consultation

Northwest Portland Area Indian Health Board

Year

Serving tribes in Oregon, Washington, and Idaho, the Northwest Portland Area Indian Health Board (NPAIHB) was created in 1972 to increase tribes’ ability to exercise control over the design and development of tribal health care delivery systems. Governed by tribal government delegates, NPAIHB facilitates intertribal coordination and promotes intergovernmental consultation. A leader in data collection and advocacy, NPAIHB also administers the first and largest tribal epidemiology center.

Resource Type
Citation

"Northwest Portland Area Indian Health Board". Honoring Nations: 2003 Honoree. The Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2004. Report.

Permissions

This Honoring Nations report is featured on the Indigenous Governance Database with the permission of the Harvard Project on American Indian Economic Development.

Robert Hershey and Andrew Martinez: The Legal Process of Constitutional Reform (Q&A)

Producer
Native Nations Institute
Year

Robert Hershey and Andrew Martinez engage participants in a lively discussion about the intricacies of secretarial elections and whether and how Native nations with Indian Reorganization Act constitutions should remove the Secretary of Interior approval clause from those governing documents.

Resource Type
Citation

Hershey, Robert. "The Legal Process of Constitutional Reform (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Q&A session.

Martinez, Andrew. "The Legal Process of Constitutional Reform (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Q&A session.

Andrew Martinez:

"Now I'm going to go into my questions. This Pueblo of Laguna document was the only document that actually noted anything towards cost. Allocated funds from the federal government for the tribe to go through this process. Funds are in the process of reprogramming for the secretarial election in the amount of $20,000. My question to the audience is, is this the same across the board, has this value changed since 2012? How's the money best allocated? What worked for the tribes?"

Audience member:

"Our tribe just went through that process of removing the Secretary of Interior, but we failed and they never mentioned to us any cost associated with it at all. And we did receive a letter saying that we would be okay as an IRA tribe, but there was still the fear within the community that we would lose our status and that we wouldn't be able to get grants, etc., etc."

Andrew Martinez:

"Would you mind me asking how you addressed that fear when it came up?"

Audience member:

"We held meetings, but we didn't hold enough meetings because by the time it was announced that there was going to be a secretarial election...going back to it, I've been on the committee for two years, and going back we should have held more educational meetings. I see that now."

Andrew Martinez:

"Hindsight's 20/20."

Audience member:

"Yeah, but that's what we should have done is that we should have held more meetings and did more explanation of what was going on and the benefits of it and so on and so forth. But it was just too little of time and not enough education."

Andrew Martinez:

"Did you work to only remove the approval clause from the mandate section?"

Audience member:

"That was the only amendment that we worked on, yeah."

Andrew Martinez:

"Okay. Thank you. Thank you for that. Any other responses? One other topic that I wanted to hit on is the means of communication. A lot...actually Red Lake right now has a Facebook page for their constitutional reform. There are other tribes that have Facebook pages. White Earth utilized YouTube to get information out to citizens. It's still up, you can watch it, it's actually very helpful. It helped me understand better what the process was going through and understand also the history of the tribe. It was great.

Some tribes have Twitter accounts. I guess I'm the young'in in the group right now. Twitter, I guess, is active for me so I could check Twitter and understand what's going on there, too. I also heard that White Earth used web sessions, broadcasted their meetings, understanding that you felt like you had to have or should have held more educational sessions. If your tribal members...if you have a large group of your tribal members who live off reservation, use the Internet, if they have Internet access, use it. Broadcast your meetings. I believe Justin.tv is one where you can set up a webcam, broadcast it, anyone can log in and check it out.

And if you choose to go the Facebook route, you have open discussions on there. It's up to you, the tribe, how much information you're going to put out there. If you only want to post about meeting updates and stuff like that, that's fine. You may still get some feedback, backlash to what's happening. You might get straight out opinions and sometimes some of the interactions that I've seen on the Facebook pages is pretty harsh, but it's intense and I would note that a little criticism and a little conflict is good. It breeds innovation. However, once it gets to a certain point it just starts to kill the process and really those are the individuals who you need to communicate with the most to start to quell their fears.

This last document that I have is a flow chart that I found from the Ho-Chunk Nation. Really this is how they went to break it down on there when they went through this process. They also utilized YouTube. However, they only have one video up. So moving from that on to questions, does anyone have any questions?"

Robert Hershey:

"There's a gentleman in the back there."

Audience member:

"Mr. Martinez, have you come across anything concerning the IRS [Internal Revenue Service] within doing what you're doing because some of their rules apply to the tribes too? And a lot of the times when you're doing a financial format for your people, we have to follow the federal guidelines and some of it seems like they're trying to infiltrate the government."

Andrew Martinez:

"So any documentation that I found regarding the IRS is what you're asking about? I have not. I could look into that, but I haven't found anything official."

Audience member:

"And then the other thing, like Mr. Hershey was saying is that for that reason the tribes are kind of...the funding source. When you get the funding from the federal government, when you remove yourself from that, they say that you're not going to get anymore funding. And in the health organization, there's some tribes that are under that format and other tribes are under the other format and they call it, I think, self-determination or something like that. And tribes were asking the questions, "˜If you go on that sides, do you get no more funding and if you stay on this side you still get funding.' So that was a lot of the concern. So a lot of the tribes didn't want to switch over for that reason too because that's where the money comes from to support all the programs that are for the tribes anyway. So that's why I was thinking that if you put the IRS, the funding source, the financial part of it, it has to be under all those things too. And they don't mention it and I looked at that [25 CFR] many times and I tried to make heads or tails with it, but you can't find it there. So that's why he was saying that you could find it elsewhere, too, and that's a good idea."

Andrew Martinez:

"Thank you."

Robert Hershey:

"I'm going to add something to what you said as well. Funding is obviously a major issue. These elections are not cheap. They are costly. But this is also something that the government has to think about in putting away this kind of...putting nest eggs away in anticipation of accomplishing this in order to cover the cost too. There's something that I wanted to follow up on as well and it goes back to this issue of trust. Not just a loss of funding or loss of federal status, but there's some tribal members or citizens -- we haven't had that discussion yet, the distinction between membership and citizenship, that's for another conference -- that they don't trust necessarily their tribal governments. I just want to put that out. That's a thought that comes out. So some of the people want the Secretary of the Interior to have oversight on this and I know some of you deal with that situation as well.

The other point that I wanted to bring out; there are alternatives in terms of amending constitutions as well. For example, if your constitution is restrictive as to the membership, you can always go to Congress and get a special congressional statute. Pascua Yaqui has done that. While their membership was very restrictive in their constitution, they went and got a special... I won't use an appropriation, but a congressional act designated that opened their enrollment for a period of three years. So there are also ways of getting around the specific inability to amend your constitution by seeing if you could get certain things accomplished by special acts. Any other questions? Yes, yes."

Audience member:

"One more question on that. Some of the tribes were established by executive order. And is there any other way you can get around that to be sanctioned by the Congress?"

Robert Hershey:

"I think the body of law is pretty well clear that whether you're established by treaty or by executive order, your rights and obligations and commitments are going to still be the same, they're going to be equal. I think that there's enough experiential evidence over the years and I have not seen any kind of distinction that would denigrate your rights because you're executive order. A lot of the tribes in the west...the reservations were created by executive order and they still retain their inherent sovereignty and you try to go ahead and take away their rights and it would not be accomplished that way. You've got to be on the same footing."

Audience member:

"And then the other one is, when they fund the services to the BIA [Bureau of Indian Affairs] where we're at, it's getting less and less and less. So if they can't get you the other way, they'll take the money away from you. So you don't have the services available for what you have too."

Robert Hershey:

"We call that termination by non-appropriation."

Audience member:

"Right. That's where we're at right now."

Robert Hershey:

"And especially with the sequester too. I know that tribes have been hit really hard with sequestration of funds as well."

Audience member:

"Right. My president, that's what he was asking BIA and they tell them, "˜We want original funding because if you can send billions of dollars across the ocean to these other people that you don't know and you know us, how come you can't give it to us?'"

Robert Hershey:

"This also resonates the larger question as to whether or not you feel economically empowered to go ahead and resist. And that's a consequence of colonization over the years as to whether or not you think you have the power to say no based upon economics or the power to do things on your own by virtue of your economic conditions."

Audience member:

"Thank you."

Audience member:

"I had a question about the secretarial approval that's in those constitutions that exists now. Is there...let me back up. I'm a management product of the education system. So my whole focus has always been on structures. Well, with my tribe it seems like the structures that are in place aren't meeting the needs of the people. There's a lot of resignation with tribal members about our government, our leaders. There's a lot of fear about repercussions if you're too vocal in the community and our court systems are controlled by our tribal leaders. So I think there's a lot of people that want to see constitutional reform, but there's fear about what to do with that.

