that's usually coming from outside the tribe.

Now, what I wanted to talk about was one particular facet of my own tribe's constitution when it comes to governance because we have two classes of citizens. One class is full citizens and the other class is citizens and I want to talk about the difference between the two in just a second. But typically, when we think about American citizenship, the American government really doesn't do much in terms of distinguishing between citizens. All citizens are treated the same. If you're naturalized, you have the same rights and privileges as people who were born here. The one exception that I think became I think a focal point of the election in 2008 was that the president must be a natural-born citizen and so to be the President of the United States you have to have been born here in the country.

So let me tell you about how this Muscogee constitution developed. We have a very complicated history as most tribes do. In Oklahoma in particular we governed...we had really no acknowledgement of our government between 1906 and 1977, 1978. We were still operating as a government, but the federal government didn't recognize us pursuant to the Curtis Act. So when we were able to fight and get recognized as having continuing governance throughout that time period, the federal court actually ordered a constitutional convention, which was interesting and sort of ironic that in terms of re-recognizing the tribal government, the federal judge says, ‘And we will tell you how to do this.' But we did end up ratifying and passing a new constitution in 1979, which governs us today, and citizenship in our nation is determined through lineal descent [from] the 1906 Dawes Roll.

One of the things that's interesting about that of course is that in 1906 during allotment, many traditional people refused the Dawes Roll. They refused to go and sign up for their allotment on principle because they never consented to breaking up the reservation and so you have a lot of traditional people in Oklahoma today who are not enrolled in any tribe because their ancestor stood their ground. So that's another interesting facet.

But what I want to talk about specifically is how the constitution distinguishes between full citizens and citizens, and this comes from Article 3, Section 4 of our constitution, and explains that full citizenship requires the one-quarter blood quantum and those folks are known as the 'full citizens.' And then all citizens who are less than a quarter blood shall be considered citizens and shall have all of the rights and entitlements as members of the Muskogee Creek Nation except the right to hold office. And I'm still doing some research to figure out exactly how this decision was made or what the dialogue in the community was, but to hold office under the constitution you have to have this quarter-blood requirement. So I can't run for office.

And so one of the things that happened is how do we interpret that language? So I just...I present this sort of as a cautionary tale as you're thinking about potentially designing language that would provide this kind of distinction, the kinds of ambiguities that can develop. So what does it mean to hold office? And this became the subject of a dispute in 1986 and the question of what is the right to hold office. So citizens of the nation elect a principal chief, a second chief and a tribal council. And justices and judges are appointed by the principal chief and confirmed by the council so they're not elected positions.

So in 1986, there was a district court case in our tribal court and the party who lost the case appealed to the Muscogee Supreme Court arguing that the judge, the district court judge in that case was not a quarter blood, he was an eighth and so the losing party challenged that decision saying that the judge was not qualified under the constitution because he was holding office with less than a quarter blood. And so what the tribal supreme court then had to do is to interpret what the constitution meant by hold office. And they ended up determining that the constitutional requirement for full citizens or quarter bloods applies only to elected officials. So in other words, the judge and the justices do not have to be full citizens under the constitution.

Now after that case, the Muscogee Tribal Council passed a law that required judges and justices to be full citizens. And this has never actually been litigated, although I suppose someone could challenge that as a question of whether or not the constitution saying hold office trumps the statute that says judges and justices are included in that. So we don't know for sure how the court would have ruled on that particular statute. But slowly, in recent years, I think what has happened is that the body of qualified judges and justices has somewhat shrunk in the sense that there's not a whole lot of quarter bloods practicing law in our tribal courts. And so how do you then find a judge or a justice who's qualified to sit on the court?

So in 2010, the tribal council passed new laws stating that the judges and justices must be full citizens unless there's a waiver passed by two-thirds of the council. And in 2012, they amended that again and now you must merely be a citizen of the tribe, which means there's no blood quantum requirement for the court, but still the quarter blood quantum requirement is for principal chief, second chief and council. So I can be a judge for my tribe, but I can't run for office is basically how that plays out for me; being not in Oklahoma, I suppose that I would not be in a position to run for office at any level.

So there's one other thing I wanted to say about that. Oh, so the other thing that may be important in thinking about this is that to be a district court judge or a trial court judge in our tribe you have to be an attorney. You have to have a JD, you have to have a license to practice law, and you have to have at least four years of experience practicing tribal law. For the justices of our Supreme Court, there is no requirement that you have a legal degree, you merely have to be appointed by the principal chief. And so we have elders on our tribal Supreme Court who are not attorneys and I think that's a really intriguing development where I see a mixture of attorneys and non-attorneys on the supreme courts of tribes where you can blend then traditional knowledge with sort of contemporary western legal traditions.

So I just wanted to give that as sort of a tale of being careful when you draft language, because I'm not sure that everybody agreed on what 'hold office' would have meant, but now it's pretty clear that judges and justices are exempt from the full citizenship requirement.

One other thing I just wanted to raise because we talk about the Veronica case and the Indian Child Welfare Act. One of the things that's interesting about ICWA is that it applies when a child is a member or eligible for membership. Can a tribal government distinguish between citizenship and membership? The reason I bring this up was partly based on a comment made this morning about the clumsiness of the English language and how the English language around the terms like 'citizenship' and 'members' is really incomplete or a mismatch for culture. But there is an English distinction between 'member' and 'citizen,' at least they're two different words, and so one of the questions that I would just pause at -- and I don't know that I have an answer to this is, could a tribal government distinguish between citizenship and membership specifically thinking about ICWA and expanding the body of children in which the tribe would have jurisdiction over? So that was just one piece that I wanted to leave you with and I think that's what I have to say. So thank you."

Jim Gray: The Role of Citizen Engagement in Nation Building: The Osage Story

Producer
National Congress of American Indians
Year

Jim Gray, former Principal Chief of the Osage Nation, provides an overview of how the Osage Nation completely overhauled its constitution and system of governance, sharing the strategies that Osage used to educate and engage its citizens in order to ensure that their new government reflected the will of the people.

This video resource is featured on the Indigenous Governance Database with the permission of the National Congress of American IndiansThe short film shown in this video resource is featured on the Indigenous Governance Database with the permission of the Osage Nation.

Native Nations
Resource Type
Citation

Gray, Jim. "The Role of Citizen Engagement in Nation Building: The Osage Story." 70th Annual Convention & Marketplace, National Congress of American Indians. Tulsa, Oklahoma. October 15, 2013. Presentation.

Ian Record:

"And at this point I wanted to turn the floor over to Jim Gray. I mentioned, for those of you who are just joining us, former principal chief of the Osage Nation, that is here to tell the Osage story in terms of how they’ve approached this challenge of citizen engagement, citizen education. Jim, if you wanted to stand and perhaps just say a few words about the video that you want to lead off your presentation with.”

James R. Gray:

“Good afternoon, everybody. The video that we’re going to see is one that was produced by the Harvard Project’s Honoring Nations group. A few years ago we received one of those honors and in order to help inform everybody about what we actually did to earn it they produced this video and I think it captures some of the things that we’ve already started talking about, Ian, so go ahead and roll.”

[VIDEO]

Narrator:

“One of the boldest acts any tribal government can take is to initiate a wholesale reform process that puts their office and voting base at risk. The 31st Osage Tribal Council did just that when they set in motion the Osage Government Reform Initiative.”

The Problem:

Narrator:

“For almost 100 years, the federal government had dictated that the only recognized Osages were those listed on a 1906 roll. Only those Osages who had inherited a share in the mineral estate from someone on this roll could vote in tribal elections. This alienated 12,000 of the roughly 16,000 Osage descendants from their own political process.”

Corgus Bear:

“My father, he passed away when he was 52 and he never got to vote. My mother votes and she has multiple head rights so she has more than one vote. She has several votes. So unlike me, I’ve been registered to vote since I was 18, but I’ve never been able to vote in my own tribe’s...any election process or be any part of it, and on paper I was not considered Osage.”

Joe Conner:

“If you’re going to have a government where half, three-fourths of your citizens are speechless in terms of the official operation of the government, then you don’t have a government.”

Jaime Butler:

“There are so many smart people out there that aren’t head right...don’t have a head right and are Osage that I think would be...benefit our government.”

Narrator:

“Citizenship however was not the only way in which the federal government had limited the possibilities for the Osage people.”

Charles Red Corn:

“As much as we revere the 1906 Act, it did not give a clue about how you’re supposed to run a government and it resulted in an organism of personalities where whichever personality was the most persuasive or came up with the best game or whatever could control the council.”

Mark Freeman:

“As far as the form of government, this resolution form of government is good for one thing, you can pass a resolution one day and then do away with it the next. That’s not too good a way of running a business."

Jim Gray:

“We needed to get our sovereign rights back. That was the big issue. It became more than just a membership criteria, it became...why should we go ask permission to exercise our sovereign rights? And that’s what we’ve always done in the past and because we...after a good look around, we realized we’re the only tribe in the country that was set up this way."

The Process:

Narrator:

“In December of 2004, the Osage Tribal Council sponsored federal legislation that lifted 98 years of direct colonial control, allowing the Osage people to once again determine their own citizenship and form of government. The federal government was no longer going to hold the Osage people under a resolution style government with its 4,000 shareholders, but what instead would take its place? Because they were already occupied with the general operations of the tribe, the Osage tribal council decided to create the Osage Government Reform Commission to oversee the reform process. The first step in the process was education for the reform commissioners.”

Joseph P. Kalt:

“The first thing that emerged was, well it really wasn’t economic development, it was really social development. How do you build a healthy society?”

Kathy Supernaw:

“You might have a recommendation but you set forth all the possibilities. [Audience member: We represent what the people have told us.] Yeah. You’re taking...you’re going out and doing all these public hearings and you’re getting peoples’ opinions and then you collect all those opinions and you try to get them all in groups.”

Narrator:

“And then education for the Osage people.”

Leonard Maker:

“And in 1906, the United States imposed allotment on the Osage and imposed a government and membership standards on the Osage people.”

Narrator:

“The second step involved the collection of Osage opinions from 42 community meetings, a questionnaire, a phone survey and a referendum vote." [Voice: We’re here to figure out what the Osage people want in a constitution.]

Linda Lazelle:

“This one particular child -- although all of his ancestors was full blood Indian -- couldn’t qualify to go to a clinic or to get any social services because the government is pushing for blood quantum. That could happen to any of our children, any of them.”

Frank Oberly:

“We do need a legislative branch, we need an administrative or executive branch and we need a judicial branch because a lot of the tribes today, whenever they have troubles, it’s because they cannot enforce a law or an ordinance that they passed because the tribal council has precedence so then it just...it ends up being just a political mess.”

Narrator:

“Then the reform commission set out on the challenging task of using these opinions to write a constitution."

[Discussion]

Narrator:

“On March 11th, 2006, a vote was held to ratify the constitution."

[Discussion]

James R. Gray:

“And it’s my honor and my duty and certainly my pleasure to report the results of the referendum question. Shall the constitution be approved? Yes, 1,454. No, 728.”

[Cheering]

The Payoff:

Corgus Bear:

“Today, I’m an Osage finally.”

Joe Conner:

“Now the citizens are important.”

Jackie Butler:

“And no longer will it be a minimal council government but a government of the people.”

Hepsi Barnett:

“Research will bear out that that’s a system that will create the stability needed for a nation to prosper.”

Gregory Clavier:

“And I think you’ll see more participation, you’ll see more people getting involved and people that have a lot to offer. Osage people are all over the world basically and by doing this I think it pulls the whole tribe back together again, so I think this is a very important day.”

[END]

Jim Gray:

“There’s a lot to be said about that video because it captures a lot of what I think Ian [Record] was trying to set this...tee up this part of the presentation for me at least. But let me just start with a couple of things. One was the Government Reform Commission itself. One of the most interesting aspects of this is that when you start looking at the personality dynamics of the 31st Council, clearly I was the youngest person in the room. I was I think in my early 40s at the time and the ages ranged from...I think we had one councilman that was in her mid 30s and we had one councilman that was in his mid 80s and then we had everyone else in between, and all these different personalities and different backgrounds and different perspectives as shareholders, as someone who like our eldest person on there was 85. You saw him, Mark Freeman. He was all the way up into his mid-to-late 70s before he actually inherited a head right because his mom lived until she was in her 90s, so we’re talking about a system of government that created scenarios where the oldest person in the room was actually the youngest tribal member in the room, as bizarre as that sounds. Is there a question?

The head right is like a corporate share and the share was a piece of the Osage mineral estate, it was 1.5 million acres, still is, and it was divided up between all the original allottees that were signed up on the rolls in 1906. Each one of those allottees were given one corporate share or a head right of an interest of the royalties of the oil and gas development that occurred there. Unfortunately, one of the things that they did when they did that was that they closed the rolls. So there wasn’t going to be any more Osages because they were tying property interest in the mineral estate to political rights within the tribe. So we went all the way up until 2002, when I got elected and the council came in, we were faced with a dilemma. There was nine original allottees still alive. Our senior planner at the time, Leonard Maker, had [written] to the solicitor in D.C., asked them a question as a citizen, ‘What happens when the last original allottee passes away?’ And I think his name was...gosh, I can’t think of it now. It’ll come to me at some point during this session here. But he wrote back and said that...Verdon, Terry Verdon, that was his name. He said, ‘When the last original allottee passes away, there won’t be a federal trust responsibility with the Osage Tribe because the Osage Tribe won’t exist any more in the eyes of federal law.’

So we didn’t need any more motivation than that. We decided to go get federal legislation passed, which happened in two years, from 2002 to 2004. So once President [George W.] Bush signed the bill into law, it became law, we called a big celebration, called it Osage Sovereignty and Celebration Day and that was in 2005. In 2005 we set up the commission and as I was getting into the discussion of the dynamics of the personalities involved, the commission was selected by members of the council. We got together and we said, ‘Okay, we’re going to do a secret ballot.’ We want four people picked by each one of us and each one of us would turn in our names of people that we want to sit on that commission and they wanted them to be people with good reputations in the community, good education, good cultural backgrounds, basically model citizens that would reflect the best in all of us, and that’s kind of the way we went into it. And so the people that you saw and some of them were interviewed in that video, were the ones that did the primary work of holding the meetings, getting citizen input and trying to consolidate the broadest consensus they could to make up the constitution, the key elements that they heard from the citizens and what they wanted in it.

As an elected official who was in charge of the day-to-day operations of the tribe, we were certainly of...well, let’s say from a political standpoint as [an] elected official, I think Congressman [Tom] Cole asked me the right question at the time we were holding committee meetings on our legislation. He said, ‘Chief Gray, why would any elected official change the constituency that put him in office?’ He was bewildered by that. He says, ‘I’ve never heard of a politician do that.’ And I told him, I said, ‘The mandate for change was in the election in 2002 when basically everybody who was running ran on that issue and those that ran on that issue got elected and all those that were opposed to it got thrown out.’ And it was the biggest wipeout in 90 years of Osage elections. Didn’t think we needed much more in a mandate than that. But after the meeting was over and they turned the cameras off and the Congressional Record was over, I walked up to him and I said, ‘You really want to know why I did that?’ And he said, ‘Yeah, I really do.’ And I told him that my...I was watching the news one day, they were showing scenes from the period of time when the Soviet Union collapsed and I realized I had a choice because I was watching two different scenes on the screen. It was a split screen. One of them was Mikhail Gorbachev under house arrest by his own government and the other one was Boris Yeltsin holding the Russian flag sitting on a tank. And I really pretty much had my choice. Do I really want to be under house arrest or do I want to be on top of that tank with the flag. And I said, ‘But at a congressional hearing, that’s the last thing you want to put on the record about how the Russians came into power.’ We got a big laugh out of that, but the reason I bring this up is that when they counted up those secret ballots and each one of them, if there was more than one person picked, they got two votes and we just developed a consensus based without actually having to lobby or nudge or twist arms or anything like that. It was all a very personal decision among each one of us, and as a result we ended up getting the group that we did.

So as we turned them loose onto the Osage public, part of our biggest thing to overcome is, as you saw on there, there was 100 years of paternalism that was imposed on the tribe that basically split us in two. So it was not hard at all to get the shareholders or head right owners within the tribe to show up for meetings. The difficult thing was to get the non-shareholders to show up for meetings because they had any interest of expressing a political voice pretty much beat out of them as a child. And so it has taken us all these years to still, it’s still a trouble that I think still exists out there, that at a time when we really needed to hear them it was very difficult to get them to come out. And we had individual events that was targeted just towards the youth, we had big dinners, invited everyone to come, bring their families. We gave the employees that were working for the tribe special presentations. We tried every way we could think of to get them engaged. Social media didn’t exist really at that time, so we relied mostly on emails, that kind of correspondence, we used our tribal newspaper. We had to get people to update their addresses to us. It was a very, very challenging thing to do but during the process we were able to get a lot of feedback because once the momentum started, the buzz was starting and people were making phone calls, ‘Oh, so I hear they’re coming out to California.’ ‘Oh, I hear they’re coming out to Denver,’ or ‘They’re coming out to Dallas,’ and ‘They’re going to be in your...the commission is going to be in your town soon.’ So, as the word started to get out, you saw a lot more interest in participation and each week they would have regular business meetings and citizens locally would come in and express their concerns for the record. So there was never...I’d say the last six months it just took off, things were just moving really fast. They were getting a lot of good data in and they realized they hit a wall and part of it was that there was conflicts among the commissioners as to what certain fundamental issues they couldn’t achieve a consensus on.

So we backed up, instead of doing one referendum on the constitution, we basically had a mini referendum then the big one on the constitution. The mini one was a series of questions of things that there was not a consensus among the commission on; things like, how strong was the old minerals council going to be in the new form of government? Was it going to be a stand alone, was it going to be just a board within the tribe, was it going to have any other governmental functions beyond just approving oil and gas leases? Because if you read the 1906 Act, that’s all the government gave that minerals council. But as time went on, for lack of any other reason, they just became the de facto government of the tribe with all its imperfections of isolating three-fourths of the tribal members from participation as well. So we knew that that was unsustainable as an option. So as we went through that process of trying to figure that out, we had to put that back to the people and when I say to the people I meant everybody. Everyone got to participate on both of those referendums. I caught some crap for that. I’m sorry, I didn’t mean to use that word, but there was just a lot of reasons for people wanting to keep it just with the head right owners. And at that point, I just realized it was -- I don’t know if you call it leadership or impatience or just determination--  that somehow we were going to allow the Osage people, all the Osage people, by lineal descendency participate in forming their own government and as many of you here probably think that, ‘Well, of course, that’s exactly what you would do,’ you would be surprised how outrageous and controversial and divisive that notion became because there were people that said, ‘Only shareholders can do the government reform.’ ‘Only shareholders can participate in the reform itself.’ ‘Only shareholders will have a say in drafting the constitution.’ And as that process seemed to permeate within the most politically organized group of the tribe, while being a minority, never really had any big answers for how and when and in what manner were the non-shareholders ever going to be a part of the tribe.

