gaming

American Indians on Reservations: A Databook of Socioeconomic Change Between the 1990 and 2000 Censuses

Year

This study compiles 1990 and 2000 U.S. Census data on Native Americans residing on reservations and in designated Indian statistical areas in the lower 48 U.S. States. Gaming and non- gaming areas are compared to each other and to the U.S. as a whole. Data on fifteen measures ranging from income and poverty to employment and housing conditions indicate that, although substantial gaps remain between America’s Native population and the rest of the U.S., rapid economic development is taking place among gaming and non-gaming tribes alike.

Resource Type
Citation

Taylor, Jonathan, Joseph P. Kalt. "American Indians on Reservations: A Databook of Socioeconomic Change Between the 1990 and 2000." Cabazon, The Indian Gaming Regulatory Act, and The Socioeconomic Consequences of American Indian Governmental Gaming: A Ten-Year Review. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. January 2005. Report.

Good Native Governance Break Out 2: Indian Gaming in California

Producer
UCLA School of Law
Year

UCLA School of Law "Good Native Governance" conference presenters, panelists and participants Jonathan Taylor, Victor Rocha, and Alexander Tallchief Skibine discuss gaming and its impact for Native nations in California. Mr. Taylor provides a summary of data collection illustrating change in California Native communities from 1990 to the present. Victor addresses the status of online Indian gaming in California. Dr. Skibine talks about how California court can resolve upcoming issues relating to internet gaming. 

This video resource is featured on the Indigenous Governance Database with the permission of the UCLA American Indian Studies Center.

Citation

Taylor, Jonathan. "Indian Gaming in California." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Rocha, Victor. "Indian Gaming in California." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Skibine, Alexander Tallchief. "Indian Gaming in California." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Rebuilding the Tigua Nation

Producer
Harvard Project on American Indian Economic Development
Year

The Tigua Indians of Ysleta del Sur Pueblo in Ysleta, Texas produced this 16-minute film in 2013 to demonstrate how a Native American tribe can work hard with business skills and tribal customs to shape a prosperous future through education for all levels of the Tigua Nation.

Native Nations
Citation

Riggs, Patricia. "Rebuilding The Tigua Nation." Honoring Nations, Harvard Project on American Indian Economic Development. Capstone Productions Inc. El Paso, Texas. February 27, 2013. Film.

Rebuilding the Tigua Nation

June 13, 2011

[Sirens/gunshots]

Narrator:

“We are the People of the Ysleta del Sur Pueblo. We came from the open lands of what became Central New Mexico and now we live in West Texas and our lands are surrounded by El Paso, Texas.”

Saint Anthony
Feast Day

[Gunshots]

Ysleta Mission

Narrator:

“In 1680 the Spaniards forced our ancestors to move here. They built this mission church in 1682.”

Javier Loera:

“In this display we have photographs and images of our mission, of our church, which we helped build. The oldest image, it’s actually a drawing, that we have of our mission is this one in the year 1881. It was a very simple structure without the added bell tower which was added a couple years later.”

Narrator:

“For more than 300 years our people have performed corn dances on June 13th at the Feast of St. Anthony.”

[Singing/bell ringing]

Carlos Hisa:

“It’s the way of life, it’s who we are, we’ve been doing this for hundreds of years and we just continue to do it. It’s who we are as a people.”

[Singing/bell ringing]

Narrator:

“The Tigua People honor our ancestors who kept the ceremonies and traditions, also the traditions of the elaborate feast preparations, which takes weeks to prepare for. Our people come together to share in the responsibilities to prepare for the feast, which is served after the rituals and blessings at the mission. These activities show that our tribe keeps the customs and practices that we have always valued. We now live in a modern world and must balance traditions with the present day needs. The Ysleta del Sur Pueblo has proven strong willed and has persevered over the changes of time.

Tiguas have been faithful to our traditions, sometimes hiding our ceremonies to avoid punishments from non-Indians. Our people have proven to be resilient time and again in our extraordinary struggle for cultural preservation.

Our struggle continued into the 1960s when a lawyer named Tom Diamond helped us get federal and state recognition as a Native American tribe.

As a declaration of tribal sovereignty and economic development efforts, the Pueblo decided to enter into casino gaming in 1993 and our financial future brightened. The State of Texas fought our right to have gaming in Texas and through a federal lawsuit managed to shut the Pueblo’s Speaking Rock Casino in 2002. The casino was profitable while in operation and provided for better healthcare, housing and education of tribal members. The Pueblo still runs Speaking Rock, but now it operates as an entertainment center.”

Trini Gonzalez:

“Speaking Rock has kept us afloat during this economic struggle, both money wise and also creating jobs for our tribal members. The success would have to be free concerts. We’ve used the concerts to draw people in to actually show people that Speaking Rock isn’t closed. A lot of people were saying, ‘Oh, it’s closed. It’s not a casino no more.’ Which it isn’t, it’s an entertainment center and we do provide quality entertainment for free to customers who come in here.”

Joseph P. Kalt:

“Well, when we look across Indian Country we see a consistent pattern of the tribes who get their act together and really worked successfully to improve the economic and social and political and even cultural conditions in their communities and Isleta del Sur Pueblo stands out as one of these examples. They show first what all these successful tribes have is a sovereignty attitude. Their idea is, ‘We’re going to do things ourselves. We are a sovereign nation and we can govern ourselves. We’re going to take those reins and we are going to put ourselves in control of absolutely everything we can.’

Secondly, and you see this at Ysleta del Sur Pueblo, they recognize that you can talk the talk of sovereignty and nation building, but you’ve got to walk the walk and what that means is you’ve got to be able to govern yourselves and govern yourselves well. And Ysleta del Sur Pueblo is an Honoring Nations award winner because it has invested very systematically in building its governmental capacity, its laws, its ordinances, its regulations, its accounting systems, its personnel policies, its judicial system in a systematic way to say, ‘We’re going to put ourselves in position so we’re not dependent on any other governments.’”

Narrator:

“Ysleta del Sur Pueblo has been building the capacity for economic growth. It has established structure and policy such as a highly capable economic development department, a small business development program and tribal ordinances dealing with corporation establishment and tax laws. The Pueblo was restored as a federally recognized tribe in 1987. Our goals are to preserve our culture, sustain our community and raise the standards of living for tribal members. We have built capacity over the years and recently established our long term economic development and nation building goals. Our entire Pueblo had input on the process.”

Patricia Riggs:

“We started this process to change and transform our community and through economic development, through education and through services and infrastructure so it was a whole comprehensive strategy that took place at Ysleta del Sur Pueblo.”

Joseph P. Kalt:

“Ysleta del Sur, what you see is another thing we see across Indian Country more and more and that’s an attention to culture, making what we call cultural match. The way they govern themselves here at Ysleta del Sur Pueblo is under a traditional structure with no written constitution. There is no contradiction for the Tiguas between having their traditional cacique system, no written constitution and running a very good day-to-day government because it’s founded in that traditional system. And having that cultural foundation underneath your government is absolutely critical. If it isn’t there, you’re not legitimate in the eyes of your own people and Ysleta del Sur stands out for recognizing that in everything they do they’re doing it based on and flowing from their traditions, their culture, their traditional governance systems. And then lastly, Ysleta del Sur also shows a fourth thing that stands out with tribes that are successful—leadership. Leaders not only as decision makers, but leaders as educators and the leadership at Ysleta del Sur has systematically invested in everything from the broad community to the youth with education on what it means to be a self governing Tigua nation. And so Ysleta del Sur Pueblo stands out for that sovereignty attitude, for strong capable tribal government founded on the tribe’s culture with a leadership that understands it needs to educate the people as to what this sovereignty game is all about.”

Narrator:

“In order to become effective in the modern world, the Ysleta del Sur Pueblo is striving to become a self determined and self sufficient Pueblo while preserving our cultural foundation. With our economic development plans now in motion, we have taken the first steps in forging a prosperous and strong Tigua nation and we have established Tigua, Inc. that operates tribal businesses.”

John Baily:

“We are the business arm for the Pueblo itself. We manage and operate all the business functions that contribute to the success of the Pueblo. We’re able to focus on a long term strategy and build that for five, 10 years out and really start implementing plans as we go down. So our goal is to develop the long term stream of profit and revenue that is repeatable regardless of the environment we’re in. We’re for real. We’re going to be a force to be reckoned with.”

Patient:

“Is it going to hurt?”

Dentist:

“No, you’ll be fine.”

Narrator:

“We have increased our administrative abilities and have created a grants management and program development branch of the Economic Development Department resulting in programs that provide health and other services.”

Al Joseph:

“And we’ve managed to build 63 new housing units last year after a big infrastructure project the year before so we’ve got a lot of projects going on to the total of about $20 million worth right now. The quality of life for the average Pueblo resident I think has been greatly enhanced by the combination of construction of new housing, very affordable housing and the rehabilitation of 160 houses on the reservation has definitely improved the quality of life for the residents that have been living in those houses, some of them for as long as 35 years. They now have modern, up-to-date housing that everything works and it’s a much nicer place to live.”

Narrator:

“One part of the economic development of the Ysleta del Sur Pueblo is the attention our tribe gives to educating tribal members on various subjects in order to improve individual quality of life and skills for all age groups.”

Christopher Gomez:

“Things are different now because we’ve gotten on the nation building path now where we’re doing a lot of long term visioning, we’re thinking beyond what’s coming ahead the next month, the next year and we’re thinking 20, 30, 40, even 100 years down the line. What do we want Tigua culture to be in a hundred years? Where do we want to see our community? That visioning has really put things into a different perspective.”

[Singing]

Narrator:

“With our Tigua youth, we stress tribal traditions and working together.”

Christopher Gomez: [to students]

“Here we have language, social dances, Pueblo arts, Tigua history, nation building, tutoring, traditional culture, Native American games, environmental issues…”

Christopher Gomez:

“We’re thinking about the next generations now. Just like we were left a legacy from the generations that came before us who established the Pueblo, we want to make sure that we’re continuing that legacy and that our people are able to in a changing world adapt and utilize new skills to be able to carry forward the Tigua legacy and really define what that Tigua legacy is.”

Narrator:

“Our younger children learn about computers and nature from tribal program experts. We have established new programs such as pre-K and modern care facilities where children are taught general education and tribal traditions through tribal arts and crafts. At the Ysleta del Sur Pueblo education for our people goes hand in hand with our economic development because as we increase our understanding of Native American heritage and strengthen the businesses of our tribe, we multiply the return to our people many times. It is a great time to be a Tigua as we graduate more members from college and create higher paying jobs. Outcomes include increased revenues and more programs and better tribal member services.”

Joseph P. Kalt:

“One of the things that Ysleta del Sur has done in its nation building efforts is it’s bootstrapped itself into this little engine that could, is it’s invested in communication and you can…any of us can go to their website and in their economic development section you’ll find a systematic laying out of the many steps that they’ve taken from community education, youth programs, the development of their strategic plans, the development of their laws and ordinances, the development of their new institutions, even their financial development. So Ysleta del Sur is doing a service to all tribes by providing this information in an easily accessible way and I encourage anyone who’s interested in how Ysleta del Sur has bootstrapped itself in this way, it’s on their website and it’s just a tremendous resource for anyone engaging in this challenge of building native nations.”

Trini Gonzalez:

“Recently we just got accepted by our brothers up north into the AIPC, the All Indian Pueblo Council and a lot of the Pueblos up there model themselves after us. They see that we’ve been a…I guess a big hitter here in our economy and the way we go after grants and the way our money is utilized, the housing that we do, the entertainment center the way it’s operated, our smoke shop. Everything that we do, it’s being looked at and dissected and I think that’s a huge feather in our cap to say that they’re looking at us to try to correct some things on their reservations.

The powwow enlightens a lot of people on the culture, the dance, the regalia, everything that has to do with a powwow let’s people know there is a tribe here in Texas and it’s Ysleta del Sur Pueblo.”

Narrator:

“In May 2012 our Economic Development Department opened the Tigua Business Center on tribal land in a renovated building.”

[Cheering]

Frank Paiz:

“The Tigua Business Center demonstrates the will and spirit of the Tigua people to grow and prosper. The tribal journey began at the Pueblo Revolt of 1680, which resulted in our migration to an establishment of Ysleta del Sur Pueblo 1682. Since, we have been determined to preserve and continue Tigua way of life and flourish as a community."

Narrator:

“As our Tigua nation becomes stronger, we will continue our traditions and our success in this modern world.”

Carlos Hisa:

“We are Ysleta del Sur Pueblo. We are a community strong with tradition and culture. We have survived in the area for over 300 years and with economic development behind us, I can very easily say that we will continue to be here for hundreds of years.”

[Singing]

Rebuilding the Tigua Nation

2012 Tribal Council
Cacique Frank Holguin
Governor Frank Paiz
Lt. Governor Carlos Hisa
War Captain Javier Loera
Aguacil Bernando Gonzales

Councilmen
Chris Gomez
David Gomez
Francisco Gomez
Trini Gonzalez

Saint Anthony Dancers
Feast Preparation
Trini Gonzales Tribal Councilmen
Adult Tribal Social Dancers
Joe Kalt Harvard University
Youth Nation Building
Youth Financial Literacy Class

Pat Riggs, Economic Development Director
John Baily, CEO of Tigua Inc.

Tigua Inc. Board
Ana Perez, chair
Chris Gomez
Rudy Cruz
George Candelaria
Al Joseph

Housing Director Al Joseph
Empowerment Director Christopher Gomez
Cultural Center Dance Group
Tuy Pathu Daycare children
Pre-School Dance Group
Pow Wow Dancers

Producer
Patricia Riggs

Director
Jackson Polk

Camera
Aaron Barnes
Fernie Apodaca
Jackson Polk

TV Facilities
Capstone Productions Inc.

Funding provided by Harvard Project on American Indian Economic Development Honoring Nations

Rebuilding the Tigua Nation © 2013 Yselta del Sur Pueblo

Bethany Berger: Citizenship: Culture, Language and Law

Producer
William Mitchell College of Law
Year

University of Connecticut Law Professor Bethany Berger provides a brief history of the federal policies that have negatively impacted the ways that Native nations define and enforce their criteria for citizenship historically through to the present day. 

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

Native Nations
Resource Type
Citation

Berger, Bethany. "Citizenship: Culture, Language and Law." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Sarah Deer:

"Our first panel this morning is really designed to develop a foundation for the rest of the day: discuss culture, language and law as it relates to tribal citizenship; historical overview of the laws that have affected tribal citizenship; and what our culture and stories tell us about traditional concepts of citizenship. Our first speaker will be Professor Bethany Berger. All of our speaker bios, by the way, are in your materials, your program for today, so I'm not going to go through and read each line of everyone's bio, but I did want to say a few things about Professor Berger. She is a widely read scholar of property law and one of the leading federal Indian law scholars in the country.

She is a co-author and member of the editorial board of the Felix Cohen Handbook of Federal Indian Law, the foundational treatise in the field and co-author of one of the case books, American Indian Law: Cases and Commentary. After law school, Professor Berger went to the Navajo and Hopi nations to serve as the Director of the Native American Youth Law Project of DNA Peoples Legal Services and there she conducted litigation challenging discrimination against Indian children. At the University of Connecticut, she teaches American Indian law, property, tribal law, and conflicts of Laws. She has served as a judge for the Southwest Intertribal Court of Appeals and has been a visiting professor at Harvard and University of Michigan.

Our next speaker is Professor John Borrows, who is at the University of Minnesota Law School, a professor in the area of international law and human rights. He was appointed Professor and Law Foundation Chair of Aboriginal Justice in Governance at the University of Victoria in 2001. Prior to that, he taught at several other places including the University of Toronto and the University of British Columbia-Vancouver. He received his Ph.D. in 1994, an LLM in 1991 and a JD in 1990. He has been honored with a Trudeau Fellowship for Research Achievements, Creativity and Social Commitment with an achievement award from the National Aboriginal Achievement Foundation for Outstanding Accomplishment in the fields of law and justice.

And finally, our panelist professor Stephen Cornell, who is a professor of Sociology in Public Administration and Policy at the University of Arizona, also Faculty Associate with the Native Nations Institute. He is the Director of the Udall Center for Studies in Public Policy, Professor of Sociology-Public Administration. Also Co-Director of the Harvard Project on American Indian Economic Development, a program headquartered at the Kennedy School of Governance. He holds a Ph.D. from the University of Chicago and taught at Harvard University for nine years before moving to California and then to Arizona. All of these speakers today have had a profound impact on my scholarship and I think have really done an incredible amount to try to articulate how federal Indian law has impacted the lives, the real lives of Native people today. So I'm very excited to introduce the panel. Please join me in welcoming them this morning."

[applause]

Bethany Berger:

"So I want to say what a pleasure it is to be here and how sorry I am I can't stay for the rest of the day. You guys are doing really important and hard work here. And in my remarks, I'm going to focus on large overall trends mostly in federal Indian law, so it's not necessarily going to speak to your tribal choices, but some of the factors may be the same. And I also want to say what a pleasure it is to be on a panel with Professor Borrows and Professor Cornell, and Professor Cornell in particular helped shape the way I look at federal Indian policy history.

So we talk about tribal citizen choices in historical perspective, mostly focusing on the federal trends, but I also want to say that tribes have always engaged in boundary drawing and those boundaries have always relied heavily on descent and clanship, but they've also always made room for incorporating people that weren't born with that descent and clan. So this is from a frieze in the U.S. Capitol Building in Washington, D.C. This is an image of Pocahontas supposedly saving Captain Smith. Whether it's apocryphal or not, one of the suggestions about it is that this was actually an adoption ritual, that in order for an outsider to be adopted into the Pamunkey they had to go through a kind of play-acted process of attempted threat and saving. And this kind of adoption has gone on throughout history.

The Navajo Nation, the Diné -- where I've worked -- have the [Mexican] clan from the Mexican people, the [Red House] clan from the Zuni people and many other clans that reflect people that were not born Diné. In the Great Lakes, intermarriage was often a tool of diplomacy. If you could marry somebody in, you could build a relationship with them that would have important political impacts.

And this process of boundary drawings continued after contact. Just the 1827 Cherokee Constitution -- something that the Cherokee Nation created in a spirit of defiance -- to some extent engaged in this boundary drawing and some of the interesting things you see in it is that they'd already changed some of their traditions saying that children of Cherokee men, because this is a matrilineal tribe, Cherokee men with non-Cherokee women could become Cherokee, but they're also making rules about those of negro and mulatto descent. And so these kind of decisions are shaped from the outside, from the inside in multiple levels.

So federal boundary drawing: federal government has always been interested in drawing boundaries about who is Indian, who is not, who is part of a tribe, who is not. From very first Congress, we passed the Trade and Intercourse acts providing that non-Indians could not be on Indian land, that there were certain punishments, providing jurisdictional rules. And one question is, does 'Indian' mean tribal citizen or not? And relatively early on in the case of U.S. v. Rogers in 1846, the courts essentially decided Indian means whatever the federal government wants it to mean, that a white man who had married a Cherokee woman becomes a citizen of the nation, had actually traveled on the Trail of Tears. He was not Indian for purposes of the federal law, because basically they didn't think Congress wanted that kind of tribal power to change jurisdictional definitions. So this is continually a problem that tribes face, that there is room for making tribal citizenship decisions, but that room can be clamped down on by the federal government.

Process of treaty making and putting people on reservations obviously involved lots of questions about who is a tribal member and who is not, because annuities became really significant once you were on a reservation, once you couldn't engage in the practices that had sustained your people on a greater piece of land. And in fact, annuities would be taken away if you didn't conform to the rules that the agent on the reservation imposed.

One interesting aspect from this area that involves the conference on the Dakota War that William Mitchell [College of Law] put on last year, the Sisseton Wahpeton Sioux were deprived of all of their annuities and deposed from their reservation as a reaction to the Dakota War even though they had not been involved at all and there's an 1867 treaty saying, "˜Oops, you were the wrong group to deprive annuities from.'

Another thing that comes up in these annuity treaties is, and the benefits from treaties, what about people that are the products of intermarriage with people outside the tribe? And quite a lot of these tribes...these treaties around this time have either half-blood or mixed-blood scrip saying...some of them saying, "˜We want to provide for these people,' some of them not necessarily including that provision. And a problem we see in the...from a number of these treaties -- including significantly the 1854 treaty with the Lake Superior Chippewa, kind of an amalgamation of a whole bunch of Ojibwe peoples -- was that the federal government kind of thought anybody with a little Chippewa heritage might be eligible for a mixed-blood scrip and got people applying for their 80 acres by just finding somebody that they could convince was a little bit Chippewa to sign up. And you may be aware of all the scandals that arose from that. But these are just ways the federal government is drawing these boundaries that may not necessarily have to do with the way tribes are drawing boundaries and how it affects tribes going on.