So my question is, some alternatives for grassroots people who can have a voice about those constitutional amendments but...and I was told because, I don't want to make it sound like it's just no other way, but if the people can come together and our leadership would see that this is what the people want, possibly that they would buy into it and they would jump onboard. Hopefully that's the way it'll go, but I just want to make sure that if it doesn't, that the people have a way to deal with the situation so that they can have more voice in what's going on with our tribe. And I guess that's my concern so...

This is the question I guess. Is it possible, these petitions...because there's been a lot of petitions that circulate about different things in the tribe and one of the things is a lot of times they'll petition for money. So we have all the people vote on petitions to come from a certain funding. Well, the way I look at that is, if we get the number of people to sign the petition then legally the council should honor that. That's my interpretation, but I don't know because they don't. So I don't understand enough about legally the tribal members other than voting but we're an IRA [Indian Reorganization Act] constitution and it doesn't reflect who we are as a people and we're kind of stuck with it.

So if the people would petition the Secretary of Interior on some constitutional changes, is that going to be honored or are we...is there a way that the grassroots people can have a voice in our constitution and have those reforms be...to have some outlet? I guess is what I'm looking at, because like I'm telling you, there's a lot of frustration, there's just resignation, "˜Why do anything?' The people, the way that our election process works is families aren't representative, clans aren't representative, it's just whomever gets on the council is there, sometimes you don't have a family member there to represent you. So that's why I'm just saying that there's a lot of frustration. Maybe you have some suggestions on people like me that want to see some reform."

Robert Hershey:

"I hear your frustration. I would venture to say that in your constitution there exists a provision for initiative. Is there a provision for initiative in your constitution? There might be a provision for referendum and the distinction between initiative and referendum is that a referendum is usually decided by the tribal council and it's submitted to the members, the citizens, for a vote. The citizen-initiated way to create a referendum is by what's called an initiative.

So I would suggest two things. Number one, use that procedure in your constitution or those of you that have an initiative procedure in your constitution. Two, go around and get the signatures of enough people to comply with those requirements for initiative, which would then force the tribal council to have a vote on whatever particular thing you want. You're still going to have to go through your own tribe in this regard. The amendment of a constitution that's already been approved by the Secretary of the Interior is going to require a secretarial election so you could perhaps...and again, it's questions of authority within your own community and those people that have...are clothed in those authorities and there's power situations and power dynamics.

So the other option is to try and create a consultative mechanism. We hear about tribal consultation and I mentioned something to you yesterday in terms of how tribes consult with the federal governments or the state governments and the federal agencies, I've tasked one of my students, Edward, this semester because the idea that the tribal legislative bodies are not listening to people -- grassroots people -- to create some sort of a consultation mechanism that may or may not already be in place from tribal peoples to their tribal councils and try to get something like that passed. If...regarding an initiative, the tribal council is bound to honor and hold an election on a tribal initiative if there are enough signatures passed and if they don't do that, that's something where you can take the tribe to court, it doesn't involve sovereign immunity issues, that you could go ahead and try to force the council to go ahead and comply with the terms of the initiative.

So, either you get an initiative to deal with a large issue of constitutional reformation or you create an initiative to create an ordinance, a law, a statute that talks about intra-tribal consultation. So there are mechanisms in that regard.

Audience member:

"I was just wondering, let's say you failed at it, but for reasons other than participation or lack of participation. Is there a time limit or a waiting period before you can try again with the feds?"

Andrew Martinez:

"Not that I've seen. I haven't seen assigned period. It just...it takes a lot of work to get it initiated once again, get everything going."

Robert Hershey:

"That's the old thing, you know the definition of...no, I'm not going to go there. But I would give it sufficient time to go ahead and analyze what happened and figure out as the woman over there said in terms of more outreach, more education because of the fears and mistrust. Mr. Chairman? That's you, yeah. A comment, whatever."

Thomas Beauty:

"Yeah, just a comment. Removing the secretarial approval, I was thinking why wouldn't they approve? If they went through the whole process and they didn't approve it, but they approved somebody else's, what do you think their thinking is in regards to that? Are they just doing it because they want to still keep control or are they doing it because...what reason do you think? I'm not quite sure what..."

Robert Hershey:

"I think that the tribe itself votes to remove the Secretary of the Interior approval language, then the Secretary of the Interior must go ahead and remove that language. I don't think they have discretion to go ahead and say to one tribe that, "˜Yeah, we'll remove it. We agree with you that you can go ahead and remove it from your constitution,' and then not remove it from another tribe's constitution."

Thomas Beauty:

[Inaudible]

Robert Hershey:

"I think the denial was that their members voted against it."

Thomas Beauty:

[Inaudible]

Robert Hershey:

"They worked it, presented, they had an actual secretarial election, but that their membership voted against it. I guess there was fear and mistrust."

Terry Janis:

"In other situations we saw on the earlier panel that I was in, the woman [Jennifer Porter], her tribe reorganized and restructured, the BIA refused to approve that because their constitution still required constitutional approval or BIA approval, secretarial approval in order to amend their constitution and so they did a second secretarial election to remove the requirement for secretarial approval and then they did it on their own. But in that removal of secretarial approval, the BIA approved that.

So if you think about what that says about the Bureau of Indian Affairs, whenever you give them authority to approve or disapprove your decisions, they have two considerations I think. One is they have a trust obligation to give their best thought to it. They're not just going to agree with you just because they agree with you, but their history of a trust responsibility is to overrule you if they think you're doing the wrong thing. So that's a real sort of issue. You're giving them authority to disagree with you. The second issue is there is a long history of paternalism with the Bureau of Indian Affairs, there just is. And as any kind of large bureaucracy, you've got people in there that are old, old, 1950s Termination-era guys with the white hair and kind of like that guy."

Robert Hershey:

"No, no, no. Wait a second, they have white hair, I have moonstruck hair. That's right."

Terry Janis:

"But for that agency to change, people are going to have to die out. You know how bureaucracies are, right? And remember who they are. They come from assimilation, termination, that's why they were set up. It's going to take them a long time to change. And so as long as you continue to give them, in your constitution, secretarial approval authority, those are the dynamics that you're going to have to deal with and it's a crap shoot every time."

Thomas Beauty:

"Well, thank you for that clarification. Not only dealing with these entities of the government, they're always looking at what's their liability, what's their liability and that to me tells me that they don't want to make a move. They'll take forever to do anything because they're still thinking about it. What can happen down the road if we do this? Because they blanket all the tribes together and if they do one thing for one tribe and then, "˜Oh, no, it's a big fire!' So they take forever and I just wanted to put that comment out there. I know we probably all know that, but just dealing with them in my little short term, that's what I understand from them."

Honoring Nations: Darrell Hillaire and Sharon Kinley: Semiahmoo Project

Producer
Harvard Project on American Indian Economic Development
Year

Darrell Hillaire and Sharon Kinley from the Lummi Nation and its Semiahmoo Project discuss the unfortunate circumstances that prompted the creation of the project, and how the Lummi are using the project as an opportunity to re-engage their culture, elders, core values, and language. 

Native Nations
Resource Type
Citation

Hillaire, Darrell and Sharon Kinley. "Semiahmoo Project." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 10, 2004. Presentation.

Darrell Hillaire:

"We at Lummi, we feel quite honored to be here today. I also have Leonard Dickson here with us today and Greg Amahli, that are here representing Lummi. And it's, this is a place that we think carries a lot of prestige, but that isn't why we're here. We also recognize the agenda and recognize a lot of names of great leaders that are in attendance here, and we get kind of excited here about coming here to share some time with them. But I think, most importantly, we come here because we've established some pretty good friendships over the years. Joe Kalt, and we take his advice in the things that we try to do with our businesses and we're thankful to him for that. Andrew Lee, who's taken the time to come spend some time with us at Lummi and learn about us a little bit more, and it gives the program that we're working on together more meaning, and we thank Andrew for doing that. And of course our elder, Oren Lyons, who's been a friend of previous leadership at Lummi and continues to be our friend today and someone that we look up to with a great deal of respect. And that's the most important reason why we come here, to share some of our ideas with you and ask for help in some of the things that we're doing because we know that as we continue to grow, we're going to be making mistakes, and maybe you've seen something that we haven't seen.