And those were the two competing issues that really was the theme that ran through the Government Reform Commission’s work. And as somebody who was in part a participate as an Osage citizen and a shareholder myself, but also as an elected official under the old form of government and as somebody who’s an advocate for change as was my colleagues on the council, you could see the obvious dynamics even within that small group. We’re like, ‘Well, maybe we should wait on this, maybe we should wait 10 years and just ease into it.’ Like I said, I snapped. I could be a next episode of that movie, that show 'Snapped,' because I just said, ‘We’ve waited 100 years for this. The United States government says, 'It’s your decision now. It’s not ours, we’re not imposing this on you anymore. It is your responsibility.'‘ So our response to getting this responsibility given to us is to give it right back or to ignore it? I just wasn’t going to accept that and I just...they were wanting to put off the referendum, they wanted to put off the vote, they wanted to keep the government in two pieces, they wanted...there were some that were advocating, ‘Maybe we need two Osage tribes.’ Because all the other options were comfortable because it didn’t require them to deal with the heavy matters of bringing some unity within the tribe, realizing that even though this was an imposed designed structure that was never meant to last more than 20 years. And by federal law we were able to get extension and extension and extension, but it was never designed to last more than a generation.

And so beholden to a structure that was never designed to last very long seemed like a dangerous option and the only way out of the mess was to continue going forward and the citizen outreach began to pay off towards the end. People started to get it, it started to click and they were starting to embrace it and they were starting to see elements of that constitution appear in early drafts that were being sent out to everybody in the mail. And once people started to get the taste for what those words coming to life actually would look like in a new Osage government, it gave you a sense of hope and inspiration and a feeling that, 'This is ours.' We had the hardest time letting go of the idea of being able to blame the Bureau [of Indian Affairs] for all the problems at the Osage Tribe, and we had to come to grips with the fact like my old friend Mark Freeman said, ‘Well, this thing lives or dies, it ain’t gonna be nobody’s fault but our own. We did this to ourselves and by god it’s a long time coming. The days of blaming the BIA for our sorry lot in life are over. We’ve got to grow up and grow out of that.’ And in a way, he couldn’t have said it better. This came from a man who by federal law and Bureau interpretation was never given his head right in restricted status. It was immediately decided that he was going to be a competent and he had to pay taxes on all the royalty that he got and he had to wait 77 years before he even got on. Well, you saw Curtis Bear up there. He got one the second he turned 18. Unfortunately, it was because he inherited his because his parents died and what a morbid way to run a government anyway. Your parents have to die before you inherit any part of the political franchise of the Osage Tribe. Like I said, there wasn’t any other tribe set up this way and at some point along the way like some victim of a hostage crisis, we didn’t...at some point after about four generations we didn’t realize that what we were living with wasn’t right. It became normal.

So when I advocated the fact that, ‘No, everyone gets to vote on a referendum, that everyone gets to participate in the government reform process.’ To try to explain the heresy of those words to a group like yourself who maybe are not even familiar with such a thing, back home it was crazy. And at that point, you just tried to do the best you could and just say, ‘Look, the only way this government’s ever going to reflect the will of the Osage people is that the Osage people participate in voting for it or voting it down. That’s the only way it’s going to last,’ because at that point we were no longer defined by our property possessions, we were defined by what was in here and that our connections were all related to the same rolls and it became something bigger than that. All of a sudden, it became a matter of people issues and not necessarily property.

And so as we got through that referendum process and the commission finished its work and submitted it for the council for final approval to be put before the voters, there was a 'cold feet' for lack of a better term of the councilmen because they had been hearing the voices of the concerned that, ‘We aren’t ready for this, we don’t need to be doing this. We need to wait, we need to wait, we need to wait.’ And because by federal law the United States government says, ‘From this point forward, August 4th, 2004, whatever you...however the Osage Nation is going to govern itself is up to the Osages.' They are recognizing the Osage Nation’s inherent right of self-determination, of what form of government they’re going to have and who are their members going to be as long, as those that were receiving an interest in the mineral estate are not affected by it.’ And that was the compromise that was made at that time because it was a Fifth Amendment issue, there was a property right interest. ‘You inherited that, that’s yours. The Constitution can’t take that away from you.’

And as the Government Reform Commission went about doing its business, according to them, that issue alone -- that was already decided when Congress passed the law, that issue was already decided before we even started the Government Reform Commission -- that nothing this new government can do can take away that head right that belongs to you. But unfortunately in all the meetings, that issue took up probably 80 percent of their time and only 20 percent of the time was spent on all these other matters. At one point, when we videotaped all these meetings, one individual citizen was beating this table and screaming as loud as he could, ‘It’s mine. It’s mine. It’s mine.’ With every ounce of energy he had, he’s beating that table. The passion of the fear that an Osage government will take away your head right was so deep and so pervasive throughout the communities of our nation, it dominated the politics of the government reform process, it dominated the process, it dominated the conversations, it dominated the agenda. And the sad part of it was is that that issue was already decided in D.C. when Bush signed that bill into law. So we had a communications issue that went far beyond the constitution.

And so when I try to explain the chronology of how we got through this process -- and as chief at the time I was looking at the end of my term -- they voted on the constitution in March of 2006. My term ended in July of that year. We had an election in June and there was a big debate as to whether or not we needed to have the election with everybody participating, so we had a communications issue there. ‘Well, of course.’ And they said, ‘Well, when does this constitution go into effect?’ It went into effect when the people voted for it. But what parts? The parts that call for a three-branch government or the part that calls for an election at the end of our terms. There was all these other little questions. Do elected officials, can they continue to serve on the gaming enterprise board? We had a corporate entity that did non-gaming businesses and there was elected officials on that board. Well, the constitution that was just passed by referendum says explicitly, ‘No elected official will serve on enterprise board.’ So what parts are in effect and which parts aren’t? And so the elected officials who were thinking about running for re-election under the new government had enormous things on their plate of having to grapple with while they’re even thinking about whether they wanted to run again. I was one of them. And so I just kept moving forward.

I use this quote because in this case it definitely applies. You know the movie John Candy was in called 'Canadian Bacon'? Ya’ll remember that? He had this great line in that movie. A group of United States citizens decide to invade Canada and that’s the comedy. He gets out, he’s got this stupid little hat on, he’s got his gun and he says, ‘There’s a time for thinkin’ and there’s a time for action and this is no time for thinkin’.’ As only John Candy can deliver a line and I was laughing to myself because I thought, ‘Osages have been thinking about this for 100 years. If there was ever a time you go for it on fourth down, this is it. This is the time you make your move.' And I had to do some subtle diplomacy with my councilmen and I had to create a boogey man of sorts.

The commission was worried. They were legitimately worried that the council was not going to allow that vote to go forward. There were two members of the council that got up and made very passionate statements that the tribe was not ready for this, ‘We want to...let’s go ahead and do another shareholder vote and another minerals council for another four years. Maybe we’ll do it after that, but definitely not now.’ And I was the only one who spoke on that council at the time saying, ‘No, we have to do it.’ And the only reason I had to do it was...the only reason I had that I think resonated was the fact that under the Public Law 091430...I can’t remember exactly what the public law was, but the government’s no longer in charge of telling the Osages how to run their tribe, their government. It’s our job now, and if you don’t like what the Government Reform Commission produced, vote it down, but if you’re going to use your position to stop the vote from even taking place, then I enjoy a certain degree of power under this constitution too, as now the executive branch. ‘I’m going to call a constitutional convention next month and whoever shows up at Wakon Iron Hall is going to decide how the government’s going to go.’ Well, the prospect of a mob deciding how the constitution was going to look like resulted in a quick vote of approval and submit it to the people and let’s get it over with. And that’s...you saw how relieved I looked when I did those results, because I didn’t know whether this was going to work. Nobody knew how this was going to work.

If you’re waiting for a roadmap to tell you exactly how everything is supposed to happen, it ain’t never going to happen in politics. Maybe you take calculated risks, you push it as far as you can, but at the end of the day, it’s all about a process, a process that involves a commitment from the governed and a commitment from the citizens. And those that are participating in carrying out the will of the people have all got to realize that this was a window of opportunity that was very unique in Osage history, that the timing, all the right people were in the right places at the time. Had this thing waited another four years, I don’t know, I don’t know.

My worry was that the day President Bush signed that bill into law in 2004 we were down to one original allottee and I did not want to wait to find out whether or not we could fight this in the federal courts and have our recognition restored, not while we had a chance to do it ourselves. And so I have enormous amount of respect for my colleagues who were just people living in a very unique period of time in tribal history to be able to build a process that would last, and realize that the 1906 Act was never meant to be a government for the Osage people. It was meant to be a way to extricate the Osages from their land and their property and their citizenship within 20 years. That’s what it was designed to do. The allotment acts that occurred at that period of time were designed to only do one thing -- to separate Indians from their land, Indians from their tribes, destabilize everything about them that was Indian. Boarding schools, all these programs came out of that era.

So it’s not so unique of a situation the Osages were in, it’s just that because of the oil and gas industry needed to have one entity they could work with that would approve their oil and gas leases so the drilling can go unabated and only have one entity to deal with probably was our saving grace. We also paid for our reservation with our sale of our lands in Kansas which gave us some property right interest even though there was some debate of whether or not Indians were human at the time I think and eligible for Fifth Amendment protections. A lot of uncertainty in the air. If you wanted to make a change for yourself and realize that this uncertainty is not satisfactory for you or succeeding generations, if you take the chance and realize the time is right and you have the people with you, you don’t need any more ammunition, you just go. You just go as far as you can and for me, I went as far as 2010 and I got thrown out of office.

I will say this though, Steve Cornell was interviewed after I left office and I really appreciated what he said because...at first I wasn’t quite sure how to take it, but after reflecting on that quote I realized that it was a very, very nice thing to say, because you’re not defined by how long you serve in office, at least I hope not. But I think you’re defined by what you get done while you’re in office, because in some ways that lasts and...because it’s not just about holding office, it’s about doing something, doing something important that you’re proud of that you can always look back and fondly remember the days that you were engaged in something important and realize that there’s...I don’t have any reason to regret any of this and I don’t, but when Steve Cornell was asked by a reporter about my experience as chief, because it made news of sorts at the statewide level that I lost and when you lose third place, you don’t have any second thoughts about, ‘Wow, if I could have only done this or done that I could have won.’ No, I think it’s better to get blown out, that way you don’t have any second thoughts. When you think about it, it’s like, ‘Okay, I heard you.’ But Steve Cornell said, ‘The thing that you have to remember is that the strength of the Osage constitutional government, one of the big questions was answered already, was whether or not it would sustain itself or was it only there as long as Chief Gray was there.’ And it was perceived by many people, in my own tribe and even outside, that this was Chief Gray’s constitution and I argued passionately that it was never my constitution. If it was up to me to write it, I would have wrote it very differently. I probably would have done something different with the minerals council, but at the same time I think that there was reason to believe that somewhere along the line the Osage people took ownership over that governing document and demonstrating the first ability to show that ownership of that governing document was to ask me to move on to something else because they put in new leadership and that constitution is still there, it is still being used, the legislative branch...and I want to recognize Speaker Raymond Red Corn back there, he’s speaker of the Osage Congress, and I want to recognize Benny Polacca who enjoys a very comfortable life in Osage Country being a reporter for the Osage News, which is one of only three newspapers in Indian Country that has a free press act and freedom of speech is governed and protected under the Osage Constitution. There are certain things that I’m really still proud of in this constitution and these are two of them right there: a separation of powers and three branches of government, a free press and the ability to exercise jurisdiction. It is one of the most, well, certainly with the work that I’m doing now with the Delawares it’s something that I’ve come to appreciate more and more each day about our own tribe because not every tribe is that fortunate and the fact that we were able to get ahead of the problem before it blew us over is probably one of the luckiest things to happen to our tribe. But with that being said, Ian, thank you very much and I appreciate the time to be here.”

NNI Indigenous Leadership Fellow: John Petoskey (Part 1)

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Native Nations Institute
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In the first of two interviews conducted in conjunction with his tenure as NNI Indigenous Leadership Fellow, John Petoskey, citizen and long-time General Counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses how GTB has worked and continues to work to build and maintain a strong, independent system of justice that is viewed as legitimate by GTB citizens. He also discusses GTB's integration of peacemaking and peacemaker courts into its justice systems as a culturally appropriate way of resolving disputes and bringing healing to the community. 

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Citation

Petoskey, John. "NNI Indigenous Leadership Fellow: John Petoskey (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 1, 2013. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host, Ian Record. On today's program, we are honored to have with us John Petoskey. John is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and has spent much of the past 30 years serving as his nation's general counsel. As general counsel, he participates in all federal, state and tribal litigation and administrative hearings where his nation is a plaintiff or defendant. In addition, John wrote the majority of Grand Traverse Band's statutes, published as the Grand Traverse Band Code. He also currently serves as partner with Fredericks, Peebles and Morgan LLP and is spending this week at the University of Arizona serving as Indigenous Leadership Fellow with the University's Native Nations Institute for Leadership, Management and Policy. John, welcome, and good to have you with us today."

John Petoskey:

"Thank you."

Ian Record:

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

John Petoskey:

"Well, I have been with the Grand Traverse Band for, as you said, a long time. Prior to that I did work for Legal Services...Indian Legal Services in Michigan and importantly, I worked on one of the leading cases on off-reservation treaty fishing and on-reservation treaty fishing that was called U.S. v. Michigan, which followed the same genesis of the United States v. Washington. And when I originally got out of law school in 1979, I was lucky to participate in the trial portion of that case as a first-year law student that had not yet gone to a federal district court opinion. So that was very gratifying and enlightening to me to see how the United States' trust responsibility is implemented for tribes. At the same time, I'm a product of my history in Michigan. My father is from Little Traverse Bay Band[s of Odawa Indians]; my mother is from Grand Traverse Bay Band. And through circumstances of history, the Ottawa tribes of the Lower Peninsula of Michigan were not federally recognized under the 1855 treaty, which was a misinterpretation where the Secretary of Interior took federal recognition away in 1871. As a consequence of that act, the state of Indian tribes in Michigan, the Ottawa tribes were desolate, and U.S. v. Michigan was the first spark of hope, if you will, by reversing that decline that the tribes had been in for so long.

After U.S. v. Michigan, I went to work at Indian Pueblo Legal Services in Northern New Mexico and I worked for, in one capacity or the other, for most of the pueblos as a legal services attorney representing poor Indians in the tribal justice systems of the Pueblos and in state and federal court. Those were largely jurisdictional cases at that time in the early "˜80s. There was a lot of assertion of state authority and state court jurisdiction for on-reservation activities. So I litigated a lot of cross motions for summary judgment of no subject matter jurisdiction and I also got to participate in some unique Pueblo-initiated procedures to resolve justice questions that the Pueblos had on their reservations, which were unique because the Pueblos have a unique system of justice that is still largely indigenously driven, if you will, from their historical experience.

After Indian Pueblo Legal Services, I went to Alaska Legal Services, which does have a totally different legal history under the Alaska Native Claims Settlement Act of 1971. I was in a place called Nome, Alaska and I went out to villages in an area that was probably 500 miles in diameter surrounding Nome and provided legal services to remote isolated villages. And there you could see the coalescence of all federal Indian policy in a community of 150 people where you would have a traditional government and Indian Reorganization Act government and a local government and an Alaska Native Claims Settlement Act corporation board. So you'd have four layers of government for people, for a total population of 150 people. It was designed for failure, which that's a separate question, but those are items that are left out.

After Alaska Legal Services I went to work for National Indian Youth Council, where I worked on voting rights cases in the southwest turning at-large voting structures into single member districts, largely in New Mexico, in Cibola County and McKinley County. Then I also worked on First Amendment cases in which tribes were alleging that they had a right under the First Amendment to access to federal public domain law that was under the control of the federal government, but for historical reasons the tribes had ceremonial relationships with the land and their ceremonial relationships with the land were being impaired by the Federal Public Land Policies that prohibited their access in some cases or in other cases prohibited their access on an exclusive basis for some of their ceremonies that they needed to conduct."

Ian Record:

"We here at NNI know quite a bit about the Grand Traverse Band. A number of our staff have worked with the Band over the years. You and some of my colleagues for instance go way back to the late "˜80s, early "˜90s and the Band has also received three awards from our partner organization the Harvard Project on American Indian Economic Development and its Honoring Nations Award Program, but share with our audience a bit more about your nation, just who is the Grand Traverse Band of Ottawa and Chippewa Indians?"

John Petoskey:

"The Grand Traverse Band of Ottawa and Chippewa Indians are Indians that lived in and around the Grand Traverse Bay of Northern Michigan. Michigan is shaped like a hand. If you're from Michigan, people always say to each other, "˜Where are you from?' and they'll hold up a hand and they'll say, "˜Well, I'm from Lansing, I'm from Detroit or I'm from Gaylord.' In this case, using the hand as the analogy, Grand Traverse Band is located on the little finger. That's where the peninsula is. The historical area was a reservation that was created in 1855. Just immediately north to us is the Little Traverse Bay Band, which is located in Petoskey, Michigan. South to us is the Little River Band, which is located in and around Manistee, which is right there.

The Grand Traverse Band achieved federal recognition under the Administrative Procedures Process in 1980. It was the first tribe to go through the federal acknowledgement process under the then-developing federal regulations that go all the way back to the Policy Review Commission back to the "˜70s. When it achieved federal recognition, it had to engage in building all of the governance institutions that were necessary to establish a tribal government. Incident to that, I had met Steve Cornell when I had worked at National Indian Youth Council because he was a personal friend of Gerald Wilkinson and Vine Deloria and Dr. Cornell or Steve Cornell used to come and visit with Gerald Wilkinson and I met him initially in that time period that I was working at National Indian Youth Council.