Allotment -- huge impact on tribal citizenship choices. You know this both in treaties in the 1850s on, but particularly after the Dawes Act in 1887, federal government is dividing up reservations, providing allotments to members of the tribes and any land that wasn't allotted out was considered surplus and sold off. And so part of the process, the federal government is creating rolls. Who gets the allotment? And this is a big moment in which tribes...in which individuals are just saying, "˜I'm a member of this tribe and getting it recorded.' Another big moment like that is when other tribes are applying for claims for the improper taking of their land and that's another moment we get these rolls. And it's important to see that these rolls are not really created for tribal purposes. They're created for intimately federal purposes as well, even though they're fundamental to a lot of tribal citizenship requirements today.

So what does this mean for tribes besides the creation of the rolls? Tribes are watching land and money go out to the people that are on these rolls and there's a concern. What if these individuals that are getting our allotted land are not really people we consider part of the tribe? So there's a pressure on tribe to say...to start excluding some people and we see that throughout Indian Country.

Another key thing is that allotment by selling off surplus land to non-tribal members, so that's about two-thirds of the land goes out that way plus the land that was allotted, restrictions removed from it so that could be sold or taken for payment of debts or taxes, sometimes fraudulent. A lot of that money goes out to non-tribal citizens and about three-quarters of land on reservation goes to non-tribal citizens. And under federal law, very difficult to kick those people off. So if you think about the border disputes that the United States has about people coming in, Indian nations can't really enforce that border in that way in part because of allotment so that's changing some citizenship choices.

Another thing -- so this is a picture of a boarding school. Look at all those kids looking just not happy and you know why. But towards the end of the 19th century we get this massive increase in federal services and federal services, they cost money so the federal government is starting to say, "˜Hey, we want to limit the people that are eligible for those federal services,' and one of the laws that they passed to do that says, "˜If you're less than one-quarter blood and we think you're relatively civilized, you're not eligible for these services.' We don't have those specific laws in effect anymore, but we see a lot of their echoes in federal laws today trying to limit the people that can be eligible.

So throughout this process, tribes are having to make choices about who is in and who is out. The big moment when this is formalized in constitutions -- and when there is federal pressure, we really want to see these choices -- is in the Indian New Deal period in the 1930s, when the federal government is encouraging tribes to enact constitutions as part of the process of, to some extent, self-determination that the Indian New Deal represented, and saying, "˜We're going to insist and demand that the people that are included by your constitutions are those that you really want included, that have significant affiliations with your tribe, because this is who the federal money for your tribe is going to go to.' And so this research is from Kirsty Gover and most of it published in a great article from 2009 in the American Indian Law Review and this shows...this is 1936, this is 2003 and just shows how many constitutions, tribal constitutions are adopted during this period and I actually created this one -- she didn't include 1936 because it would just be off the chart -- and so like 30 constitutions are adopted in this period, a whole bunch more in the "˜40s. And then we see in the "˜60s, that's when this process of constitution adopting starts again, kind of goes up again and this is when we're kind of getting into the self-determination period. So this is somewhat more tribal choices to adopt the constitutions. They weren't forced on them before, but there was more federal pressure to do it.

And so what kind of citizenship requirements do we see in these? And it's from the very early period almost 90 percent have parental enrollment requirements. More than 50 percent have residence requirements, that your...either parents have to be residing on the reservation or you have to, or your parents have to be members, you have to be residing on the reservation. Somewhat under 50 percent have Indian or tribal blood requirements and very few have lineal descent requirements. And what this shows is that a number of tribes over this period that require parental enrollment, that goes way down. Residence, that goes way, way down and the Indian or tribal blood requirements and the lineal descent requirements go up. And something this chart doesn't show is that the...what kind of descent is required is shifting from being somewhat more just Indian blood to being tribal blood. This is blood of the nation. And this... so this period, this is what tribes are doing on their own. They're not getting a form constitution or set of membership requirements from the federal government so what is creating this process?

So let's think about what happened after the 1930s. One thing, we get World War II and Native people serve in significant numbers and even more significant numbers -- they go off the reservation to work in the defense industry. And so that's bringing Native people off the reservations. Another factor, relocation, 1950s, federal government is saying, "˜Hey, just leave the reservations; by the way, we don't want reservations anymore, we don't want to pay for people on the reservations. Come to the cities.' And we see that very much in the cities here. We see that in Denver, we see that in Los Angeles, across the country, and so that's also dispersing the population off the reservation.

Something else: Indian gaming. And so this is the poster from the NIGA conference that just happened, this beautiful Sandia Resort and Casino, which creates wealth and questions about how it's going to be distributed, some similar questions to those we saw with allotment.

Other factors: so something important in this area and also in the Northwest, treaty fishing disputes in which tribes are given the power to regulate fishing within their treaty-protected areas. And there's a question, who gets that power to fish, to be considered a member of the tribe and to fish under the treaty? And the tribes are deciding that. So if they limit who can be a member of the tribe, then there can be their relatives that can't participate in that treaty fishing or hunting.

Another factor, these federal laws that create distinctions between tribal power over Indians and non-Indians, members and non-members. So we know '78, Supreme Court says tribes have no criminal jurisdiction over non-Indians. Does this apply...deny them criminal jurisdiction over non-member Indians? The Supreme Court originally said 'no' in 1990, Congress immediately turned around and said yes, but still there's some constitutional questions about that. More important, limits on civil jurisdiction over non-members, and it's not fully resolved, but I think the pretty good argument that tribal jurisdiction is very significantly limited over non-member Indians as well as non-Indians. So somebody is not a member, you may not have jurisdiction over them.

Another factor: Indian Child Welfare Act. Now there's something else in 1978 and Sarah [Deer] talked about the importance of having custody over your children. If somebody is not either a member or the child of the member eligible to be a member, they can't...you can't exercise that jurisdiction under the Indian Child Welfare Act. So that's something pushing towards a broader definition of who is in and who is out. Huge factor that may push in different ways, publish challenges to the idea of Indianness. If somebody who doesn't anything looks at you and says, "˜Do you look Indian to me or not?' what is the impact of that and we just saw that in a really painful way in Adoptive Couple v. Baby Girl in which this man...this child Veronica was taken away from her father, Dusten Brown, because they found that they were not entitled to the protections of the Indian Child Welfare Act under this particular set of circumstances were quite complicated under this statute. And I think it's probably a stupid reading of a statute, but the thing that really tried to...that really influenced the court was this idea that she wasn't Indian enough, that they said, "˜This case is about a little girl who's classified as an Indian because she is 1.2 percent, 3/256th Cherokee.' That's not why she was classified as an Indian. She was classified as an Indian because Cherokee Nation says, "˜Anybody that's a descendent of historical members of our tribe, she is eligible for enrollment in the Cherokee Nation.' That meant that he was...he actually was enrolled in the Cherokee Nation, she was eligible for enrollment.' In fact, the determination of blood quantum has to do with those historical federal rolls, it was probably totally inaccurate, but there's that kind of factor of defining what does it mean? Are the people you define to be a tribe... what are outsiders going to say? And so this all creates these kind of push and pull factors that affect these really hard questions that you guys are dealing with today.

So this is just a picture of violence that occurred as part of the political dispute that arose from the disenrollments of members of the Chukchansi Tribe in California where not only has it really, really messed up their government, they've also disenrolled one of the last Native speakers as a result of this determination of blood lines and stuff. So tremendous impacts of this stuff for your governments, for your people, for your children. So this is again hard work that you're doing and thank you for doing it."

John Petoskey: Tribal Sovereign Immunity and the Michigan v. Bay Mills case: What the Future Likely Holds and How Native Nations Should Prepare

Producer
Native Nations Institute
Year

In this lecture for faculty and students of the University of Arizona's Indigenous Peoples Law and Policy Program, NNI Indigenous Leadership Fellow John Petoskey provides a comprehensive background of the Michigan v. Bay Mills case currently pending before the U.S. Supreme Court and discusses what Native nations can do now to prepare for each of of the case's likeliest outcomes, which are certain to have potentially significant impacts on the scope and functionality of tribal sovereign immunity.

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Citation

Petoskey, John. "Tribal Sovereign Immunity and the Michigan v. Bay Mills case: What the Future Likely Holds and How Native Nations Should Prepare." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 2, 2013. Interview.

Ian Record:

"Hi, my name's Ian Record. I'm Manager of Educational Resources with the Native Nations Institute, and we are here and our honored guest is here in conjunction with a program we run called the Indigenous Leadership Fellows Program. It's a program we established about five years ago. It was designed to do a couple things. First and foremost, ensure that NNI was on the right track with a lot of its research and educational efforts that it does around tribal governance and leadership and nation building, and also give the folks that we invited to serve as fellow the opportunity to come and share their wisdom and experience, and also give them a chance to start sort of taking a step back and sort of taking everything that they've done and figure out what is it that they want to share more broadly with, certainly with Native communities and the general public. So I know some of you were here at our talk yesterday that our Fellow John Petoskey gave and for those of you, welcome back.

I should mention that all of the talks and interviews that our Fellow John Petoskey will be giving this week during his residency will be featured on the Indigenous Governance Database. Some of you received a card for that there, it has the URL on there and so within about three to four weeks we'll have all of these videos up. If you come out of this talk saying, ‘Wow, this is amazing stuff. I really wish other people were here,' you don't really need to fret because you can just send them a link in just a few weeks time. So without further ado, I'd like to introduce our Fellow John Petoskey. John is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and for most of the past three decades has served as the nation's general counsel. And so he's been right there in the middle of a lot of monumental changes that the Band has experienced over the past three decades, regaining federal recognition as a federally recognized tribe, developing a new constitutional government, building up the rule of law to help that constitution system of government function well and achieve the nation's goals. So he's sort of been in the midst of all of that and what he's here to talk about today is a current Supreme Court case called Michigan vs. the Bay Mills Indian Community. A lot of you may know of this case, may already be studying this case in your classes or certainly reading about it. There's been a lot that's been written in the last few weeks and John's here to talk today about that case and its implications for the doctrine of tribal sovereign immunity and what he sees are the likely outcomes, potential likely outcomes of that case, if it is in fact heard by the U.S. Supreme Court in opinions handed down early next year, and what tribes should be thinking about doing depending on what those outcomes are. So without further ado, John Petoskey."

John Petoskey:

"Thank you. I would like to start with a disclaimer first. I am here as an attorney that is employed by Fredericks, Peebles & Morgan, and that's an Indian law firm. We have about 50 attorneys. We're located in Michigan where I am, Colorado, California, North and South Dakota, Washington D.C. And so the statements that I'm saying have to be taken...I'm trying to make a presentation without being disparaging anybody involved in any of these cases. However, I want to be upfront with the fact that I represented Little Traverse Bay Bands [of Odawa Indians] as an attorney for Fredericks, Peebles & Morgan in the case that is currently before the Supreme Court, although Little Traverse Bay Band has not participated in the appeal because it accepted the Sixth Circuit decision for reasons that I'll explain in more detail.

So in my presentation I am not stating any position for Little Traverse Bay Band, nor am I stating any position for Grand Traverse Band, which is a tribe that I worked for through Fredericks, Peebles & Morgan as their general counsel. I worked for Grand Traverse Band from '86 to 2010 when I was dismissed and I was gone for about two-and-a-half years and then I was rehired as their general counsel about a year ago under Fredericks, Peebles & Morgan. So I represent that tribe as their general counsel through Fredericks, Peebles & Morgan and I want to be clear that there's nothing that I'm saying here that has the official sanction of Little Traverse Bay Band or Grand Traverse Bay Band.

In addition, I also represent other tribes in Michigan that have taken positions on this case, particularly the Nottawaseppi Huron Band of Potawatomi in a related case that I filed pleadings in. Anything I say here does not relate to Nottawaseppi's position that it has taken in that related case. And the discussion that I am presenting is more on an educational basis as a participant in the case that is currently in front of the Supreme Court in the early federal district court proceedings and in the court of appeals proceedings, which forms the basis for the cert petition that was granted for review. After I give you that history of the case and the...I will present what I think are the possible outcomes in the Supreme Court and those outcomes are wide and diverse, but they're indeterminate right now because not all of the briefs have been filed in the court case nor has the oral argument been heard, which will not happen until December 2nd of this year.

So I want to start with giving you the background of the case and the history of Michigan. Michigan has 12 tribes in its state. It has seven tribes that were parties to the 1993 compact. Of those seven tribes, Bay Mills was one of the tribes, Grand Traverse Band was another tribe, then it has two other tribes in what we call the 1836 treaty area that were federally recognized in 1997 by federal statute and those are the Little River Band [of Ottawa Indians] and the Little Traverse Bay Band. Michigan is shaped like a hand and so Little River is right here, Grand Traverse Band is at the end of a peninsula in Traverse City and Grand Traverse Bay. The Little Traverse Bay Band is in Petoskey, Michigan. It's sort of right here. And Bay Mills is in the Upper Peninsula on the Lake Superior shore of White Fish Bay. There's a fifth tribe involved in this case in the related issue and that is the Saulte St. Marie Tribe of Chippewa Indians.

Bay Mills was recognized by treaty in 1855. They had a statute that provided them a reservation in the 1870s and they had an IRA [Indian Reorganization Act] constitution that was provided in 1934 under the Indian Reorganization Act. Saulte St. Marie was recognized administratively by the Secretary of the Interior's delegated authority to the Michigan Agency in the Minneapolis Area Office by administrative written decision in 1975. Grand Traverse Band was recognized under the Federal Recognition Process of 1980 as the first tribe to be federally recognized. LTB [Little Traverse Bay Bands of Odawa Indians] and LRB [Little River Band of Ottawa Indians] as I mentioned were recognized under the 1997 statute. So those five tribes are all signatories to the 1855 Treaty and the 1836 Treaty.

Incident to the 1836 treaty the tribes ceded to the United States a large proportion of the State of Michigan. In the Indian Claims Commission in 1951 the Bay Mills Indian Community, as the only existing federal Indian tribe, filed a claim for unconscionable dealings against the United States when the United States authorized suits against the United States under the ICC. At that time the Northern Michigan Ottawa Association was established, which consisted of LRB, LTB and GTB, which was also a plaintiff's group since the statute the Indian Claims Commission provided that identifiable groups could file claims. I don't want to go into the detailed history of the legal history of Michigan, but essentially what happened was the...in 1871 the Secretary of Interior said that no tribes exist in Michigan and left us there to our own devices, which didn't work out too well. And so that's why there was all this later recognition and the federal statute. That Indian Claims Commission came to judgment in 1971 and then there was a statute passed in 1997 called the Michigan Indian Land Claims Settlement Act, which was the implementation of the payment of the ICC judgment that the five tribes had against the United States. So you can see how this goes back to really the origins of a lot of the tribes. Under that provision, each tribe was allowed to make payments of the judgment funds on 80 percent per capita and 20 percent for social services and each tribe elected to make their payments in identifiable ways that were diverse.

In the case of Bay Mills, they elected to take 20 percent of their ICC judgment funds, which was the Michigan Indian Land Claims Settlement Act, and to create a trust corpus from which the earnings of that trust corpus were to be used to acquire lands and the relevant language in Section 107 of the Michigan Indian Land Claims Settlement Act, which is Public Law 107.143. I don't have the statutory cite, but that's the public law number. The relevant language in that provision provided that money used to buy that land would then be held as Indian lands are held. And so there was a, in the early part of the case, there was numerous briefings on the issue as to what that meant. And Bay Mills argued that that language, as Indian lands are held, creates an automatic restricted fee status for any lands that they buy. And the reason that is important is actually another development that has taken place in Indian Country, and that relates to the Indian Land Claims, the Seneca Land Claims Settlement Act that took place in New York.

In New York, the Senecas have several large casinos. The Seneca Land Claims Settlement Act was used as the basis for arguing, that the Senecas argued that they were not subject to the after-acquired property prohibition of gaming, which is in the Indian Gaming Regulatory Act Section XX that says, ‘Any property acquired or taken into trust after 1988 cannot be used for gaming unless there's these itemized exceptions.' In the Seneca context, that exception was settlement of the land claim. They argued that the Seneca Land Claims Settlement Act, which was an ICC judgment case, was a settlement of a land claims and therefore, they could do gaming, and they did set up a number of different gaming sites. Well, it happened in a federal district court decision in New York in 2008 or 2007 that the federal judge ruled that an ICC judgment is not a settlement of the land claim and therefore the proposition upon which Seneca had predicated the authority to engage in gaming was taken away since the court ruled that the ICC was not a settlement of the land claim.

At that point, the Secretary of the Interior and the National Indian Gaming Commission revised regulations that had already been published in which they implemented Section XX of the Indian Gaming Regulatory Act. I may bounce between Section XX and 2719. 2719 is the codification of Section XX. The regulations that they implemented were federal regulations that included the prohibition that restricted fee applied to the exceptions. In other words, not only was land taken into trust, but also restricted fee, that anybody that had restricted fee after 1988 could not game on that property. After that Seneca decision in 2007, the National Indian Gaming Commission, in conjunction with the Department of Interior, revised its opinion and said that restricted Indian lands were not subject to Section XX since it was not in the statement of the language of Section XX nor was it in the legislative history. And therefore the Seneca facilities, which were restricted Indian titles incident to their unique history in New York, were therefore lawful and that's the basis upon which they continue to game that it's restricted fee title and the net effect of that revision of the federal regulations was that the decision finding that the settlement of the land claims was not applicable was obviated because there was a different basis upon which the Senecas could game.

At that point, this is hypothetical, but I just assume it occurred to somebody in Michigan that we could use the Michigan Indian Land Claims Settlement Act to say, ‘As Indian lands are held as creating automatic restricted Indian title and therefore not subject to Section XX and therefore eligible for gaming without going through the Section XX process of taking the land into trust.' That was the thought process. That's the hypothetical thought process that Bay Mills probably had. And the way I say probably had is because they did submit to the National Indian Gaming Commission a proposed amendment to their ordinance in early 2010, in the Spring of 2010, in which they made geographic specific authorization under the restricted fee theory for gaming at Vanderbilt, the area in which they did open up the casino. Just a footnote, Vanderbilt is in the gaming area for Little Traverse Bay Band, it's basically in their backyard, it's on a major highway, freeway and so it was basically going to choke off Little Traverse Bay Bands' casino patronage.

The National Indian Gaming Commission advised Bay Mills not through a letter document, but through discovery where we determined that they would not authorize an amendment to their gaming ordinance that was geographic specific to Vanderbilt. And so Bay Mills withdrew that proposed amendment, submitted a new amendment, which tracked the language of the Indian Gaming Regulatory Act 2703.4, which essentially is the same language that is used in the Indian Country definition in Title 18 or 1151, which the National Indian Gaming Commission accepted as appropriate because there's no way that they could not accept it because that's what the Indian Gaming Regulatory Act said, but that amendment did allow gaming on restricted Indian land.

So after the National Indian Gaming Commission approved that amendment on September 15th, Bay Mills on their reservation authorized gaming to take place at Vanderbilt. And surreptitiously, in the dead of night, set up a casino in Vanderbilt on a rest stop that they had bought earlier through an LLC company with proceeds from the Michigan Indian Land Claims Settlement Act, alleged proceeds from the Michigan Indian Land Claims Settlement Act, and they asserted that the act of buying that property automatically converted that building into restricted Indian title not subject to Section XX of the general prohibition on gaming on after-acquired land and that their gaming ordinance did authorize gaming under the 'Indian Lands' definition. So they opened their facility. Naturally that action caught Little Traverse Bay Band, Fredericks, Peebles & Morgan's client, off guard. It also caught the State of Michigan off guard that they were using this theory and procedure to open up a gaming facility.

Once Little Traverse Bay Band figured out the theory, there was a remedy to seek, and that remedy is in the Indian Gaming Regulatory Act and it's at 25 USC 2710.7.D.A.ii. And I just want to read the language for you on that because it's important to understand what the language says because this is going to, I'm going to make reference to it in the balance of my presentation and if you don't have it in front of you -- I was going to hand it out -- but I will just read it to you.

‘The United States District Court shall have jurisdiction over any cause of action initiated by a state or an Indian tribe to enjoin Class 3 gaming activity located on Indian lands and conducted in violation of any tribal/state compact entered into under Paragraph 3 that is in effect.'