We probably have a lot of things that we can talk about today. You know, we have the infrastructure issues that we work on, our water, our roads that requires partnerships not only within the Lummi government, but also other governments, state and local governments. We probably could talk about our casino and how we've set up the distribution of funds from our casino to the different programs, most importantly, education and to our members. But I think today we're going to talk about using financial and human resources wisely as it relates to a specific incident. That sometimes we talk about as a project and sometimes we talk about it as a program, but really, what it is, it's about the recovery of our ancestors. And what had happened four years ago is that, within our homeland, at a place called Semiahmoo, over 65 of our ancestors were disturbed, and removed, and disrespected, and located in other cities and in other homes. And it was very tragic for us to learn and understand what had happened and we had to respond with a sense of urgency to this crisis. After we got over the hurt, after we got over the anger, there was a lot of work to be done, and that work continues today. And this work is simple when we as a people follow the protocols of the old people, the work becomes simple, but it's hard when we come up against inevitable development, and talk about money and talk about politics and talk about political decisions, you know? And I think we're doing that because I think it goes right to the heart of who we are as people. When you think about it that way, when you think about standing up and fighting for the integrity of your nation and your people, then this work has to be done and those bridges have to be crossed, and we have to learn about that because at the end of the day it defines who you are. So that's why we felt that we needed to talk about Semiahmoo today as a project, but it's much much more than that.

So with that, I'd like to introduce Sharon Kinley. She's the dean for the Coast Salish Institute at Northwest Indian College, which is located on our reservation. She's also my relative, and she's also been with Semiahmoo from the beginning, for four years. We've been through three chairmen since this has occurred, and Sharon and ten other people have been there from the beginning and they're still there. And I sense that they'll be there until the work is completed. So with that, I'd like to introduce Sharon Kinley. Thank you."

Sharon Kinley:

"Good morning. My name is Sharon Kinley, I'm from the Lummi Nation. I am the director of the Coast Salish Institute, which is an institute that our new president, Cheryl Crazy Bull, has introduced to the college for the preservation and the revitalization of the Coast Salish cultures in our area that we serve. Last week -- I've done this presentation hundreds of times, but it never gets easy -- last week, I saw Darrell in the hallway and he said, ‘Gee, I'm going to Harvard to do this presentation and I decided that you should come and share what we've been doing at Semiahmoo because it really fits into the way that they lay out the honoring of nations.' And so I said, ‘Yeah sure, okay. I'll come.' And when I read the agenda on the plane over here and when I listened to you talk this morning, now I know why I'm here.

At Lummi, we have a very long history in Puget Sound, and the Georgia Basin, what is now called the Georgia Basin Watershed. We have for hundreds and hundreds of years, our old people, our [Lummi language] have fished and lived, raised their children, buried their dead, and all the areas that surround the Lummi Nation and all our neighboring tribes. And what we know about all these old villages and these old people is that where they lived, they buried their dead. One of the things that we're particularly interested in at Lummi at the college, is being able to reconstruct and to write about the history of reef netting, which is a technology that exists amongst the Coast Salish people, especially in our area, which extends across the Canadian border, and doesn't exist really, in any other culture in the world.

As many of you know, in 1855, the Lummi Nation, amongst others, entered into a treaty with, what is called the Point Elliott Treaty with the United States. As many of our elders have told us over the years that after those promises were made in the Point Elliott Treaty, the late Pateus used to say to us, '...and then they said,' to us, ‘go this is our land now.' In 1973, when I was a lot younger, the City of Blaine decided to construct a sewer plant -- not a wastewater treatment plant, but a sewer plant. And in that, the rules of development were very different, and 1973 was before a lot of the laws that have been established to protect cultural resources wherever written or certainly, ever followed. In 1997, as a result of the treatment plant, of the sewer plant, being constructed, Western Washington University, in conjunction with the University of Washington, had to come into the area and do what anthropology, what archaeology calls salvage archaeology, which is archaeology that you do ahead of the bulldozer. You're just going in to collect what you can in a very short period of time. And that report, when we read it all these years later, by Dr. Grabert, what we know is that what he collected there, he could determine was at least 3,000 years old. This site -- as it's located on the boundary exactly between the United States and Canada, in Puget Sound -- is probably the most well documented site in all of Puget Sound.

It was only in 1980, after all those years of trying to get their ancestors repatriated without any of the NAGPRA [Native American Graves Protection and Repatriation Act] laws, the Lummi were successful in doing that, brought the ancestors that were collected in the salvage archaeology home and reburied them at the Lummi cemetery. There was a lot of talk in the community by the elders at that time, because our belief is that the most important thing to do in these situations is to rebury our dead where they were originally dug up. In this case, the elders in their wisdom decided that we would rebury them at the Lummi cemetery because they just didn't think to rebury them at Semiahmoo would protect them. And they were right.

Probably over the course of this project, I personally and a lot of our staff has learned more about engineering studies, more about the permitting process in Washington State, more about NAGPRA, Section 106, and all the historic preservation laws. And what we know is that consultation with tribes takes place at the end of the permitting process, at least in Washington State. I don't know about Massachusetts, but in Washington State there's a whole phase of development that takes place that's called pre-permitting, where people, if it's your development, have spent a lot of money. They spend a lot of money on engineering studies and all kinds of things, and then they enter into the permitting process. And in that very long, complex permitting process, tribes are at the end, in consultation. By the time the developer and the city council make consultation and contact with the tribe, they'd already made up their mind that they were going to continue this project.

And in August 1999, through a very long story, we arrived out at the treatment plant only to find that what was supposed to be an expansion to the sewer facility actually was an acre excavation site that was 18 to 20 feet deep. And as you see, in the excavation site here, it was solid shell midden from the top to the bottom, which is thousands of years of habitation. It was solid shell midden from the top to the bottom. And we said that day, one of our cultural directors said that day to the people, to the construction people who were working there because they had come across a burial. And he said to them, ‘I'm so glad that I happened to show up today to be here while this burial was being disturbed.' And the guy who was kind of running the machine said to him, kind of offhandedly, ‘Oh well, that's nothing, you should have seen the 26 that we took out yesterday.' And we just froze. And so, it took us a day of people's attorneys calling other people's attorneys, our attorneys calling the sheriff, to get a stop work order in place. And as we were doing that, they continued to dig.

This is just a shot of the excavation site itself, where over 400 truckloads of fill were taken offsite to a local landfill site and deposited there. And this local landfill site, the gray area that you see, is the shell midden that came from this ancient cemetery. This is private property, probably about seven miles away from the treatment facility, and as we arrived there that day and walked that site, there were ancestral remains that were physically on the ground everywhere. And so, at that point in time, we had ourselves, the Lummi Nation, as a jurisdiction, the private property owner, the City of Blaine, the county, the developer, and USDA and Rural Development. We have multi-jurisdictions standing there looking at each other, wondering what they were going to do. And we knew right from the very beginning that we had many obstacles. Certainly externally: permitting processes, jurisdiction, unrelationships. And certainly, in those very first days, how we felt and, for the most part, when I stand here, I can still feel how we felt that day. We couldn't talk. We couldn't even talk to each other. And, internally, amongst ourselves, over many years of being affected by residential school and other federal policies, we did not agree in how to handle it. We did not agree what was the best method, what was the best road to take, in all of our diversity. And we knew we had no money. We didn't have money for cultural resource, or NAGPRA, or repatriation, or any of those things.

After long discussion with the tribal council, with our elders, with many community people, with our youth, the tribal council issued a resolution immediately that year to the city, the county, to the [unintelligible] office. And they said, 'We will recover our ancestors. We will take care of the gravediggers, our own people who are going to go out there and recover our ancestors. We will protect this site from further desecration, and we will make sure that this never happens again to anybody, not just here.' We decided, we made a conscious decision, and not all projects do, but we made a conscious decision that this was going to be a culturally driven project. And we went to the couple that you see here on the right, and we said to them, 'What's the first thing that we should do?' And they sent my daughter to Vancouver Island, in B.C., to a little tiny island off the coast, you have to take two ferries to get there, and we went to this elder that you see on your left, the late Rose James because she, at that time, was the oldest ritualist in this part of the country that has the responsibility for caring for the dead. And we went and got her and we asked her to help us, and she came, and she lived in my house for four years. And she got up every morning and she went with all the young people that we had taught to screen this material, the 400 truckloads of fill. This old woman, over 80 years old, got up every morning, faced the daylight and said prayers for us and our ancestors.

So we used to go out to this site and we used to work until noon, these old people, and after three or four months of my not being a morning person and being tired, doing this work and then going to my job, we would look at her and she just, she never faltered. And we thought, ‘Gee, if she can do this stuff, so can we.' And she used to say to us every single morning, ‘You can do this. You can do this.' And we used to look at 400 truckloads of fill and think, 'How are we ever going to do this?'