And then after I started working as general counsel for the tribe in the "˜80s, we were engaged in the process of building these governmental institutions as a new federally recognized tribe and we had to look around for models of how to establish our tribal organization, how to establish our tribal constitution and go forward from there. And so we'd have constitutional committees drafting the constitution and we also were engaged in a fight at that time with James Watt, who was the Assistant Secretary of the Interior. And the position under the Reagan administration was that federal acknowledgement was limited to a discrete number of people on the original petition that was submitted, and our argument was that federal acknowledgement covered everybody that was eligible as a descendent from Grand Traverse Band from the last annuity treaty payment that took place in 1910. And obviously, our category that we said were eligible was much larger than the category that the feds wanted to recognize.

As a consequence, we were engaged in litigation with the federal government over the terms of our recognition, which impaired the development of some of our governance institutions, particularly our constitution, which the Interior did not ratify until after that litigation was resolved in 1986 and then the constitution was ratified in 1988, I believe. But at that time, once the constitution was ratified, we really had to come up with the procedures, if you will, for our justice institutions, for our legislative process and for our executive process. And doing research of what models to follow, I came across the Harvard Project on Economic Development and at that time, this was before the internet was widely available, we had to send away for these series of memorandums that students had written on a number of different aspects of Indian economic development and Indian governance issues. And so I basically sent away for all the memorandums and went through the memorandums and cut and paste what I thought was the best in those memorandums for GTB's situation and then went through the process of having the executive-legislature enact those provisions for Grand Traverse Band. Incident to that, I then reinitiated my friendship with Steve Cornell and Steve came up to Grand Traverse Band on two different occasions to visit and to present information and points of views on how he developed tribal institutions. Also, Vine Deloria came up a couple times because I had met and known him at National Indian Youth Council and gave brief talks to our tribal council on the historical relationship of tribal governance and the Department of the Interior and the United States. And Vine had at that time and always did have a very focused analysis of how tribal governments had been overpowered by the federal government. And so in all senses of the word, he was an advocate for strong tribal governance and he promoted that when he was speaking with our tribal council and providing advice on which way to go. So that's, in a quick thumbnail I think that's what the relationship was."

Ian Record:

"Following up on this issue of constitutional development, you said that you were one of the people charged with going out and learning what other tribes had been doing to develop governments that made sense for them and that you sort of worked to integrate the best of what you had learned from others. Was there at some point in the process a customization of some of those governing institutions to the particular circumstances, cultural values of Grand Traverse in trying to make it their own?"

John Petoskey:

"Well, yes. The process of writing a constitution is not...doesn't rise to the level of the Federalist Papers, where you have advocates writing arguments for and against different propositions that are in the constitution. In the Indian community, what that comes down to, if you will, the "Federalist Paper" analogy is a group of people sitting around working their way through the constitution occasion after occasion after occasion after occasion and bringing out their own personal experience from the community as to what will work and what will not work, and so that's what the Grand Traverse Band community did."

Ian Record:

"And how has the...in your estimation how has the constitution worked in the 25 years it's been in place? Do you feel like it's beginning to gain...it has gained widespread cultural and community acceptance?"

John Petoskey:

"Yes. The one unique aspect of our constitution that is different from other constitutions is most entities elect a tripartite system of governance where they have executive, legislature and judiciary. At the time, when we were developing our constitution, the concept of consensus through council discussion was the primary value that people brought to the table of communication of trading off what would work and what would not work. The concept of separating the executive and legislature was not high on anybody's list, and so the GTB constitution has a combined executive-legislative function, so the council meets as a group and acts by motion, ordinance or resolution and it's the majority vote of the seven on the council. There are itemized activities that the executive power has -- and the vice chair and the treasurer and secretary -- but that is still in the context of the council acting as the executive-legislative combined branch of government. So we don't have, if you will, effectively, three coordinate branches of government. We have two branches of government, the executive-legislature as one and the judiciary as the other."

Ian Record:

"Let's talk about the judiciary. I plan to cover a number of topics with you today, but first and foremost is the issue of the judiciary or justice systems comprehensively and I'd like to start big picture, and based on your vast experience in this area, what role do you feel justice systems play in a tribe's ability to exercise its sovereignty effectively, to achieve its priorities, to create a healthier more culturally vibrant community?"

John Petoskey:

"Oh, that's kind of an open-ended question. I would like to just go directly to Grand Traverse Band. In our constitution we have the judiciary as an independent branch of government with independent authority and it's recognized in the constitution to have that. The judiciary serves the function as a check on the executive and legislative actions and it also provides a forum for dispute resolution between the community and community members over behavior that is not acceptable or behavior that comes to the court to resolve disputes between two individuals.

For example, I'm thinking of family law matters, dissolution of marriages or abuse and neglect on children or cases like that, so you need a third party to resolve disputes where the question of who is right and who is wrong is an open question subject to the advocacy of the parties. I don't see the judiciary in a larger, big-picture sense that you outlined. I see it in a little-picture sense of resolving disputes and if an individual, a tribal member, has a dispute with the tribal council over the enactment of legislation or the administration of that legislation by the delegated entities that the council has set up, then that tribal council member under our system, if our constitution has the right to go into tribal court because our constitution waives the immunity of the executive and the legislature and to assert that the application of that rule to that particular person is wrong for whatever reason.

And the Section 10 of our constitution incorporates almost word for word the Indian Civil Rights Act, which is almost...with notable exception leaves out certain elements from the Bill of Rights. The Indian Civil Rights Act is modeled on the Bill of Rights and those are the, if you will, the constitutional values that the federal system has, that the state system has, and by force of this overpowering values of constitutional law from our coordinate sovereign governments, the federal government and the state government, most tribal members are familiar with the U.S. federal constitutional rights and state constitutional rights; therefore, if they have a complaint with the United...with the tribe, they frame their complaint in that context and what is not unique about our constitution, but other constitutions, also have this, is that the constitution recognizes that there's an automatic waiver for that type of cause of action by a tribal member to sue the executive and legislature alleging a violation of Chapter 10 of our constitution, which effectively is the Indian Civil Rights Act. And our constitutional members have done that a number of times.

And then we also have disputes between...we have had disputes between the executive and the judicial...the executive and legislative branch and the judicial branch and the constitution does provide a methodology for the resolution of those disputes. We have had judicial removals and it's a process of the executive-legislature filing a claim in the judiciary unit, a panel of judicial appointees are appointed to determine whether or not a judge should be removed for cause, that are established in the constitution. So when you say big picture, it's too big for me to grasp because everything that I...for myself at least, I'm not a big-picture person and look at concrete problems and how to solve concrete problems, and those concrete problems I guess do have big picture implications, but it's solving the concrete problems that I focus on at least."

Ian Record:

"Well, and that's one of the reasons we thought of you as a good pick to be one of our fellows is that in our vast experience working with tribes on the ground in tribal communities is the fact that nation building is not a top-down proposition. It really starts at the grassroots and it works from the bottom up with the problems that every day...that come up every day that tribal members face. For instance, seeking redress against the government when they feel that they've been wronged. You mentioned that Grand Traverse Band's justice system is strong and independent and NNI and Harvard Project have done a lot of research in this area and it's been pretty conclusive in terms of finding that having a strong and independent justice system is really vital to a nation's efforts to achieve its goals. And I'm curious to get your take on that finding based upon your own experience and obviously the strength and independence of the justice system was not an accident. This was a purposeful process that the tribe has engaged in over a very long period of time to build that strength, to build that independence, and I guess my question to you would be how do you see that research finding in the context of what Grand Traverse has done?"

John Petoskey:

"In the context of...well, I would support it first of all. Having a strong and independent justice system is very important. And I think Grand Traverse Band has been lucky in some of the initial judges that it had that were tribal members that served for a long time on the judicial system and the fact that they were tribal citizens gave greater legitimacy for their decisions and for the conflicts that were resolved by judicial action. When we have had problems with the Grand Traverse Band is when we have...our constitution was written in the early "˜80s and actually implemented in 1988 and the provision that we have for judicial appointments does have a proviso of appointing attorneys who are non-members, and so on occasion we have had to appoint non-member attorneys to act as tribal judges. And the argument there is, "˜Well, an attorney has training in procedural due process, dispute resolution, the framing of legal arguments for the resolution of complex disputes and is familiar with the substantive law that comes forward that regulates human relationships and governmental relationships and so therefore the attorney, even though not a member, would bring value in that position as a tribal judge,' and that argument I accept.

Nevertheless, the proviso in my experience has been that when a non-Indian, non-citizen of the tribe is appointed, there are problems that inevitably arise because the legitimacy of that judicial officer is questioned by the community. I would propose a thought experiment that people would see this analogy or this problem in another manner. For example, I don't think any tribal constitution provides a provision in which you can elect to their tribal council non-members so long as they're attorneys or that they're engineers or something else, and that's just unheard of. And so the executive and legislative branch that are made up of members has greater legitimacy for implementing a decision even if the decision is wrong because it's coming from that citizen group in that community. Conversely, when a judge who is not a member is trying to implement a decision, even if that decision is right, it has less legitimacy.

So the cautionary tale that I would have on building strong judicial departments is that you keep in mind, and I know this is somewhat of a touchy subject, but you keep in mind that those should be citizen members that are filling those positions and it lends greater legitimacy to the resolution of the problems, and maybe this is a problem just uniquely to some tribes that have that provision in their constitution for the appointment of non-Indians, but if you look at the Indian law world, all of the Indian law professors -- you could tick them off on your hand that are the big stars -- also serve on tribal courts. And so they're not bringing their membership as a member of a tribe, they're coming to serve on those courts as people that are profoundly sympathetic to Indians and profoundly conversant with the principles of federal Indian law and the principles of substantive law, but nevertheless, they are bringing the same baggage of their cultural tradition to an Indian forum for resolving disputes involving principally Indians. There's variations on that too because some of those...some people argue that tribal courts are courts of general jurisdiction so they can resolve disputes involving Indians and non-Indians and I accept that, but what I'm saying is that a citizen/member of the tribe lends greater legitimacy to the resolution of the dispute."

Ian Record:

"To me what you're really talking about are what I see as two challenges. One is there needs to be a thoughtful, strategic discussion about. 'What should the qualifications of judges be?' So for instance, obviously should they have passed the bar in the state in which the tribe resides? That's often a criteria. I think what the Navajo example and a growing number of other tribal examples teach us is that tribes really placing an emphasis on their judges having understanding of that tribe's common cultural law and being in a position to apply that. And from what you're saying that non-Indian outsiders are just not equipped with that because they haven't grown up in that environment."

John Petoskey:

"Yes. In fact there should be, and I think Navajo does this and I confess my ignorance in this, but there should be a Navajo bar exam and tribes should implement their own bar exams for the practice within their own courts. Certainly all tribes now implement admission to their bar for their court but really all that is...and I'm not saying this in a negative or pejorative sense, but all that is is motioning yourself in for admission, paying the admission fee and being admitted to the bar of that particular tribe. But, if a tribe were to develop a bar exam and it's not...doesn't necessarily have to be on the substantive elements of what constitutes a tort crime, but it would have to be on something, in the case of Grand Traverse Band, it would have to be on the substantive elements of what is the fundamental value of Algonquians or Ottawas on how you lead a good life and what is the balance in life and the aim of life that you're supposed to be doing. And there is a set of concepts interrelated that are from the tradition of Ottawas and Ojibwes that define what is a good life and what is a bad life. And being sensitive to that in the position of judging disputes in which people are arguing over and sometimes explicitly, sometimes implicitly over those received values, is important to resolving issues that come before the court."

Ian Record:

"I want to turn back to Grand Traverse Band and the strength and independence that you and others have worked so hard to instill within that justice system that you currently operate. What do you feel -- based on the Grand Traverse experience -- that tribal justice systems need to have in place in order to be strong and independent?"

John Petoskey:

"I know the appropriate answer would probably be an institutional structure that non-Indians are familiar with, but the realistic answer, if you...is you need people that are really bright and focused and from that tradition and that are committed to that tradition. They are people that are...that grew up in the tradition, that bring the intelligence of the tradition to the position and that are committed to that tradition, that is an answer that is sort of off-center, but you need an Indian jurisprudence of values that reflect the community that you're from and the way that those values evolve are from growing up in that community, and that's an ongoing constant process. There's no one set of values that control the evolution of the community. In my own life for example and my wife's life, our parents had a totally different experience from what it was to be Indian in the...they were both born in 1915 and grew up in a period from 1915, died in the "˜80s, their life experience was fundamentally different and their grandparents or their parent's life experience was fundamentally different and they were born in the 1870s and you stretch back. This may be a little far afield, but if you stretch back to my grandparents, who were in the 1870s, and you stretch to my children now who were born in the 1990s, you have 120 years of change that is constantly taking place, but all of them have the same common denominator of coming from the same group of people and going through that change together."

Ian Record:

"So basically what you're saying is that the folks that lead that justice system, if you will, need to be culturally grounded, right?"

John Petoskey:

"Yes."

Ian Record:

"They need to have roots in the community that are not sort of put down overnight, but come from long, sustained involvement in the community, whether it's residence or participation in cultural ceremonies, etc. But just to sort of throw out a scenario to you, so presume for a second that you have all that on the judicial side of the equation and then there's somebody, in your case the executive-legislative side of governance equation that doesn't...is not acting from those values, if you will, and places perhaps unhealthy pressure on the judiciary to act in a certain way, to sort of test that strength and independence of the judicial system. What sort of mechanisms are in place to -- at Grand Traverse -- to ensure the insulation of the judiciary from that sort of unhealthy interference and ensure that it can in fact enact the cultural values, it can actually judge cases based on their merits and mete out justice in a fair and a consistent fashion?"

John Petoskey:

"Well, this is not something that is in place in terms of institutions, but on the executive-legislature side, there are seven councilors and the councilors don't always agree with each other, but they're all from the community and they all have...they all bring their common experience from the community to their positions on the council and they disagree amongst themselves and they recognize that some of those disagreements have to be resolved by the judiciary. And if Councilor A has a position against Councilor B and Councilor A is going to try to influence the judiciary to impermissibly or in some manner that is not straightforward in the procedural process, then Councilor B is going to object to that and Councilor B is going to then use Councilor B's authority within the context of the executive-legislative branch to bring that objection forward. And so it is a self-policing method of checks and balances, of different policy positions on the combined executive-legislative council. And so in that sense, even though the value is consensus of trying to get to a consensus and once the council does arrive at a consensus, it generally goes forward from that position. Arriving at that consensus involves very heated arguments between the individual councilors as to what is the appropriate course of action and if that heated argument or those differences manifest themselves in a dispute in the judiciary then Councilor A's attempt to determine the outcome in the judiciary is going to violate the rights of Councilor B and Councilor B is not going to acquiesce to that and is going to take action against A in the context of the executive-legislative process. That's realistically the way that works. I don't know if you formalize that process in some other method."

Ian Record:

"I guess what about for instance if it's not...if it doesn't involve a difference of opinion with two council members, but say, for instance, I'm a citizen and I feel that for whatever reason that the case before the court needs to be decided in my favor and I call up one of these councilors and say, "˜You need to do what I ask and I voted for you,' kind of thing and this may not be something you're familiar with because it doesn't sound like this is a common occurrence at Grand Traverse. Unfortunately this is a common occurrence in a lot of other tribes that we've worked with. I guess is it sort of values and sort of community norms that prevents a lot of that from taking place or is there something formal within the constitutional framework that Grand Traverse has developed that prevents that sort of thing?"

John Petoskey:

"Within the constitutional framework the judiciary is independent. That's a categorical statement. The hypothetical that you posited has occurred and I am familiar with cases in which tribal members have called up councilors and say, "˜I don't agree with this court's decision because it's wrong,' and the councilors have come back to the council and said, "˜Judge is wrong in this basis, what should we do?' and other councilors say, "˜Well, it's a independent judiciary,' and you get back into the methodology that I was talking about earlier where A and B are arguing over the proper policy. We're lucky in one sense that one of our councilors is a former chief judge on our court and chief judge on other courts in Michigan. So that particular councilor is...has been in the shoes of a judiciary and has been involved in inter-branch fights between the judiciary and the executive-legislature. But we have not had extreme cases at Grand Traverse Band. I can...I don't want to...there have been cases in Michigan in which one where the executive branch and the judicial branch got into such an extreme dispute that the judicial branch ordered the arrest and incarceration of the executive branch, and typically it's the other way around. All of the hypotheticals that you've been positing involve the executive pressuring the judiciary, but in this particular case it was the judiciary that ordered the arrest of the executive over an election dispute where the holdover council was not vacating office and the executive branch was actually arrested and then the petition for habeas corpus was filed in federal district court to release the executive branch, that the judicial order was invalid. So it goes both ways I'm saying."

Ian Record:

"It sounds like at Grand Traverse there's a controlling dynamic within the executive-legislative function where if there is an individual council member who's being pressured by a constituent to interfere in the judicial function that the other council members remind that individual on the council of their role, what their role is and what their role is not. Speaking more broadly, what do you feel is the role of elected leadership in supporting the strength and independence and supporting the growth of justice systems, because for instance at Grand Traverse, your justice system has grown by leaps and bounds over the past 20 years and won an award from Honoring Nations for the incredible work it's been doing and not just building a strong and independent court system, but also making sure that that system is culturally appropriate and reflecting and enacting the values of the people. What do you feel the role of leaders are in supporting the justice function?"

John Petoskey:

"At Grand Traverse Band or in general?"

Ian Record:

"Just in general I think."

John Petoskey:

"Well, my response would be if you look at other systems -- the federal system, the state system -- there have always been disputes over the scope of judicial power in the...in federal court, in federal jurisdiction, what is the appropriate scope of federal jurisdictional power and what is the scope of its ability to resolve disputes. Justice Breyer makes a big point of this if you look at the election dispute between Bush v. Gore, it was a decision that was by the Supreme Court that was widely recognized as invalid in terms of its substantive analysis of the law, but nevertheless the whole country said, once the decision came out, "˜Well, game over,' because there's a strong judicial system and once the decision was rendered, good, bad or indifferent, that's it. Everybody folded their respective tents and went home and George Bush became president when he probably should not have been president on the substantive law basis, but a wrong decision on the merits is still a final decision and the parties respect that. And so you would hope that tribal court systems would evolve to that level of behavior where people would see that finality even for a bad decision. Of course Bush probably didn't think it was a bad decision, but they would evolve to that level of behavior that even for a bad decision, it's the final decision and you go forward. Nobody brought out the Army or guns or anything to enforce Bush v. Gore. The only thing that was done was Scalia saying, "˜Well, this case shouldn't be cited for any other precedent, just for the unique circumstances in George Bush as president.'