That is the relevant statute that creates federal jurisdiction in the waiver of sovereign immunity under the Indian Gaming Regulatory Act for Little Traverse Bay Band and the State of Michigan to file an injunction action arguing that the restricted fee authorized casino gaming at Vanderbilt is done in violation of the compact. That's the dispute that took place. There was negotiations between the state and the tribe to close the facility, which went nowhere. There were negotiations between Little Traverse Bay Band and the Secretary of the Interior on whether or not this was restricted fee lands, and the Secretary of Interior did issue an opinion on December 20th that it was not restricted fee, that you could not use the Michigan Land Claims Settlement Act to automatically buy land and then to automatically assert that that becomes restricted fee eligible for gaming.

Hillary Thompkins issues a 25-page opinion that, in summary, gave in detail an interpretation of the Michigan Indian Land Claims Settlement Act and an interpretation of the restricted fee issue and opined that the gaming at Vanderbilt was illegal. Then the National Indian Gaming Commission said, ‘Well, if it's not on Indian lands under our statute, we have no jurisdiction so we have no authority to enforce the closure. We have no authority to issue a closure order because it has to be on Indian lands for us to have jurisdiction to close the facility.' So the National Indian Gaming Commission then issued an opinion saying, ‘Based upon the 'Indian Lands' determination of the Department of Interior, we have no authority here because it's not on Indian lands so we can't issue a closure order.' And so what you had was the federal government basically saying, ‘We don't have authority to close the facility so we're not going to close it,' and then in discussions with the U.S. Attorney there was another touch of ambiguity that Vanderbilt created in that the tribe, Bay Mills, is in the Western District. That it just so happened that Vanderbilt, in terms of the district's for the federal district court in Michigan, is in the eastern district and so all of the, 10 of the 12 tribes in Michigan are in the western district.

So the western district of Michigan has several attorneys that are very knowledgeable about federal Indian law and they knew the opinion that Thompkins had issued that it was not restricted Indian lands, but the people who understood it in the western district were arguing, ‘Not our problem, it's in the eastern district,' and the eastern district is in Detroit and they didn't have anybody in Detroit in the U.S. Attorney's office who understood federal Indian law and the eastern district said...I don't know what they said because I didn't have any conversations with them, but they didn't do anything. Vanderbilt was in their district and they did not file any criminal action against the tribe for violation of the Johnson Act or for gaming outside of the compact. They just let the thing set. So in the absence of the United States' failure to do anything based upon the Indian Lands Determination and the National Indian Gaming Commission's assertion that they had no jurisdiction in the western district and the eastern district not doing anything, the State of Michigan and Little Traverse Bay Band decided to do something and that was to use the provision I just read to file an injunction action against Bay Mills arguing that the gaming facility was not on Indian lands and was a violation of the compact. That's the broad setting in the case.

Now getting into the particular counts in the complaint, it's where it gets interesting. In both counts 1, 2 and 3 of both the LTBB complaint and the State of Michigan complaint, we alleged, and when I say we, the state and Traverse, Little Traverse Bay Bands of Odawa Indians alleged that the Vanderbilt facility was not on Indian lands, that it was not restricted fee, which is important for the later decision in the Sixth Circuit Court of Appeals. But we also alleged that the gaming was conducted in violation of the compact, that it was being conducted in violation of a couple different things. One, that the land was not gaming eligible. A second argument we made is that there's a provision within the 1993 compacts called Section 9, which says that for a tribe to open up an off-reservation gaming activity after 1993 it has to enter into a revenue sharing agreement with the other tribes in Michigan. That was not done so we alleged that as a cause of action. But we were relying on the proposition in that 2710.7.D.A.ii provided federal jurisdiction, created the cause of action and did a waiver of sovereign immunity against Bay Mills and that the waiver of sovereign immunity in the cause of action that we were alleging was that this gaming was in violation of the tribal-state gaming compact that Bay Mills had entered into and that Little Traverse Bay Band was a beneficiary of under Section 9 for the revenue sharing agreement. We also alleged federal jurisdiction under 1333 and for Little Traverse Bay Band we alleged federal jurisdiction under 1362. Those references are important for just a minor, but main, depending on how you characterize it, for a later development in the case.

So the hearing was held in March of 2011 after cross motions for summary judgment were entered and at the end of March the federal district judge ruled that he had jurisdiction under 2710.D.7.A.ii and that he was relying on a decision in the 10th Circuit called Mescalero, which was relying on a decision in that federal circuit called Santa Ana Pueblo vs. Kelly. And in that particular case, the New Mexico tribes had negotiated compacts with the governor, the state Supreme Court in New Mexico had ruled that the governor didn't have the authority to negotiate the compacts, and that they were therefore illegal. Some of you from New Mexico may remember this sequence back in 1997. And then the tribes sued alleging that the compacts were still in effect because there was a move to close down the casinos in New Mexico. One of the questions in that case was whether or not there was jurisdiction in the federal court to hear this cause of action and Santa Ana and Mescalero held that there was jurisdiction to determine the validity of the compact.

Paul Maloney, the federal district judge in the Michigan/LTBB vs. Bay Mills Case, relied on Mescalero for the proposition that there is jurisdiction under the Indian Gaming Regulatory Act to enjoin gaming that is not consistent with the compact, that is not in conformity with the compact and he entered an order to that effect. Bay Mills argued that Judge Maloney got it wrong, which he acknowledged in an amended opinion, that Section 1331, in the early part of the opinion, he also said that 1331 provided jurisdiction and that 1362 provided jurisdiction. Both do provide jurisdiction, but they do not provide a waiver of immunity of Bay Mills. And so he amended his opinion saying there was no waiver under 1331 or no waiver under 1362, but there was a waiver under 2710.D.7.A.ii on the language that I read and that there was a cause of action created and that Bay Mills had violated the compact.

Now Bay Mills makes much of the case, which has merit to it that the Mescalero opinion confused the standards in compact abrogation with compact waivers. The opinion in the 10th Circuit said to the effect that a tribe impliedly waives its immunity when it enters into gaming under the Indian Gaming Regulatory Act. That's not the standard. The tribe doesn't impliedly waive, it's Congress [that] has to abrogate the immunity. Nevertheless, the opinion supporting Mescalero, the Santa Ana Pueblo opinion, does hold for the proposition that there is jurisdiction to determine if the compact is in effect and we were arguing a related concept to that that the compact in Michigan had been violated and that this gaming was taking place in violation of the compact. It eventually...the case went to..."

Raymond Austin:

"We have some people in here who are not law students. Can you explain to them what sovereign immunity is?"

John Petoskey:

"Sovereign immunity is that the government -- whether it's federal, state or tribal -- cannot be sued without its consent and that consent comes in two forms in reference to Indian tribes. It comes in the form of Congress doing what's called a congressional abrogation by statutorily saying that the immunity of the tribe is abrogated by an act of Congress. The other way sovereign immunity can be dealt with is by the tribe making an explicit clear statement that it is waiving its immunity for purposes of litigation and tribes do do that all the time. They pass resolutions saying, ‘We're waiving our sovereign immunity for x, y and z for the purpose of a, b and c.' But there's two ways and there are two sets of cases that interpret what is abrogation, when Congress acts and sets standards that you have to act clearly, it has to be explicit, it can't be implied. Congress clearly has to establish saying, ‘We are waiving the immunity of the tribe for purposes of the following area.'

Congress waived the immunity of tribes in the Indian Gaming Regulatory Act in the provision I read where it says, ‘Any cause any initiated by a 'state' (Michigan), ‘Indian tribe' (Little Traverse Bay Band), ‘to enjoin Class 3 gaming activity,' (the injunction was again Bay Mills gaming activity), ‘located on Indian lands,' (Bay Mills alleges they're Indian lands, the United States through Thompkin's opinion says it's not Indian lands and the State of Michigan and LTB says it's not Indian lands, that the restricted fee, automatic restricted fee doesn't create Indian lands under the Michigan Indian Claims Settlement Act). But I want to emphasize that issue has not been even litigated or determined by cross motions for summary judgment. That's still a pending motion. That's still in the case because this case went up on interlocutory appeal on the issue of the injunction. So continue to read that -- ‘located on Indian lands and conducted in violation of any tribal/state compact' (and so we're saying, ‘Well, this is in...LTB is saying it's in violation of state compact because it's not on Indian lands and it doesn't comply with Section 9 on the revenue sharing agreement.') ‘Entered into under Paragraph 3 that is in effect,' (and Paragraph 3 is the provisions that define how the state and the tribe enter into tribal/state gaming compacts and the question is, ‘Is the compact in effect?') That was the issue in Santa Clara is that, was the compact...that was the issue in Santa Ana: is the compact still in effect? And the court in Santa Ana determined that it had jurisdiction to determine whether or not the compact was in effect and we argued the corollary concept or related concept that the court has jurisdiction to determine whether the compact is being breached or violated. We argued it was being breached and violated by gaming in areas that were not Indian lands, 4C, and also gaming was taking place without the condition preceding of the revenue-sharing agreement.

Bay Mills, on the other hand, was arguing that if you look at the allegations and the complaints of the state and the tribe, they are alleging that the gaming is not taking place on Indian lands. So if it's not taking place on Indian lands and you read the complaint and you take the complaint at face value, then they're saying that the court doesn't have jurisdiction to hear the case because it's not on Indian lands. Essentially what the National Indian Gaming Commission said, if it's not on Indian lands, NIGC doesn't have jurisdiction to hear the case. Bay Mills was essentially making the same argument -- that you had to fulfill all of the condition precedence in 27.10.7.D.A.ii in order to have jurisdiction in the federal court for the case to proceed and to have a waiver of sovereign immunity. And if it wasn't on Indian lands, even though you have the irony of the situation that Bay Mills is arguing it's on Indian lands and LTBB [Little Traverse Bay Bands of Odawa Indians] and the state is arguing that it's not on Indian lands, if you look at rules of pleading and you construe the pleading allegations of the tribe LTBB made and you take them at face value, they are saying that the gaming's not on Indian lands, therefore they're not fulfilling all of the condition precedence to have jurisdiction and the waiver of sovereign immunity for the case to proceed. That in a nutshell was the decision of the Court of Appeals, that there was no jurisdiction, there was no waiver, that the cause of action that was alleged by the LTBB and the state was defective because they said it was not on Indian lands.

Now in opposition to that, the state argues that counts 4, 5 and 6 allege that acts occurred, the authorization of the facility at the Bay Mills Reservation to open, those were on Indian lands and that that is part of gaming activity. In order for gaming activity to take place, you have to convene the council, convene the Gaming Commission, issue the license and that activity is taken place on Indian lands and that's part of gaming activity, that's just not card dealing that is gaming activity, it's also regulatory actions that the tribe has taken and that is where the gaming activity took place so it's still on Indian lands. The court didn't accept that for a couple different reasons. One was that the amendment to that complaint came in after the interlocutory appeal had been filed. Keep in mind they filed it in the spring of, the interlocutory appeal, in the Spring of 2011 and the state amended its complaint and made it an ex parte proceeding against the tribal council alleging the authorization taking place on Indian lands in August of 2011 at which time the interlocutory appeal was already in the Sixth Circuit and so the Sixth Circuit in part recognized that those were not part of the proceedings directly in front of them.

So the nutshell of the holding was a remand of the case to the district court to hear counts 4, 5 and 6 and to also deal with the underlying issue of whether or not the Michigan Indian Land Claims Settlement Act in fact creates restricted fee titles by operation of law the way I outlined it at the beginning of the presentation. The State of Michigan upon remand then petitioned the Supreme Court for cert to review the matter arguing two different things in its cert appeal. One, that the Sixth Circuit's reading of 27.10.7.D.A.ii to create the five-condition precedence was incorrect in the sense that, essentially that you could leave out Indian lands and you could focus on whether or not the gaming is in violation of the compact that is in effect. And there's a couple circuits that hold that you can address a compact for...there is a waiver if you're addressing whether or not the question is, is the compact in effect.

Now that cuts against a strong standard in abrogation of tribal sovereign immunity with explicit language, because that is holistic interpretation of the statute saying when you look at the remedial structure of the statute in total there has to be a way to get this issue in front of a federal district court so that the court can address the issue. And so the state is arguing in part that the matter should be addressed by the court, in that it met its burden to meet [27.10.7.D.A.ii] under the provisions of the compact being in effect and other case law in other circuits that have held that the question of whether the compact is in effect is sufficient for purposes of jurisdiction under 27.10. But then the state goes on further and says, ‘Regardless of that, if that is not true, if you find that the 6th Circuit is correct,' and it's a very strict interpretation on what abrogation is and you have to meet all the condition precedence of the five elements, ‘then the United States should review its sovereign immunity doctrine in case law and opine that the scope of sovereign immunity does not extend to certain categorical cases.' And it argues based upon CNL, a 2001 decision, Kiowa, a 1998 decision and Citizen Potawatomi, a 1991 decision, which were the last three principle decisions on sovereign immunity, that the court should adopt a standard that, ‘off-reservation commercial activity is not subject to the protection of sovereign immunity.' That's why the case has, to the degree it has, received significant review by Indian Country is the consequence of that decision, which are numerable, which are quite extensive.

So what we did this morning, Ryan Seelau and myself, the person at the end of the table here, we put together a chart. Once you have this background of things that potentially could happen in this case and what the likely repercussions for the tribe are and how tribes should consider responding at this point in time. Keep in mind that this, when I say this point in time, the Bay Mills responsive brief has still not been filed, it will not be filed until October 24. The brief for the state was only filed on August 30, actually September 4. They were four days late, but it was filed on September 4. There were 17 attorney generals filed briefs in support of the State of Michigan and the briefs in support argue that the Supreme Court should simply abolish sovereign immunity and they go to the extreme.

There's one brief in particular, the brief of Oklahoma, that has a footnote in it, footnote number four, that highlights all of the problems that are associated with sovereign immunity defense by tribes and basically this is the tax cases, the payday lending cases, and then there are three other cases in the country that have restrictive fee type cases also. There's the Hobie case in Oklahoma, the PCI case in Alabama and then Saulte St. Marie, getting back to Nottawaseppi, Saulte St. Marie has also asserted that they can create an off reservation casino in Lansing, which is the state capital of Michigan. They have an option on land and they are presently in the process of trying to put that land into trust, arguing that once it goes into trust under the Michigan Indian Land Claims Settlement Act that it then becomes gaming eligible and they would be allowed to do gaming. It's a related case.

And so the state's briefing chief is all this parade of horribles and they're arguing first that Judge Kethledge on the Sixth Circuit, who wrote the opinion, got the interpretation wrong on 27.10.7.D.A.ii that you had to fulfill all of the five requirements and that the pleadings did not fulfill the requirement of on Indian lands and therefore Kethledge dismissed the case. The state is arguing that Kethledge is wrong on that, that you can read 27.10 in an expansive manner on whether or not the compact is being complied with and if the compact is being breached, that is sufficient for purposes of the waiver of sovereign immunity in federal jurisdiction and that argument of the state is predicated upon a holistic reading of the statute.

Now that is contrary to the general proposition that most Indian advocates have that there should be explicitness in the abrogation language for taking the sovereign immunity away from the tribe. In fact, that was the rationale for Little Traverse Bay Band, who is our client in the case, not to appeal the 6th Circuit decision because if you read the decision, it sets up a very strong restatement in standard that in order for Congress to abrogate sovereign immunity, it has to be explicit and every element has to be met. And so the LTBB tribal council said, ‘That's not bad. Although we lost, that's not bad,' and so they didn't appeal and they are not in the Supreme Court and they're not taking a position because they in fact thought the Sixth Circuit decision, even though it went against them, was not a bad decision. There's a caveat to that. The state had indicated in the course of the proceedings that if Bay Mills did open up their facility once the injunction was vacated that the state would do a criminal action and would do a forcible closure. So the casino has never really opened back up even thought he injunction has been vacated. LTBB has not appealed because they thought Kethledge got it right. The State of Michigan has appealed because they thought Kethledge got it wrong, that you should read the statute as expansive and that it does provide for a waiver of immunity and the statement of a cause of action on the basis of the analysis of whether or not the compact has been breached.

Then the position of the Solicitor General -- who I have not mentioned at all in this proceeding -- but the Solicitor General was invited to file a brief and the position of the Solicitor General was is that Kethledge got it right, in terms of what is an abrogation of immunity, and therefore it should not be appealed. But it puts the state in an awkward position because it still has no remedy and when you read the state's brief, you can attack it for many different things, but it does present a good argument in terms of the state saying, ‘What are we to do because this casino opened up in our jurisdiction, we have to have some sort of remedy,' and they touch all of the buttons that the parade of horribles that have been identified in CNL, Kiowa, and Citizen Potawatomi over the last 20 years about the terrible things that happen when tribes assert sovereign immunity in the context of off-reservation commercial activity. And this is a principle example of a tribe doing that: opening a gaming facility where you have the illogical consequence that the state only has jurisdiction to enforce a breach of the compact when the gaming facility is opened on the reservation and it doesn't have jurisdiction when the casino is opened off the reservation hundreds of miles away from the tribe's reservation and it has no remedy and the United States is not doing anything to address the question. And so it has a very compelling, if you will, case to make that there has to be some sort of remedy. And if you're Justice Thomas certainly, Justice Scalia, Ginsberg, and to a certain extend even Breyer, you're going to be sympathetic to those arguments because they've already indicated in previous opinions that they are sympathetic to those arguments, and so you know that for the justices, based upon that past opinion, are sympathetic to the state's position. There are new justices on the bench, but it only takes five to create a bad case decision from the current case that is pending.

So what has been going on to resolve the issue? On a national basis, NCAI [National Congress of American Indians] and the Native American Rights Fund have met and tried to fashion a remedy similar to a remedy that was done in 2010 when there was a similar case in front of the Supreme Court and to resolve that case, the tribe waived its immunity and so the matter was vacated and it was remanded to the lower court to resolve the issue. Here Bay Mills has categorically stated they are not going to waive their immunity. So it's not going to be resolve on a waiver of immunity and in my view, even if they did waive their immunity, I don't think that the Supreme Court would allow the matter to be vacated and remanded because they would recognize that that was the same procedure that was used in 2010 so they would continue to maintain the case. It's all hypothetical, but in any event, Bay Mills is not waiving its immunity. Another thing that could be done that was suggested in the Solicitor General's brief is that Bay Mills could resubmit their ordinance on a geographic specific area for Vanderbilt to get an Indian lands opinion from the National Indian Gaming Commission, but they're not going to do that. Bay Mills is not going to resubmit its ordinance. It already did that once and had a negative determination so they're not going to do that. Kethledge also said that the United States could resolve the issue by filing criminal actions against the individual tribal council acting in violation of federal gaming laws, particularly the Johnson Act, but the western and eastern district of the United States Attorney's office is not going to do that. There's not even any discussion of that, particularly now since the briefs have been developed and there is an argument that Bay Mills has, that this is a good faith argument that this is restricted Indian lands and therefore by definition, if it is restricted Indian lands, under the Seneca decision it would be gaming eligible, therefore it would not be in violation of the Johnson Act, therefore it would not be in violation of the federal illegal gambling laws. So the eastern and western district of the United States Attorney's office is saying, ‘We're not going to do anything.' So the only alternative left is a decision by the Supreme Court on the outcome of the questions that are presently pending before it.

And so getting back to Ryan's table here: what are the potential outcomes? And we characterized these as sort of a hierarchy of horrors and it goes from the least worst outcome to the worst outcome. So the potential outcome with the least consequence to Indian tribes is that the case is remanded based on statutory interpretation of 1331 and 2710 that the off-reservation gaming site violated the compact. In other words, saying, ‘We are reading 2710 in an expansive manner. You don't have to fulfill all of the elements. It's a violation of the compact. That's sufficient. There's federal jurisdiction. There's a waiver of sovereign immunity and abrogation, negative on that.' It makes waivers by implication rather than by explicitness. The other thing that the remand does is that you get to the merits of the question of whether or not this is restricted fee, does restricted fee exist would be one answer that restricted fee does exist and then there are consequences that flow from that. The alternative is restricted fee does not exist. If it does not exist, then it's not gaming eligible then the thing is closed down and it's all a civil matter. That is you get to the merits of the actual problem. This means the violation of compact is sufficient to complete the requirements of 2710, that an abrogation of sovereign immunity is effective by alleging compact breach for cause of action, reverses the 6th Circuit decision on counts 1 through 3 and the 6th Circuit's five part test of 2710.D.7.A.ii. It was a five-part test that they basically construed that provision and laid out five standards that you have to meet in order to get federal jurisdiction, cause of action, and a waiver of sovereign immunity. So this is -- I know I didn't want to say any editorial comments --but it's beyond me why Bay Mills is moving the ball...this doesn't move the ball along anyplace, it doesn't move the case forward at all even with the least likely outcome. Nothing really goes forward so I don't know why they ended...never mind, I won't go there.