This is just a shot of some of the artifacts that we have recovered to date. We have artifacts, we have more artifacts in our possession presently than the university. We have artifacts in our collection that the archeologists in our area have never seen. The other thing that we knew that we had to do was, because this is a culturally driven project, we decided that the people that were going to do the work, was us. We were going to do the work. And after that, we went to the university and asked Dr. Campbell, who is the lead archeologist there, to send us two of her best graduate students. They had to be technically sound in archaeology, they had to have real good writing skills so that we could work out all this, all this permitting process, all the reporting that we had to do to the state because remember, Semiahmoo was not, was no longer our property. It belonged to the city and the county. And so in order to even work there we had to apply for a permit to the state to collect ancestral remains. And we told her, 'Send us your best graduate students and they're of no use to us unless they can teach. Unless they can teach us, they're no good to us.' And so we had 20 young Lummis and our elders, and these graduate students came and Dr. Campbell, and we started. And our elder used to say, ' You just get up every morning and you put one foot in front of the other.' And every morning she got up. She was over 80 when she first came. So I thought, I even thought we could do this.

The other thing that we did after a couple of years of screening material, and we are probably, in four years, we are probably not halfway done. In four years. And the other thing that we did is we decided that we had to look at this whole permitting process, we had to engage it, we had to become the most knowledgeable at it, we had to be able to interact with the county, the state, and all the other jurisdictions, and all our other neighboring tribes in a very different way than what we were used to. We created our own [unintelligible] office, we created a contract service office, which is archaeologists and our tribal people and we said to all the largest development people in the area, 'When you are going to develop within our Aboriginal territory, you come and ask us to do the survey and site work. You come and ask us first.' And we also have set up in, recently, the Repatriation Office, which is not just to respond to NAGPRA, but it's to respond to all the inadvertent discoveries that happened all the time in our territory. Last week, we handled five inadvertent discoveries in three separate counties, all affected by human remains, all cemetery or burial ground disturbances. And we developed Title 40, a code of law that we developed within the Lummi Nation that not only helps people who have been working in the surrounding counties and jurisdictions know how to work with us in these situations, but it also helped our own planning department. It helped us interact with our own land use plan, so that we could know when we were putting in a road, where not to build it.

We decided too, that -- I don't know how well you know us, because I don't travel a lot -- but we, we know how to be Lummi aggressive. What we decided was that we had to learn more about being proactive and assertive in a very different way. We realized that we had to build relationships and so we set out to do it very deliberately. We met, and we worked with the Watcomb County planning office, with the Watcomb County Council. We meet regularly and work closely with the State [unintelligible] Office. We work with San Juan County, Skagit County agencies, private industry in our local area. We also learned real quickly that we had to develop relationships with the media. We had to meet with editorial boards. We had to educate them about who we are. At Northwest Indian College, when we set out to expand our college and to build new buildings, we went out and hired a firm who went out and interviewed the county. And she came back and she met with the president and the faculty and she said, ‘Nobody knows who you are. Nobody even knows you're here.' And so, very deliberately, we then felt that we had to educate not only ourselves internally and be able to work together, but the surrounding our neighbors, and our neighbors' children.

The other thing that the tribal council did a lot anyway, but did a lot for us, was begin to work on very deliberate relationship building and agreements with all of the agencies that are doing and are affecting development in our area. USDA and rural development, we're the funders of this treatment plant. In the beginning, they had already put a couple of million dollars into this project when we said, ‘Stop.' We've also very deliberately over...yesterday, my husband met and worked on an inadvertent discovery with the Nooksack Nation in a burial disturbance that took place right on what we call the traditional boundary of both of our reserves, and so we work a lot with the neighboring tribes, both in our area, and in British Columbia.

We have learned about how to align our resources, how to use education as a tool to educate our people in archeological methods, hopefully to get them to think about going on to four-year universities, at least get them into Northwest Indian College, where we can give them basic skills and a really good two-year degree. And we have learned, I have personally learned more about the legislative process than I ever thought I would have to know. We knew every senator, every chief of staff, every secretary, we knew everybody. And we knew when to call them. We also knew that it costs a lot of money, and in the beginning we didn't have any, and so the tribal council made a very, a very difficult decision. It put $200,000 into this project in the very beginning. It was a very difficult decision, internally because one of our core values is to protect the graves of our ancestors, but we also need money for youth treatment and intervention, for the education of our children, for health care, and they were very difficult decisions that the tribal council had to make.

The last thing that we're going to show you that we worked on is...one of the things that we've done at Northwest Indian College, well two of the things that we're doing, is that we are utilizing the technology of GIS mapping, where we are actually teaching our young children the technology of GIS mapping. And I can't even articulate it to you because I don't understand it. And all of my kids are computer literate, but we are teaching them to actually map in the cultural resources. We've had long conversations internally about this, because the elders are very uncomfortable with it. And at this point, we're actually doing the work, but we haven't made those decisions about who we share it with other than ourselves. The other thing that we did was that we set up a whole program at the college where we would train our young people how to collect and learn their own history. And to collect the oral histories, to record the language because our elder, the late Rose, said to us the very first day that she came, 'Language is the most important thing. You have to turn to your culture for the answers.' And that's what we did. You have to turn to your culture for the strength, and that's what we did. And so we took all of these young people and we trained them in the technology of oral history, in video production...this is actually, looks like a laptop, it's actually a very expensive editing machine. And they go out and they interview the elders, they create biographical sketches that we then are turning into material for our curriculum that we are writing, on history, and at the same time, they are building relationships with their own grandparents, the people that they go and interview."

Darrell Hillaire:

"And where we go from here, well, we just settled with the archaeologist Gold and Associates. We had to take them to court via a class action suit, which meant we had to bring together the people to sign on to...would be very complicated for them to understand in legal terms, but they did it. And, as a result of that settlement, we were able to realize about $4.2 million that's going to help us continue the work. And this compensation that we receive for the people is not payment, but it's a thank you for having them standing with us; for those who are leaders in a traditional way and also for those such as myself who represent the government. We all stood together, and it's important for us to note that, if we stay true to ourselves these things can happen. And as the judge said, he said, ‘The court has never lost track of the fact that the money is the most inconsequential aspect of what we're dealing with here. This was a tragic event. It was something that never should have happened. The court recognized the fabulous job that the Lummi and its attorneys played to get recognition and acknowledgment to provide a solution to the tragedy.' He stated he believed that he hoped this work would 'prevent anything like this from happening in the future, for all tribes, not just in western Washington, but throughout the country, and even into Canada, where this case has resonated.' He commented that he hopes the Lummi feel that the American system of justice, which has let them down so many times in the past, didn't let them down this time. He stated that this result made him feel very, very good.

And I think as we went through this, I really can't even describe it as a process, but we had to have our time with a number of people, not only Gold and Associates, but the City of Blaine, the Department of Agriculture, the state historic preservation office -- all these people we had our time with -- and at the end of that time I think we had some things resolved and we came away with some friendship. And today, with the City of Blaine, their city manager, whom we fought hard with four years ago, today he was an auctioneer at an event we had for raising money for the Freedom and Liberty Bowl. He auctioned off some of our arts and crafts to the people. So that's how far we've come in this relationship, and we need to continue that. But today, you know, as Sharon said, we need to get involved with the permitting process. But I think, more importantly, we need to get involved with the planning process. And share our vision for our homeland. At Lummi, we've been invited by the City of Bellingham to join in the planning for the development of 139 acres right on the waterfront in Bellingham. To them, they'd like to see a replica of a traditional longhouse built right on that waterfront, and to us, that represents where my great grandfather lived. So some of these things can happen, but it means we have to get involved in the front end, so that's where we have to go from here. So, [Lummi language]."

Milton Bluehouse, Jr.: Introduction to Managing Environmental Conflict

Producer
Native Nations Institute
Year

U.S. Institute for Environmental Conflict Resolution Program Manager Milton Bluehouse, Jr. discusses the challenges to environmental conflict resolution specifically and dispute resolution generally, and offers some proven strategies for Native nations and other governments to overcome conflicts and forge mutually beneficial solutions.

Resource Type
Citation

Bluehouse, Jr., Milton. "An Introduction to Environmental Conflict Resolution." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 21, 2012. Presentation.

"My name is J.R. Bluehouse. I'm from a small town called Ganado, Arizona. I'm the only one in my family that doesn't wear cowboy boots. That being said, my family's pretty traditional. We haul water every weekend for the cattle. [I] went to a Catholic boarding school, served a little bit of time in the Marine Corps, which was pretty easy after Catholic school, and then -- let's see here -- went to law school. [I] worked for the Navajo Washington office, the Navajo President's office, the Navajo Council as political affairs and legislative advisor for awhile. And after law school I kind of figured out there's a better way to do this rather than litigation. And when I went through mediation training it was like three weeks. After the end of three weeks I thought to myself, 'Man, this is what I've been looking for and I spent a whole lot of money and three years of my life in law school trying to find this.' Kind of crazy.