And the other cases, Justice Stephens and the other Justices, Stephens in particular, forcefully argued that it was a sad day for the judiciary, but they were arguing on the merits of what the decision was. Nobody was saying, "˜Well, are people going to abide by this? Are they going to follow this decision?' and ultimately that didn't even come up. The values were so engrained that everybody just followed that decision, but that was a hard-fought value because you go back to Brown v. Board of Education. When that came out, you had George Wallace standing at the entrance of a public university screaming, "˜Segregation now! Segregation forever!' saying, "˜I will not move and allow black people into this university,' and tremendous fights, killings, murders, just tremendous pain and suffering for the implementation of the Civil Rights decisions. So when you look at Indian Country, Indian Country is not something that is any different because we're all humans trying to resolve complex disputes and we're using different methodologies to resolve those disputes."

Ian Record:

"And I think it would be important for folks to keep in mind that while a lot of these justice systems are working...tribal justice systems are working to integrate, enact longstanding cultural values, the systems themselves are relatively new in many cases in that these were justice systems that were established in the "˜50s, "˜60s, "˜70s, "˜80s many of them, and it takes a long time in many of those communities for those systems to gain the legitimacy that you're talking about. Your colleague Frank Pommersheim, I had opportunity to interview him and he made the exact same point that the true test of a strong independent judiciary is, 'Do people respect the decision even though they disagree with it, particularly elected leadership?'"

John Petoskey:

"Yes."

Ian Record:

"That's the true test. They may not like the decision, they may not like the outcome but they're not going to blow the place up over the fact that they disagree with it."

John Petoskey:

"Right. That is a good test. And that...and nobody arrives at that without some pain and suffering, and that's why I brought out Brown v. Board of Education. Here you had the Supreme Court saying, "˜Segregation in education is constitutionally impermissible,' and you certainly had southern states saying, "˜It is not and we're not going to allow the decision to be implemented. Impeach Earl Warren.'"

Ian Record:

"So one of the things that in terms of how Native nations and governments and the other branches or functions of government can support tribal judiciaries...one of the things you and I were talking about yesterday was this issue of funding and what we've often heard tribal judges lament about is the fact that, "˜In our tribe the elected leadership treat us like we're just another department when really we serve a fundamental function of any society, which is to resolve disputes, which is to in many instances serve as a check on the abuse of power, the abuse of authority by the other functions of government. How important is it for leaders of nations...of tribal nations to have that mindset that the judicial system is more than just another department of government and fund it accordingly and really place an emphasis on putting the judicial system sort of at the top when it comes to allocating budgetary resources for instance?"

John Petoskey:

"Well, obviously my point is that judicial systems should be funded and the de-funding of judicial systems for political purposes should be categorically impermissible, because today's decision may be something that you support but tomorrow's decision may be something that you oppose and so the funding of judicial decisions based upon past precedent of the courts or decisions that they made shouldn't be in the equation of how you fund the judicial system. The conversation that we had was that I haven't seen any information on the relationship of how you...what the ratio is of the federal government's funding of its judicial system over its total budget, and I'm sure it could be easy to figure out, but I just haven't seen that in print someplace. At Grand Traverse Band, we have a revenue allocation ordinance and we did set up a system of funding the judicial system by a percentage of our income, our net income that we receive from various enterprises, largely gaming. At the time that we passed the RAO [revenue allocation ordinance] it was, I forget the exact number, but it was something like four percent or seven percent is going to go to the judicial system. And just through circumstances of gaming, like a lot of tribes over the last 20 years, the net income of gaming has risen dramatically like a jet taking off into the stratosphere. Those are numbers out there that everybody is family with. So we had this RAO number of four to seven percent that the judicial system received as a direct level of funding that was not to be...it was enacted by the statute and so once our enterprises took off, the amount of money that the judicial system was receiving was extraordinary. It got very high very quickly and because our enterprises were successful."

Ian Record:

"But I would imagine that as your enterprise got successful you're engaged in more commercial dealings, there's more disputes, there's the case load of the court system grows."

John Petoskey:

"Yes, yes, there is that argument, but my point is I haven't seen any good research on how you arrive at the appropriate level of funding for a judicial system. You do have the method of GPRA, of performance-based funding for projected future funding on outcomes with present resources and that's how you do programmatic funding for activities and then you have federal funding where federal priorities come into smaller communities and those are competitive grants that we look at and then you have what are called the self-governance BIA [Bureau of Indian Affairs], AFA, annual funding agreements through self-governance taking over certain sections of what is known as the 'green book,' which is the budget book of the Department of Interior for funding and they have a number of formulas that are in that book based on the appropriate level of funding for different activities that the BIA is engaged in in administering an Indian reservation and just in a thumbnail in self governance is a tribe has shown that it can administer those programs just as well as the BIA through no audit exceptions, therefore they get control of that line item in the green book to administer the program or to reallocate to any other function. My point that I was getting to is that I don't see the formula for tribal court funding. Clearly funding should not be a political animal in terms of past decisions or future decisions, but there should be some formula methodology to determine what the appropriate level of funding is."

Ian Record:

"So Grand Traverse, by all accounts, has operated this strong and independent court system for quite a while that it consistently and fairly dispenses justice. What sort of messages do you feel that that sends to outsiders that interact with Grand Traverse in terms of how it does business, how it governs? Do you feel that there's been a positive ripple effect of the way that Grand Traverse dispenses justice that supersedes the reservation boundaries?"

John Petoskey:

"Well, yes. These sound like leading softball questions, but yes. Some of the things that we do at Grand Traverse is what other tribes do and some tribes do it much better than we do. I haven't looked at their site recently, but I know Ho Chunk had a very good site on their judicial opinions and we try to model our site on our judicial opinions. We set up all of our opinions into VersusLaw and into WesLaw and so they're categorized into the WesKey number system. They're available... we try to make them available... before the internet came online we did create a... all of our opinions available in the local law libraries when everybody was using hard copies to do research. We made arrangements with the county law libraries that they would have copies of our code, that they would have copies of all of our opinions that were issued. And then several years ago, it hasn't been updated, but Matthew Fletcher, who a lot of people know in the Indian law world, is a member of Grand Traverse Band and used to work at Grand Traverse Band as an attorney, assistant general counsel for about four years, and after he left he wrote a restatement of Grand Traverse Band's common law based upon all of the opinions published up until that point. And so we direct people to that on a regular basis to tell them, "˜This is the restatement of the common law as of X date. It hasn't been updated, but these are the opinions on a chronological basis that you can find that are available.' Our statutes are published online. We do have a qualified, when I say qualified, it's not as detailed as the Administrative Procedures Act, but we do have a process of legislative enactment in which we publish proposed bills for comment by our tribal members and before enactment and comments come in and the tribal council reacts to those comments either accepting or rejecting, and making appropriate decisions based on the comments and some bills as a result of that comment process have taken a long time to get through to enactment because some of the issues are extremely contentious internally with the tribe over the appropriate standard that the bill is implementing on the standard of behavior.

So I think the common denominator of what I just said is transparency throughout the whole process. Transparency throughout the judicial process in terms of the court publishing its opinions, making them widely available to individuals, the transparency of legislative acts being widely apparent to individuals. Grand Traverse Band is now going for its executive-legislative function to publish their proceedings online so that people who are tribal members...and this is an open question on whether non-members would be able to access it, but clearly tribal members would be able to, citizen members would be able to access council meetings to review what took place in the meeting and the process and procedures that were utilized in the meetings. There's discussions right now of doing the same thing for court proceedings that... of tribal court TV, if you will, to make transparency as the same value. So I think the value of transparency is something that is accepted by the majority of the participants in the political process and that has enormous benefits in a cultural norm of checks and balances, if you will, because everybody knows that everything is subject to review and all arguments are...can be developed after the fact, too, because you can look at something or you can be involved in this conversation that we're having right now, it's being recorded and later on I may be sitting at home thinking, "˜God, I should have said that or I should have said this,' and other people will have that same reaction."

Ian Record:

"Doesn't it all boil down to, when it comes down to transparency and the different ways that Grand Traverse is seeking to achieve that, is people who interface with the government, whether it's citizens of the Band or outsiders who may be dealing with the tribe commercially or may live within the community on allotment land or whatever it might be, that they understand not only the decisions that have been made, they're aware of the decisions that are being contemplated, but most importantly they're...they understand the rationale underlying the decision-making process. What is the common law that's driving this or what are the values that's driving this? Is that really at the crux of the whole thing?"

John Petoskey:

"The crux of the whole thing is not to have an indeterminate process; it's to have a determinate process that participants can enter the process at various points and figure out what happened, why it happened, what the future decision is going to be, what the arguments for and against it can be and an indeterminate process, what I see is a situation where the participants and the people who have to suffer the consequences of the decision don't know why something happened or what's going to happen in the future because there's no agreed upon procedure statutorily or there's no agreed upon cultural norm of transparency. And so it makes for an indeterminate future and an indeterminate past because the rationale for some of the decisions in the past were arbitrary, and these are words that are used in administrative law, but are arbitrary and capricious and they're not subject to analysis because they're indeterminate. And so I think the value that Grand Traverse Band is trying to achieve is a process of determinate decision making in its executive-legislative and judicial process, where participants in the process and the people who are subject to the process either as citizens or non-citizens can understand what occurred, why it occurred, and what will occur in the future."

Ian Record:

"So I wanted to wrap up with a few questions that get into a little bit more detail about Grand Traverse Band's approach to jurisprudence. We've been touching again and again on this issue of cultural values, common law, common tribal law and I'm curious, several years ago the Grand Traverse Band formally integrated the peacemaking approach to dispute resolution into its justice system. Can you talk about how that came about, what was the impetus, what does it look like, how does it work?"

John Petoskey:

"Well, the value of the peacemaking court...first of all, I want to acknowledge that Navajo Nation started with peacemaking court and I'm not familiar with the full scope of that, but I know that they had a peacemaking court long before other tribes did and brought in their values and cultural tradition to the resolutions of disputes that were involved on family relations. And at that time, our chief judge, his name is Mike Petoskey, he's not my brother, we're often confused because we're close in age and look alike. He is my first cousin. He was our tribal judge and had been our tribal chief judge for about 15 years and he was familiar with a lot of Navajo judges because he went to law school at the University of New Mexico and he had a common experience with some of these judges based upon their military experience in Vietnam and similar life experience even though these people were from the interior of Navajo, Lukachukai. So it was Ray Austin that he was a good friend with. I think Ray has published a book on the Navajo judicial systems. And Mike and Ray had been friends for many years, well, going to law school and had a common denominator even though they were widely geographically dispersed and culturally dispersed, one being Ottawa and one being Navajo. And so Mike was dealing with the types of problems that come up in Indian communities that are families-in-crisis problems and part of the way of resolving those problems in the non-Indian society under child abuse and neglect and families in need of supervision under the state model, if you look at their codes, are very destructive to the individual family unit because the resolution is, "˜This is not going to work so we're going to terminate the parental rights. We want to take the child away. We're going to sanction the parent and the family is dispersed.' I'm not saying that across the board, but that is one model that the family law in non-Indian society uses to resolve families in crisis and that may work if you have a larger group that you're...of people that you're dealing with and larger resources. But the tribe didn't have the larger resources and the group that it's dealing with is a common core of people that are related to each other across time and terminating and dispersing the family is not something that is...that the tribe wants to do, because a lot of the historical experience of the tribal members is suffering the state system of termination and dispersal of the family and then slowly finding your way back to the community. And so an alternative is to try to fix the destructive family patterns that exist within the family in question or whatever family it is. I don't have any family in question, I'm just saying this is how or what the situations that came up and the way to do that is to bring in other members of the extended family into a whole process of saying, "˜Well, what is the problem and why are you behaving in this manner that creates destructive consequences for your children or destructive consequences for your husband or wife or for your mother or father or for your aunts and uncles?' The behavior of one individual has a ripple effect like the stone in the pond that goes out into the whole community. And so the concept of peacemaking is to recognize that and to bring all of the people in the pond, if you will, that feel that ripple effect into the process to resolve that stone and to engage in dialogue, and there is a value within the Ottawa and Ojibwe tradition that all of our inter-family relationships are really community-based relationships and extend out to everybody and that a resolution of those community-based relationships of necessity involves all of these people that it extends out to because your actions today do not just impact your nuclear family, your husband, wife, mother, daughter. They also impact your aunts, uncles, brothers, sisters, grandparents, and so bringing that whole group together or the principles within that group to work on the solution for that behavior is better than viewing it as a nuclear unit of a family, husband, wife, children and that's it and that as the scope of what the community was that had to be fixed. And the peacemaking court was to say, if you look at the larger community which everybody is impacted by this behavior and you try to bring the larger community into that process with the individual that is misbehaving, if you will, and saying, "˜This is what your behavior is causing to the whole community and we are here to help you to resolve that behavior,' and to bring the person back into the community by explaining what the impacts of their behavior has on the whole community. That's the fundamental concept. There's a long Indian word that I can't pronounce that my wife [Eva Petoskey] can, and so you might bring that up with her, and she has a better grasp of the language than I do."

Ian Record:

"So how in your estimation has it worked out so far, the use of peacemaking for Grand Traverse?"

John Petoskey:

"It's worked out well because it...there are a lot of people in Indian Country that are in pain and suffering for a variety of...this is sort of a leftist orientation, but of historical trauma, of what your parents and grandparents went through and so that has an impact on your present life and when I was talking about just looking at my own life, I'm 61 years old and I can look back to see my grandparents who I knew were born in the 1870s and there's been tremendous change from where my children are right now who were born in the 1990s and are in graduate school in college and going through different changes of their own, but we're all connected to this one place and we're all from this one place and we all grew up there. But the change is constant and for Grand Traverse Band since 1980 in the scale of things change has been positive for the community. The community has reasserted its traditions and reasserted its control over its community and when it lost its control over its community it lost control over its traditions because we weren't directing our lives, we were being directed by other people and so directing our lives even if it's in an impaired and fractured community is a process of healing that community and so that peacemaking court in the method that I just described is a process of resolving a lot of disputes that are very, very difficult and very difficult to resolve and that take a lot of time. It's not ever going to be perfect and it's not ever going to be over, it's always going to change."

Ian Record:

"As a final question, what I'm struck by in hearing you and others talk about the peacemaking approach is that often the western adversarial system, which is focused on punitive measures tends to focus on the symptom, which is the misbehavior whereas, peacemaking really seeks to get at the root cause of what's driving this behavior and sort of...and attacking that root cause to prevent that from happening again rather than punishing someone for what has already happened. Is that basically how it works?"

John Petoskey:

"I would say yes, but again I would say my wife has a better handle on that, but it's bringing in the community and the impacts on the community and saying to the individual, "˜You should have empathy and compassion for the acts that you're doing and the impacts on people that you have relationships with, long-term relationships with.' Sometimes they're loving relationships, sometimes they're not loving relationships, they're stressful relationships, but the point is everybody has a consequence for their behavior and those consequences are felt by the whole community and it's trying to say to the individual, "˜Your behavior affects the whole community and the whole community is here to try to tell you that to change your behavior so those consequences don't impact us,' because they do."

Ian Record:

"Well, John, we really appreciate you agreeing to serve as a fellow with the Native Nations Institute and agreeing to sit down with us today and sharing your thoughts, experience and wisdom with us. And this is part one of a two-part interview. We'll be interviewing you again this week in more detail about some of the work you've done in terms of developing Grand Traverse's legal infrastructure and I'd like to thank you for your time today. And that's all the time we have on 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 2013 Arizona Board of Regents."

David Wilkins: Indigenous Governance Systems: Diversity, Colonization, Adaptation, and Resurgence

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, federal Indian law and policy scholar David Wilkins discusses the incredible diversity and sophistication of traditional Indigenous governance systems, the profound impacts colonial policies had on those systems, and how Native nations are working to aggressively to reclaim and reshape those systems to meet their contemporary challenges.

Resource Type
Citation

Wilkins, David. "Indigenous Governance Systems: Diversity, Colonization, Adaptation, and Resurgence." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. August 6, 2008. Interview.

Ian Record:

“Welcome to Leading Native Nations, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. I’m your host, Ian Record.

With us today is David Wilkins, a citizen of the Lumbee Nation. He holds the McKnight Presidential Professorship in American Indian Studies and has adjunct appointments in Political Science, Law and American Studies at the University of Minnesota. He is well published in the area of federal Indian policy and tribal governance and recently released a revised edition of American Indian Politics in the American Political System and an edited volume called On the Drafting of Tribal Constitutions by Felix S. Cohen.

David, we wanted to bring you in today to talk about a number of issues and really trace from the beginning tribal governing systems. So I think it’d be best to start at the beginning and talk about, for those people in Indian Country, for those people in mainstream American society who may not be aware, if you could paint a picture for us of the nature, the diversity and the sophistication of Indigenous governance systems in North America before Europeans.”

David Wilkins:

“Well, that’s a very complicated question given the amount of diversity that was evident in what we now know as North America. They estimate over 600 distinctive Native peoples, whether we call them tribes or nations, or increasingly I’m hearing the word bandied about of referring to tribes as 'states,' but the amount of diversity was just tremendous from sophisticated confederacies like the Iroquois Confederacy, the Haudenosaunee, to the Creek peoples of the southeast with their red and white towns spread out over thousands of miles. You had hunting communities, small fishing villages in the Great Lakes area in the northwest, you had the California communities who lived out in the deserts, the many tribes here in Arizona, from the Navajo Nation to the Tohono O’odham peoples and all the peoples throughout the great heartland of North America. And so it’s difficult, there’s no single model, there’s no single framework that can accurately describe this amount of diversity and the very concept of tribal governments itself is a bit of misnomer. In fact, the concept that is most really applicable to describe tribal peoples historically was the notion of tribes as kinship systems because you basically had Native communities who realized that they couldn’t govern themselves if they got too large demographically, so they intentionally kept a lid on their population and tried to maintain a relatively small community because they realized that as long as the kinship system was in place and that only worked when you could remember who your neighbors and your relatives were, that’s when you’re able to govern yourselves and maintain peace and stability and relative harmony. And so the idea of Native peoples and Native communities as governments is a bit of a problematic concept. Although increasingly we refer to Native governments today, there’s still a lot of discussion and debate. And when I’m teaching my classes, I often get my students to really think about this and ask them to consider whether the Navajo people spread out across four states basically over 30,000 square miles of land constituted an actual people or a large extended kinship system or did they in fact constitute a government since they never actually met as a collective body ever until they were essentially imprisoned at Fort Sumner in New Mexico. And so diversity and differentiation all tied into the various value systems of Native peoples and the geographic places where they inhabited and the kind of subsistence that they depended on. All that affected the kind of systems that were in place.”