Case's likely repercussions for tribe -– case remanded to be determined on merits whether Public Law 105.143 Section 107.A creates restricted Indian fee, so that's the merits of the question. If it's remanded and you determine the merits of the questions, the repercussions are minimal with regard to sovereign immunity, but if restricted fee exists then the effects depend on how many restrictive Indian fee cases are ongoing in the U.S. This is an interesting question. You really have to know a lot of Indian law for this. The states with restricted fee titles are right now in the universe of Indian Country are relatively limited and those states are Oklahoma, New Mexico, Alaska and New York. If you were to look at Indian titles and you were trying to find out who has restricted fee, you would...the majority of them would appear in Oklahoma, New Mexico, Alaska and New York and that's because of the history of federal Indian law. In Oklahoma, it was the allotment processes and the Civil War and the mass movement of Indians into Oklahoma, that there are some areas in Oklahoma that do have restricted fee and you'd look at the particular statutory history of each individual tribe to determine whether or not there is restricted fee. New Mexico, it's the pueblos that have restricted fee because they were...had fee simple under the Treaty of Guadalupe Hidalgo, through grants through the country of Spain. In Alaska, there's a...which is for all practical purposes there's no market, but it's an interesting case up there because it was the variable public policy of the federal government that created restricted fee up there at various times in trying to figure out how to deal with Alaskan Natives, so there's still a lot of restricted fee in Alaska. New York has restricted fee because of its history as one of the original 13 colonies and California has restricted fee because of its similar history of the Treaty of Guadalupe Hidalgo and the grants from Spain. Arizona may have it, but I'm not that familiar with Arizona. But the whole point is if restricted fee does exist, then it's not subject to Section XX, then that's a gold mine for people that are willing to find the tribes sitting on restricted fee and that's going on right now. That's what the Hobie case is. It's a Muscogee restricted fee allotment located 20 or 40 miles away from the central government in which a town, and you have to look at the Oklahoma Indian Act, but Hobie is that type of case of restricted fee. So is the Alabama case with the Poarch Band [of Creek Indians] finding restricted fee down on the Gulf Coast. And so a favorable decision would be potentially more markets for Indian gaming because restricted Indian fee is not subject to Section XX. The thing there is to wait and see what happens, determine whether tribes have restricted fee.

The next consequence is case is remanded to determine counts four through six, which are the state law counts that are still pending, and that is that the activities of gaming took place on the reservation through the authorization, through the tribe passing a motion to authorize opening a gaming facility at Vanderbilt. The fifth count is the state law count alleging discouragement of all profits, which would mean all the machines and all the income, which is a couple million dollars, and the sixth count is a nuisance count under state law. But those counts are brought against the individuals in the amended complaint that the state filed in August of 2011 in which the executive council members of Bay Mills and the individual gaming commissioners of Bay Mills were sued in their official capacity under individual...under the Ex Parte Young version. Basically, it's implementing Ex Parte Young. The Supreme Court is saying that federal jurisdiction exists and that there's a way around tribal sovereign immunity based on the principles of Ex Parte Young.

And then the likely repercussions to the tribe on that is Stephen's descent in the CPN case, expansion on Santa Clara Pueblo's reference to Ex Parte Young. Take you all the way back to 1978, when Santa Clara was decided there was that subtext that Justice Marshall had, that although the pueblo was immune from suit that the individual council members were not immune from suit and they could be sued under principles of Ex Parte Young, but the important point in that was limited by Marshall further saying that the Bill of Rights implied cause of actions do not exist, that there has to be an explicit statement of the cause of action for habeas corpus. That was the only cause of action that existed under that ruling. So taking you a little further back to 1968 when the Indian Civil Rights Act was passed between 1968 and 1978 when Santa Clara happened, there were literally hundreds, but there were a number of decisions in which tribal members sued under quasi-1983 claims against their tribal officials and had a developing case law in federal court that was similar to 1983. And all of that stopped in '78 when Santa Clara was decided and said that you can't imply a cause of action under the Bill of Rights similar to 1983 for tribal council official action or the individual action of tribal members, but I think that will come back into existence under this new doctrine, it's potential, that's a likely repercussion that will happen. Another likely repercussion is that CNL Enterprise clearly suggested that off-reservation commercial activities is on shaky ground which was the 2001 last sovereign immunity decision and said that off-reservation commercial activity is probably going to be subject to a common law finding that is not covered by the immunity of the tribe. That's the clear trend of Ginsberg's statement of the Kiowa decision in 1998 by Justice Kennedy, that they're going to expand commercial activity off-reservation as categorically not being protected by sovereign immunity, which it is now.

So what do you do to get ready for that outcome? How should tribes consider responding? Get ready for the lawsuit against them by their own citizens. In other words, you're going to be sued by your own citizens. In other words, all that case law from '68 to '78 on tribal 1983 actions will probably now come back into existence. Some people, dissidents in the tribe, will say, ‘Hey, that's all right with me.' Other people will say, ‘Well, it's part and parcel, that's going to be a big problem for the tribes.' But the councils should get ready for suits by their own citizens and non-citizens who will be suing under the Indian Civil Rights on a theory that the ICRA creates implied cause of actions like it did prior to Santa Clara and should prepare.

So what should the council do? It should prepare declaratory injunctive and monetary damage statutes that limit the scope of the remedy. It should pass statutes that say, ‘We author...we waive our immunity for declaratory and injunction actions that violate 1983-like rights of our tribal citizens, but we limit that to prospective relief and no monetary damages.' If you get there before they do it, I think you will survive, but if you don't do it, what will happen is you'll have that decision and then people will jump in court and you won't have the...then you can't enact the statute after the case has already been filed. So you should be proactive and enact these protective statutes that do waive sovereign immunity, but limit the amount of damages. The other thing you should do is write insurance proceeds to cover the new level of risk. Amend existing ordinance to waive immunity for violations of ICRA, but limit the remedies to declaratory and prospective injunctive relief.

On the next scale of hierarchy of horrors that could happen in the decision is that the judges will say that Ex Parte Young-like relief applies to commercial plus off reservation or they could say Ex Parte Young relief applies to commercial plus on-reservation or off-reservation, or they could say, number C, that Ex Parte Young applies to commercial and governmental plus on reservation and off reservation. That would be the worst category going just completely down the line all the way. In this scenario, it is likely the Supreme Court would eliminate sovereign immunity for all on/off-reservation commercial activities and retain sovereign immunity for on reservation governmental activities. I think that's a very likely outcome. I think the Supreme Court will say, ‘We're going to eliminate it for off-reservation commercial activities, but we're going to retain it for on reservation commercial and governmental activities.' That's a likely outcome.

In the next category of things that could happen is number four, whether sovereign immunity is a federal common law doctrine, this gets into who controls federal Indian law, this is in deference to Frank Pommershein's law review articles about whether plenary power is located in Congress or plenary power is located in the court and the point here is that the Supreme Court may assert that it has plenary power to amend its common law and that it doesn't have to wait for Congress to abrogate a statute and they're saying, ‘If Congress is not going to do it, we're going to do it.' The Supreme Court could essentially say, ‘Under common law, we control federal common law, sovereign immunity is a creature of federal common law, therefore we can eliminate it if we want to eliminate it.' And that's in direct opposition to the current rule, is that only Congress can eliminate it under its plenary authority and so that creates plenary authority in the tribal or in the Supreme Court to eliminate this and not through Congress. That would be extreme, but it's possible that that could happen. If the Supreme Court does that, they could eliminate all or any part of the doctrine based on commercial or governmental distinction, off-reservation, on-reservation distinction. In this scenario, it is likely the Supreme Court would eliminate sovereign immunity for all on- or off-reservation commercial activities and retain sovereign immunity for on reservation governmental activities. This is a little more extreme from the Ex Parte Young doctrine because Ex Parte Young assumes that sovereign immunity still applies, but you get around it through the fiction of suing the individuals and the Supreme Court says, ‘Wait a minute, Ex Parte Young doctrinally is for federal law is to be imposed against state officials who are protected by the 11th Amendment. Why are we using the constitutional analysis that doctrinally does not fit to the circumstances of a tribe, which doesn't have the 11th Amendment, which is not part of the constitutional convention? So there's really no reason to go through Ex Parte Young, let's just go to home base and eliminate sovereign immunity and not create the Ex Parte Young exception, which is a fiction to begin with, and it's more of a fiction on a fiction if you're applying a doctrine to a tribe that's not part of the constitutional convention and not protected by the 11th Amendment. Why even go down that street because it's just fiction on fiction?'

So what is the likely repercussions for the tribe? Eliminate sovereign immunity in all contexts including and then the repercussions for the tribe is that general federal statutes, which are numerous, there's probably about 15 general federal statutes that govern the employment relationship. There's for example the Fair Labor Standards Act, the National Labor Relations Act, the Age Discrimination Act, the Equal Employment Opportunity Act -- all of these are general federal statutes that currently do not apply to Indian tribes because they're general federal statutes and they don't specifically identify tribes. I know there is case law out there in which some cases opine that they do apply by implication, but there's other cases that strongly hold these general federal statutes do not apply, but if you eliminate sovereign immunity, that's going to be an impact on these general federal statutes because there's nothing stopping the application then. If there's a general elimination of sovereign immunity, then there's nothing stopping the application of these general federal statutes. And then the elimination of general sovereign immunity again would create the Bill of Rights cause of action, so the 1983 actions for tribal government activities. And then the elimination of sovereign immunity will create leverage relationships. It will change the power dynamic between tribes and the state. The tribes' leverage will dramatically decrease, the state's leverage will dramatically increase and this will impact gaming compact negotiations, negotiations or cases related to tax, tobacco, gasoline, sales, use and income, payday lending, gaming, and other cross-governmental relationships that tribes have with states where sovereign immunity is one of the elements in the leverage matrix between the negotiating parties. If it's eliminated, the leverage matrix is gone, and the balance of power tips in favor of the state dramatically.

So what do you do to get ready? Well, you draft statutes mainly. You draft tribal statutes and those tribal statutes would get to that state before the Supreme Court says that new world of Indian law exists and those tribal statutes would waive immunity for contracts towards and like I said earlier limit the scope of the remedy. Those statutes already exist. Some tribes, the tribe I work for, Grand Traverse Band, has already done that. It has...not because of these cases, but because of other relations, we have a general contract waiver statute, we have a waiver of immunity for tort cases, but we limit the scope of the remedy to expectancy damages on contracts, we eliminate consequential damages, under tort we provide for compensation and for pain and suffering at 1.5 of the actual physical damages that the individual suffered on the tort. So there is a remedy there and what is more important, that remedy is subject to a determination by an actuarial entity, an insurance agent, to measure the scope of the risk so we can buy insurance to cover the scope of that risk. And in our experience, doing that actually lowered our insurance premiums because the scope of the risk was known rather than in a situation where you say, ‘We're going to depend on immunity,' and the insurance was high because the level of the risk was unknown. But I would urge tribes to write statutes that essentially waive immunity and then implement their own tribal remedies for that subject area.

The other area that will be subject to attack is trust funds that various tribes have and the thing that tribes would need to do is basically hire a great trust attorney. You're never going to get at Caroline Kennedy's trust account if you're a creditor of Caroline Kennedy because she has a great trust account with great trust protections. So you need to rewrite trust language to protect the trust accounts of the tribe, which can be done.

Okay, the last -- complete elimination of sovereign immunity of all activities based on federal common law and the courts warrant a judicial power and eliminates common law, create a doctrine sovereign immunity for all on- and off-reservation, all commercial, all governmental activities. Those, in a thumbnail, I hope, is the case. Do you have any questions?"

Audience member:

"What are the chances that you'll have a split on any of these issues, that you won't actually come down with an opinion?"

John Petoskey:

"I think it's minimal. It's very minimal. Four people have already opined where they're at and it's Roberts has not written in support of Indian tribes of the 10 decisions, and so if you just count heads and count votes that's five."

Robert Hershey:

"Hi. Welcome. I'm sorry I came in late. I was in another meeting. If you go back to the opinion in Kiowa, you'll see that the court's displeasure of that on the doctrine of sovereign immunity. It was a 6-3 decision, but even though the people voted to sustain the doctrine, they expressed great doubts about it."

John Petoskey:

"Oh, yes, Kennedy did."

Robert Hershey:

"Yeah, Kennedy did. So I think it would be...I think something is going to happen here for sure. The ICRA [Indian Civil Rights Act] action, the ICRA says that no government in the exercise of its power shall do something. So it doesn't apply to actions against individuals in court, and that's how I can see why maybe they want to go ahead and have some sort of cause of action against individuals, but then you have some problems. You have the legislative immunity of the legislature and the tribal councils doing that. And you also have another interesting twist too is that a number of tribes have put the ICRA into their constitutions. So it's not just a federal statute, but it's a tribal constitutional right. So I think this is a significant case like you said."

John Petoskey:

"Yeah, I agree with you. There is still legislative immunity that you would argue, but most 1983 actions are against executive action implementing some legislation. And all I'm saying is that there's going to be a tribal law 1983 jurisprudence developed if the sovereign immunity is done away with."

Robert Hershey:

"I think so. So you're advocating like a tribal tort claims act."

John Petoskey:

"Right, a tribal tort claims act because if it's going to happen by judicial common law, the only way you can control that is by tribal statutory law which limits the scope of the remedy. Otherwise you have somebody filing a case seeking a multimillion dollar judgment for an executive action. In the absence of a statute that limits it, there's a stronger argument that it should go to judgment and you can't retroactively legislate once the cat's out of the bag."

Robert Hershey:

"Right. One more little point then. So if sovereign immunity is a judicially created common law doctrine, then what does this do to the immunity of the United States? Do you think the United States is covered because it has a federal tortclaims act?"

John Petoskey:

"Oh, yes. The United States is covered because of the federal tort claims act. There are interesting doctrinal issues in sovereign immunity that relate to, and I tell the story and I hope you wouldn't mind me saying this, but I'll tell the story in the relationship of Ed DuMont. Ed DuMont was an Assistant Solicitor General. He works for WilmerHale, which is part of the Supreme Court bar. One of the sad things that has developed over Indian law in the last 20 years is that there was a cadre of about 15 Indian lawyers that were Indians that actually had argued in the Supreme Court over the last 40 years, and they had actually made presentations to the Supreme Court on a wide variety of cases.

Now the Supreme Court Bar is controlled by professional litigants who are very good and they typically come out of the Solicitor General's office and then go into Supreme Court practice as their specialized area of practice. Ed DuMont is one of those individuals. He's a nice guy. He's a great guy in fact, very personable, very bright. He did the Seminole case on behalf of the United States as the Solicitor General arguing that Congress had the authority to abrogate the immunity of the State of Florida and that was held not to be valid, that the 11th Amendment was stronger than basically the Indian Commerce Clause and that Congress didn't have the authority to override the 11th Amendment and the remedy of suing the state in the Indian Gaming Regulatory Act was found to be unconstitutional. Ed DuMont also argued the Kiowa case and that was -- Seminole was 1996, Kiowa was 1998 -- and he argued on behalf of the United States for sovereign immunity in the Kiowa case. Now Ed DuMont is arguing on behalf of Saulte St. Marie in a case that Michigan has filed against Saulte St. Marie, which is the parallel case to the Bay Mills case of whether or not restricted fee lands can be created by the Michigan Indian Land Claims Settlement Act.

So just in that one person, you have a person that has taken all of the various positions in sovereign immunity litigation and jurisprudence and going forward in different capacities. I'm not saying that as a criticism. I'm just saying that as a compliment because it gets very complex. It gets very complex to argue sovereign immunity cases when you're arguing Supreme Court cases for states, when you're arguing it for the tribes, and when you're arguing it for the state. And from the import of your question, you're trying to connect, ‘if they do this to the tribes what implication is that going to have for the states?' And I'm certain there are implications, but you would need somebody like Ed DuMont, who has been on both sides of that question to answer something like that."

Ian Record:

"I had one follow-up question in terms of this category of how tribes should consider responding. You talked a lot about creating laws and statutes and so forth to sort of get ahead of the game on this and sort of do a lot of the legal infrastructure development work that Grand Traverse has already done. But if any one of these say higher-scale horrors takes place, wouldn't it also behoove tribes to seriously consider a dramatic investment, increasing their investment in their justice systems because you can imagine for instance if a lot of these ICRA cases..."

John Petoskey:

"Oh, yes."

Ian Record:

"...would be heard in tribal court, it's sort of one thing to, as you well know, it's sort of one thing to write the law and ratify it, and quite another actually to live it and enforce it. And that's...you can see a ripple effect in the entire justice system, wouldn't you?"

John Petoskey:

"I agree. It's an unintended consequence. I don't know if it was intended or unintended, but one consequence would be these 1983 tribal court causes of actions that may be resurrected that were in existence from '68 to '78 that went out of existence with Santa Clara. And if Santa Clara is overruled, then obviously tribal citizens and non-citizens would argue that the overruling of Santa Clara brings back these implied cause of actions in the Indian Civil Rights Act, which are essentially Bill of Rights-causes of actions against executive actions by the tribal executive department."

Audience member:

"So does that mean you predict the extinction of qualified immunity in all of those other forms of immunity, this could be like a floodgates argument where you..."

John Petoskey:

"Yes, it is a floodgates argument, but as the person in the back said, there's still a lot of other types of immunity. There's legislative immunity, but the jurisprudence that developed from '68 to '78 was stopping executive action by tribal council officers or departments where people alleged that the action was in violation of their civil rights. It's a basic 1983 action."

Robert Hershey:

"Or a Bivens."

John Petoskey:

"Yeah, a Bivens, yeah, more like Bivens, unknown agents, yeah."

Ian Record:

"Any other questions for John?"

Raymond Austin:

"One question is where would these actions be filed? Would they be filed in federal courts or would they be filed in the tribal courts? For example, if the Supreme Court waives tribal sovereign immunity in this case, then 1968 Indian Civil Rights Act...if it goes back to implied cause of action as you say, then where will these actions go? Would it go to federal court or would it go to the tribal courts?"

John Petoskey:

"I would say National Farmers controls, the exhaustion of tribal remedies first and if you have remedies that are there, you've got a stronger argument too. Exhaustion of tribal remedies is federal common law and that's I would argue and have argued that exhaustion of tribal remedies is something that cannot be waived by the courts or the parties and that the parties are mandated to exhaust the tribal remedies prior to going to tribal court."

Robert Hershey:

"And then you would have a Bivens-type action in federal court as opposed to an RCRA action, but you still have habeas ..."

John Petoskey:

"Right. So initially I would say tribal court under National Farmers, of exhaustion of tribal court remedies. Remedies are available there. The tribe enacted an ordinance where it had a tribal torte claims act or a tribal civil torte claims act similar to 1983 empowering remedies for breach of civil rights of tribal members but my advice is that the remedies are limited to prospective relief or injunctive relief and not limited to... and monetary damages are excluded. And most courts, whether they're state, tribal or federal recognize that standard because it protects the public treasury of the government, while providing a remedy to the litigant."

Ian Record:

"Well, thank you everybody for coming. And as I mentioned, this will be online sooner rather than later, we hope. We also are working, Ryan and myself and John in consultation with some others that are closely following this case to try to essentially turn what John has shared with you today into some sort of written output that we can share with the public. And we're not sure exactly where and when, but given the urgency of this case, we hope to get something out to the public pretty soon. So we'll keep everybody posted on that. So thank you, John."

John Petoskey:

"Thank you." 

Ned Norris, Jr.: Strengthening Governance at Tohono O'odham

Producer
Native Nations Institute
Year

Tohono O'odham Nation Chairman Ned Norris, Jr. discusses how his nation has systematically worked to strengthen its system of governance, from creating an independent, effective judiciary to developing an innovative, culturally appropriate approach to caring for the nation's elders.

Native Nations
Resource Type
Citation

Norris, Jr., Ned. "Strengthening Governance at Tohono O'odham." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. February 16, 2012. Interview.