What I want you to do right now is flip over that paper real quick and look at the picture. Okay, flip it back over now. What did you guys see? [A head.] What kind of head? [A duck.] A duck? Who saw a rabbit? You guys saw rabbits? Who saw ducks? Conflict is like that. You see ducks or you see rabbits, right? Flip it back over again and see if you guys can see the rabbit or the duck. Oh, yeah, right. Well, that's sort of the thing about conflict. We have all these different perspectives about conflict. It might be about environmental standards. It might be about a mining situation near your land or it might be rules or regulations that are promulgated that you need comment on. And I guarantee you almost every time your community, federal agencies, professionals, lawyers, scientists are all going to have different perspectives on that conflict. I call that the paradigm shift -- you have this idea of what you think you see, but then you go through this transformation of seeing it differently or thinking about it differently.

That being said, I also want to tag on this other interesting thing. I learned this from a buy named Brian Vallo up in Pueblo of Acoma, a really wonderful friend. He told me one day, he's like, "˜The environment is not quantifiable in terms of parts per billion or standards that determine what is clean or what is safe. It's about the environment as a cultural or religious resource.' And so when you look at the environment in those terms, you kind of have that bird/duck or the duck/rabbit kind of paradigm shift too, because then you see the water not necessarily clean because the EPA [Environmenta; Protection Agency] standards say they're clean or the tribal standards say that they're clean. It's clean because we use those things for baptisms, for healing ceremonies, for ingestion with other herbs and things like that, and chants that empower or make the ceremony effective. So when we look at the environment in those terms, we're going to have a whole different type of view on things.

What I want to talk about today is the introduction to managing environmental conflict. What is environmental conflict? It's basically...or conflict resolution...basically, conflict resolution or alternative dispute resolution with an environmental focus. So what we look at it as is really all of these different views on an environmental issue or environmental matter. But what we try to do here is look at it in a way where we have workable solutions, where we try to find alternatives to the challenge we face, and that means we've got to communicate, we've got to look at things differently, we've got to take a different perspective on how we handle conflict. We'll get into a little bit more about conflict. The other question then is why do we use environmental conflict resolution? Litigation is pretty expensive; lawyers that are here know that. When you're going through discovery, when you're going through attorney's fees, when you've got phone calls and you've got meetings and you've got airplane rides, those costs can get astronomical really fast. But then the other thing though is that you probably have an ongoing relationship. Unfortunately, we have a ball-and-chain relationship sometimes with the federal government. It's not going to go away anytime soon. Unless of course the apes overtake the world and we find ourselves looking at a crushed Statue of Liberty -- Planet of the Apes, by the way -- meaning that the world's got to drastically change if that relationship is going to change, but it's not going to happen. At least I hope not. The thing is that a federal relationship will be a part of our lives, our children's lives, our grandparent's lives, our great-great grandchildren's lives; it's going to be there. So the emphasis there is really what I'm getting at is presuming your relationship, finding ways to improve the relationship, finding ways to have this relationship become workable on issues that are of mutual interest.

One good example is, and I won't name the case, but there's a sacred site and unfortunately the sacred site is contaminated with chromium-6. Chromium-6 causes a lot of bad things in your body like cancer, other sicknesses. Both the tribe and multiple federal agencies have an interest in cleaning that up and it's not going to go away. It's going to be there for decades, hundreds of years perhaps. And so one thing that we try to focus on is the preservation of relationship, the improvement of relationships so that one, the tribes protect those sacred things that are there, and two, federal agencies understand how to protect those sacred things that are there but also clean up the contamination. And this is going to go on for years and years and years. If you have a bad relationship, most likely federal agencies that are the contractors and they start destroying sacred sites because you're not communicating efficiently or effectively with federal agencies -- so maintaining a relationship is a really big important part of it.

You guys are all in tribal government. You know how projects can take forever? Well, when you have conflict, put like forever to the tenth power. It'll go on and on and on. It'll strain your relationships both within your staff, within your office, with your family perhaps. Somebody said earlier that panic attacks are a big part of, sometimes, your jobs. I have panic attacks all the time sometimes. So there's also this and [the] judge was saying something about healing. There's also this element of healing to what we do and conflict is totally apathetical to a lot of those things.

Goals of ECR [environmental conflict resolution]; here's what we're kind of looking at. We're trying to minimize conflict. We want to minimize poorly informed decisions. We want to try to avoid appeals and litigation. We try to try to avoid damage to relationships and even lost opportunities. In this particular case we were in recently, if we maintained the conflict and if we kept going forward with the conflict, then we would have lost opportunity and the mutual interest in a tribal liaison being hired for this project. The tribal liaison would coordinate communication across federal agencies, across the multiple tribal -- there's about six or seven tribes involved here -- and each of them have an environmental department of about maybe 14 to 15 staff. So a lot of communication, technical issues and complexity involved, and a tribal liaison would be I think really helpful in organizing how the tribes and federal agencies communicate both within themselves but also with each other. And so that was one thing that we discovered was an opportunity. If we stayed in conflict, we probably wouldn't have had that. The other thing is we try to maximize comprehensive solutions, shared solutions. There's a lot of mutual interests out there. In this particular case, the mutual interest was -- among other things -- protection of sacred sites, cultural significant items and not getting anybody sick. Nobody wants to get anybody sick unless you're like Satan or something. The other thing is that you want to make sure that it's cost effective, you're not spending a lot of money and you want to look for opportunities for improvement. You want to create solutions where possible.

How is ECR used? This is a really great spectrum here. Basically there's three areas: upstream, middle stream and downstream. Upstream, you really want to start doing the planning; you want to do any consultation. That's where I like to be, upstream. Have those relationships with the federal government been upstream? Probably not, huh? How many of you guys have been surprised with the sudden phone call to say, "˜Hey, there's a meeting in three days,' from a federal agent? Sometimes that happens and it's frustrating. But if you have enough upstream time and if you're up there far enough, you can start planning, making phone calls, developing your relationships, figuring out what and who needs to be at the table. Sometimes we're downstream; we're in the implementation phase. Policies and plans and regulations are being developed and you get this interesting email or letter saying, "˜Look, check out the code of federal regulations, there's an opportunity for you to comment on.' That's kind of an example of that. Downstream is where you've got litigation. Perhaps everybody is kind of...did you see that Macklin fight this weekend on St. Patty's Day with Martinez? It was a great boxing...I'm a big boxing fan. These guys beat each other up and they were going at it forever. And finally one of them, you could tell ran out of steam, it was about a minute and 20 seconds into the 11th round and this guy got pounded. I look at being downstream and sometimes we get into these situations where it's the 11th round, we're almost to the 12th round, everybody's tired of the conflict and it's time to start looking at new ways in developing these relationships. So that's when we're downstream, we're talking about mediation perhaps, pretty extensive stuff. Somebody remind me when we get done that I need to revisit the duck/rabbit paradigm in relation to this information and how we view conflict resolution in our communities from a traditional perspective. So somebody remind me about that and I'll come back to it.

When is ECR best? Well, when no single party has the answer. You look at tribal conflict -- sometimes we don't have the technical expertise in place, we don't got the hydrologists, we don't got the attorney, we don't got maybe even mediators or facilitators, but the other side has all of these things and all of these resources to help you understand the issue a little better. So perhaps mediation is the bringing together of the resources and people you need to figure out how to address environmental conflict or environmental issues in your community. The other thing is that you want to create a balance of power among stakeholders. Traditionally where have we been? I look at news every other night, like on CNN, and you get these really cool statistics out there about who's going to vote or whose health is impacted or whose not being employed. We usually see percentages for the Hispanic population, the percentages for the African-American population, the percentages for the Asian population, but I never ever see percentages for Native Americans in any of these graphs they put up there. And sometimes when we look at this power balance, I think about that sometimes in relation to federal agencies and the consultation process or the meeting process. Oftentimes we don't have the information we need and that information we need creates this power imbalance because we don't know what those impacts might be without the hydrologists, the lawyers, the specialists and things like that. What we try to do in mediation, facilitation or moderation is identify what those resources are out there and try to identify who can help us so that we can begin to balance out these power imbalances. But then there's this other thing called historical trauma. Judge probably knows about this. How the historical trauma of conflict from the mid-19th century all the way up 'til the mid-20th century has impacted our communities. Sometimes we don't want to talk during meetings. Sometimes we want to be quiet during meetings, especially when we see suits. I get freaked out when I see suits. The first thing I think about is FBI [Federal Bureau of Investigation], not that I robbed any banks or anything. But those are some things we've got to think about in how to use ECR.