Ian Record:

“The research is replete with example after example among these traditional governing systems of these various peoples of effective institutions that they had developed over long periods of time to resolve conflict, to advance their priorities as a community, to relate with other groups that were distinct from them. Could you talk about just briefly -- and perhaps provide a couple examples that maybe immediately come to mind -- about just how robust that was prior to colonization?”

David Wilkins:

“Well, my wife is Navajo and so when I married into the Navajo Nation and became an instructor at Navajo Community College, now Dine College, my background was in federal Indian policy and governance and I wanted to teach a course on Navajo history. So I immediately began to collect research about the Navajo people. There wasn’t a whole lot available at the time. There are a few historical studies, a few anthropological studies, but I eventually was able to cobble together enough information to construct a course. And what I learned about the Navajo is that given the breadth of their coverage and how much land they inhabited historically, ¦today the reservation’s 25,000 square miles. Historically, it was much broader than that, possibly twice as large as that. And given that, Navajos who lived around what is present day Tuba City never met Navajos who lived around Farmington, New Mexico. But what they had was a system of governance, and for them I would call it a governance system, which was the '[Navajo language],' which was a regional association, if you will, of extended families who would appoint or elect individual leaders. And every two to four years these 12 [Navajo language] families, extended families would gather together to discuss issues of security, discuss issues of farming, to discuss issues of harmony or whatever the issues were at the time. And the individuals who constituted the leaders of those [Navajo language] extended families were called '[Navajo language]' and they were very powerful individuals. But their power was not based on coercion, it wasn’t based on force, it was based on the art of persuasion, the art of being able to express orally what they wanted their community to do and if the community decided not to do that, they wouldn’t do that and there was no force. In fact, if you can, ¦when you think about a list of attributes or characteristics that could be used to describe tribal peoples generally and it’s not easy to do that, but as someone who teaches this I try to come up with a list of characteristics, but this idea of the lack of coercive power, a lack of authoritative force, because that just wasn’t the way tribal peoples operated. It really was historically a consensus-based system and it was based on this concept of kinship with everyone being related to one another either by blood or by marriage or by association. And so the Navajo, with that system, and it was a very effective system for them, so that when the Spaniards first arrived in the late 1500s and sought to impose their power and their force over the Navajo people, they might be able to militarily defeat this one extended family and then they would sometimes force a treaty negotiation to take place and a week later they would get attacked by another Navajo [Navajo language] realizing that they weren’t subject to the Spanish power or control. And so that’s one example.

And you have examples like the Iroquois Confederacy that I mentioned earlier, with their 50 chiefs with powers that were laid out in wampum belts historically. The earliest constitution in the world most people now acknowledge, even though people that write about U.S. constitutional history don’t quite want to acknowledge that just yet, but when their constitution was in fact written down and non-Iroquois began to study it and examine the kind of provisions that you see laid out in there, you see initiative, you see referendum, you see equality for women, you see equal suffrage, you see checks and balances and you see the amendment process and you see all these kind of provisions that many of which show up in the U.S. Constitution that was developed in the late 1700s. And so you have different, ¦with so many different tribes you have multiple possible governing arrangements that were out there, but many of them sharing again common values based on mutual respect that is the system of kinship, a system of shared spiritual values and traditions, a shared language, a shared history, sacred history and most importantly, a shared sacred landscape that constituted their original homeland. And so those were the major factors that I think you can say linked Indigenous peoples together historically. And while those were important, the distinctions and the differences were still rampant, which is one reason that you would have conflicts on occasion, which then led to early treaty-making processes. So by the time Europeans finally arrived and began to want to negotiate treaties with us, we knew all about the treaty process because we also had engaged in it because tribal nations were never the idealic, pristine communities that we’re sometimes depicted as. We were human collectivities and human beings by nature and by human nature are going to engage in conflict at times.”

Ian Record:

“You mentioned 'checks and balances,' which is a term that is -- if you spend a lot of time working with tribal governments, working with elected officials, spending time in tribal communities, particularly those that are kind of wrestling with this issue of governance and is their governing system effective or are there some shortcomings to it -- you hear it a lot as tribes work to reclaim their systems of government from colonial systems that were thrust upon them over the course of the decades and the centuries. Another term you hear a lot is 'separation of powers' and you’ll sometimes hear this refrain around those two critical issues that, ‘Oh, that’s the white man’s principles. That’s something that they have,’ but that’s really not the case. If you look back at traditional governance systems and the Oglala Lakota are a perfect example, they had checks and balances, they had separation of powers to ensure that there was a rule of law and that no one was above that rule of law.”

David Wilkins:

“Absolutely, and that’s something that tribes were never given credit for until very recently, and we’re still sometimes denied our legitimacy as governing systems because we’re ¦outsiders who look at our communities still don’t see us even when we have very clear separations of powers and checks and balances in our institutions of governance today. But historically when the first Europeans arrived and met the various Native nations that they did, they came in of course with preconceived ideas and only their own Euro, European mindset and cultural paradigm to draw from and so they couldn’t see any immediate resemblance in our societies to what they exhibited, coming from the very feudal system that they did. The kings and queens that governed their countries, you see certain tribal leaders in the East Coast named 'King Powhatan' and 'Prince So and So' when those simply did not exist. And yet, certainly as you were saying, there were inherent checks and balances that were laid out. They weren’t called legislative and executive and judicial, but the essence of them, of what those three different branches do and how they check one another to maintain some relative power was quite evident, and it’s especially true for a number of tribes where you had peace-making powers and war-making powers separated. You had that in Iroquois, you had that in the Creek, in the Cherokee, you had that in a number of tribal communities, because they understood that someone who’s skilled in the art of diplomacy would not necessarily be the individual that you’d want to lead a war party on and vice versa. Someone skilled in the art of taking a scalp wouldn’t be someone that you would want, or would have the skills necessary, to negotiate a treaty of alliance with a neighboring tribe. And so tribes had all sorts of these institutions of governance that were in place, although they were rarely articulated formally and they certainly weren’t articulated in writing, but they were articulated in the stories, in the origin account, in the creation accounts and had Europeans taken the time to listen to us, they would have heard this. Whether or not they would have respected it is another question and we’ll never know that, but it’s important for your listening audience to realize that checks and balances and separations of powers were clearly evident even when you would look at a community of say 300 members, 300 citizens or 300 clan beings and see, you wouldn’t be able to see a separation there and yet in the roles, in the responsibilities that were clearly articulated in the various customs and traditions and duties of both the elected officials and the officials who would be appointed, given their ceremonial knowledge, they were clearly present.”

Ian Record:

“That’s a good segue into my next question, which really delves into what happened to those traditional systems of government, governance that were so vibrant in these communities when Europeans came and just how profound was the transformation?”

David Wilkins:

“It was obviously profound. It had to be an absolutely devastating period of time, from the initial influenzas and waves of diseases that swept through Indigenous communities and just wiped out entire nations. The depopulation figure is roughly around between 80 to 90 percent, and so when you lose that many of your people in one fell swoop and sometimes it would be a swoop that would be a recurring kind of swoop because it takes generations for communities to build up any kind of immunity to diseases that they historically had not experienced. So that was the first devastating blow and so you lose your elders, you lose those individuals who had the weakest immune systems because of age and yet they’re the ones that were the repositories of all, of most of the knowledge, the traditional knowledge, the songs, the ceremonies, the tradition, the values in all of that. And so that was the first factor, and then of course with the conflict that then ensued as the various European powers competed for a permanent foothold here -- the Spanish and the French and English and the Dutch and the Swiss and the Russians and others. Those conflicts in which they would try to play off tribe against tribe, sometimes segments of tribes against other segments of tribes, caused additional severe problems. Trade goods and the items, the material goods that Europeans brought with them was another factor that affected how we operated amongst ourselves, how we governed amongst ourselves, and how we engaged in intergovernmental politics with other peoples.

Then, of course, you had the religious dimension, the missionaries, the Jesuits and the Franciscans and the Catholics and the Presbyterians and all the various Protestant denominations all competing for the souls of Indigenous peoples, because they thought that we were the peoples who were heathens and savages and who had no bona fide religions that they had to show any respect for. And so it was a combination of these factors and many others that weighed in. Boarding schools come in at a later date and the general assimilative process and the coercive power of that assimilative process, it really kicks into high gear in the 1870s when the federal government decides that they’re going to 'de-Indianize' us culturally speaking. They had given up on the extermination phase because it wasn’t economically sensible to them and it also violated and contradicted their own Christian and democratic heritage, and so they decided they would try to civilize us and Christianize us and Americanize us by allotting us and doing the various things. And so all of those forces weighed in variably on various tribes of course, but every tribe was impacted.

Some were just impacted to where we no longer know who they are anymore or the remnants of them would merge in with other tribes and so you have really a polyglot system that ensues and so tribes throughout all this period, this profound and very long transitional period, are finding, ‘How can we survive this, how do we weather this persistent storm that just doesn’t seem to cease?’ And what you find is tribes engaging in all sorts of strategic and innovative and desperate measures to try and still find some way to maintain some measure of self-governing capabilities and they did remarkable jobs of that. Even in facing the teeth of full coercive assimilation and full federal power, tribes were still relying upon traditional elements and traditional knowledge and vestiges of traditional thought and traditional systems and traditional institutions that still enabled them to remember who they were even when it was thought that they were no longer there and yet they were able to somehow weather most of that. Even though we are certainly not the people that we were in 1492, but then again, no people is the same. So yeah, we were devastated on all sorts of levels, but Indigenous peoples here and abroad are the most resilient of peoples and we found ways to survive, we found ways to manage, we found ways to cope and we did that by altering our traditions, by altering our languages, altering our institutions of governance and still coping.”

Ian Record:

“So I think a lot of historians would agree and scholars such as yourself would agree that that systematic dismantling of traditional governing systems on the part of the federal government in the United States and the Canadian government up in Canada for First Nations pretty much continued uninterrupted until about the 1930s, when there was this kind of -- and people may disagree about the extent to which this shift occurred -- but everyone acknowledges there was a shift in how the federal powers that be were going to treat tribes, the latitude they were going to afford them to make certain decisions about their own affairs, about their own lands, about their own peoples, and that in the United States took the form of the Indian Reorganization Act. Can you describe for us what that process entailed I guess for most tribes, the typical experience of the IRA in terms of its implementation and what that standard boilerplate system, as it’s so often called, looked like and how that perhaps didn’t jive with these traditional systems that we’ve been discussing.”

David Wilkins:

“That’s a very good question and it’s a very complicated question. And as you know, from the book that I just edited that Felix Cohen wrote, although he wrote it as a legal memorandum in 1934, the Indian Reorganization Act was drafted by Felix Cohen because he was hired specifically to write the initial draft of that, hired by John Collier and Nathan Margold, but first let me give you some context leading up to that because it’s important. As I was saying, with all these factors that had devastated tribes, even with all of that devastation and catastrophic loss of life and of institutions and so on, in 1929 [Indian Affairs] Commissioner Charles Burke issued a circular in which he asked every superintendent under his charge to describe what kind of business council or other governing system was in place on their reservation that they were overseeing. He sent it out to over 120 superintendents, 78 superintendents responded in writing, and I was able to secure a copy of their written responses. And as I read through them a couple years ago, I was absolutely flabbergasted at the diversity of governing arrangements that tribes had concocted, sometimes on their own, sometimes in conjunction with well-intentioned missionaries, sometimes through other entrepreneurs who would come in thinking that they had what it would take to help to save this particular tribe. But in many cases you had the agents responding to the commissioner’s call by saying, ‘They don’t have a business council, but they have some form of constitution and I don’t know how they got that, but they have that.’ Or they would say in the case of multiple, of many of the pueblo communities, ‘They have very traditional, very organic governments that I just can’t seem to dislodge despite my best efforts. And as long as they have those, they’re never going to be a civilized community even though they’ve very peaceful people of course.’ And you see all this frustration on the part of a lot of these agents describing the fact that there is still a lot of traditional knowledge, traditional institutions that were still in place in 1929.

Now this is just five years before John Collier comes on the scene to save us from ourselves ostensibly and from Christian missionaries and state officials and so on. But the presumption of a lot of federal policy makers by the time Collier comes on the scene under the [Indian] New Deal is that Indian tribes are essentially bereft of any kind of governance, least of all traditional governance. And yet when Cohen was hired, he also knew virtually nothing about Indians, but he began to travel almost immediately and began to learn, and during the summer months he and his wife bought a cabin in the Adirondack Mountains and he lived near Ray Fadden, who was a Mohawk traditional person who began to instruct Cohen on traditional knowledge, particularly among the Iroquois people. And Cohen began to learn and began to gather together all the evidence of existing constitutions that were still in play in Indian Country. And by 1934, Cohen issued a statement in the beginning of one of his books where he says, ‘There are some 60 tribes that have constitutions and there are lots of other tribes who still have remnants of traditional governance that has somehow survived this overwhelming force of coercive assimilation.’ And he was absolutely enthralled by that and as you read through his legal memorandum, you see him saying, ‘We want to find, I want to find a way to incorporate this traditional knowledge into these IRA constitutions.’

Now of course as you and I were talking earlier, that wasn’t always the case in specific tribal communities. But when Collier ultimately gets hold of the draft that Cohen had drafted in the IRA form, what Collier really had in mind was he envisioned tribes as municipal bodies basically, as 'mini cities' if you will. He had respect for tribal cultural sovereignty, he didn’t have a whole lot of respect for our political or legal sovereignty, even though he realized that treaties should be upheld, that the federal government had a trust responsibility to tribal peoples and tribal lands and resources and rights. And yet when you read through the IRA, a very comprehensive measure by the standards of that period, even though it had been whittled down from a 40-page bill to a four-page bill, by the fact that it stopped the allotment process, by the fact that it encouraged tribes to form a government, a government obviously that would be encouraged by federal officials to follow a constitutional framework, even though they didn’t have to do that. And a number of tribes rejected the IRA, which was in itself a new innovation under John Collier, because all the prior legislation dating back to the 1870s up to the IRA itself, they were unilaterally imposed on tribes, and [with] the IRA, tribes had an opportunity to choose whether or not to come under its rubric. So there were, it’s a very complicated and a very almost a schizophrenic piece of legislation, because you had John Collier and cohort saying, ‘We respect tribes. They should have the right to exhibit their cultural identities and exercise some measure of self-administration,’ really, I wouldn’t call it 'self-governance,' but it was really 'self-administration.' And yet when you read many of the IRA constitutions that were approved, many of the major decisions had to be approved by John Collier and his office and the Secretary of Interior. And so you had the federal government basically telling tribes two very different kinds of things: ‘We respect your right to have a measure of self-governance, and yet it still mush comport with our views on what that might look like.’

And so...but the IRA is a piece of legislation that’s been written about a lot, but not enough people have really closely examined how it came to pass, what the actual mood of the country was at the time and more importantly, how the IRA was implemented on the reservations that did in fact adopt it, because it’s a much more variegated process than tribes are given credit for. And so this concept of the IRA and a model constitution that was a boilerplate that was simply thrust down the throats of tribes, my research of Felix Cohen’s papers disputes that entirely, as did Elmer Rusco’s wonderful book, A Fateful Time, that came out in 2000. And so we have a growing body of evidence, which suggests it’s much more complicated than that. Certainly there were some tribes that faced a tremendous amount of pressure from Collier and cohort to adopt the IRA, like the Navajo Nation, who ultimately still rejected the IRA and don’t have a constitution to this day, over Collier’s strenuous objections. And yet in other cases, you have situations in which the IRA was very quickly -- and very easily it seems -- adopted and it has become the basis of their governing system and they’re doing quite well with it. And so until we have much more detailed individual case studies of all, both the IRA and the non-IRA tribes and what was happening in the mid-1930s, we’re not going to know for sure, we’re not going to know definitively what really transpired.”

Ian Record:

“As with everything across Native nations, it’s very, very difficult to generalize or to oversimplify the complexity of experiences, of governing institutions, of expressions of sovereignty and the rest of it. There were across a number of IRA tribes these common provisions that were derived somewhere in Washington in some office. And one of those that you commonly see in numerous IRA constitutions is this question of judicial function and judicial authority, which more often, not more often than not, but oftentimes was neglected or was left up to the council to decide. And I was wondering if you could talk about some of those common provisions that are so often studied and researched in the context of IRA, particularly in the context of contemporary governing systems among Native nations and what some of those legacies are of some of those common provisions.”

David Wilkins:

“Well, when you look at constitutions of not only tribes, but of states, when you look at the U.S. Constitution, when you look at international states and their constitutions, you’re going to find common provisions. In almost all constitutions around the world you’re going to have an executive entity, you’re going to have something that performs legislative functions, in many you’re going to have something that performs a judicial function, you’re going to have in many cases an articulated Bill of Rights or something like that, you’re going to have something dealing with elections. So you’re going to find common provisions in constitutions no matter at what level of governance you’re looking at. But when you look at the IRA constitutions, certainly in the book that I edited of Cohen, I found a copy of a model constitution that he or someone on his staff, on a tribal organizing committee, had developed. Again, we don’t have any proof that all tribes received this. In fact, all we have is a bit of evidence that some tribes received it. In fact, Cohen himself goes out of the way on the first page of this legal memorandum to say, ‘I’m not going to, I don’t want this canned constitution sent out because many tribes will simply adopt it wholeheartedly.’ And so that didn’t take place to my knowledge, and I’ve researched his papers pretty darn thoroughly, but we do know that some tribes saw that model and we know that Cohen and his organizing committee staff held a number of congresses, 10 congresses throughout the country in which they explained the IRA, in which they explained the constitutional process and got a lot of feedback from tribes. Again, this was another major innovation from all the previous 50 years of legislation, tribes were given an opportunity to respond to this law and the law was in fact amended based on many of these tribal comments.