Ian Record:

“Welcome to Leading Native Nations. I’m your host, Ian Record. On today’s program we are honored to have with us Ned Norris, Jr. Since 2007, Ned has served as chairman of his nation, the Tohono O’odham Nation, winning re-election to a second four-year term in 2011. He has worked for his nation for the past 35 years, serving in a variety of capacities, from Vice Chairman of his nation to Director of Tribal Governmental Operations to Chief Judge of the Tohono O’odham Judicial Branch. Chairman, welcome, good to have you with us today.”

Ned Norris:

“Thank you very much. It’s good to be here.”

Ian Record:

“I’ve shared a few highlights of your very impressive personal biography, but why don’t you start by telling us a little bit more about yourself?”

Ned Norris:

“Well, I’ve… born and raised here in Tucson, born at San Xavier when it was a hospital in 1955, and pretty much grew up here and spent all of my life here in Tucson, and got married to my wife Janice in 1973. And actually Friday, February 17th will be 39 years that she’s put up with me.”

Ian Record:

“Congratulations.”

Ned Norris:

“So I really appreciate that. We have children, we have grandchildren, and it’s great seeing them, and seeing how our kids have developed over the years and seeing how our grandchildren are coming along.”

Ian Record:

“Well, we’re here today to tap into your knowledge, your wisdom and experience regarding a wide range of critical Native nation building and governance topics and I’d like to start with tribal justice systems. You’ve taken on many different roles in your nation’s justice system including court advocate, child welfare specialist, and judge. And so I’m curious, generally speaking from your experience and your perspective, what role do tribal justice systems play in the exercise of tribal sovereignty?”

Ned Norris:

“As I was thinking about this, I was thinking about where we were as early as the late 1970s. For some people that’s not early, for some people that’s a long time, but when we think about where our tribal system, judicial system has developed since ’79 and forward, we have really come a long way in realizing that the court system itself plays a significant role in ensuring or demonstrating our ability to be a sovereign tribal entity. Obviously the tribal legislature’s going to make the laws and the executive side of the tribal government is going to implement those laws, but the court system really has a key, significant role in determining, in how those laws are going to be interpreted and how those laws are going to be applied. And for me that’s really a significant role in the tribal judicial system ensuring that whatever we’re doing internally with regards to applying the law as it is written by the legislature and implemented by the executive branch that it is ensuring that sovereignty is intact, that it’s ensuring that we have the capabilities of making the decisions that we need to make in order to govern our nation.”

Ian Record:

“A law professor here at the University of Arizona who you know very well, Robert Williams, who serves as a pro tem judge for your nation’s judicial branch describes this systematic effort your nation has engaged in over the past three decades or so to build an effective, efficient, tribal justice system from the ground up. Why has the nation engaged in that effort and why is that important?”

Ned Norris:

“I think that it has a lot to do with the fact that we’ve got tribal legislators over the years that have really began to take a holistic look at the tribal government as a whole and realizing that for the most part as late as the 1970s, early 1970s, our tribal judicial system was really what I would refer to as a BIA [Bureau of Indian Affairs]-type system. Tribal codes were developed, but they were really taken off of boilerplates of BIA codes and so on and so forth. So I think that our leadership, our tribal council began to realize that these laws don’t always have the kind of impact that we would like them to have. And so in order for us to be able to govern ourselves and to determine our own destiny as it relates to [the] tribal court system, we’ve got to begin the process of changing the system and bringing it more up to speed, so to speak.”

Ian Record:

“And part of that I guess, regaining control of the justice function of the nation, things like making sure that you are charge of law and order, that you’re in charge of dispute resolution, that when you have a young person who has a substance abuse problem that they’re being taken care of, that issue is being taken care of internally versus them being shipped off the reservation, making the system more culturally appropriate, where the people in the community feel like this makes sense to us. Can you talk about that dynamic in the work that the nation has been doing in that regard to, I guess, make the justice system their own?”

Ned Norris:

“Well historically, I think it’s unfortunate that back then, and even to some extent even today, tribes do not have the level of resources available to address the more intricate needs of a substance abuser, an alcoholic, whatever the case may be, and so even today there are needs. There is a need to identify resources, whether it’s on or off the reservation to address that, but I think most importantly is the idea that we would be able to create the kinds of services that we’re using off reservation and bringing those services on the reservation where we’re playing a more direct role in that person’s treatment, in their rehabilitation and really looking at it like…from the perspective that this is family, this is part of our family. This individual isn’t just a member or a citizen of our nation, they are a citizen of our nation that we should take more of a responsibility to try and help within the confines of our own tribal nation, our people. And so I think when we think about it from that perspective, we begin to realize that maybe the services that we have are not as adequate or not as resourceful as we would like them to be. So we’ve got to be able to identify that and be able to identify where those voids are and bring those services into that program or create the program that…where those voids exist.”

Ian Record:

“It really boils down to the nation itself best knowing its own needs, its own challenges versus somebody from the outside that is simply just bringing in something from the outside that may not…”

Ned Norris:

“Not only that, Ian, I think that in addition to understanding that we have…we as the nation membership have a good understanding of what those needs are and what those resources are or aren’t, but also really realizing that if we’re going to bring or utilize outside resources to do this, those resources aren’t always going to be there. We’re going to be there, we’re going to continue to be there, our members are going to continue to be there and what makes more sense to us is to be able to take control and bring those services, develop those services where they lack and provide the services more directly by the nation’s leadership itself.”

Ian Record:

“One of the things that Professor Williams points to in this effort that the nation’s been engaged in around the justice system for the past 30 years is how the nation has invested in its own people, how it’s worked to build the capacity, internal capacity of its own people to provide justice to the community. Can you talk a little bit more about that? You’re a byproduct of that effort.”

Ned Norris:

“Well, I think that when we talk about investing in our own people, over the years in a more significant sense we’re…we’ve been able to establish our gaming operation. That operation has played a significant role in our ability to bring the kinds of services that aren’t there, that haven’t been there, or those kinds of services that we would for many years just dream about having and even to the extent that we’re developing our tribal members. I think, just to give you an example, pre-gaming we probably had less than 500, 600 employees that worked with the tribe and now we’ve got well over, I think it’s about 1,400 tribal employees and we’ve got a varied amount of programs that have been developed that are really beginning to address a lot of the needs that we’ve been having over the years. And not even that, the ability to develop our own tribal citizens in providing them an opportunity to train academically, whether it’s a vocational program, whether it’s a two-year or four-year college, whether it’s earning a bachelor’s degrees, master’s degree, doctorate degree, whatever the case may be. We’ve been able to provide that kind of an opportunity for our members to be able to acquire the kinds of skills that they lack academically and bring those skills back to the nation and apply those skills.”

Ian Record:

“Yeah, and I think what you’ve addressed is there’s a major obstacle for many tribes in that they’ll invest in their people, they’ll send them off to get a good education, but then it’s really critical that there’s a welcoming environment for those college graduates to say, ‘We’re sending you off to get a skill to come back and apply that skill here on behalf of the nation.’”

Ned Norris:

“Exactly, and part of our challenge as tribal leaders is making sure that we create the ability for those members to be able to come back. Too many times I’ve shared with different audiences over the years that we’re graduating more O’odham with bachelor's, master's and doctorate degrees than in the history of the whole tribe, however, where we may lack in the ability to create the kinds of jobs that those individuals trained for. And so we need to prepare ourselves to be able to receive those tribal members back and provide them the kinds of job opportunities that they’ve spent four, six year, eight years in college acquiring, but also not only be able to do that, but to be able to pay a comparable salary for the kinds of positions that they’ve trained for.”

Ian Record:

“I’d like you, if you wouldn’t mind, to paint a picture. Before we went on air you were describing a little bit about what the nation’s justice system looked like when you came on board and started working within that system. Can you compare and contrast what the justice system and what the justice function looked like back in the early 1970s or mid 1970s, to what it looks like now?”

Ned Norris:

“Wow. It’s a night-and-day comparison really, because just physically we didn’t have the kinds of facilities necessary to really do… provide the kinds of justice services that our people should be afforded and we…when we talk about facilities, we talk about staffing, we talk about laws in themselves or codes, back in the late ‘70s, the early ‘80s, there was a time there that our law and order code was a boilerplate from the BIA code and I think that it took some years and some education and some effort to begin the process of understanding that this boilerplate code is obsolete in our mind and we need to begin the process of developing our own tribal codes. And so we began that process in writing our own tribal code, our law and order code, our criminal code, our civil codes and other codes and that took a process, but once we’ve done that and the tribal council adopted those codes, we started to apply them in the tribal judicial system. And so I think that when we compare where we were in the late 1970s to where we are now, the only… the concern that I have is, being a former judge -- I spent 14 years as one of our tribal judges and from ’79 to ’93 --and I’ve seen the court system develop over those years and seen how obsolete the laws were back in the late 1970s to where we were able to develop those laws. But also realize that back then in the early 1990s, I began to think about realizing the time that the court system is no longer processing and dealing with human beings, but they’re dealing with numbers. You become a number at some point, a case number or whatever because early on we came into this with the perspective that we’ve got this tribal member that is maybe committing crime, but there are a lot of factors that are contributing to why that tribal member has committed that particular crime and that we, the court system, although it has the law before it and the law may provide a jail sentence and/or a fine, the idea wasn’t always to throw this person in jail because of the crime they did, but to try and dig a little deeper into what’s really going on within that individual’s situation. Is it the home situation? Is it…was the person an abused person over a time of their life, was that person a victim of incest that just was never dealt with? And so we came to this with the perspective that the court system enforces the laws, applies the law and issues sentences, but some of that sentence has to take into consideration how can we help, how can we help this individual, how can we help the family address those issues that are impacting or having an influence in them committing the crimes that they’re committing?”

Ian Record:

“You mentioned that for several years you were a judge and so you’ve seen firsthand how the court system works and you’ve been a part of that court system. There’s an issue…there’s a major infrastructure challenge for a lot of justice systems across Indian Country. Can you talk a bit about what Native nation governments can do to ensure that their justice systems have the support they need to administer justice effectively?”

Ned Norris:

“One is, there was a period of time where the tribal legislature was what I refer to as the supreme authority on the O’odham Nation, at that time the Papago Tribe of Arizona. And as that supreme authority, there was really not a separation of powers between a three-branch system. And so, over the course of those years, early on the tribal supreme authority, the legislative authority really infringed on or encroached on what should have been an independent judicial system. And so I think, in answer to your question, tribal governments, tribal leadership should realize that it is imperative to the success of a tribal governmental entity that an independent system of judicial…a system to dispense justice is not having the kinds of influence by the other two branches of government that would impede its ability to deliver that justice. And I think that once we begin to understand that and realize that and realize that that not only does that involve the legislature not meddling into the judicial process, but it also has to involve an understanding that because in many tribal governmental entities the tribal legislator controls the purse, controls the funding, that they not use that as a basis to not fund the needs of the tribal judiciary. And I think that because the council has the authority to disperse funding resources that the courts still have to go to the council and ask and present their budget and ask for funding for infrastructure, for whatever the case may be. That there still has to be a relationship there, but I think that the tribal legislature needs to understand too that they shouldn’t use their role as a tribal legislator to deny the kinds of resources that the court system needs.”

Ian Record:

“You mentioned this issue of political interference and this is something that comes up in virtually every interview I do with folks on this topic of tribal justice systems and they all…almost all of them mention this issue of funding and how that can be rather than direct interference in a particular court case, but this kind of more subtle, insidious process of denying funding or reducing funding or holding funding hostage to…in exchange for certain considerations -- that that sends real messages and others have talked about how this issue of political interference can be a very slippery slope. That if a chair or a legislator, once they do it once for one person, word’s going to get around that, ‘You just need to go to this council person and they’ll get involved with the court case on your behalf.’ And in many respects doesn’t that distract the executive…the chief executive of the nation, the legislators from focusing on what they really should be focusing on?”

Ned Norris:

“Yeah, if we’re taking so much of our time and energy dealing with a relative’s court case and not allowing the court to apply justice to that situation, then obviously it’s taking us away from our real role, which is to provide the kinds of leadership and direction that we need to provide to run our government. So yeah, political influence, I think early on was an issue. Now, I think it’s rare. I think that we’ve educated our leadership to the extent that they understand the concept of separation of powers, that they understand that they shouldn’t use their position to try and influence a decision that the court is going to make. We’re not 100 percent, but we’re far less than what we were in the late 1970s and I think that that whole process just took a series of education and in fact, in some cases, some case law that’s already been established where the legislative branch was trying to encroach on the powers of the executive branch, we’ve had those cases in our tribal court system and those decisions are the law at this point.”

Ian Record:

“This wasn’t originally in my list of questions, but since you brought it up, I’d like to talk about the role of justice systems and the judicial branch, particularly your nation, in essentially being a fair umpire when there are conflicts between the executive function -- whether it’s a separate branch or not -- but the executive function of the nation and the legislative function. How important is it to have somebody, whether it’s your courts or an elders body or somebody, some entity that can, when there is conflict between those two functions to say, ‘Okay, let’s take a look at this and let’s be the fair arbiter here.’?”

Ned Norris:

“I think that it’s critical. I think it’s critical to be able to understand at some point in that particular dispute process that we’ve got to sit back and we’ve got to realize that as the two branches that are in dispute, is this an issue that we really want the courts to have a major role in deciding or do we want to come to terms or come to some level of understanding, try and resolve the matter before it ends up in court? I think that we should look at those kinds of issues from that perspective because once you get the court involved, the court is going to make its decisions based on the law, and the law is not necessarily always going to be the way to resolve or the way that you may… either side may want this particular issue resolved, and I think for the most part too, the court itself should realize if there’s an opportunity to resolve the dispute outside of the court, laying down the gavel and saying, ‘I hereby order…,’ that giving the parties an opportunity to resolve this dispute, whether it’s an encroachment by either branch, executive to legislative or vice versa, that we always have the opportunity to try and come to terms on resolution even if it means calling, I don’t know, I don’t want…I guess we could call him an arbitrator or mediator or a council of elders, to come in and provide some level of traditional means of resolving the dispute. I think that that’s important, but it’s important for the parties to make that decision. I’m not always open to the idea that court systems will order you to call in a council of elders or a medicine person to come help resolve this issue. I really think that that’s got to be the tribe themselves to make that decision. Over the years, the court has issued those kinds of orders and I think that they’ve worked, but for the most part I think that it’s the parties themselves need to make that determination and that decision.”

Ian Record:

“I would like to jump forward basically because of what we’ve been discussing and talk about the fact that virtually every tribe that I've worked with there’s always going to be some level of friction between the nation’s executive function and the legislative function. It’s just the nature of politics; it’s the nature of governance. And you being in that role of chairman now for multiple terms, I’m sure you know exactly what I’m talking about that despite your best efforts, there are times when you come to an impasse or there’s a conflict that emerges. Can you talk about how do you build constructive working relationships -- as a chair -- with the legislative branch, the legislative function of government to try to make that relationship as productive and as seamless as possible?”

Ned Norris:

“Well, I have to say that I’m proud of what my first four years of leadership has done to do exactly what you’re asking because I felt and I sensed and I heard from many council members that there was really a breakdown in the relationship between the branches. And we knew then, Vice Chairman Isidro Lopez and I, and now even Vice Chairwoman Wavalene Romero and I realize, that it’s got to be a continuous effort to build that relationship, still maintain and understand there are certain constitutional authorities and powers that each individual branch has, that we need to understand what those constitutional powers are and that we don’t encroach our authority and violate what those powers are, because once you start doing that then you begin the resistance between the two and it doesn’t make for a good working relationship. We knew coming into office four years ago, and even continuing in my second term, that we’re going to need to continue to develop that relationship and I’m comfortable that where we’re at some, almost six years, five years later that we’ve been able to have a level of understanding that decisions are going to need to be made, that decisions that even though I have authority to veto decisions of our legislature, it’s been...in four years I think I’ve exercised that power twice and -- actually three times and -- both of those times those issues have been resolved. One issue is still pending in court, but I think that in itself speaks for the fact that we have a very understanding working relationship between the executive branch and the legislature and it’s really a continuous level of communication, it’s a continuous level to understand where they’re coming from on that particular issue, where you think you’re coming from and how do you work together to resolve your differences and how and at what point do you want to compromise in order to be able to accomplish what it is you want to accomplish. I think for the most part all of us want what’s best for the people of our nation. How do we get there from here to there, we may have some differences. And it’s discussing, resolving those differences to hopefully come to a positive outcome for providing the leadership that our people need.”

Ian Record:

“I’d like to switch gears now and talk about tribal bureaucracies. In addition to serving as your nation’s Director of Tribal Governmental Operations -- as I mentioned at the beginning -- you also have served as its Assistant Director of Tribal Social Services and as a former Commissioner for its Tribal Employment Rights Office, its TERO office. What do you feel from your diverse array of experiences, what do you feel tribal bureaucracies need to be effective?”

Ned Norris:

“Well one, I think clearly the individual that has a level of authority in that bureaucracy needs to understand themselves what…where do their powers derive from and to what extent do I have any power at all? And I think the individual then taking that in the whole from let’s say the tribal legislature or… I’m constantly having to make the kinds of decisions, leadership decisions that I need to make, but I’m constantly asking myself in my own mind, ‘Do I have the authority to do this?’ And I think that that’s the kind of understanding in our own minds that we need to continue to ask ourselves, ‘Do we have the authority to do this? What does the constitution say on this particular issue? What have the courts said on this particular issue? What has tradition said on this particular issue?’ And being able to understand that in all those perspectives I think is really where we need to…it’s going to help in the bureaucracy that’s created, because to me 'bureaucracy' isn’t a positive word in my opinion.”

Ian Record:

“Tribal administration.”

Ned Norris:

“Tribal administration, there you go. The Bureau [of Indian Affairs]’s a bureaucracy, but in tribal administration, I think that if we’re going to be able to…the end result is how do we get to be able to provide the kinds of needs that our people deserve and are entitled to? And are we going to create the kinds of roadblocks…and if there are roadblocks, then how do we break down those barriers, how do we break down those roadblocks, how do we begin to sit at the table with each other? I’ll tell you, there was a point in time where -- and I think it’s with any government -- but there’s mistrust, there’s a certain level of mistrust between the tribal branches or the governmental branches and it’s needing to understand that regardless of what I do there’s still going to be some level of trust. I’ve got 22 tribal council members. I still have to accept the fact that I know there’s at least one, maybe more, of those 22 council members that don’t want to see me where I’m at today and accept that. I accept that, but that doesn’t mean that I not continue to do what I think I need to do in working with my supporters and my non-supporters. They’re still a council member, I still have to work with them, I still need a majority of council to get the kinds of approvals or decisions to do things that I need. We need each other. The council needs the executive branch and the executive branch needs the council.”

Ian Record:

“You mentioned at the beginning of your response about the importance of every individual that works within the nation and for the nation understanding what their role is and what their authority is. Isn’t that absolutely critical when you talk about say, for instance, the nation’s elected leadership versus say your department heads, your program managers and things like that? That there’s a common understanding of, ‘Okay, when it comes to the day-to-day management,’ for instance, ‘of this program, that’s not my job as an elected official. That’s the job of the department head and the staff below them.' Because that’s a major issue that we’ve encountered across Indian Country, where there’s this constant overlapping of role boundaries if you will.”

Ned Norris:

“Micromanaging.”

Ian Record:

“Yes, that’s another way of putting it.”

Ned Norris:

“Yeah, micromanagement. I think for the idea or the idea of overstepping one’s authority where it appears, or at least you’re experiencing micromanagement, I think that for some time there was even a certain level of micromanaging that was going on and attempted to be going on from tribal council members or council committees on executive branch programs and we even see a certain level of that even today, this many years later. But I think how we handled those situations really has an impact, because I think for some time, we’ve got to realize that I’m not going to disallow my department directors, my department heads or anybody in those departments to not take a meeting with the tribal council committee if the council committee wants them to be there. That wasn’t always the situation in previous administrations, but for me, the council needs to be as informed on those issues in their role as a tribal council member. I think that when we think about micromanaging, again I think that it’s really a level of communication as to how you’re going to deliver. I’m not going to sit there and say, ‘Council member, you’re micromanaging my programs and that’s…I have an issue with that.’ I think that how we explain to them that we’re going to provide you the kinds of information that you need, but as the Chief Executive Officer under the constitution I have a certain level of responsibility to make sure that these programs are doing what they’re intended to do and I will assume that [responsibility]…I will exercise that responsibility, but we’re going to keep you informed, we’re going to keep…and if it’s personnel issues, that’s a different story. That’s clearly…we’ve got to protect the employee and the employer, but I think that for the most part we…how you communicate -- I’m trying to explain this. I’m not sure I’m doing a good job of it -- but how you explain without offending is critical to the outcome. And I don’t want our council to think that I’m prohibiting our departments to communicate issues with the council, because once we start doing that then you start to create barriers there and I don’t want those barriers, but at the same time the council needs to understand that if it’s an administrative issue that is clearly within my authority as the Chief Executive Officer for my nation. I have directors, I have people that are…that I hold accountable to make sure that those issues are addressed.”