We talked about saving the relationship. Yeah, it's good to also look at dueling experts. How many of you guys have seen dueling experts? Pretty fun to watch. I've seen hydrologists from different parties basically duke it out over how many acre feet of water is being used. Well, if there's a common ground we can find or some sort of mutual interest we can find to basically say, 'Yeah, well, there is an impact on the groundwater source,' then we have some mutual interest here, we can begin working on something here. Everybody kind of wants to get along, work together. That's when it works. When is it less likely to work? Timing's not right, the parties are not ready to sit down, issues aren't really defined yet, we don't know what we're dealing with yet. Sacred site is really highly polarizing out there. We've got the San Francisco Peaks up there, 23 tribes view the mountain as very sacred. Then you've got the federal agency; I think it's the USGS [U.S. Geological Survey] on one side. No, the USDA [U.S. Department of Agriculture] and the Park Service on one side and you've got this corporation out there and everyone's really polarized. They're not going to come together on these issues because you don't, from tribal perspectives, negotiate the sacred. So sometimes you're not ready for ECR. But that being said, don't discount it or don't put it off to the side. It might work.

Back to the duck/rabbit paradigm. How do you guys feel about conflict? How does it make you feel? I'll tell you how it makes me feel. It makes me feel like Bernie Madoff on crack. It's not good. You don't feel like a good person. You feel like you're trying to protect your interests, not going to jail or whatever. You feel the physical sense of being tense in the stomach perhaps. Do you guys feel that? All right. Okay. And it's interesting because I think conflict really kind of...there's been studies on how it impacts the brain and I'm not a doctor or whatever. I flunked high school math. But basically how I understand it is that when we're in conflict, the cerebral, the rational part of our brain, the blood in that area actually begins to focus more into the primary cortex of the brain -- the reptilian brain is what people call it -- sort of the very first parts of our evolution as a species. And it regulates physical things like breathing, blood pressure, how much chemicals is pumping into your blood, whether you need to run or fight, things like that. That's what conflict does to us. And so when we're thinking about really technical issues or legal issues or issues of policy and we're in conflict and that requires the front part of our brain, it's going to be a challenge. That's just an example of what happens in conflict. But there's ways we can manage it well, there's ways that we can begin to deconstruct that initial response to conflict by becoming aware and conscious about our responses personally but also the things we need to protect and you begin to de-escalate it in a sense using enough communication techniques. We'll get to a little bit of that later. Managed poorly, going to law, going to get a lawsuit, you're probably going to spend a lot of time. We covered a lot of this earlier. It's going to destroy relationships.

Sources of conflict: I want to talk a little bit about some of the places where I've seen conflict and you've probably seen it too. Political realities, trends happen. And this is a non-partisan observation. What happened when the Republicans changed office and the Democrats picked up the White House? Or what happens when a Democratic president changes office and we have a presidential, Republican president in office? Those political trends will sometimes affect how domestic policy is developed, how budget realities are impacted. So that can create conflict from, for example, an administration that might be very forthcoming and might actually be advocating for increased budgets to one where fiscal conservativism is driving the day and where there's a sense of increased scrutiny on the development of different types of policies. You can see that kind of fluctuation go up and down, left and right from every four years if you have those changes. Not only nationally, but within your tribes as well you can see that happen.

Cultural values and differences -- sometimes we have conflict on those things. I think we pretty much know what that means when we work with non-tribal people but also with other tribal people, too. I spent two-and-a-half years in New Mexico as a tribal liaison and I had a really steep learning curve working with my Pueblo brothers and sisters on what is important, how to engage into a governmental process, what the cultural and governmental protocols are, but eventually you get the hang of it and you begin to operate a little bit more smoothly than you started at first. There's also operational preferences or organizational cultures. Who's heard of Indian time? That's sort of the cultural observation sometimes of how one group of people view time and another group of people view time. So those are things that can create conflict sometimes. Organizational constraints, decision-making processes. Sometimes we have federal agencies come in and say, 'I need a decision by 30 days from now.' Probably not going to happen. If they spent some time working with tribal governments, they'd realize that there's a lot of deliberation that might occur, there's council meetings that might need to be had, there's sub-committee meetings that might need to vet that process. So 30 days is probably not going to be feasible, so that creates stress. Resources: we talked a little bit about the imbalance in resources, the need for resources, technical expertise.

Relationship problems, baggage from the past. Man, that Long Walk always comes up when you talk about elderly Navajo people and I really feel bad for the BIA [Bureau of Indian Affairs] land specialist that comes out to the chapter house in Navajo and talk about land reformation or land regulation changes because these older guys will go right back to 1934 and talk about Commissioner [John] Collier and the livestock reduction problem. So that's baggage from the past and this guy gets beat up every time. I admire him. He's pretty brave to come out every time. I'd bring popcorn next time or something.

Personalities. You have really tough personalities out there. Who's been in a meeting with a Type A personality? Very directive. They call that like the boarding schoolmarm. I went to boarding school so I know. They tell you to do things; they tell you you've got to do it by that time. In that video we watched with the Canadian leader and his problems with the Premiere. The Premiere would say, "˜No, you've got to return the boat.' And then this guy, this tribal leader, has this paradigm shift and says, "˜No, we're not. We're going to create our own force.' So those things can happen. Communication problems. We'll talk a little bit more about communication in a bit. But there's unique things culturally in communication as tribal people. If I don't know you, man, I'm not going to look you in the eye. I'm going to be looking someplace else. Sometimes just the way we communicate with one another is a lot different than we do with non-tribal people and vice versa. So you can get miscommunication in those situations.

Data challenges. Too much. Who's heard of this term: consultation fatigue. You guys heard that yet? Who's been bombarded, who's fatigued from consultation. Your hands. Anybody? Okay, we're half an hour; we're good. Too little. We've been there right? We went from having too little information to drinking from the fire hose of information. So it's like bombardment and it's still kind of working itself out in several agencies. Differing interpretations on information might be a big part of it. So you put all of these things together and you see that in our intergovernmental relations or intertribal relations or even our community relations, there's just conflict that can occur at any one place and time. When you look at it from the environmental perspective, it can get pretty, pretty complex. How do you guys respond to conflicts? We talked a little bit about that, the physical aspect of how we respond to it. Well, there's a little bit more, too. Sometimes we want to be collaborative in our responses to conflict. We want to try to work together; we want to try to find those mutual interests. Other times we want to be compromising and say, "˜Well, maybe I'll meet you there, but first I need to have guarantees for this.' You know what I'm saying? Very positional in its approach. There's another one, competing or directing. 'I'm in control. I'm the boss here. Welcome to the Republic of J.R. There's nothing you can do here that won't happen without my approval.'

Avoiding. This is the best one because that's me. If there's conflict, I'm like out the back door and let my relatives fight. Then there's accommodating. Sometimes you are not avoiding it, but you're in the process but you're going to get steamrolled. You know what I'm saying? You're just not comfortable with conflict and you agree to everything and sometimes what you agree to might be to the detriment of your community or your relations or your resources, even your governmental structure. It may be even sovereignty. And in those situations, I'm thinking about this really great experience where I observed...I used to work for the Navajo Nation Public Safety Committee as a legislative advisor, and the tribe and local county sheriff's department were entering into a power-sharing agreement, cross deputization and things like that. It was like, wow, a non-tribal county sheriff can come on to tribal land and basically do a search without a court-ordered warrant, they can do all of these different things and based on what they find they can introduce that evidence or whatever it is into a county court? Those are certain things that happened and during that negotiation process you can sometimes see these dynamics of people avoiding or perhaps accommodating too much. So there's things that we have to pay attention to in how we respond to conflict.

Collaborative approach. You want to be open-minded, be other-person centered. You want to think about responsibility with respect to mindfulness in a lot of these meetings and you want to seek to understand before being understood. So we're really kind of taking a paradigm shift to how we're dealing with conflict and how we're understanding the issues that conflict. It's sort of becoming a Jedi Knight or something, I don't know what it is, Obi Wan Kenobi. But you have to like step back and become conscious or aware of all of these dynamics that are occurring in conflict or in meetings and try to figure out what is the best solution here? What are the opportunities I can pursue here? What are technical needs that I have but that I don't have but I need? These are things in terms of looking at it from the collaborative approach.