But for example, with the judicial branch, you’re right. If you look at many of the IRA constitutions that were in fact adopted, became law, most of them lack a separate judicial function. Cohen addressed that specifically in his legal memorandum. And his argument was that most tribes, at that time, he thought, were so cohesive, were small enough that basically a unitary government would suffice. He said it would be expensive, it would be duplicative and it would really cause problems if tribes that are very small tried to create three separate branches of government. He said historically, most tribes didn’t have that articulated clearly and that’s true. And I’ve heard someone as knowledgeable as Sam Deloria make a similar argument. ‘If you have a tribe that has less than 1,000 citizens and living on a very small patch of land, does it really make sense to have three separate branches of government and to try and, how do you staff those? Where do you get the actual human power to make that kind of thing happen?’ And so I think that’s one reason that most of the IRA constitutions don’t have judicial systems. They weren’t told they couldn’t have them and some in fact do incorporate them in their governing systems. And yet again, we need additional detailed case studies to really examine and articulate why some have them and some don’t.

But the idea of provisions and comprovisions is an important element. And the thing that’s always bothered me about the IRA, given John Collier’s obvious respect and support for tribal cultural sovereignty and cultural authority and identity, is the fact that before the IRA, tribes had to get the Secretary of Interior’s approval less than they did after the IRA was adopted. So that’s a telling statistic that Vine Deloria and Clifford Lytle revealed in their study of the IRA. And so in fact John Collier and the Secretary of Interior’s office had more discretionary power over tribes who adopted the IRA after that law became functional than they had over tribes before that. And so that’s a telling statistic and that’s one that always had rubbed me wrong and it’s always left me very concerned about John Collier’s real intention, because if he was really intent on supporting a measure of tribal self-governance or self-administration or self-rule, why would he require absolutely most tribes to consult with him or get his or his boss’s, the Secretary of Interior’s permission before they could sell land, buy land, do anything involving trust resources. It just doesn’t make any sense. And yet there’s that mindset of federal paternalism that was still very powerful, still very regnant in the 1930s that will continue to persist up into the present day, although it’s not quite as intense today as it was back then.”

Ian Record:

“I’m glad you just mentioned the present day, because that’s where I wanted to move next. I think it’s good to move now from essentially trying to read the tea leaves of what these architects of the IRA were thinking back then to what’s the legacy of IRA today? Again, it’s impossible to generalize, but one of the things I’ve been struck by in my work with the Native Nations Institute is, as you get past the mid-1970s and the passage of the Indian Self-Determination Act and you see tribes beginning to aggressively assert sovereignty and strategically think about how best to do that, how best to exercise that, you’re seeing a groundswell of constitutional reform, particularly among those tribes who had IRA systems of government essentially unchanged since the 1930s. What do you think really sparked, what was at the root of that? And have many tribes just simply outgrown the IRA governing system?”

David Wilkins:

“I think peoples do. Governments that don’t have amendment processes that allow their communities to mature and to grow and evolve don’t last. And I think as a part of sort of, as a part of that mindset of federal paternalism that even after the IRA and even after tribes had adopted a constitution -- and I think again this was over John Collier and Felix Cohen’s heads -- I think many local Indian superintendents still refused to recognize and respect the inherent sovereignty of those tribes, to respect their constitutional validity as valid governments. And so that was an ongoing problem. And so it really wasn’t until the 1950s in the wake of the termination era, which really galvanized Native peoples throughout the country, those that faced immediate termination and thought that they might be facing it somewhere down the road, that created a backlash and really fired up Indigenous peoples led by the small fishing tribal communities in Washington State, but that spread to the Iroquois of New York State and spread throughout the country. My own people, the Lumbee, routed the KKK [Ku Klux Klan] when they tried to come in there and burn a cross in the 1950s. And so you had this surge of, ‘We’re just not going to take this kind of racism and discrimination anymore.’ And so that begins to mount the relocation effort in which the federal government had tried to forcibly get many Native peoples to leave the reservation to go into urban areas, sort of the last systematic federal policy. That led to a major pan-Indian movement -- not unlike the boarding school period from earlier generations -- and so that also galvanized Indigenous peoples. And then comes the War on Poverty and the Office of Economic Opportunity and various federal programs that provide its funding to tribal leaders who began to take advantage of various media opportunities and various media venues in the urban areas. And so it was a combination of things, the environmental movement, the Black Power movement, the birth of the American Indian movement, the Alcatraz takeover in 1969.

So it was really a beautiful and powerful and completely unheard of confluence of events that just sort of coalesced and all of that, out of all that ferment, I think it convinced tribal politicians, tribal community activists, ‘We have the power to do more for ourselves if we’ll just do it.’ And so some tribal communities began to do that and many of them began to turn their attention to either their constitutions or to a desire to try and create or recreate traditional governing systems or to do something about their general council or whatever system they had, but it was this confluence of events that I think really encouraged tribes that, ‘Yes, you have the authority’, and then when Congress passes the Indian Self-Determination Act, when Richard Nixon issues his Indian policy statement, they then had federal support and federal recognition for these Indigenous self-determination efforts. And so all of that I think convinced tribes, ‘We need to take charge of our own governing systems and we need to do that by really closely examining what kind of governing systems we have in place. And we need to begin to fine tune it or throw it out and start over or do whatever we need to make it, to get it to match what our community’s needs are right now, rather than what they were looking like 40 or 50 years ago.’”

Ian Record:

“You talked about a lot of this movement kind of taking hold, I guess the realization setting in in the ‘50s, the movement really taking hold in the ‘60s and then crystallizing in the ‘70s with the Self-Determination Act. And you mentioned Richard Nixon’s statement and other events, but this movement is not slowing down, is it? It’s really gaining momentum, not slowing in momentum. Can you talk about, I guess, in broad terms how tribes are remaking their governing systems and reclaiming their governing systems and not only their systems, but maybe specific governing tools to better reflect their cultures, to better advance their priorities and essentially regain ownership in the decision making seat in their own communities.”

David Wilkins:

“Well with the Indian Self-Determination Act of 1975, that was the first major law. And so in addition to that, a couple years later you have several Supreme Court decisions come down the pipe, decisions like Santa Clara Pueblo vs. Martinez, which recognize that tribes have the right to decide who their citizens are and there were other decisions as well. Those were of course counterbalanced by negative decisions like, cases like Oliphant vs. Suquamish, whose tribe learned they no longer had criminal jurisdiction over non-Indians, which historically, we did in fact exercise, despite what the Chief Justice said at the time. But you really had this development taking place that really sort of started with Nixon and then it began to build through Congress with the Trail of Broken Treaties and some of the activism that took place. It sort of culminates with the ‘75 Indian Self-Determination Act and then some later Supreme Court decisions.

And so that combination of things takes place and then comes Ronald Reagan of course. Reagan comes in slashing everybody’s budget, but particularly the budget of vulnerable groups like tribal nations, and out of that, someone in Nixon’s camp encourages tribes, ‘You should look to gaming as an opportunity to do some kind of economic development.’ So the Seminole started a little bingo parlor and all of a sudden it explodes and other tribes say, ‘Hey, if they can do it, we can do that.’ And so the California tribes start theirs. They’re challenged of course by the State of California, it goes to the Supreme Court and the Supreme Court tells tribes in the state, ‘If you allow it, the tribes can do it.’ And so before you know it, tribes across the country are establishing casinos, which begin to bring in a steady stream of revenue, which we hadn’t seen the likes of ever really, dating back to the fur trade probably or the buffalo period.

And so that money and that stream of fairly secure income because Indian casinos continue to do very well compared to other casino operations, that has given a number of tribes a measure of economic flexibility. So they’ve been able to use that money to begin to rebuild their infrastructure, they’ve been able to use it to engage in language immersion programs and do all sorts of things culturally and with educations and with Head Starts and with all sorts of programs. It’s also taking us down a road, since we’ve never been on it before, we don’t know where that’s taking us. And so it’s also unleashed a backlash of course from envious state governors and envious state lawmakers and envious federal lawmakers who look to tribes now and their successful casino operations to bail them out of their economic problems. And so it’s created this backlash, and you’re always going to have legislators like the late Slade Gorton, who’s no longer in the Senate who was known as an Indian fighter and challenged any exercise of tribal sovereignty among the states in Washington or anywhere in the country. And so we’re going to have this constant sort of battle.

But the constitutional reform efforts that are taking place, I think, are really taking place now largely because of these stream of events we talked about, but also because gaming has accorded certain tribes the financial flexibility to be able to sit back and take a moment and think and ponder and reflect and to really look more closely at what their reservation or trust land or ranch area looks like and to decide, ‘Is the system that we have in place the best one? Can we do better? Do we need to look at revising or remaking or engaging in a revolution to come up with a newer or different system of government that might be more reflective of the way we historically governed ourselves or should we continue down the path of devising constitutions that begin to mimic more the state or the federal system?’ which has certain advantages and perks as well. And so I think tribes are having opportunities now to do things that they didn’t have before because of the economic flexibility that gaming and some other revenue streams has provided them.”

Ian Record:

“Part of your research focus in terms of contemporary tribal governance has examined the trends in terms of constitutional reform and how tribes are reclaiming their systems of governance, redesigning them to meet contemporary challenges while at the same time reflecting more appropriately their cultures and their identities and their core values and so on. Could you share maybe what you view as kind of the most bright lights out there from your experience, some of the tribes that are -- in your opinion -- are really seizing the day when it comes to regaining their governing systems, reclaiming those systems to better suit their own needs?”

David Wilkins:

“Well, that’s an area that I’m just now, I’ve collected with the help of a friend who’s a computer whiz, we’ve created a database of tribal constitutions and right now we’ve got about 318 and I’ve read a lot of these, but I haven’t begun yet to really closely examine what is happening on the ground right now with regards to specific tribes and their own constitutional efforts. I can only speak about my own tribe, the Lumbee. We’re not fully federally recognized, although in the process of pursuing that. We devised a constitution in the mid-1990s that was very contentious because there was another segment of the tribe that had been in power that had started during the War on Poverty and OEO [Office of Economic Opportunity] period and sort of thought of itself as the tribal government. And yet when the tribal community decided they wanted to create an actual constitution and began that very complex process, which took a number of years, that group ultimately was sort of squeezed out and it’s caused a bit of tension and yet the constitutional government is in place now and it seems to be working fairly well. Other tribes, a former student of mine, Deron Marquez, was the chairman of his small California rancheria, San Manuel Band of Serrano Indians. They don’t have a constitution. They have a simple plan of action that’s been in place for some time. They operate under a general council model because they’re such a small community, but they happen to have one of the most successful casino and gaming operations in California. And they’ve been able to parlay those revenues and they’ve become partners and now they are co-owners of a four-star hotel in Washington, D.C. with a couple of other tribes. They own a water bottling plant and they’ve diversified their economy tremendously, but the casino dollars were the basis of that. And so I’m looking forward to doing more in terms of the constitutional, contemporary constitutions to see what tribes are doing what, but I just haven’t got into that fully just yet.”

Ian Record:

“So Dave, let’s dive into a little bit more detail on two acts of legislation, federal acts of legislation that you’ve already touched upon, and the first is the Economic Opportunity Act of 1964 and the second is the Indian Self-Determination and Education Assistance Act of 1975. Could you delve into what impact those two acts of legislation had in terms of transforming the environment within which Native nations exercise sovereignty?”

David Wilkins:

“OEO was a major law. The Area Redevelopment Act was the first law in 1961. I don’t know a whole lot about that, but it was sort of an early forerunner to the OEO, but OEO is credited by most tribal people with being the first major piece of legislation that created an Indian desk in that particular office because there was clear, there was all sorts of empirical evidence that Indian Country was in the doldrums and had been for multiple generations from an economic development perspective. And so the federal government in creating the OEO staffed that, put an Indian desk there and other programs that were started, the Comprehensive Employment Training Act, CETA was an act that I got my first job in when I was still in college in 1973. But OEO and the legal services was another dimension of that. In fact, Peterson Zah was a recipient of that and he was able to take some of that money, get himself to law school, and use that to create the first legal services corporation on the Navajo Reservation that has done wonderful work and still is doing wonderful work.

And so it created a cadre of Native leaders who were able to gain particular jobs and get education, whether in law school or graduate school and they became the ones who went back to the reservation and either assumed political leadership positions or became the grant writers for their nations. And it was that grant-writing process that created a whole new generation, what Sam Deloria once called the 'managerial class of Indian elites,' who helped to sort of begin not to completely severe, but to begin to cut the umbilical cord between tribes and the Bureau of Indian Affairs. And that in itself was a major deal, because as long as tribes were absolutely beholden to the Bureau of Indian Affairs, the Bureau of Indian Affairs was in complete charge and had been for the previous century and a half.

But when the OEO and the other War on Poverty programs became available to tribes as granting agents, they began to receive money that didn’t have to go through the BIA, it went directly to them as sponsoring agencies and they were able to then use some of that money to do certain things. There was still all sorts of things attached to that and they still had to follow federal rules and regulations and it created additional problems because tribes under their treaty obligations were getting money as sovereign nations but in under the War on Poverty programs and Great Society programs, they were getting them as simply poverty-stricken groups. And so there were far more strings attached to what they could do with that money. But even within that constrained framework, tribes were able to do things and had a measure of flexibility that they hadn’t had for a very, very long time. And the Indian Self-Determination Act of 1975 really kicked that up a notch higher, and now tribes were able to contract directly and began to take over control of programs and to administer programs, still again attached to federal rules and regulations and stipulations and so on, but still they were gaining and additional measure of self-administration, if not complete self-determination because they’re still, the money is still coming from the federal government, but they now had a bit more flexibility in what they could do with the money and they could contract and still maintain their trust relationship to the federal government.

And then comes 1991, you have Self-Determination, which sort of morphs into the Indian Self-Governance Project and this was an initiative that was actually started by tribal leaders themselves. They took the idea to people in Washington, D.C. So Indians are the ones that got the Indian Self Governance process underway and they brought it to the attention of the people in Washington and said, ‘There are too many strings attached, too many, there are too many, we don’t have enough freedom and enough flexibility to do what we really want with either the OEO remnants or the Indian Self-Determination Act. We want to be self-governing, in which we just get a block of money directly from the federal government and then we just do what we want with that.’ And so you had a number of tribes, I’m not sure how many tribes. I know initially there were like 20 some odd tribes that were part of the original pool of self-governing tribes. I think their numbers now are up into the 40s, maybe even more now. And so you’ve got self-determined tribes, now you’ve got a body of self-governing tribes, and we’re still sort of in that sort of mode right now.

But then of course, once the gaming phenomenon just erupted, now you’ve got the casino tribes and they’re sort of a whole other thing, a whole other level. And yet because, if tribes were going to engage in class C gaming, which is the most lucrative, they are required under the federal law to negotiate a compact with the state and the Supreme Court, unfortunately, has interpreted that to mean that the state essentially has a veto power over tribal decisions. So even when tribes had the, what they think is their largest amount of leeway, federal lawmakers still find ways to give either themselves or to delegate to states a power that essentially amounts to a veto power. And so even there there are constraints. And yet you’re right, as you were saying a moment ago, tribes are having opportunities now to do things that a generation and certainly two or three ago weren’t even on the horizon.”

Ian Record:

“I had a colleague once describe the Indian Self-Determination Act of 1975 in this way, that ‘the federal government cracked the door on the ability of tribes to take over meaningful authority over their own affairs, and that some, not all, but some tribes drove a Mac Truck right through that door, that they kicked the door in essentially.' What do you think has been the difference between those tribes that have really been able to take full advantage of the new environment that...that act and its predecessors created and what has on the flip side held some other tribes back?”

David Wilkins:

“That’s a good question. And even with the Self-Determination Act, even with Self-Governance, I wouldn’t buy that analogy. I wish it were true. I think the door has been cracked and some tribes have widened it a bit and the self-governance tribes have widened it a bit further and casino tribes, the ones that are really doing well, have widened it a bit further, but there are still profound constraints on tribal economic and political and legal and cultural decision-making authorities that states don’t have to worry about, that individual citizens don’t have to worry about, but that we still do because of concepts like the doctrine of plenary power, the Doctrine of Discovery and various other legal ways in which the Supreme Court and the Congress and increasingly states are in positions in which they have the authority and have the power to restrict us, you see. And so while I think it would be nice to try and argue that we have essentially free reign, we don’t and haven’t had that since the John Marshall era in the 1820s, since Johnson v. McIntosh in 1823, where the Supreme Court said we don’t own our own land and the discoverer gained the superior title to that. That doctrine still governs. So Native peoples on reservation land -- even if it’s land that they’ve never left -- still don’t have a superior title to their own territory. And so, I want to see the glass as half full too, rather than being half empty, but as someone who studied federal politics and federal law and policy, I’m well aware of how quickly and how emphatically federal lawmakers can come in and can absolutely lock us down and we have no recourse because we’re still denied full admittance into the international community despite the draft declaration and despite the permanent forum and despite other things. And so we have more freedom today than we’ve enjoyed for a very long time, but we need to be realistic and realize that we still don’t have as much freedom as I think we are treaty and trust base entitled to. And so that’s the reality of that I think we have to be aware of, always cognizant of.”

Ian Record:

“So David, I wanted to finish up with a quote, and this is by a rather well-known Onondaga leader named Oren Lyons, whom you know, and he said once that ‘The best defense of sovereignty is to exercise it effectively.’ I was wondering if you could respond to that and how you see that from your perspective.”

David Wilkins:

“Absolutely. Vine [Deloria] was always saying just that in his many writings about tribal sovereignty, encouraging tribes all along -- dating back to Custer Died for Your Sins and even when he was executive director of NCAI [National Congress of American Indians] -- to quit talking and to get out there and start acting, to start exercising, to start wielding the residual, inherent sovereign powers that you still have. He said, ‘They’re all there and if you don’t wield them, if you don’t use them, in their dormant state they atrophy.’ And when something atrophies in this society, it eventually becomes brittle and it breaks away or someone from the outside swoops in and just takes it away because they say, ‘You’re not exercising it, you’re going to lose it.’ And it’s the old water law doctrine, ‘Either you use it or you lose it.’ And I think that’s what Vine and certainly what Oren Lyons is referencing there. And that’s where I think tribes today are really doing some wonderful things. I think sometimes they go a bit overboard in fact with engaging in certain activities and basing it on the doctrine of sovereignty.