Ian Record:

“You mentioned a term that I think is really interesting, I’d like to get you to talk a bit more about it. You said, ‘It’s critical to explain without offending.’ And we’ve heard other tribal leaders and people that work within tribal government talk about the fact that the impulse to micromanage, the impulse to, for instance, interfere, for an elected official to interfere on behalf of a constituent, for instance -- it’s always going to be there. The question’s how do you explain to that person that wants to interfere, that wants to micromanage, that this is not the way we do things because we have processes in place, we have policies in place that prohibit me from doing that? That’s not to say, as you said, that we can’t have a communication, that you can’t understand what’s going on and why, or why a certain decision’s been made the way it’s been made, but we have processes in place. How critical is that to have that…I guess to have that basis upon which you can explain without offending? That there’s these processes in place that are critical to the nation functioning well?”

Ned Norris:

“Sure. I think that it’s extremely critical to be able to have a level of understanding, but a certain level of trust. I think follow-up is key. I think if you’re going to have a council member or a council committee that is raising issues that are clearly an administrative function of one of my departments, then I’m not going to leave them out of that issue because they have a reason, they have an importance, they have a constituent out there that brought the issue before them. They need to know, they need to understand and so I’m going to make…I’m going to give them the assurance that as the chief administrator, I’m going to make sure that my people are going to follow up on that issue, but I’m also going to make sure you know what we’ve done. Not necessarily what disciplinary actions might have been imposed, but how are we going to address that issue? And make sure that I get back to them and tell them, ‘Here’s where we’re at with this issue, here’s what we’ve done. I want the program director to come and explain to you where we’re at on this as well.’”

Ian Record:

“You mentioned this issue of personnel issues, which are inevitable. They always arise -- whether it’s a hiring and firing dispute, whatever it might be -- and you mentioned it’s a whole different ballgame, that that really is critical that that’s insulated from any sort of political influence whatsoever. And we’ve heard others talk about how important that is to achieving fairness within the tribal administration, achieving fairness within how the nation operates, how it delivers programs and services. Can you talk a little bit about how your nation has addressed this issue of personnel disputes?”

Ned Norris:

“Well, I have to say that I…we have a lot yet to develop. We have a system to grieve, there’s a policy, personnel policies are in place, there’s the policies outline as to how individuals grieve an employee-employer situation. And I’m not…I haven’t always been 100 percent satisfied with the system itself. And so we’re currently going through a rewrite or a restructuring of what that system should be and really all in the interest of facilitating the process in making sure the process is more friendly to both sides, the grievant and the grievee and so on and so forth, because I think that our process involves a panel of individuals that may not necessarily have the level of training or understanding of what their duty and responsibility is as a panel member hearing that grievance. And so we have a panel and an individual or individuals on that panel that may think their authority is much bigger than what is really outlined or that they may need to make decisions that aren’t necessarily related to the grievance itself and those kinds of decisions have come out and our current policy provides that as chair of the nation, the chair has the final decision over a grievance that hasn’t been resolved at any one of the lower levels. And it’s by that experience that I realize we’ve got to change the process; the process needs to be more equitable I think to not only the process, but to the grievant, the person grieving it themselves. So I think that you want to make sure, you’ve got to make sure…you’ve got to ensure to your employees that we have a system to grieve that is fair, that they have confidence in, that they have the comfort that they’re going to…they know that when they get to the process, that that process is going to move along as fast as possible, but that their issue is going to be resolved. And I think too many times we don’t get to that point, but I think it’s the process itself that needs to be looked at, but we need to develop a process that is fair.”

Ian Record:

“I’d like to talk now about a symbol of pride for your nation, and that’s the Archie Hendricks Sr. Skilled Nursing Facility and Tohono O’odham Hospice. What prompted the nation to develop this amazing, what’s turned out to be this amazing success story and what has it meant for the Tohono O’odham people and in particular, its elders?”

Ned Norris:

“Archie Hendricks Nursing Care facility was a dream for many years. I was in tribal social services when, not long after the tribe contracted [Public Law 93-] 638, those social services from the Bureau. And it was really unfortunate that too many times when our elders needed nursing care that those elders were, as a figure of speech, shipped to some nursing facility in Casa Grande, in Phoenix, in other areas of the state and literally taken away from their home, taken away from their family. And too many times, the only time that those elders came back was in a box, when they’d deceased at that facility. And too many times having our elders placed in off-reservation facilities limited or to some…and in some cases prohibited family members to participate in their care in that off-reservation facility. And it just made sense that we begin the process of creating a facility on the nation where our elders can stay home at a location that we think is kind of central to where members, family members can commute, have more easily the ability to commute to that facility and visit. Too many times…a lot of our folks don’t have vehicles. A lot of our folks pay somebody else who has a vehicle to take them to the post office, take them to Basha’s or take them to somewhere, in a lot of cases drive them to Phoenix to visit their elder in the nursing home. And even though that still is the situation today with many of our members, the drive is a lot shorter than it is just to go to the Archie Hendricks facility. But also not only to be able to bring our elders home and have that service here on the nation, but also to…it’s an opportunity to instill tradition and instill who we are as O’odham into the care of our elders and in doing that, also having the opportunity to train tribal members in that particular service. We have a number of tribal members that have gone on to earn academic programs that are now applying those skills in the nursing home. So it had a win-win situation all the way around, not only bringing our elders, but a job opportunity; an opportunity to create a program that wasn’t there.”

Ian Record:

“Obviously that success story has addressed a particular need and as you’ve shared, a very dire need. But I guess on a larger overall level, doesn’t it send a very powerful message to your nation’s citizens that if we have a challenge, if we have a need, we can do this ourselves?”

Ned Norris:

“Oh, I think that’s true. I think that that’s maybe one of the bigger messages that we’re demonstrating because even today we think about…in fact, I had some, a family member come into my office that were concerned about their child or their nephew that was in an off-reservation youth home placement and that individual turned 18 years of age and was released from the facility. Well, the concern was there was really no services that was provided to him while in that facility and so in their own words they says, ‘Why can’t we build the kinds of facilities that we did for our elders for our youth? Why can’t we bring our youth home into a facility that can provide the kinds of services that they need?’ And why can’t we? We should. We should move in that direction. There was a time when the nation operated a couple of youth homes, a girl’s home and a boy’s home. I’m not sure right now what the history is as to why that doesn’t happen anymore, but I think the bureaucracy is what I remember, was the bureaucracy got hold of the situation. It was probably a licensing issue that the Bureau required that we weren’t able to comply with and so on and so forth, but I’m not suggesting we want to run off, run facilities without being accredited in some way or certified or licensed in some way, but I think that we need to understand that if we’re going to move in that direction…and I totally agree that we need to begin developing those kinds of services on the nation, but we also have to realize do we have the capability to do that? Do we have…? We can build a house, we can build the home, we can build the facility, but do we have the resources to run the kinds of programs that it’s going to require, do we have the trained personnel, do we have the…all the requirements that you need in order to run a sound helpful service to these youth -- can we do that? I think we need to do an assessment ourselves and if we feel we’re ready to make that move, then by all means let’s start putting the…making those facilities available.”

Ian Record:

“It’s interesting you mentioned that your citizens are now thinking, ‘Why can’t we?’ and that’s a very important shift in mindset, is it not? To where…from where in many Native communities 20-30 years ago, it was always, ‘Let the Bureau take care of it. We don’t need to deal with it.’ To now, ‘Why can’t we do it ourselves?’ That speaks to this larger shift that we’re talking about, the message that it sends to the people, does it not?”

Ned Norris:

“Well, it’s…I think about former leadership and I think about leaders that have had an impact in my life and I always share this story about…you remember the TV commercial, ‘Be like Mike,’ Jordan’s Shoes, ‘Be like Mike, play the game like Mike’ and all this and that? And I have my own ‘Be like Mike’ people out there myself. I think about the late Josiah Moore, an educator, a leader, a tribal chairman, former tribal chairman of our nation. I think about a Mescalero Apache leader by the name of Wendell Chino and think about other leaders that have gone on, but have demonstrated their leadership over the years. And I think to myself that those are the kinds of leaders that have vision, those are the kinds of leaders that have fought for sovereignty, that have fought for rights of tribal governments and those are the kinds of values as a leader that I think we need to bring to our leadership. Is, how do we protect the sovereignty of our sovereign nations? And it’s really unfortunate because somebody asked me, ‘Well, what is tribal sovereignty?’ And I says, ‘Well, I don’t agree with this, but too many times, tribal sovereignty is what the United States Supreme Court decides it’s going to be in a case or the federal government,’ and we can’t accept that. We shouldn’t accept that. We don’t want to accept that. We may not be a true sovereign, but we have certain sovereign authorities that we need to protect and we need to continuously exercise and whatever rights we have as a people, we need to exercise those rights, we need to understand what those rights are, we need to protect those rights just as well as protecting our tribal sovereignty.”

Ian Record:

“Isn’t part of that process… and you’ve mentioned this term a lot, assessing, assessing, assessing, assessing. Isn’t part of that process assessing where your nation could be exercising sovereignty or where it needs to exercise sovereignty, but currently isn’t and saying, ‘Let’s push the envelope here?’”

Ned Norris:

“Sure. I think that is. I think that…I like to do assessments, I like to do that mainly because you think you might understand what the situation is and you think you might have the right answer as to how you’re going to attack that situation or address that situation, but too many times we go into a situation not realizing what the impacts of your addressing that issue is going to be and so for me, I like to, ‘Okay, I agree with you, let’s address that issue, but let’s make sure we understand what it is we’re dealing with and whether or not we have the ability to address that issue,’ because to me to do something with half of an understanding really creates, to some extent, false hope because people are going to see that you’re moving in that direction. And if you’re not able to fulfill that movement, you’re going to stop and people may have liked to have seen what you were moving on, but don’t understand, ‘Why did you stop? We had hope in that. We thought you were going to address that issue.’ ‘Well, you know what, we didn’t do our homework and we couldn’t move it any further. That’s why.’ I think that we need to be, if we’re going to make a decision as a tribal leader, we need to fully understand the ramifications of what that decision is and to the best of our ability make informed decisions about the decisions we need to make and then move forward.”

Ian Record:

“I’d like to wrap up with…I’d like to wrap up on a final topic of constitutional reform. And as you well know, there’s been a groundswell of constitutional reform activity taking place across Indian Country over the past 30 years, in particular in the wake of the Indian Self-Determination and Education Assistance Act of 1975. And back in the mid-1980s, your nation, the Tohono O’odham Nation, completely overhauled its constitution and system of government. And I’m curious to learn from you, what did the nation change and why and what did it create and why?”

Ned Norris:

“Well, I had the experience of being involved in my tribal government under the old 1937 constitution and then the new 1986 constitution, and although I wasn’t as involved in the development of the 1986 constitution, I understand some of the history and that it took, and as I understand it, that whole process took some 10 years to accomplish, to be able to…there were several drafts of our 1986 constitution. The constitution committee had understandings and misunderstandings and decisions that they couldn’t come to terms on amongst themselves. So it was just a long, drawn-out process, but I think a 10-year process that was well worth it. And I say that mainly because I saw the government under the old constitution and I see it now under the ’86 and realize that even under the ’86 I don’t think that we fulfilled the possibilities under the current 1986 constitution. Going back to what I said earlier about that supreme authority under the old constitution, in many ways the council was the legislature, the executive and the judicial. And for me, you had that supreme authority under the constitution in 22 members of their tribal council. And so there were…because of that I think there were times as tribal judges or as…well, yeah, as tribal judges where we may have sat back and thought to ourselves, ‘Oh, I’ve got council person’s son or daughter in front of me in this courtroom, I better be careful on what I decide here.’ That consciousness or sub-consciousness about the fact that you’ve got a council member’s relative in front of you that you’re either going to throw in jail or you’re not going to throw in jail: ‘If I throw them in jail, then the council member’s going to come after me.’ I think there were those kinds of influences that the old 1937 constitution brought about and in different ways. That was just an example, but in different ways. And so when we…when the development of the 1986 constitution really brought on the whole concept of a government that is separated by three branches and three branches that are equal in power and authority and three branches that are clearly defined as to what that power and authority is in the constitution itself. I support that and I continue to support that. We’re going through a process now because over the last…since ’86 there have been some things that different districts and different and even I think need to be changed in the constitution. Literally, just take a look at our 1986, our current constitution and you’ve got more pages that cover the powers and authorities of the legislature than you do four or five pages under the executive branch. And so even on paper, is that truly a system that affords the level of powers and authorities that should be granted to each branch respectively. And so I think that constitution reform is good. I think that though there are still things in the constitution today that we don’t understand, that may not have been fully implemented or implemented at all, but I think that…and even educating our members on the constitution, I think, hasn’t been as adequate as it should have been. Because you look at the constitution, the constitution, the powers and authorities of the constitution is derived by the people. The people themselves need to understand the enormous power and authority they have under the constitution and they, under that power and authority, need to hold us leaders accountable for ensuring that we’re protecting not only the provisions of the constitution but protecting them as well.”

Ian Record:

“It’s interesting you bring this up. We’ve heard so many other leaders of other nations whose nations have engaged in reform, either successfully or unsuccessfully, and particularly among those who’ve engaged in reform successfully, in that they’ve implemented certain changes, they’ve had the citizen referendum and it’s passed and all that sort of thing, they’ve all discussed this sort of critical moment where you overhaul your constitution, it becomes law and everyone kind of sits back and goes, ‘Whew, that’s done.’ But it’s really not done because you’ve eluded to this challenge of not just changing what’s on paper, but changing the political culture, changing citizen’s expectations of their government, educating the people about, ‘This constitution has a very direct impact on your daily life and here’s how.’ Is that something that… a dynamic that you’ve seen in your nation in terms of the challenge that it continues to face?”

Ned Norris:

“I think that everything that you’ve just mentioned as a leader whether you’re chair, vice chair, council, whatever the case may be, we need to understand that. We need to understand that simply amending, changing, instituting a brand-new constitution on paper doesn’t solve the problem, doesn’t resolve whatever issues. Yes, it may be a better constitution in your opinion or a group of people’s opinion, but how we apply that, how we interpret that, how we educate the authorities to the people that the constitution is going to impact is a whole new process. And it’s a responsibility that we should take on as leaders to make sure that our people are… have at least an understanding of the constitution, but and I think to some extent have a working knowledge of what that constitution has to offer.”

Ian Record:

“You’ve mentioned vision and the importance of leaders having vision and you mentioned Wendell Chino and Josiah Moore. What’s your vision? What’s your personal vision for the future of your nation? And how are you working to make that vision a reality?”

Ned Norris:

“Vision, you’ve got to have visions in all aspects of leadership. What is the vision for the health area? What is your vision for the continuation of your economic development? What is your vision for the services that are delivered or that lack or that you dream about? What is your vision? And I think that one, the vision really has to take into consideration, where do you want to see your people, where are your people at now, where do you want to see your people five years from now, where do you want to see them 10 years from now? And we want to continue to educate, we want to continue to develop, we want to continue to be able to address the kinds of issues that are impacting, whether it’s a positive or negative impact on our people. We want to be able to identify a continuous identification of needs that our people have and how do we begin the process of addressing those issues, those needs, those whatever the case may be. I think that vision involves all of that and it’s not simply saying, ‘Well, my vision is that we’re going to rid the Tohono O’odham Nation of unemployment.’ That is a vision, but how do you get there? What do you…you have to…in order to have vision, you’ve got to be able to understand that there are things that are going on now that are going to impact your ability to apply that vision; and unless you understand what those issues are here, your vision isn’t going to mean anything. And so the vision might be big and it might have a bigger perspective, you want to address the health needs of…our vision is to eliminate diabetes amongst the O’odham. Great! I think all of us that have those kinds of problems on our nation want that as a vision, but how do you get there? What do you have to do now in order to address those issues? I want our kids to be positive, productive citizens of not only themselves and their families and their extended family and their communities and their nation, but I also want…I realize that there are things that are impacting our kids now that are going to have an impact on whether or not they’re going to be a productive individual. Too many times we take, we accept things, we accept things as the norm. Too many times, we accept alcoholism as the norm. Too many times, we accept drug trafficking or human cargo trafficking as the norm. That is not who we are. That is not the norm, and we need to impress on our people that those things are having negative impacts on us as a people as a whole and those things are going to have those negative impacts and are impacting our future, are impacting our ability to be the people who we are. And so the vision is being able to realize and understand those issues and make the kinds of changes in order to have a productive nation.”

Ian Record:

“Well, Chairman Norris, I really appreciate your thoughts and wisdom and sharing that with us. Unfortunately we’re out of time. There’s a lot more I’d like to talk about and I think we’ve just scratched the surface here, but I really appreciate you spending the time with us today.”

Ned Norris:

“I really appreciate the opportunity. Thank you.”

Ian Record:

“Well, that’s all the time we have on today’s program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at www.nni.arizona.edu. Thank you for joining us. Copyright 2012 Arizona Board of Regents.”

John McCoy: The Tulalip Tribes: Building and Exercising the Rule of Law for Economic Growth

Producer
Native Nations Institute
Year

Former Manager of Quil Ceda Village John McCoy discusses how the Tulalip Tribes have systematically strengthened their governance capacity and rule of law in order to foster economic diversification and growth. He also stresses the importance of Native nations building relationships with other governments and non-governmental partners in order to achieve their strategic goals.

People
Native Nations
Resource Type
Citation

McCoy, John. "The Tulalip Tribes: Building and Exercising the Rule of Law for Economic Growth." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 18, 2009. Interview.

Ian Record:

“Well I’m here with John McCoy who is the general manager of Quil Ceda Village, which is an economic development entity of the Tulalip Tribes in Washington, and he also serves as representative for District 38 in the State of Washington legislature. I’d like to thank you for being with us today.”

John McCoy:

“I’m very happy to be here.”

Ian Record:

“I’d like to start by asking you a question that I ask of virtually everyone I sit down and chat with and that is, how would you define Native nation building and what does it specifically involve for your nation?”

John McCoy:

“Native nation building is providing whatever particular tribe it is the tools in order for them to govern themselves and provide tools like economic development for self-sufficiency.”

Ian Record:

“How about for Tulalip, what does that involve for you, that process that you just described?”

John McCoy:

“Well, at Tulalip we began a number of years ago. In the ‘80s our chairman at the time, Stan Jones, was very instrumental in getting the Indian Gaming Regulatory Act passed in 1988. And so with that act then, tribes started to move to build these casinos so that they can get resources to do economic development. So at Tulalip, we opened our first casino in ‘92, but we had a bingo operation that opened in ‘82, then a casino that opened in ‘92 and we began the process of diversification. And so consequently, through that diversification, we created Quil Ceda Village, which is a federal city that we created with the help of the federal government. And so that established our economic base and the need to start diversifying, because gaming could go away at the stroke of a pen on any day, any time, so we needed to diversify. So we’ve been on a quest, if you will, of diversifying our economic base. Right now, the base is primarily retail and gaming, but we need to do other things, technical, biomed, biotech, anything along those lines. And so I am working to attract those type businesses to Tulalip. So this is a long-term process, that is our vision and our goal and every now and then we’ll meet to adjust the goal. We don’t change the goal, we adjust it, and then figure out what we need to do for the next five years to get to that goal.”

Ian Record:

“So you mentioned that Quil Ceda Village, which has become the economic engine along with gaming for the Tulalip Tribes and specifically moved it down this path of economic diversification, which as you mentioned is critical to sustainability because you don’t want to be in the situation where you have that one economy or that one industry that you’re relying solely on. How did Tulalip Tribes come to the point where it said, ‘Federally chartered city, this is the way to go,’ because as far as I know, you’re the only tribe that has a federally chartered city?”