Problem solving and negotiating. Creating a climate of openness looking at interest-based methods. So when we're talking about interest-based methods, we're looking at the interests of all parties involved. So for example on that clean-up and the sacred site scenario I provided earlier, there was a lot of, I guess, positions that were being taken. One of the positions was, "˜Well, you didn't show up to one of my tribal meetings and I'm really offended about that.' It doesn't bode well on your sincerity to work with our tribes. The position was pretty much stated that, "˜I don't want to work with you, you're not sincere.' On the other side there was a position saying, "˜Well, I'm kind of freaked out to come to your tribal community because I don't know if I'm going to get grilled or not and I just don't even want to make the effort.' But once we figured out, "˜Well, why are we at the table here and what are we working towards and what's your interest in this process?' One of them said, "˜Well, I want to make sure that those sacred sites are protected.' Another one says, "˜Well, I work closely with the hospital and I want to make sure that that chemical or those contaminants don't reach the river or get into the drinking water. I want to keep kids out of there so we need a fence around it.' And then another side says, "˜Well, that's our interest, too. We want to make sure people are protected. We want to make sure the water is cleaned up.' You begin to find these common, mutual interests in situations. So that's kind of going through the interest-based methods, getting past those positions and into the understanding and interest. Understanding your interests is really important. Options and alternatives, take time to step back from a meeting a consultation -- whatever it is -- and kind of map out what you think are the issues here. Meet with your staff, talk with them and figure out what's going on in the situation, really kind of get a good map as to what you need, what the interests are, what's being impacted. I've seen tribal leaders go into meetings just flying blind and it's kind of scary, because on the one hand you want to be very respectful as a technical adviser or legislative adviser, but at the other end of it you're also wanting to say, "˜Well, I think that there's opportunities here, too.' So there's a lot of preparation that goes into this becoming more open minded or taking the collaborative approach.

Gradually build consensus on what you have in common. I've got a great example of that one. So I worked for the New Mexico Environment Department and I thought to myself, 'Man, intertribal governmental liaison, Department of Justice liaison, boy, made it. I'm going to be working on some really great exotic environmental conflicts and there's going to be toxic stuff everywhere and the tribes are not going to...I'm going to go in there and save the day as a tribal intergovernmental relations specialist.' So I picked up the paper one day and it was from the...newspaper. It said, "˜New Mexico Environment Department bans Pueblo bread.' And I thought, 'What?' And the article went down and down and down and it basically kind of painted the picture that the New Mexico Environment Department was anti-Indian and the bread was sort of the touchstone for that anti-Indianness. So I picked up the phone and started calling around and stuff and I found out that we had these environmental health inspectors who were part of the Environmental Health Division within the Environment Department that were out there just issuing notices of violations left and right because these breads weren't prepared in approved sources. Approved sources are community kitchens that had the stamp of approval from either the state or the USDA and these were being baked in homes. And I was like, "˜Gosh, man, how do we figure this out?' Well, we had to make a bunch of calls and do a bunch of meetings and pull together IHS [Indian Health Service] and tribal people and tribal leadership. And we could literally see that one, we need to find consensus on this issue, we need to find collaborative approaches to this issue because it's just not good.

On one hand you take a really strong positional position and say, "˜No, nope, no, no, no Pueblo bread, no mutton stew, no tamales, no nothing.' Then you're cutting off income for families that need to buy shoes for kids, backpacks for school, gas money to take grandma to the hospital, things like that. But then on the other end of it, too, is that there's a real concern out there with salmonella poisoning and things like that. So we got together, we were like, 'What can we live with, what can we not live with?' And people were like, 'No jarred stuff, no pickled stuff, no jam stuff,' because apparently there's like the scale of danger. Can you imagine that, the scale of danger in food? Wow. I was like, cool. So on the one end really dangerous stuff and then on the other end not dangerous stuff like based goods, cookies, breads. Everybody's like, "˜Well, why are we cracking down on them if they're not dangerous?' And people were like, "˜Yeah, you've got a point there. So what can we develop here, what do you need?' And they said, "˜Well, food-grade plastic bags, no Walmart bags.' You know, when I go to Walmart, I'm buying like ant killer and all these different chemicals that I'm carrying back home and stuff. I get home and put the bag underneath the kitchen sink and then somebody would say, "˜Hey, do you want to take some tamales home? All right, man, let me get my bag.' You put them in there, guess what you're eating, probably something that leaked out of chemicals or something. So we were like, 'Okay, we need food-grade bags, clear plastic bags. What else do you need?' And they were like, "˜Well, we need to have accountability measures,' the New Mexico Environment Department said. So we said, "˜What does that mean?' "˜We just want to know if somebody gets sick that they know how to call into the tribal office.' And we're like, "˜Okay. It's probably going to be the tribal health, CHRs, community health representatives. It's probably going to be those guys they'll call.' And, "˜We need somebody at IHS, too, from Environmental Health to figure out what was the source of contamination and maybe even provide food preparation classes and stuff.' It's just... it was these things.

And then on the other end they were like, "˜Well, I don't know if we want to do that.' And that's when I said, "˜It could be a marketing opportunity. You put your name on your bread and bam you know what, you're known for that bread "˜cause it's really great or you're known for the bread "˜cause it maybe sucked,' I don't know. It works both ways. And then we thought about it and we thought about it a little bit more and we're like, "˜We need to get tourism department in here and get their crack team of marketing and business development managers in here to figure out if they can provide training to these people who are making this wonderful, delicious bread and really great food.' So we were able to do these things. If we take the positional approach and conflict is driving our conversations, we wouldn't have had those things. We'd have been way far apart, but it's a process. That took me about eight months. It wasn't a derailed train with a bunch of bad stuff in it contaminating everything. It was the breakfast burrito; it was the Pueblo bread. It was fun. I had a great time, learned a lot.

Essential communication skills, active listening. I do this all the time. Especially when my dad is talking, "˜I already got the answer figured out, man. Yeah, I know that one.' Do you guys do that sometimes? Lawyers are good at that, man, I'm telling you. I was going to say something about like how I advised a federal official to say they're sorry for missing the meeting and the general counsel next to him about had a heart attack. He was like, "˜No, no, we're not going to do that, that's admission of liability of something.' I'm like, "˜No, it just means you're sorry for missing a meeting.' There are certain things about active listening, understanding what the conflict is and communicating in ways that acknowledge some things that might not have been pleasant in the past. And if you're listening effectively, then you can begin to see sincerity, you can identify issues, and you can identify who you need at the table.

Productive responses. 'Are you crazy?' Is that a productive response? Probably not. You want to figure out things instead of like saying, "˜Are you crazy?' You could probably say, you know, "˜I think that's really interesting, but I don't understand exactly what it is that you're saying. Can you say it again so I get it or that I understand it a little bit better?' There are things you can do in communications that drive the conflict down. Non-verbal communication. Yeah, that's a big one. Tapping on the table means probably speed up or hurry up or you're boring me to death. So there's things you've got to pay attention to. And as you're in these meetings you can take these cues on people, check in with them and say, "˜Hey, I noticed that perhaps you have a question on this issue. Do you have anything to say?' Somebody will say, "˜Yeah, I've been thinking about this, whatever.' Or you could say, "˜Is it cold in here? Do you need to turn the heat up or anything like that or whatever?' Just check in with them. That facilitates the conversation process, the gaining information process.

Effective questions. Okay, there's basically one rule here that I apply. No staccato questions or machine gun questions. Who's been in the military here? Anybody? Yeah. Who's shot a machine gun? Yeah, how's it sound? Pop, pop, pop, pop, pop, pop, pop. Well, if you can imagine questions like that. 'So who's supposed to be on this project? Where were they at? Do they have contact information? Nobody called me. Who was supposed to call me?' You could talk about technical questions. 'So how many parts per billion in the water right now? Uh huh. So who's the agency that should be taking care of this? I see.' You can really kind of shoot them down with questions and as a listener you're really trying to figure out, 'Well, where do I start in answering these questions?' What I'll usually do is take notes and I'll say, 'You know, several of your questions were regarding his particular thing. If it's okay, I'd like to start there and then we'll go on to the other questions.' So in case you encounter those kind of things, there's things you can do to kind of figure what kind of questions or type information you need to provide. But try to avoid those. Do one question at a time as the conversation develops in these meetings, which might be conflict driven or not, it depends. It could be one of the consultation efforts that several federal agencies are developing now.