So for example, I’ve been researching the disenrollment issue and the banishments that have really been increasing dramatically in the last dozen or so years, and I hear a number of tribal officials saying that they’re exercising their sovereignty when they act to kick out bona fide members, bona fide citizens of their nations. And they say, that’s not an act of sovereignty, that’s an act of desperation, I think, because historically we found ways as tribal nations through our various adjudicative ways and our various judicial ways to, if there was a conflict, we found ways to restore balance, to restore harmony, to bring people together to negotiate, to arbitrate, to solve the difference. You just didn’t willy-nilly tell someone, ‘You’re no longer one of us,’ because you’re related to those people. If we view tribal nations as extended families, as extended kinship networks, there’s no way that I would kick you out if you’re my brother, if you’re my relative. You don’t cut off your arm. And we were talking earlier today during our meeting about this concept of membership versus citizenship and as I’ve been doing my research on disenrollment and banishment I looked up those two words. And if you look at the etymology of the word membership, it dates back, its earliest meaning means an organ of the body and I think that’s the meaning that John Collier had in mind when he first coined the phrase tribal membership. He saw tribes as one living body of humanity in which all the people were related. That’s how Cohen understood us and that’s how historically we understood ourselves. And so if that’s the case, then that entire body is a sovereign body. And so you don’t act in a way to willy-nilly and arbitrarily cast off a portion of that body, because that’s who you are. And so I’m concerned when I see that kind of thing happening.

And yet as often as that’s happening, many other positive developments are also happening in which tribes are engaging in exercising sovereignty like the United Treaty that was negotiated just two summers ago up in Washington State between various Native nations and the United States and some Canadian First Nations, some Maori and some New Zealand, I mean some Australian Aborigines. And so that’s an act of sovereignty that Vine also encouraged our peoples to do a long time ago to engage in diplomacy amongst ourselves. We’re denied that under federal law currently, but there’s nothing under federal law or our treaties that say we can’t negotiate with one another. And so this is an example of tribes in a positive way exercising their sovereignty to engage in diplomatic relations with other Native powers. And so when I see something like that happen, I smile and so that replaces my frown from disenrollment to a smile with engaging in diplomacy.”

Ian Record:

“You mentioned the positive ways that -- and the strategically beneficial ways -- that tribes are exercising their sovereignty and the ways that those exercises in fact help tribes, empower tribes to defend that sovereignty. And then you also talked about ways that they’re perhaps not exercising it beneficially in terms of advancing their long-term interests. It may make sense now, but in the long run it’s going to be to their detriment. We also see some tribes exercising their sovereignty in ways that are going to invite responses from other entities, other governments, particularly the federal government, state governments, that are going to put them in the legal arena and as someone who’s a student of the U.S. Supreme Court and how it treats tribes in this day and age, that may not be the best place for tribes to try to have their rights recognized, is it?”

David Wilkins:

“Right. Exactly. Exactly. Yeah, my dissertation was on the Supreme Court and most of my first publications addressed how the Supreme Court engaged in and arrived at various opinions that have had a devastating status over tribal sovereignty. And increasingly, as the Supreme, once Ronald Reagan became president, through his two terms, he was able to really stack the federal courts with a number of conservative ideologues. Clinton came in and he obviously wasn’t as conservative as Reagan and yet, his appointees were larger fairly moderate as well. George Bush with his most two recent appointments of Alito and John Roberts, as soon as I heard about those appointments, I knew that we were going to be in for a much longer stretch of rulings that were going to really have negative repercussions.

A graduate student and I wrote a paper in which we examined the Supreme Court decisions from 1996 to about, 1995 to 2003 and we looked at all the major decisions. While there were a couple of decent rulings during that period, for the most part, most of the opinions, over 80 percent of them were negative. And even David Souter, who voted most often in favor of tribes, only supported tribes about 23 percent of the time. Clarence Thomas, of course, is the most radically anti-Indian Supreme Court justice, followed closely by Scalia and now Roberts and Alito and Kennedy and it goes on down the list. And so historically, at least until the 1970s, tribes could turn to that august body of nine individuals to sometimes get a fair shake, but that’s simply not the case now. And so you have a situation where when tribes have a conflict, say a state is attempting to extend their jurisdictional authority over an area that has historically been run and governed by tribes, if they turn to Congress, they’re going to find not a positive ally, if they turn to the president, they’re not going to find a positive ally and now they turn to the Supreme Court, which had historically been their one occasional ally, that’s certainly, that door has largely been closed to them.

And what bothered me most recently, the latest Supreme Court decision, the Plains Commerce decision, which was just handed down a month ago or two months ago, I had read the oral transcripts. And someone had notified me about those and I was able to track them down on the internet and Justices Scalia and Roberts raised questions of the Indians’ attorney in which they essentially were mocking the tribal corporation. And I knew based just on that language and the laughter that ensued, I said, ‘We’re going to lose this case.’ I read some other opinions by other people, other Indian legal scholars who felt that we were going to, that Natives were going to win the case, but I could tell by the tone and by the mocking derision that was exhibited by Roberts and Scalia, I said, ‘There’s no way.’ And sure enough, we wound up losing that in a quite powerful and very harsh decision just two months ago, and so that was a further blow to tribal court authority.

And so until tribal courts are going to be granted the comity, the respect that state courts take for granted and that certainly federal courts take for granted, it’s going to be difficult. So I wonder sometimes when I hear people say the tribes need to develop courts, well, to what end? If they’re not, if their verdicts aren’t going to be accorded any respect, if they’re not going to be granted the kind of recognition that state decisions and federal decisions are, then what is the point of having that? And I say it on my darker days, and I still want many tribes to have some kind of adjudicatory body, it may not necessarily have to be a court system, but we need something in place so that we can provide some balance to the executive power and the legislative power, but if we’re going to have a court system, we need to find some way to convince our neighboring polities, the states and the federal government that they need to show our judges and justices respect just like our justices show them respect.”

Ian Record:

“Well, we’d like to thank Professor Wilkins for being with us today on this edition of Leading Native Nations, a program of the Native Nations Institute. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at nni.arizona.edu. Thank you for joining us.”

Angela Wesley: Huu-ay-aht First Nations' Forging of a New Governance System

Producer
Native Nations Institute
Year

Angela Wesley, Chair of Huu-ay-aht Constitution Committee, discusses the painstaking effort the Huu-ay-aht First Nations undertook to develop a new constitution and system of governance, and how they continue to work to turn the promise of self-governance embodied in their new constitution into governance practice.

People
Native Nations
Resource Type
Citation

Wesley, Angela. "Huu-ay-aht First Nations' Forging of a New Governance System." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Interview.

Ian Record:

Welcome to Leading Native Nations. I’m your host Ian Record. On today’s program we are honored to have with us Angela Wesley. Angela is a proud member of the Huu-ay-aht First Nation and has worked since 1980 with First Nations communities throughout British Columbia. Since 1992, she has been providing advisory and facilitation services in the areas of strategic planning, community development, communications and community engagement as well as governance capacity building. In recent years, her focus has been on providing assistance to her own nation as well as the other four First Nations that are signatory to the Maa-nulth Treaty. As Chair of the Huu-ay-aht Constitution Committee and member of the Huu-ay-aht Treaty Governance and Lands Resources Committees, she was instrumental in the development and community ratification of the treaty, the Huu-ay-aht First Nations Constitution and a suite of foundational laws that set the stage for her nation’s return to self governance as of April 1st, 2011. Angela, welcome and good to have you with us today.

Angela Wesley:

Thank you. It’s great to be here.

Ian Record:

So I went through your rather voluminous bio and shared some of the highlights, but why don’t you start off by telling us a little bit more about yourself. What did I leave out?

Angela Wesley:

I think you pretty much covered it. Some of the things that I’ve done more recently, or that I’m involved in more recently, involve being involved on some boards. And one of the things that I’m really liking doing right now is venturing into the academic world a little bit and I’m chair of the Nicola Valley Institute of Technology as well, which is a public post-secondary institute in British Columbia that was founded by First Nations in the interior of BC [British Columbia]. So I’m really starting to see my abilities to cross over and start sharing information on governance through that field as well, so really an exciting new eye opener for me and a new venture for me.

Ian Record:

So we’re here to talk about governance reform, constitutional reform and specifically the work that your nation has been involved in in arriving to the point it’s at today. And I’m curious -- let’s start at the beginning -- what prompted your nation to consider going down the reform road to begin with?

Angela Wesley:

Well, I think it’s a bit different in Canada than it is in the [United] States, where we didn’t have constitutions as I understand tribal governments in the States do. Really we were embarking on nation rebuilding. The constitution was one piece of what we were doing in rebuilding our nation. Our nation was involved in treaty negotiations and has been involved in the BC Treaty Commission process since about the early 1990s. So in thinking about where we wanted to go and really thinking about the vision for our nation, that’s what sort of prompted us to look overall at our nation and what needed to change. As we got deeper into our treaty negotiation process, we realized that we really needed to reform our government and start to rebuild our nation into something that meets the vision of our community. We started off I think back in the 1990s -- and not to say we didn’t always have a vision -- but we started to try to articulate that and bring that to our people and to say, ‘Where is it that we want to go as a nation? Clearly we have some healing that we need to do. We need to change the way we do business.’ So we really spent a lot of time talking to our people about what we wanted for the future, and our vision statement is not dissimilar to almost any First Nations’ vision statement, where we want a healthy community, we want to be able to govern ourselves, we want to make our own decisions, we want to set our own priorities, we want to revive and strengthen our language and our culture and we want opportunities for our people for the future. And that really set the tone for an entire nation rebuilding process I think.

Ian Record:

So it became obvious very early on that, 'If we’re going to fully engage in the treaty process and take advantage of that opportunity, we need to jettison the Indian Act system altogether and develop one that reflects who we are and where we want to head.'

Angela Wesley:

Absolutely. One of the biggest pieces that we were looking at or one of the bigger pieces we were looking at in treaty is the ability to have self government. We struggled originally in our treaty negotiations. We were being told by Canada that they wanted to keep self government outside of the treaty and that was a show stopper for us. Unless self government was included in the treaty and protected by the Constitution of Canada, we weren’t going to have a treaty. So on the basis that that was something that was so important to us we realized that we needed to start building our constitution and talking about what we wanted from our government in the future.

Ian Record:

We’re talking a lot at this seminar that the Native Nations Institute is holding on constitutions and the importance of process, that often for many Native nations, whether in U.S. or Canada or elsewhere, that there’s a broad recognition among people in the community that our current system is not working for us, it’s not going to get us where we need to head, but then a lot of folks have difficulty getting from that point to the point of a new system. Can you talk about the process that your nation devised to develop this new constitution, to engage in this nation rebuilding effort?

Angela Wesley:

Sure. I just want to start by talking about maybe there wasn’t such a broad recognition by our citizens of the situation that we were in and I think that sort of formed the basis of how we approached communication with our citizens as well. We started off, we have a general, what we called a 'band meeting' at the time, and I give a lot of credit to our leadership at the time and our former chief counselor Robert Dennis, Sr. was very instrumental in putting a process in place that the people would feel comfortable with. So it was opened up to the floor and it was the citizens that appointed the committee that was going to look at the constitution and we were told to go and find out what people wanted. So we were given a lot of flexibility and latitude in terms of how we approached things. So we really sat down, we talked as a committee about what it was that we wanted to achieve. We talked about our vision, the need to really get people to understand that that was the basis of moving forward was that we all had this collective vision and it was a vision of the people, it wasn’t a vision of a specific government or a specific council and I think that’s how we started. We did a lot of research, we looked at constitutions of other nations, we talked about other peoples’ experiences, and really what we started with was a questionnaire process. Once we had talked we went and did a little bit of interviewing and speaking with our people about the vision and is that in fact what we wanted. I don’t think anybody could argue with that’s what we wanted, we want to change our world, we want a better place for future generations. And everybody agreed with that.

So having said that, then we started to probe a little bit further, what people wanted from their government. So we started with a very intensive questionnaire process, and I always give credit to a young woman in our tribe, Trudy Warner. She was in her 20s at the time and very enthusiastic. She was working with us and she was assigned to the committee to be our administrative support. She ended up taking a questionnaire around, and I don’t think it was so important what was in the questionnaire as the fact that we went out and talked to people about it. So we devised some questions, some of them were good, some of them not so good, but it opened up the doors for people to start to tell us what it was that they wanted. We asked about terms of council, we asked about what kind of ethical behavior we expected of council, we asked about what kind of terms we thought would be appropriate, we asked about how disputes might be resolved, we asked about how to incorporate our traditional hereditary system into our government, which was huge for us. That was one of the things we really wanted to do. So we engaged in a process of communicating with our numbers over a long period of time. We probably did this over five to seven years on and off; it wasn’t consistent. We were a committee and we were limited by finances and what we could do; it was very expensive. We have probably 80 to 85 percent of our people living away from home, so it involved going out and going to the people or bringing them in, which was very, very expensive as well. But we really, we talked a lot to our people, we talked we brought that back and we talked as a committee about what that meant and what did our people really want. I think that some of what we found was that what I started with is that people didn’t really understand the system that we were under. We’re so used to blaming our band councils for things that go wrong without understanding that the Indian Act is behind all of that and that our councils really are structured under an Indian Act system that so clearly does not work for us, that oppressed us for so many years. And that’s what our people grew up with. So a lot of people didn’t know about our traditional systems, they didn’t know how we used to govern ourselves. All they knew was this oppressive system that we’d lived under that had hurt them in huge ways.

So sort of interesting, maybe to back up a little bit to the questionnaire process, our young citizen went out door to door, bless her heart, by herself and knocked on people’s doors and said, ‘I have this questionnaire and it’s my job to come and talk to our citizens about what it is you’d like to see in government.’ And she heard a lot of venting. So we tried to give her a lot of support and told her to not to react, don’t get defensive, don’t feel like you have to defend the council for things that happened 30 years ago, but listen, allow people to say what’s on their mind and bring that back to us, because that’s all relevant to what we need to change in the future.' Along with that commitment from the committee, she also had a commitment from our chief councilor at the time, who said that, ‘If somebody needs to talk to me, come back and tell me. Don’t take it on for me, but I will go.’ And he made that commitment and he did go and follow up with people, which was huge. So once people had a chance to get some of that stuff out that they had been holding on to a lot of times for 30, 40 years -- people had gone been taken out of our community, they’d gone to residential school, they’d seen what had happened to their parents and grandparents in the community and they’d gone from there and never come home. So these are people who have memories from the past that aren’t good memories in a lot of cases. So we were able to get through a lot of that. When people had the chance to just say that and get it off their chest with nobody trying to defend how they feel, then they kind of went, ‘Oh, okay.’ And they would say to Trudy, ‘Well, what are you here for?’ She’d say, ‘Well, I have this questionnaire.’ And they’d say, ‘Oh, come in. Who are you and what family are you from?’ And there was this warmth all of a sudden that, ‘Come and have a cup of coffee and do what we do traditionally,’ is share information. So she was able to, I think, with her personality, with her youth, with her enthusiasm and with the commitments and backing that she had from the committee and from our leadership was able to break through in a lot of cases and make people feel Huu-ay-aht again. We actually had people say, ‘I didn’t think I was Huu-ay-aht anymore, I didn’t think anybody cared about me. But I was important enough, somebody came to my house and talked to me about these things.’ It was a huge breakthrough for us.

Ian Record:

It’s interesting you bring up this thing about recognition. My experience in the many nations I’ve worked with on constitutional reform -- primarily in the United States -- has been that people in the community fixate on the symptoms of dysfunction, which typically means they focus on the council, ‘Everything that’s wrong with us is because of the council,’ when they don’t it’s very difficult for them to draw that connection back to the roots of the dysfunction, which in many cases are an imposed system of governance. How important was it for you guys to shift that focus in your community to show people that, ‘Look, at the root of what ails us, what’s holding us back,’ if you will, ‘from rebuilding our community into something that we think is important and is culturally relevant is this system that is not of our own design.’

Angela Wesley:

It was the foundation of our communications, both in our constitutional communications as well as in our treaty negotiations. We just felt that it was so important for us to realize that there was no way out of that system unless we created something ourselves, and that’s what we were trying to do through treaty negotiations, to be able to get governance tools, access to lands and resources, additional financial boosts that could help us to move forward and to create that economy for our people. So in order to do that, we had to show that there was nothing in the current system that we could see that was going to allow us to dig ourselves out and to be able to change our world. We needed something else to add to it and having governance, having good governance in place through our constitution together with having some extra tools, access to lands and resources, recognition of our rights, the ability to build the economy was what was going to change our situation. And like I said, so many of our people just had no idea what the problems were and when we started to talk about that I think it really opened eyes and gained a lot of support. And the support wasn’t 100 percent. A lot of people were taking a leap of faith. We were creating trust through doing this kind of communications with our people and saying, ‘Can you give us a chance? This is what we think is going to help us to change our world. Let’s do all of this together.’ So that was it was really the root of what we were communicating to our people is that how else are we going to change, how else are we going to change our social situation because it’s not good the way it is right now.

Ian Record:

I wanted to back up to something you said earlier about the importance for Huu-ay-aht of having this new governance system that you were creating be an expression of the people’s will and not necessarily an expression of political will, meaning you wanted to ensure that it was the product of the people as a whole versus the product of a particular council or particular elected official or someone else. And we’ve seen where other nations have succeeded with constitutional development or reform, that recognition going into the process, that we’re going to sabotage our own effort if this either becomes politicized or becomes viewed as a politicized process at the very beginning. Can you speak a little bit more about why that is so critical to sort of make sure that the process itself is an apolitical process in how you guys ensured that you insulated it from sort of the political impulses along the way?

Angela Wesley:

Yeah, it probably was a key to our success in terms of the communication or in terms of the approval and ratification of the constitution. I can’t give enough credit I think to our leadership to be able to have stood back not only from the process of building a constitution, but also recognizing that we were trying to incorporate in some fashion our hereditary system back into our government or at least the ability to do that as time went on into the future. And again our chief councilor at the time is a very traditional individual as well. He’s a historian for our tribe and I think that really helped to show people that we were really trying to do what was best for the nation. So there wasn’t political interference, but there was huge political support for developing that system and I think that the leadership showed that they weren’t afraid, that they weren’t afraid of the changes that were coming up because this was what was the best for the nation. So the separation is good, but the leadership was such a critical element of it as well to be able to stand up and really support what we were doing.