John McCoy:

“Yes, we do. In fact, there are only two federal cities in the United States: Quil Ceda Village and Washington, D.C. We’re the only two. Back in ‘94, summer of ‘94, we had a general council meeting and out of that general council meeting they told the business manager, who was me, that I was not to do any development on the interior of the reservation, I could only do development in the northeast corner of the reservation along I-5. So with that in mind, I started looking around at the properties up there in the northeast corner of the reservation. Well, at the time, a very large chunk of it was taken up by Boeing. Boeing had their test facility out there where they tested engines, where they did the shooting the chicken into the windshield, testing the covers off missile silos; they did all kinds of interesting things out there. Well, that lease was to lapse in 2001, but they had the option, their option, to extend it out to 2011. So looking at everything that had been done, and I talked with the council and they basically told me, ‘Politely ask Boeing to leave, that we need that property for our economic development.’ So I began the discussion with Boeing and they agreed that they would leave in 2001. We actually...they started their cleanup and dismantling their facilities out there and they discovered that they actually could leave by 1999. So they actually left, but they still paid us for the two years left remaining on the lease, which was nice of them. And then we proceeded about the development of Quil Ceda Village. Well, a reservation attorney and I had been having numerous conversations about, ‘How should we structure this? What would be the most advantageous to the tribe?’ And our reservation attorney, a lot of folks know Mike Taylor, he’s quite an innovative guy. And so he came and he said, ‘Well, this has never been done before and I’ve done a lot of these business deals and structures and everything.’ He said, ‘Let’s try a federal city.’ And I had to think about that, right, because no other tribe had done it. The Navajo had done one, but it was purely within their own bounds and for their own reasons; ours was to attract off-reservation businesses on to the reservation. So our structure was totally different than the Navajo model. So we created this federal city. We had to get approval of the IRS [Internal Revenue Service], Department of Justice, and Department of Interior, and that’s a very long story, but anyway, we got it done. And so we created the city and we did that for a couple reasons: to position ourselves to be able to employ our own taxes -- and a lot of folks just don’t understand tribal governments. You say 'tribal government' and their eyes roll back in their heads. They just don’t get it. They don’t...whereas almost every tribal government in the United States is structured like a state government, everybody understands state government, but for some reason when you say tribal government, they just lose it. So we created the Consolidated Borough of Quil Ceda Village and called it a municipality. Then everybody was okay with that, they understood that. And so we created a charter, we created ordinances, and we put them all online. So anybody can go to the Quil Ceda Village website and see all our ordinances and our charter and our leasing procedures. Our leasing procedures were very important because then potential tenants could go online and see what the process was, have their attorneys look at it, and then we could work on a deal. So we had something that they could see and that it was a process and they understood the process. So there was no mystery there. The only hang up that we get is that we have a very aggressive -- progressive, not aggressive -- progressive court system and so any disputes we have in the contracts they’ll be done in tribal court. Well, a lot of them balk at that. We’ve had some tenants that we really wanted, wouldn’t come in just because of that fact, but I also reminded them that their court system was hostile to me. So it’s not a good environment. I said, ‘Our court system is very progressive.’ And in fact, in ‘94 I went to West Law and asked them if they would post tribal ordinances and opinions and court decisions and all that; [they] didn’t want to talk to me. Three years ago, they come to the door, ‘Would you join us?’ And I said, 'Naturally, we’ll join you.’ And so now our opinions, ordinances and decisions are posted on West Law so that everybody can see our track record. And a number of other tribes are doing that also, which is very good for Indian Country because now everyone can see how the courts are functioning and they can have a degree of basically a predictable outcome and that way tribes will then get full faith and credit. So that’s the big deal, full faith and credit.”

Ian Record:

“So you made reference to the charters, the codes, the ordinances, the procedures that you guys had to put in place to make this very innovative approach to economic development work. Can you speak to perhaps some of the other legal infrastructures, the other political infrastructures and perhaps the capacities that you guys had to put in place to really pull this thing off?”

John McCoy:

“It was very deliberative because we had to plan everything and put it in sequence. We had to come up with a ‘governmental structure’ for the Quil Ceda Village. And so what we did is that Quil Ceda Village is a political subdivision of the Tulalip Tribes, but it has three council members. Those three council members govern what goes on in Quil Ceda Village. And so once we established that, then we got our charter done and then we started employing our ordinances. Now we employed ordinances as we need them because me as a state legislator understand that too many ordinances become an encumbrance. And so I’m trying to address some of those issues in the state government. But in Quil Ceda Village, because I have some control over it, we only issue ordinances as we run into problems or if we anticipate a problem, we see something coming down and then we’ll create an ordinance and then we’ll post it. And it’s done...that process is just like any other municipality. They have to have two open meetings and then...before the passage of the ordinance. They are public meetings. All our meetings are posted online. So we put all those in place and we’re functioning like a government. We do everything else that any other municipality does. We take care of roads, traffic lights, street lights, water lines, sewer lines and we also have a state-of-the-art sewer plant.”

Ian Record:

“You mentioned your tribal court system and how progressive it is. We’ve had occasion to bring one of your judges, Theresa Pouley, down to some of our seminars with tribal leaders and she takes them through a very powerful overview of the incredible work that they’re doing there in the court system. Can you talk about that court system and specifically what prompted Tulalip to essentially reclaim the function of justice, providing justice to the tribes? Because previous to the establishment of the current court system that was something that the State of Washington largely had control of.”

John McCoy:

“Right. For a tribal government to operate effectively, they need all the tools in the tool bag in order to be effective in the protection of their sovereignty, the treaty protections and those issues. So in ‘94, Mike Taylor again, he said, ‘John, we need to get the state to retrocede.' So I took that up and I went to Olympia and created legislation. It took me a couple years to get it passed, but they finally passed it. I kept reminding them while I was lobbying them saying, ‘There’s seven other tribes that already retroceded so you’re just adding us.’ But there were some tense moments of some very conservative-viewed people that didn’t like that idea that law enforcement, tribal law enforcement could arrest somebody. So that happened on both sides of the aisles, it just wasn’t any one party. So that took a little bit of work on my part, but we got it done. So then that allowed us to open up and create our own law enforcement department. Well, when you’re going to be doing things in law enforcement, you need a court system. So we started building the court system along with the law enforcement. We built them together. And so our court system has gotten quite progressively, like I’ve said. They do the standard court proceedings, but we also do the one step further in bringing in our culture. We have an elders' panel that reviews and works with first time offenders. So these are non-violent crimes; violent crimes have got to do the normal process, but the non-violent crimes, the elder panel will do an intervention and they will work with them and hopefully help them to see the error of their ways and that they start making the appropriate decisions. So that’s actually been quite effective and so we’re quite proud of it. And so because of the notoriety we got from our court system being honored by the Honoring [Nations] Program, we’ve had tribes from around the nation come in to see our courts and we’ve also had Afghan come to our court to view it. And one of their...the professor that...the UW professor that brought them up, through his wife, who is a state legislator, had informed me that after the visit to our court system the Afghan judge said, ‘Well, your western law’s okay, but we like that tribal court better.’ So that was quite a feather in the hat.”

Ian Record:

“And your court system over the past several years has really begun to produce some pretty dramatic results in terms of its ability to combat crime through the alternative methods, through the restorative justice approach than the predecessor did it, and it’s the kind of standard western punitive approach to justice.”

John McCoy:

“Right.”

Ian Record:

“Isn’t that right?”

John McCoy:

“Yes. So that’s why I, down in the state legislature I talk about those things down there. Why, these first-time offenders, why do we got to throw them in jail? Why don’t we have an intervention program? So the state had been doing drug courts, which were good. Unfortunately, this last session there were some budget cuts and a few of the drug courts got cut. But we need to do more of that. Tribes know how to do it. They’ve been doing them for millenniums and that’s how they...that’s what their court system was, intervention and trying to show them the error of their ways and start making more appropriate decisions. So there’s...I say that our non-Indian friends, I tell them, I said, ‘Don’t you get a little envious that you don’t have any culture? You have none. Whereas we have some culture, we have some history that for millennium and we did things like that.’ So to me it’s the right approach. That’s how it should be done. Just take the first-time offender. Most of the time it’s a young person, young people they think they’re indestructible. The world is their playpen and basically they do the right things and then for maybe 30 seconds out of their life they did something wrong. If it’s non-violent, we should intervene and help them work through that, not throw them in jail because if you incarcerate them, where are they going? They’re going in with a bunch of other bad people that really do bad things and they give their stories to this person and they pick up some more bad things to do. So let’s keep them out, let’s intervene first. If it doesn’t work, then you do the other methods.”

Ian Record:

“So just how critical are tribal justice systems overall, which include the court, law enforcement, etc., just how critical a role do they play in rebuilding Native nations?”

John McCoy:

“That is all part of the structure. That is how you...how you use and deploy, implement your sovereignty. Those are tools. This is how it leads to self-sufficiency. You have control of your destiny. You are making tribal governments make the rules. They just need a court system to help them follow the rules that they wrote, which is only appropriate because that’s what everybody else does, so why not us? So law enforcement and court systems, health systems, family services, those are all integral parts of a tribal government in order to be self-sustaining and self-governing.”

Ian Record:

“A follow-up question to that about justice systems: what role do they play in terms of supporting a Native nation’s efforts to create a strong economy, a strong sustainable economy?”

John McCoy:

“Law enforcement gives your customer base a sense of safety, that there’s somebody here to protect me when I’m there. At Quil Ceda Village during the normal week, we get over 30,000 visitors a day. During the weekend, it’s over 50,000 a day. So the mere presence of the law enforcement vehicle cruising the parking lots and the streets and everything gives everybody a sense of safety, that they’re protected and that they can come here and enjoy whatever the amenities are and not have to worry about being harmed.”

Ian Record:

“The research of the Native Nations Institute and the Harvard Project has found that in fact, justice systems are a critical pivotal factor in whether a Native nation can create a strong economy, one that can stand the test of time and I’m curious to know, the Tulalip Tribes are one of those regarded as having a very strong, a very independent, empowered court system. And so from that experience, I was wondering if you could speak to what you feel are the requirements of a strong, independent court system. What does it look like, what does it require? Granted it may, because of cultural reasons, it may look a little bit different from place to place, it may employ different methods, but in terms of organizationally, functionally, institutionally, what does a strong independent court system require?”

John McCoy:

“Again, you hear me say tools a lot. This is a tool. Naturally you need your judges, experienced trained judges. You need your court clerks and that they know how to run the court so that the judges can do what they do and don’t have to worry about the administration; so you need a good strong administrative section. You also need public defenders because not everybody can afford an attorney; so you need public defenders. And then, we like to think all judges judge and sentence the same way. Well, they’re human beings and on occasion they make a mistake and so consequently you need an appeal system. So you have to have an appeal system in place so that something could be appealed. Now after that appeal, if you still don’t like it, well, then that’s when you move to the federal courts. So there is redress, you have protections of public defenders, you have your prosecutor and then they all are independent. They make their decisions, then you have the judge making their decision or the jury, yes, we have juries and we have an appeal system. So that’s what really makes it strong. You have all the elements, everybody knows what their job is and they just implement.”

Ian Record:

“And doesn’t that then require tribal leadership, particularly legislators who are setting a budget, to treat and fund those justice systems as a full arm of the government and not necessarily as a program? We often hear tribal judges for instance lament the fact that ‘Where I work, they treat us as just another program,’ versus something larger and something more encompassing.”

John McCoy:

“Right. They have to be independent. They have to be independent and not worry about political consequences. So consequently at Tulalip the court system comes in, here’s the budget. So normally, without hesitation they say, ‘Okay, here’s your money.’ They can’t tell them how to spend it, they just give them the money and then they...the court administration then takes care of the budget. So you have to give them that autonomy. Same with law enforcement, you’ve got to do the same with law enforcement. ‘Here’s your money, now you go do your job.’”

Ian Record:

“And I would assume that holds true for not just the justice systems, but the other critical functions of tribal government...”

John McCoy:

“Yes.”

Ian Record:

“...where leadership has to, at some point, say, ‘I’m going to delegate this authority to you to carry out the long-term goals of the nation.’”

John McCoy:

“Right. So that’s where the leadership, the elected leadership, their role is set policy, their role is not day-to-day administration. They set policy, then let their organizations function. Trust them, they’ll do the right thing.”

Ian Record:

“I want to turn back to economic development for a bit. And the NNI and Harvard Project research over the past few decades has clearly shown that rules are more important than resources when it comes to building strong economies. So for instance, you can be a nation with tremendous resources, perhaps natural resources, human resources, financial resources, but if you have a lousy set of institutions or rules, you’re going to be hampered in your ability to move your nation forward. Whereas, on the flip side, you may be a nation that has limited resources, but if you put in place a really good environment of rules you can really leverage those limited resources and begin to grow your nation and move it forward. Is that something you see and perhaps one of the reasons why Tulalip has paid such great attention to this issue of rules?”

John McCoy:

“That is correct. When I first came home in ‘94, I had gone off in the Air Force for 20 years and then I worked for a large computer firm for another 12 and then I came home. The rules and regulations and policies that were in place at the time were for a government of maybe 75 people or less. But when I came home in ‘94, we were up to just a little over 200 and so...and then policies, procedures and ordinances hadn’t been updated and so they were unwieldy, they were difficult to use for a larger organization. So we set about changing those. The first one we had to do, which was the most glaring, was a new human resources ordinance. That had to be done, it was accomplished, had input from lots of folks, and so it’s a good ordinance. The only issue that I might have with it, its management is guilty until proven innocent. Everything is on the employee. So anyway, it causes the managers to be really on their toes making sure that they’re doing things right. So in that process there’s also an employee grievance system, you need that. So you need some sort of dispute resolution in there so we have a very good dispute resolution process. So the rules are published and they’re out there for everybody to follow. When someone new comes onboard, they’re given a copy. ‘Here’s your copy of the human resources ordinance,’ and we make them sign a receipt for it so they acknowledge that they got it. Now we can’t make them read it, but it’s there for them. So then there was other ordinance, the ordinance of setting up the courts, the ordinance setting up the law enforcement, those had to be accomplished and then those things that they needed to make them function. So setting up strong policies is a necessity because you need predictability. Back running...when tribes were very small, employees of two, three, 10, 20, 30 people, well, you can run it like a mom-and-pop grocery store. Well, now, tribal governments are big business. They can’t be run like a mom-and-pop grocery store. You need processes in place to remove as much of the political atmosphere as possible so that they can function with reliability and respectability.”

Ian Record:

“So from what you’re saying, those are essentially vital to the efforts of the Tulalip Tribes and other Native nations across Indian Country to move from the days when they largely relied on a dependent economy, if you will, where they’re heavily reliant on outsiders for instance for federal appropriations and transfers to get by to essentially a situation where Native nations themselves are in the driver’s seat of economic development. So it’s those codes, it’s those institutions that you talked about. Are there any other vital pieces to that puzzle of moving from that dependent economy to a productive self-sufficient economy that you can share with us?”

John McCoy:

“Sure and it’s quite simple, it’s education. One of the things that I helped Dr. Alan Parker set up, and there are a number of [them] like at the University of Arizona, that you have these classes where you put in tribal government like the Master's of Political or Public Administration. At Evergreen State there’s, I think it’s two weeks of total immersion into tribal government as part of public administration. So that way when a tribal member gets an MPA, not only do they get exposed to the non-Indian type processes, but they get exposed to good practices in Indian Country so that they understand what their role is. So education is extremely important. At Tulalip, any tribal member that wants to go onto continuing education, whether it’s into the trades, community college, four-year university, graduate school, we pay for it.”

Ian Record:

“I want to start off with a general question, which is how does collaboration or building those relationships that I just mentioned empower Native nations to advance their strategic priorities?”

John McCoy:

“Okay, as you remember your history, we’ve been here for millennia. So we’ve always been here and we’re not going anywhere. Well, they’re not going anywhere either. So we have to learn to work and play together and you do that through collaboration, by working with the surrounding communities in solving the common problems. And we do, we have common problems. So for it to be a successful endeavor, then we need these collaborations not, like I said, we’ve got our own law enforcement, we have our own courts, but we still because we interact with non-Indians, we still need their law enforcement and their court system because when we catch a bad guy on the reservation who’s non-Indian, well, we’ve got to turn them over to the state court. So we have an MOU in place between our law enforcement and the Snohomish County Sheriffs that says, if we apprehend a non-Indian, we turn them over and they have the full faith and credit of the law officer that did the apprehension that his testimony in court will be valid. So in that process if we have to put an Indian in jail, well, we don’t have our own jail so we need an agreement with the county to incarcerate our person their jail and pay for it. So court system, same thing, working with cities on water agreements, sewer agreements. So we have a lot of common issues that we need to address and being able to work so that we build a trustful relationship because if everybody around us hates us, then it’s going to be difficult for your economic engine to work. So you have to work hard. It’s okay to say, ‘I’m Indian and this is my land,’ but we need your help and support. So you have to educate them about yourself so they know who they’re working with and then you can build these collaborative relationships.”

Ian Record:

“We see the sentiment out there in Indian Country and I think we’re seeing it less and less, but that tribal sovereignty means you need to insulate yourself and you need to kind of be those islands within surrounding hostility and therefore if you enter into some of these MOUs for instance with the state jurisdiction or local municipality you’re somehow relinquishing your sovereignty by doing that or by compromising your ideal solution if you will. But aren’t in fact those sorts of initiatives that Tulalip Tribes and many other tribes are taking more and more, aren’t those in fact an expression of sovereignty because you as a tribal government, as a nation are making that sovereign choice to say, ‘Hey, we’re going to engage this group. We’re going to engage this group, we’re going to develop this relationship in order to advance our strategic priorities’?”

John McCoy:

“That’s correct. At Tulalip, we view these collaboration efforts as strengthening our sovereignty. We’re not creating... Yes, in essence we’ve created an island, but it’s a seamless border because we’ve cross-deputized our officers; they can go on and off the reservation. In fact, yesterday the Washington State Supreme Court, even without an agreement, a tribal law enforcement [officer] can continue a fresh pursuit off reservation and that was a decision yesterday by the Washington State Supreme Court. So yes, in essence, if you want to look at a political boundaries and things, yes, it’s an island, but it’s how you employ it by collaborations, agreements, then those are just lines that can be crossed easily back and forth. And in Tulalip’s opinion, it strengthens our sovereignty because we’re getting recognition of our borders, of our jurisdiction.”

Ian Record:

“And it’s ultimately about solving problems. And I know from my research on Tulalip that you’re undertaking these sorts of efforts not just with other jurisdictions, but with other parties in order to solve problems, other private interests and a great example of that is the anaerobic digester plant. I hope I pronounced that correctly. This project that you developed working with some traditional adversaries, the local dairy farmers, who you, previous to this project, had battled for years on the issue of water and water quality. Can you talk a little bit about that project and how it came about and how it’s serving the interests of the nation?”

John McCoy:

“Okay, well, the dairymen actually came to us through our Natural Resources Department and they came to us and to me and we began the discussion. And we put it together because it was the right thing to do. We didn’t want any more animal waste going into rivers and streams. Well, how do you do that? Well, your farm’s got to be big enough to where you put it out on the fields and plow it under and enrich the earth, but they had more dairy product than they had land. So what do we do with this? Well, so we decided to work with the dairymen on this project. So as what I had to do, we had to find some land near the dairymen. Well, out there near the dairymen is the Monroe State Penitentiary. Well, they had what they called an honor farm, which was the dairy farm that provided milk for the prison. Well, that turned out to be not as cost effective and so the Monroe honor farm was decommissioned. So what are we going to do with the land? Well, we went to the state and said, ‘The tribe...’ -- now this was before I was elected -- and asked, ‘Can we have the land because you’re getting ready to declare it excess and in the rules, state and federal, tribes are at the top of the list to get excess property and we would like to use it to build an anaerobic digester on it.’ So we take the cow manure out of the system and we create methane gas, which we’ll filter, which will drive a turbine engine to generate electricity.’ So we started that process. Then I got elected and helped pass the bill to make it happen. So as long as that property is used for alternative energy, we can have the land, but if we do something else with it then it reverts back to the state. And it just so happens, I was approached by students from Seattle University that want to go out and do some algae experiments, which is alternative energy. They don’t want to do the traditional turning algae into a bio diesel; they want to look at other processes for algae. That’s a great idea so I said, ‘Yeah, we’ll do that.’ So we’re setting that process up in place right now. But the anaerobic digester is up and running. I had to change map metering law that allows for a generation facility that’s not on the dairy farm, but the dairy farms still get credit for the electricity that’s generated and so we got that law changed. Naturally, it was for the entire state not just for Tulalip, it’s the entire state. So a number of jurisdictions have enjoyed that map metering process and they’re quite happy with it. So the dairymen reduced their electrical cost because they’re generating electricity, then we’re also creating from the solids that are left, we take out, mix it with a little dirt, bag it up and sell it as fertilizer. So it all gets used.”