The ECR process. Whether or not you're going to use conflict resolution in either environmental issues or employment issues or intergovernmental relation issues or whatever, you've got to make an assessment. You need to figure out, is this right, are the parties ready to sit down, do we understand the causes of conflict? Really we're taking that step to understand what's going on here, making the assessment to figure out do we need a third-party mediator, do we have the proper authorities here. I've seen a waste transfer station attendant, tribal waste transfer station attendant in meetings with the Secretary of the Environment talking about off-reservation dumping and on-reservation enforcement and they didn't have the authority to talk about these things. They had the authority to take all the information down as possible and go back. You need the assessment to figure out what's going on.

Pitfalls of doing the analysis: if you don't do it, you're wasting your time. You might bring all the people together; they don't want to work together. You might be wasting a lot of time and money. You might have the omission of a key participant. In that last example, the tribal leader. Why don't we do these things often, these assessments? Sometimes you've just got to get in there and do them. The issue is so important it's driving you; it's got to be done. Think about that. The other thing is third-party facilitators, do we need them? When there's a history of distrust they might be helpful. When you have multiple parties that have multiple interests, they might be helpful to help clarify the situation. There might be concerns about confidentiality that might be involved that otherwise might be not available in lawsuits or in litigation or in rule promulgation or comments. So you can take the time out and caucus on these things to figure out, "˜Well, do we tell confidential information or not or do we keep it to ourselves?' And do you have the capacity for facilitation or mediation? Choose an appropriate neutral. Who does the work? Do they need to be in the location area, do they have to have specific information about that conflict? Choose candidates to interview. Figure them out. It's sort of like matchmaking, dating. You've got to figure out is it a good match. Managing the process. This is a really great thing; it's in your book. This is my wheel of project management, wheel of conflict management. You plan, you propose, you implement and you review. In the planning phase, there's a lot of things you've got to do. Figure out what the issues are, introduce people, figure out what the ground rules are, decide if you need a facilitator. The purpose. You want to figure out what are we meeting for, do we need to break this into tasks. The implementation phase we have three things. To implement the action, review the performance and complete the work. That could take years sometimes in some of these projects we get involved in. The other thing is you want to publish the results as the tribe directs sometimes. Sometimes you don't want all this information out there. The other thing is you want to celebrate your accomplishments. At the end of today, hopefully you guys all stand up and give yourselves a round of applause because you guys are really doing some amazing stuff here over the last two days. I'd have probably fell asleep a long time ago. Move on. Disband, restructure, review. We've talked about that. Common missteps.

Last thing. Lack of travel cost -- these things are challenges to conflict resolution -- lack of staff expertise, lack of party capacity. So all of these things, those little numbers right behind them, that's from a survey we took both of tribal and non-tribal participants in conflict resolution. So the biggest one was cost for travel, the next one was perception of time and resource, intensive nature of conflict resolution, lack of staff expertise. So you can get all the way down to the bottom where lack of access to qualified mediators. I have this program where I'm trying to recruit mediators and Native American mediators are like very rare. We have about 35 across the nation out of 567 recognized tribes, out of a population of, how many Native Americans are there now, 3.8 million, 4 million. Thirty-five, and so we're always on the lookout for mediators. And then who was supposed to remind me about something? Remember that.

So all of this information is taken from a Western perspective on conflict resolution. Don't forget that in your communities you probably have cultural-, religious-based ways of resolving conflict. Don't forget those ways. If you don't have the program, maybe it's something to look at to develop, because something magical happens when you look at figuring out conflict resolution from the traditional and cultural perspective. You're healing your communities from a process that hasn't been really beneficial where you have defendants and prosecution, where you have win or lose situations. But then you begin to delve into the creation story, you begin to delve into what conflict is from the cultural perspective, you're also strengthening your understanding of your community and your culture. It's just a really interesting kind of a resolution or a revolution or a paradigm shift that occurs with this work when you look at it from the traditional indigenous cultural perspective."

Kuskokwim Inter-Tribal Fish Commission Meets

Author
Producer
Alaska Public Media
Year

Just a few weeks before the king salmon run begins in earnest, Kuskokwim tribal leaders came together in the first-ever meeting of Kuskokwim River Inter Tribal Fisheries Commission. The group is pushing to create a system in which tribes have a direct management role in the river’s salmon...

Native Nations
Resource Type
Citation

Matheson, Ben. "Kuskokwim Inter-Tribal Fish Commission Meets." KYUK. May 29, 2014. Article. (http://kyuk.org/kuskokwim-inter-tribal-fish-commission-meets/#more-36625, accessed August 1, 2023)

Indian Nations Are Still Fighting the U.S. Cavalry

Producer
Indian Country Today
Year

Throughout the 19th Century the U.S. Cavalry perpetrated the genocide of Indian People. Today’s Cavalry–federal, state and local police–are no longer committed to extermination. But American cops’ flagrant disregard for tribal self-governance when carrying out law enforcement activities on Indian lands, threatens the existence of Indian People.

Thankfully Indian inherent sovereignty and treaty rights can halt non-tribal cops who encroach upon Indian country under the guise of the Major Crimes Act or Nevada v. Hicks and while doing so, threaten tribal territorial autonomy and Indian civil rights.

Native Nations
Resource Type
Citation

Galanda, Gabriel S. "Indian Nations Are Still Fighting the U.S. Cavalry." Indian Country Today. September 04, 2013. Article. (https://ictnews.org/archive/indian-nations-are-still-fighting-the-us-cavalry, accessed July 24, 2023)

Advancing the State-Tribal Consultation Mandate

Year

This summer, in the face of an impending private land sale of Pe’Sla, a Lakota/Dakota/Nakota Indian sacred site in the Black Hills, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, S. James Anaya, directed that authorities in South Dakota “engage in a process of consultation” with the Great Sioux Nation to consider and address their views and concerns. While the federal Indian consultation right is now entrenched in federal and international law, the Special Rapporteur’s pronouncement of a state-tribal consultation mandate is profound–especially insofar as it concerns the American indigenous “right to continue to maintain their traditional cultural and ceremonial practices” on off-reservation lands...

Resource Type
Citation

Galanda, Gabriel S. "Advancing the State-Tribal Consultation Mandate." Indian Country Today, October 17, 2012. Article. (https://ictnews.org/archive/advancing-the-state-tribal-consultation-mandate, accessed February 28, 2023)

Implementing VAWA's Expanded Jurisdiction in Our Tribal Courts

Producer
National Congress of American Indians
Year

In coordination with the Tribal Law and Policy Institute, NCAI hosting this webinar on April 5, 2013. In this webinar, panelists discussed the Violence Against Women Act (VAWA) provisions that expands tribal court jurisdiction over all persons for certain crimes committed on the reservation.

Citation

National Congress of American Indians. Implementing VAWA's Expanded Jurisdiction in Our Tribal Courts. National Congress of American Indians. Washington, D.C. April 5, 2013. Video. (https://www.youtube.com/watch?v=igUa0z8Lo7E, accessed July 21, 2023)

President's State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience: Recommendations to the President

Year

As the Third National Climate Assessment makes clear, climate change is already affecting communities in every region of the country as well as key sectors of the economy. Recent events like Hurricane Sandy in the Northeast, flooding throughout the Midwest, and severe drought in the West have highlighted the vulnerability of many communities to the impacts of climate change. In 2012 alone, the cost of weather disasters exceeded $110 billion in the United States, and climate change will only increase the frequency and intensity of these events. That is why, even as efforts to reduce greenhouse gas emissions continue, communities must prepare for the impacts of climate change that can no longer be avoided...

Resource Type
Citation

President's State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience: Recommendations to the President. State, Local, and Tribal Leaders Task Force. Washington, District of Columbia. November 2014. Paper. (https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf, accessed May 29, 2015)

Best Practices Case Study (Cultural Alignment of Institutions): San Carlos Apache

Year

Traditional Apache culture is based on an intimate spiritual connection with and knowledge of the natural world. Apache elders believe that connection is necessary to respect one’s self, other humans and all living things. The San Carlos Apache elders living in San Carlos in northern Arizona have seen the changes in their community that are particularly worrisome...In the midst of such cultural, political and economic difficulties lies a kernel of hope and inspiration — the San Carlos Elders Cultural Advisory Council (ECAC). Formed in November 1993 by Tribal Council resolution, the all-volunteer ECAC was established to advise the Tribal Council on cultural matters, to carry out consultations with off-reservation entities on culturally related matters, and to execute various projects related to cultural preservation...

Native Nations
Resource Type
Citation

National Centre for First Nations Governance. "Best Practices Case Study (Cultural Alignment of Institutions): San Carlos Apache." A Report for the National Centre for First Nations Governance. The National Centre for First Nations Governance. Canada. June 2009. Case Study. (https://fngovernance.org/wp-content/uploads/2020/07/CAI_Apache.pdf, accessed March 23, 2023)