Ian Record:

It’s interesting you keep using the word 'support,' because where we see tribes succeed is where the elected leadership plays a supportive role, not a directive role. Where we see tribes struggle is where the reform process is quickly viewed by people in the community as just another initiative by the current leadership that’s in charge. Do you see that as crucial where do you see that as maybe sending a message to the people in terms of, ‘This is something that’s so critical that it’s got to be bigger than us as a group of leaders, it’s got to be about the nation as a whole?’ Did people kind of stand back and say, ‘Wait a minute. This is a real opportunity for us to re-engage, to have our voices heard,' as you mentioned? You mentioned the one person saying, ‘Wow, my government’s never asked me for my opinion on anything before,’ to say it’s not just a command and control decision anymore, this is going to happen from the ground up.

Angela Wesley:

We really it is critical. We really emphasized that with our people as well to say when and who have you ever seen that’s had the opportunity to say how it is that we want to be governed as a nation. To take advantage, we encouraged people to take advantage of that possibility; we encouraged people to use their voices in a positive way. The system that we were in, I think, really led people to be complaining about things all the time. There was no way out, there was no way to resolve disputes, they just went on and on and on. And to have us going out into our community and talking to people about solutions and to have them feeding into, ‘Okay, if that didn’t work, what can work and how can it work better for us, how can we take how we used to govern because it sustained us for thousands of years, how can we take those principles and those values and move them into our government of today so that we can do things better?’ And I think people understood that and it didn’t even really become a visible issue of, ‘Oh, it’s not the politicians that are involved in this?’ People just started to engage because they liked the conversation. So I don’t think it was so much a factor that people hung anything on the process and said, ‘Well, the politics aren’t involved.’ I think they just started liking having the conversation and started feeling more and more comfortable with it. Probably one of the earliest things that people really responded to was the chapter in our constitution that talks about individual rights, to actually see in black and white that people would be treated equally, that they would have equal opportunities within the nation as citizens of the nation; that really sparked something. So starting there, having that conversation as a basis for our communication on the constitution was really, I think, winning as well.

I think people really felt that it was something that was going to reflect what it is they wanted. Because when you go out we often talk about how you explain such complex matters to people who are just trying to get by in their lives and we really chose to try to make our communications really relevant as opposed to saying, ‘This is what provision 16 is going to say in legal language.’ We tried to keep our constitution as plain language as possible and to make it relevant to people because that’s their question, ‘What does this mean to me and my family? How is this going to change the world? How is this going to protect the assets of our nation for future generations, for those who aren’t born yet?’ Those are the kind of things that were on people’s minds. So having the conversation around those kind of things as opposed to around what the provision is going to say, we tried to capture what people were saying and put it into the language.

Ian Record:

It’s interesting you bring that up because often the refrain that we hear in many Native communities -- particularly those that are struggling with reform -- is a sense among many in the community that they simply don’t understand why they should even care about the constitution. They have no sense of how it impacts their daily life, the current constitution and how a new constitution could improve their daily life, and so forth. And it sounds like that was at the forefront of your mind as you went into this process, is to educate people about and making sure that the deliberations were accessible so they could understand, ‘This is how this new system will improve your situation individually, your family’s situation, and the nation’s situation as a whole.’

Angela Wesley:

I think so, and I think that people saw that this was a way of helping to make our governments, future governments and present governments, more accountable to the people. The way the Indian Act is set up right now, your funding flows from the federal government to the council. So the accountability of councils in a legal sense is right back to the Ministry of Indian Affairs, and there’s really not a whole lot of concern on the part of the department as to whether you are accountable back to your citizens. It’s becoming more and more prominent now, but and it’s also becoming more and more of a practice among First Nations to be accountable to their people. So despite the fact that it’s not really a requirement -- although Canada has paid a lot of attention to that in recent years -- nations are becoming more accountable to their citizens and citizens are demanding that accountability. And I think the constitution strengthens that and allows us to do it  to have councils be accountable in a way that is acceptable to the people. What are you going to report to us, when you are going to report to us, to see that these things have to happen? They have to happen according to our own laws, not according to the Indian Act or Ministry of Indian Affairs. It’s because this is what our people want.

Ian Record:

It sounds like things have gone well with your nation in terms of governance reform, really governance rebirth, if you will. But I’m sure at some point you encountered some challenges.

Angela Wesley:

Oh, absolutely.

Ian Record:

And given that it took you seven years, I’m sure there were lots of challenges, a lot of bumps in the road along the way. Can you talk about some of the biggest challenges that you faced in the reform process and how you worked to overcome those?

Angela Wesley:

Well, I think the whole...in terms of our community, I think what I’ve just been talking about in terms of the understanding or lack of understanding of the reality of our situation was probably the biggest hurdle that we had to overcome in the development process. We did end up with a high approval rate of our constitution and of our treaty, and I think it was just our people agreeing that we needed to take this leap of faith, that this was our chance to try to do something for ourselves and to do it our way. So I think that that was a big leap of faith.

Ian Record:

That sounds to me like that was an initial challenge of getting the people to recognize the reality of their situation, of just how pervasive the Indian Act how it affected them in so many ways that they may not have been aware of. But how about when you got really into the process full-bore, you got beyond that initial education, were there some other obstacles you encountered, external factors, internal factors that threatened to derail the process?

Angela Wesley:

You know, politics will always sort of pop up and matters become more urgent as time goes on, but I think that by and large, given the process that we went through, I think we were able to overcome any kind of hurdles. I think that the committee that was put in place and the leadership that we had in place was able to work together to understand that we were there to support each other and that made a lot of difference, I think, to how we approached when we were getting towards the end when it’s sort of crunch time and you’re going to start looking at going into a vote. There was some apprehension on the part of our leadership and our council maybe that, ‘Where is this going to go?’ They were sort of feeling like any arrows that were going to come were going to come towards them and we said to them, ‘Well, we’re the ones as a committee that should be taking some responsibility, and feel comfort in the fact that we’re happy to stand up in front of our people and explain why the constitution is the way it is,’ and it is entirely because of what it was that people wanted in our government in the future together with trying to build a system of good governance. So I think we overcame those.

The challenges I guess that we’re looking at now, we’re two years into being self-government or self-governing and it’s hard. We didn’t expect it was going to be easy. This I think now is when we’re starting to face the challenges, when we realize what it means to be fair, to treat people equally. When those things that our people told us that they wanted, it now takes much longer to make a decision because you have to go through, you have to be transparent, you have to treat people equally. There aren’t exceptions. If there’s an exception for one [person], you’ve got to think of how that’s going to happen and play out for the rest of the citizens as well. So what all sounds really good and is really good takes a different process and takes a different way to be able to move forward. So I think we’re having those kind of challenges right now.

I’m seeing I’m not working directly in my nation right now, but I’m still always very connected. I’m working with our economic development side now actually, so sort of shifted over into that. But you see our leadership struggling. They want to do things right. They want to follow our laws. And I think if there’s things that can be learned, it’s to really think about what this is going to mean as you’re drafting your laws, because I think in some places we found that we’re almost overly accountable and what we don’t want to do is to constrain ourselves with our own laws. But the beauty of being self-governing is that we can change those things if and when we need to. And recognizing that I think is a big part of our learning curve.

So being self-governing doesn’t mean that everything is working perfectly for us right now -- far from it -- and when will we ever be doing things perfectly? No government ever runs perfectly. But we certainly feel better, I don’t think that there’s a person in our nation that thinks that we made the wrong decision in taking on self-government and doing it for ourselves. It’s hard, it’s going to be difficult for us as we continue to move on but we’re getting better at it every day.

Ian Record:

So it sounds to me given that you’re just about two years now into your new governance reality, if you will, that your nation is still working to grow into its new constitutional skin, its new governance skin, it’s going through those growing pains of actually transforming that document on paper into practice.

Angela Wesley:

Oh, definitely.

Ian Record:

And this is something we hear from a lot of other folks, we’ve worked with a number of tribes who are now three, six, ten years into their new constitution and system of governance and they describe this same sort of dynamic taking place, where it’s one thing to have a new constitution and it’s quite another to actually live that in practice. And I would imagine for you as with other some of these other nations, you’re really the larger task really is to transform the political culture that has been in place in your community for so long, the Indian Act culture. In the U.S., for many tribes it’s the Indian Reorganization Act political culture, where suddenly you can no longer go to the council for absolutely everything that ails you, every problem you have. Now there’s processes in place that you have to follow. Can you maybe shed a little more insight into how that’s unfolding in your community, and I would imagine it entails an ongoing education challenge does it not?

Angela Wesley:

It is. It’s definitely a learning curve. Under the Indian Act, as we’re hearing in the courses through NNI and the kind of sessions that we’re in today, you need to put up the mirror sometimes and see how it is that you’re operating. Councils are expected to do everything. That’s the history of most First Nations in Canada and I assume in the U.S., and transforming at the leadership level into being visionaries and creating the environment to succeed is a really difficult thing to do, because citizens still expect you to go and take care of everything, all of the things that are going on in the community. So it’s difficult for citizens because they can’t do that anymore, and it’s difficult for leadership to try to let that go and to put the administrative systems in place that allow the questions to be answered and that allow give citizens a place to go to get their questions answered instead of to the political side. So it is, it’s a transition; it’s a huge transformation. It’s a new way of doing business and operating our government. So it’s I give a lot of credit to our leadership in trying to get through that and trying to remind themselves every day that they need to show citizens where they need to go to get their questions answered as opposed to coming to them, because that’s the critical part is that you can’t leave our citizens hanging, they’ve got to have somewhere that they can go and that’s the council’s role.

Ian Record:

And I would imagine this clarification, redefinition and then ongoing clarification of the new roles within your new system is absolutely critical, because as you’ve laid out, your governance, your new governance system is expected to achieve far more ambitious things than the previous system was under the Indian Act. You’re tasking your governance system and the leaders who lead that system with creating this brighter future of your own design. And so I think this point that you brought up is absolutely crucial, where you’ve got to make sure that you create the space for your leadership to be visionary and to actually figure out, how do we implement the vision that we’ve created for ourselves for our own future?

Angela Wesley:

Yes, definitely. And being able to feel comfort in the organization that we set up is the other big part of it as well. You can put your constitution in place, but unless you’ve got an effective administration as well to be able to take care of that we had to do a lot of reorganizing at our administrative level as well. We had a typical First Nation operation or band council operation or band administration, where we had our band manager who had everybody in the organization reporting to them. So that person as well needed to be able to focus on making sure that the council’s wishes and directions are undertaken and that’s what their role is as well. So there’s a shift in roles all throughout the organization. People have to learn new things. People who are really good at managing resources now also have to learn how to manage people. So it’s a shift at all levels within the government and that’s going to take time, and I think we need to go easy on ourselves a little bit in these early years and just realize that we need to relearn a lot of things and we need to learn how to do business effectively and efficiently for the benefit of our citizens.

Ian Record:

So a couple things out of that. One is that I think what you’re referring to is what we’ve heard from other folks from Native nations who’ve been involved in reform efforts is you’ve got to in many instances dial back expectations, that just because you have a new constitution doesn’t mean everyone’s problems are going to be solved overnight. There is going to be a learning curve, we’re going to make some false steps, we’re going to do two steps forward, one step back kind of thing, but the idea is that we’re in charge now and if we find that something in the new constitution isn’t working, as you mentioned, that we have the power to change it.

Angela Wesley:

And it’s not  in our case it’s not only the constitution, it’s the treaty as well, which both came in place at the same time. Probably one of the biggest lessons learned is to have not only that reorganizational plan in place to get your government ready, but also to start getting the economic side and getting that plan in place as well and start to make sure that there’s even small steps towards making changes that people will see some of the early things that we’re able to change that made a difference to our people. As we changed things like our education policies, we weren’t able to fund trades before and now we have the flexibility to be able to do that. So we’ve made little changes like that that make a difference to the people and to plan to do things like that to start to address some things that you can point to to say to your people, ‘Yes, things are working differently now. We are making small steps and hopefully as we continue to grow and build our economy, we’ll have lots of successes that we can look at and that’s going to happen over time.’

Ian Record:

The other thing I wanted to bring up from your previous response is you mentioned that the band manager, their reality has changed because of this new governance system, and I think that that’s often lost on folks is that this new constitution, this new system of government, it will definitely change the role of leadership or clarify perhaps the role of leaders and it will transform it will necessarily transform the expectations citizens need to have of their government, but really what you’re saying is that it’s going to change reality for everyone that is either part of the nation, works for the nation, or interacts with the nation. And can you talk a little bit about how I guess compare and contrast the new governance reality at Huu-ay-aht with the old governance reality? Say I came and visited the community under the Indian Act system and I had to work with the band government on something and now I’m getting ready to come back, I call you on the phone and say, ‘What should I expect, how are things going to be different for me if I have to come and work with the nation on this particular issue?’

Angela Wesley:

I think there’s a lot of fundamental differences, and we’re getting used to working within a new system as well. Having a treaty, having the constitution to go along with it and having a whole new set of laws, things have to be done differently. It’s not as easy now as going up and calling all the council members together and sit down and, ‘We have this new initiative we want you to look at.’ There’s a lot of things that need to go into it before it gets to that council level so the way of doing business. Do you need a permit to be able to go out and do certain things on the land? Do you need to be talking with our manager of natural resources to get all of those kind of things in place? Nothing goes before our council now without a full briefing note and some options that are provided to them so that they’re making decisions based on full information. One of the things that’s in our Government Act is a requirement for the way decisions are made and it’s actually written into our legislation of what needs to be considered at the council level in making a decision particular, well about anything, but particularly in relation to things that require money. Have you got all of the information that you need in order to make the decision? Have you looked at what the impact is on other programs? Where is the funding going to come from? Are there other options here? Is there a need to consult the community on this? What kind of impacts there’s a whole list of those things that are in the laws. So it’s our law that requires those things get done and that means a much more thorough process is required. So things are different, things take longer and hopefully we can refine that as things go along, but it’s probably better to walk on the side of caution a little bit first, at the same time being able to move forward economically and be able to make those changes in our nation.

Ian Record:

So I mentioned in the introduction that you have been intricately involved in your nation’s development of a whole new suite of foundational laws. You get the new treaty in place; you get the new constitution in place. Where did you guys focus your lawmaking energy at the beginning? What to you was, ‘We’ve got to address these issues right now. There’s nothing on the books that helps us deal with X, Y and Z.'

Angela Wesley:

What we did in approaching our lawmaking was to look at the real critical areas. We had gone through a process that I described of creating trust in from our citizens that we were going to do things right. So the first laws that we put in place were, we called them 'laws that govern our government,' because people were a little afraid. What are these new laws going to be and are we going to be expected to have all these new laws in place that we need to know. We thought it was really important that we put in place laws that show our people that our government needs to be accountable. So we have things like a Government Act, a Code of Conduct and Conflict of Interest, Election Act, Citizenship Act, all of those kind of really foundational pieces. We didn’t start touching the bigger areas that we now have lawmaking authorities under like adoption, child welfare, education, culture and language. We’ve got lawmaking in a lot of areas, but we decided first that we need to continue to build the trust of our government and allow our government some time to settle in to governing well. So we really put laws, a lot of laws in place that talk about how our government operates and how they’re to be accountable back to the people.

Ian Record:

So basically what it sounds like you’re saying is you worked to enhance the lawmaking engine to then make laws in the areas where you had newfound or newly affirmed powers.

Angela Wesley:

Yes. Yes. Yes and to make sure that there were ways in place that citizens could have an input, that they would be able to always have a say in government, making sure that our Government Act specified for example what the rules were around having people’s assemblies where people would have their voice, what the rules would be around providing financial accountability back to the people. So these were our laws that we promised people when they said, ‘How can we be sure council isn’t going to run off with all the money that we get under treaty?’ Because the constitution says they can’t and because there’s a law that says what they need to do and how they need to report back to the people. So we’re making sure that those checks and balances were really firmly in place before we start venturing off into other areas. Other areas that were really important to us in lawmaking was protection of our lands. So we have a few laws that deal with lands and resources. Areas that still allow our people to exercise our rights, harvesting rights and that kind of thing, so we made sure laws and permitting process and that were in place so that on effective date people wouldn’t say, ‘Well, how am I going to go and hunt now? Where does all of this happen?’ So we worked really hard to make sure there was no disruption in those kind of activities as well.

Ian Record:

So I have a final wrap-up question for you and that deals with lessons. You guys were involved in a process that lasted several years, you’ve managed to come through the light at the end of the tunnel and you have a new governance system in place. What do you feel that other First Nations in Canada, other Native nations in the United States can learn from the Huu-ay-aht experience?

Angela Wesley:

Well, that’s kind of difficult to say. You never really want to say what we’ve done that other people should do. We’ve done what we think is best for us. We’re happy to share our story and to see if what we’re doing can be of any assistance to others. We are grateful to those who came before us as well, there’s now 10 First Nations in British Columbia that are no longer subject to the Indian Act. We learned from them. We learned from the Nisga’a, we learned from Tsawwassen, we learned from other nations that are self-governing under self-government agreements as opposed to treaties. So I don’t know how to answer that except for to say it’s really important to bring the people along because if they don’t understand the change that’s coming up, nothing really changes for them. It’s just a shift in power from one to another and they won’t see the difference unless they’re involved in that. So I think that’s probably the biggest thing that I feel proud of that we did in our nation is we really did our best to bring the people along.

Ian Record:

Make sure they’re on board the nation rebuilding train before it leaves the station.

Angela Wesley:

Absolutely. Absolutely, yeah. So it was a healthy experience for us. We’ll talk to a lot of our citizens who aren’t happy with the way things are going, I’m positive of it, but that will never go away either. But I think what we’ve learned through the process and what our citizens have learned is to use our voices and to try to be positive in terms of saying how things can be better. If it’s not working, let’s not just complain about it, because we can fix this if we want to. So I think that’s something that we’ve learned and that we’ll continue to learn as we become more comfortable in governing ourselves once again.

Ian Record:

Well, Angela, I really appreciate you sharing your thoughts, experiences and wisdom with us and good luck to you and your nation on your new governance journey.

Angela Wesley:

Thank you.

Ian Record:

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