Ian Record:

“And the revenue from that is, from my understanding, being plowed back into some of your natural resource restoration programs.”

John McCoy:

“Yes.”

Ian Record:

“Because the ultimate goal, from what I understand, is that you want to improve the water quality of the local watersheds in order to bring the salmon back or at least have them come back at a much greater rate.”

John McCoy:

“Right. We’re doing a number of infrastructure projects for salmon enhancement like the membrane sewer plant that we installed. We just had a study done that gave us a draft of it from the University of Washington and Western Washington University that the output does remove pharmaceuticals including disruptors, birth control pills. And so with these reports done, now we should be able, be permitted to discharge straight into streams and rivers because the output exceeds federal drinking water standards. It’s actually too warm for salmon and it’s actually too clean for salmon, so we’re going to put it into a wetland to cool down and get a little nutrients and then let it flow into streams and rivers. And because of that plant that we put in, we convinced the city of Seattle to change their Bright Water Project over to a membrane technology. And other jurisdictions around us have come and visited and looked at it and said, ‘This is great, we’re going to go this direction.’”

Ian Record:

“So you’re becoming a model not just for other tribes, but other governments everywhere.”

John McCoy:

“Yes.”

Ian Record:

“That’s fantastic. I wanted to finish up with a short discussion on your experiences, trials and travails, as a state legislator. Being a Native American and a state legislator you’re in a very small group, but a growing group.”

John McCoy:

“Yes.”

Ian Record:

“And I was curious to know, get your advice perhaps, on what Native nations and leaders can do to advance their priorities through the state legislative arena. You have experience on both ends of the spectrum, both as a tribal leader and as a state legislator. What advice can you give them in terms of perhaps advancing more effectively their priorities in that arena?”

John McCoy:

“Well, my advice to them all is to create a governmental affairs office to where these folks just work on policy, that they work with legislatures, with county governments, with other city governments because you need to touch them all because they pass laws that infringe on the tribal sovereignty. So you need to be there to educate them so that they modify their law to where it does no harm to the tribal sovereignty. They’re not doing, my personal opinion, 99 percent of them are these laws that infringe on tribal sovereignty is done out of ignorance, not maliciousness. It’s out of ignorance. Once you inform them, educate them on the issue, then they adjust their language to where they do no harm. So they need to be at the city level, the county level, the state level and we’ve always done the federal level. So we need to get down into the state level. This last year, New Mexico passed, codified their agreement between the governor and the tribes on how they’re to interface with one another, they codified it. And I was still in session and I got the email saying they codified it. I said, ‘Why didn’t I think of that because we’ve got the same thing.’ So this year I am going to try to move legislation to codify Washington State’s Centennial Accord, which is our version of the framework on how the governor and the tribes interface with one another. So I want to codify that. The only thing different that I’m going to do in my bill is that I’m going to add a legislative interface. New Mexico didn’t and I’ve talked to their New Mexico legislators and they say, ‘Yeah, on second thought maybe we should have added that,’ so they may add that at a later date. But I’m going to start off with the legislative interface and I want to set up a committee that meets during the interim, not during session, during interim on the tribal issues and what pieces of legislation they may see. Now this committee that I want to set up is only made up of chairs of committees because they control what legislation goes through. So if you get them indoctrinated, educated on what the tribal issues are and what legislation they’re going to move, then they’ll have the background on it, why it’s needed and so it should help move these things through. When I first went to the legislature and I went through freshmen orientation, it was five days long and at the end of it I raised my hand and I said, ‘Where’s your Indian Law 101? You’ve got 29 tribes in the State of Washington and you did not have one word about Indian Law 101.’ So, I convinced the chief clerk, ‘You need Indian Law 101 in your freshman orientation,’ and now it’s part of the freshmen orientation. It’s not on the Senate side. I’m still working on them, but I’ve got to get that one done over there, too.”

Ian Record:

“This sounds really fascinating what you’re talking about with this education of the decision makers, the outside decision-makers that make decisions that influence tribes in a variety of ways. Would you recommend as well though that Native nations begin to think more aggressively when it comes to cultivating members of their own nations to actually pursue the sorts of positions that you currently hold in the state legislature? Isn’t there a direct role that they can play as well?”

John McCoy:

“Oh, yes. Whenever I’m at NCAI [National Congress of American Indians], NIGA [National Indian Gaming Association], NIEA [National Indian Education Association], I’m talking to everybody. ‘You need to run for office. You need to get more people in the state legislature, on county commissions, need them there.’ So in Washington State in Whatcom County, there’s a Native American on that. There’s three of us in the state legislature. There’s one running for city council in Pierce County. So they’re starting to run, it’s coming up. When I got elected in 2002, there were only 23 of us nationwide. Today, there’s almost 80 of us. And I happen to be chair of the National Caucus of Native American State Legislators. So I am proud to see it grow. About 25 to 30 are very active in the caucus. This is a non-partisan caucus, so we have both parties are in there and we just talk about tribal issues and how do we work with our counterparts on getting legislation passed. And I think we’re becoming very effective at doing that. So we continue to grow. The organization also includes Native Hawaiians because they have the same issues that we do, but they don’t have their sovereignty yet. That’s being worked on. But anyway, so we’re interfacing, we’re helping each other with legislation and I personally believe it’s a valuable tool now and we need more.”

Ian Record:

“Well, John, I really appreciate your time. This has been quite an education and thank you for sharing your experience and your wisdom and your perspectives with us.”

John McCoy:

“Yes, thank you. I really enjoyed it and everything connected with your organization, NNI and Honoring [Nations] Program. Great programs, I love them and I can’t speak high enough of them. You guys are doing a great job, too.”

Ian Record:

“Well, thank you.”

Honoring Nations: Anthony Pico: Building On the Success of Nation-Owned Enterprises

Producer
Harvard Project on American Indian Economic Development
Year

Anthony Pico, the longtime chairman of the Viejas Band of Kumeyaay Indians, discusses the larger purposes of economic development for Native nations, why it is important for nations leverage their gaming successes via the cultivation of other nation-owned enterprises and citizen-owned businesses, and why nations need to grow their governance institutions to keep pace with their economic growth.

People
Resource Type
Citation

Pico, Anthony. "Building On the Success of Nation-Owned Enterprises." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 10, 2004. Presentation.

Amy Besaw:

"Next up we will have Chairman Anthony Pico give some words and remarks on his experience as a tribal leader in Indian Country and also from their highly successful Viejas bank, the Borrego Springs Bank."

Anthony Pico:

"Good afternoon. [Can you hear me back there?] If you're a tribal leader, you've got to wear those arrow shirts because your own people want to clothe you [Laughter], unclothe you, and flock you. I'd like to thank the Harvard Project on American Indian Economic Development and the Honoring Nations advisory [board] for hosting this impressive symposium and it's a humbling experience to be invited to share my thoughts with so many whose contributions are the foundation of the American Indian and Alaskan Native renaissance.

For me, whether we're talking about great government programs or successful business ventures, the key political issue is, and keeps going back to, exercising our sovereignty. As the Viejas Band of Kumeyaay Indians moved forward on the path of creating economic viability, I have learned two important political lessons. The first is that sovereignty is the most important attribute that we have and the purpose of tribal government programs and enterprise is to enhance our sovereign right to self-government. The meaning and practice of sovereignty is learning. Learning how to get it, learning how to use it, learning how to keep it. Sovereignty is a shared sacred journey with my brothers and sisters and I'm honored to be sharing this journey with you this afternoon. It's a great pleasure to follow Mary Jo Bane.

I'm a great fan of the Harvard Project on American Indian Economic Development and I've read all the reports and had opportunities to integrate some of those within our governance and economic systems. I've often incorporated the outstanding Harvard research on successful business practices in speaking engagements, governmental policies and my own leadership goals. I'm also pleased to have a future leader, or a leader, a young leader, Myron Brown. I'm very impressed with him participating in this discussion. The key to building great programs in a political setting is to have strong and consistent leadership and we are fortunate to have youth willing to step up and begin the sacred journey along with the rest of us. I really appreciate that.

Generating jobs for our people and revenue for our government through gaming has given the tribes, many tribes -- like the Viejas Band of Kumeyaay -- the ability to exercise sovereignty. It has also tested and expanded our respect for the politics of exercising sovereignty. In the process of developing our entrepreneurial ventures, we have had to acquire new political skills both on and off the reservation. To me, sovereignty is the right to govern ourselves, control our resources, follow our respective traditions and customs, and create our own visions for our own communities and our children's future. It's the foundation on which our economic goals and achievements must be built if we are to create a life and not just make a living. Without exercising sovereignty, we are just one more special interest group hacking its way through the competition, fighting for jobs and income, but with sovereignty we create jobs and we create income.

Another surprise, that there was no taking our economic success or failures and hiding out on the rez, at least if we want to be equal to the task of acting as our own strong governments in today's world and in the future. The Viejas has had some advantages including strong tribal government that has been mentored by our elders. Sometimes you've got to be careful because it seems like they're going to spank us [Laughter]. Tribal leadership willing to break new ground and courageous enough to face the risk of failure, owning up to our responsibility, and wise enough to know that commerce will bring change and non-Indians into our lives, and willing to take the heat of forging new relationships in the outside world and the difficult task of balancing our culture and tradition with the new demands of owning non-traditional businesses.

Our councils constantly deal with the issue of which master our businesses serve. Is it the financial bottom line or tribal community? At the same time we have to placate political factions, as you know. They aren't the Democrats versus the Republicans and their divergent ideologies that we saw recently in the political conventions. Our political debates are between traditionalists who worry about the impact of changes and the price of economic success and the self-interest of family factions who elect our councils. The scales aren't always easy to balance.

I would like to share with you what we've learned at Viejas. To do business with our people one must understand our history and to respect how we make our decisions and our priorities one must be acquainted with our experience. To work with us, one must be sensitive to our culture and traditions and it's our responsibility to do the educating. We must offer an economic environment that inspires and motivates loyalty towards tribal prosperity financially, culturally and spiritually. We seek loyalty to a higher cause from our economic gains. Strong tribal governments and healthy Indian communities is that cause, and we must educate everyone who works for tribal businesses or partners with tribal businesses that they are working for a sovereign government. They are invited to benefit from achievements that go beyond making a salary.

Our patrons and tribal members alike know that they are investing in something that will change the world and live beyond our time. Our government must be able to relate to the world of business -- our own and others -- and other governments, and we must be able to do so in a way that is consistent, fair, stable, respected and acknowledged.

We invest time and resources in educating the public, our neighbors, politicians and the media about who we are and what we are. Creating stakeholders -- political, community and business alliances -- is a necessity for our survival. Shaping our futures will require not simply the assertion of our sovereignty -- a claim to rights and powers -- it will require effective exercise of that sovereignty. A challenging task we face today is to use the power we have to build viable governments and government programs. It's filling the void of dependence created by federal policy, the Bureau of Indian Affairs, and others who have controlled our lives and resources. Moving from independence to governmental independence takes economic development but it takes more than money. It takes developing the capacity to govern our people and offer them a place and environment that is stable, supportive, nurturing, strengthening, safe and yes, even sometimes disciplining. It's a political, social and spiritual quest.

The challenge is to make sovereignty a political reality both on and off the reservation, to turn an abstract promise embedded in the federal policy of self-determination into genuine decision-making power. Then we have to back up assertions of sovereignty with the ability to govern effectively. It's one thing to have the power to govern, but it's another to govern effectively. The shift in governance from outsiders to self-governance puts the spotlight directly on the tribes and we can't blame our problems or failures on others, and by the same token we can claim and bask in our own achievements. Decisions tribes make now and the ability we bring to the task of self-governance is crucial to our children's futures claim to sovereignty. The success of our businesses depends on our sovereignty and not only our right to exercise sovereignty but how well we exercise that. And finally, sovereignty education is important because the mainline defense of American Indian freedom is in the court of public opinion and make no mistake, when push comes to shove the voting public may eventually decide the fate of Native America.

In 1960, when the federal policy shifted for the fourth time in 100 years to self-governance and economic self-determination, tribes have been able to work and plan more than just simply survive. The result has been the development of economic opportunities for some tribes. Today, an increasing number of American Indian governments have the best chance that we have ever had in over 300 years to participate in and influence our destiny.

At Viejas, our gaming business quickly surpassed our wildest dreams. The business growth outpaced our marketing management and our facilities. We had to make decisions by the seat of our pants. What did we know about gaming? All we knew was that we needed it. Just as we learned to play the game, the rules always seemed to change. It takes time to acquire the confidence and the experience necessary to manage a multi-million business and enterprises. It takes an attitude adjustment to deal with the thousands of employees and hundreds of thousands of guests milling around our reservation. Nobody was interested before; now everyone seems to be interested in us. Too much attention too soon creates other types of problems. We wasted a great deal of energy reacting rather than being proactive. Now we know the difference and now the task is to translate these experiences into future planning and policy that is effective. Gaming, for example, may raise the quality of life and may reduce dependence on the federal government, but it won't necessarily create a culture renaissance or strong government. Gaming success may in fact discourage or blind us to the need to rebuild and revisit our values. We may get so complacent making money, or so busy, that we fail to invest in building strong Indian governments.

Our current work is creating policy that allows new changes in leadership to build on our successes and avoid our mistakes. Diversification is an economic must; however, each new venture brings new issues and decisions, especially when we engage in off-reservation ventures. We have learned we need policies and programs to settle disputes and they must be fairly discharged and adjudicated. This applies to tribal members, employees and guests, business partners and tribal governments themselves. People must believe that the system is fair and this requires institutionalization and objective policies that are rigorously upheld rather than [subject to] random actions. People can't be fired at pleasure and personal politics needs to be kept out of the government relations.

Separating tribal politics from business -- this is an issue that each tribe must solve in its own way. Learning what is appropriate matters for political debate and tribal leadership versus what matters best needs to be left to those hired to run the business. This really depends on the issue and how the business and the tribes have organized the relationship. However, we have learned experience brings wisdom.

The first rule is that businesses cannot compete successfully when the decisions are made according to tribal politics instead of business criteria. This doesn't mean that the tribe must abandon control; it means the tribe must develop strategies and policies and execute oversight that guide the actions and decisions. The strategic question the Viejas council engages should not be who runs the mailroom, but what kind of society are we trying to build? What are our priorities as a community? What uses should we make of our resources? What relationships with outsiders are appropriate and necessary? Who can we trust? What do we need to protect and what are we willing to give up?

The most difficult decisions for me have been when and how to compromise issues of sovereignty and when to draw the line in the sand. When dealing with the federal, state and local governments there's the recognition of the need for compromise but always the haunting fear that an inch given leads to a mile stolen. Indian gaming and related hospitality and entertainment businesses have boosted tribes to new levels of purchasing power and economic growth and we haven't even begun to scratch the surface. Economic success has also given us an appetite for self-reliance. It also has given us a taste of what it means to once again sit at the Thanksgiving table as participants in America's prosperity and wealth. Two questions for Viejas [are] -- and I hope for you -- how to protect our seat at the feast, and how do we get more Indian people to the table? How can tribes with gaming operations help American Indian governments still trapped in third-world conditions access the resources to rebuild communities and economies? And how can we encourage individual Indian entrepreneurship? One answer is, buy Indian.

There's a spinoff economy of cottage industries and services that serve tribally owned casinos and related businesses. They are waiting to be explored and exploited by tribal entrepreneurs and tribal governments. Indian-owned businesses are not supplying to tribal governments, casinos and other businesses -- then we need to develop that capacity. Just as gaming tribes have created new markets, Indians can create Indian-owned businesses to fill casino and hospitality generated market demands for goods and services. By using the purchasing power, gaming tribes can engage, encourage large international vendors to invest in developing tribal franchises, partnerships, or setting purchasing contracts to reciprocate by buying products from Indian companies. Prosperity and stronger tribal governments create an increased demand for professionals, tribal educators, attorneys, architects, and marketing and management expertise. Each time Indian people fill the markets and supply the demand for goods and services our businesses are creating, we are taking the next logical step to developing a stronger national American Indian economy. Gaming tribes have the markets -- we also have the capital, the other necessity -- to invest in startup operations.

There are new opportunities for joint ventures and financial partnerships and we have help from new unexpected sources, our own banks. Tribally owned banks are a source of capital and growing expertise in accessing money for economic development. Bankers make solid financial partners and experienced advisors in accessing funds targeting and nurturing successful business deals. Banks are not in the business of providing loans; we are in the business of managing loans. The mission of Viejas-owned Borrego Springs Bank is to explore Indian ways of enhancing a self-sufficient and mutually reinforcing national Indian trade economy and profit-sharing network. There's money, markets, buyers as well as expertise in Indian Country to spawn a new generation of business development. In the words I heard yesterday from Chief Oren Lyons, he said, ‘We need only broaden our vision.'

The Viejas band has modeled partnerships among other tribes to increase investing potential and reduce risk. One partnership, the first of its kind in the nation, is a limited liability corporation (LLC) named Four Fires. Comprised of four tribal nations the first venture of Four Fires is a $45 million Marriott Residence Inn hotel opening this January in the nation's capital. Another tribal partnership we've created is closing a similar deal on a hotel adjacent to the Capitol Mall in Sacramento. Both deals mix tribal government investments with non-Indian investors and corporations.

Pairing with someone else also has its advantages in that tribes may not have the expertise to manufacture a specific product. We can hire the expertise. Hiring expertise is hardly new. Indian owned casinos have become expert in contracting with others. If a tribe chooses the right ventures and the right partners and exercises the right management, it can generate discretionary income for the reservation that eventually translates into increased entrepreneurial expertise and activity. Many tribes are also providing the money and expertise as investment and management partners of struggling tribes trying to break into gaming. Again, it's Indians investing in and building a synergistic economy.

Economic recovery at the individual level is a bigger challenge. Many Native Americans don't have the tools -- such as access to capital -- that would allow them to elbow into entrepreneurship and many who do and want to do business with tribal enterprises find themselves rebuffed. We must change this. One way is to create polices within our businesses that give preference to Indian-owned businesses and products. Let me reiterate that what we have here is governmental authority to create the type of work, places, and business enterprises that respect our culture and help our people. That's part of the sovereignty package.

There are obligations as well, such as balancing commerce with our culture, ensuring that the businesses and short-term desire for income and jobs doesn't control the government and blind us to creating a long-term vision for our community. To this end, we must exercise the right and the obligation to plan for our communities. It's hard with all the decisions and time that we must put into building and protecting our businesses, but we must not lose sight of the ultimate purpose of economic development, which is building strong governments and nations.

So how do we do this? We take time to involve our tribal community in envisioning the future, we talk to our children, we talk to our elders, we listen to our hearts and the land, and we sit again in circles to discuss what we want our nations to be like ten years from now, 100 years from now. We identify priorities for our gaming revenues that support the most immediate needs of our people and enable us to create whole and healthy families. We plan for the life of our community just as we research and study our business ventures. So how do we begin creating healthy governments and programs? We learn from each other, we mentor each other, we counsel each other; we have plenty of models right in this room and the Harvard Project has profiled a number of these.

As Indian nations increasingly take over management of social and economic programs and natural resources on our reservations, as we undertake ambitious development programs, our governments tasks become more financially and administratively complex, our government infrastructure becomes more essential to overall success. By infrastructure, I mean those bodies and directives that help keep the fire lit while the hunters are on the trail. It's the glue that keeps things going when the leadership changes or there's a political crisis. It means attracting and keeping loyal employees and developing and retaining skilled personnel. It requires establishing effective civil service systems that protect employees from politics. It means putting into place solid personnel grievance systems and that decisions are implemented and recorded effectively and reliably. It ensures that businesses and future government officials do not have to reinvent the wheel or lose momentum, but rather are able to build on the success and avoid the failures.

At the heart of the quest of self-governance is how should authority be organized and exercised? The task of governing institutions is to back up sovereignty and developing the ability to exercise it effectively. Where do these institutions come from? Should they be simply imported from somewhere else? As the Harvard Project of Economic Development has found through research and with successful tribal governments, the task of governing institutions is to back up sovereignty and developing the ability to exercise it effectively. Our unique societies, languages, worldviews and culture contain the heart and the identity of our people. They offer us a guidance and direction and a new way of solving old problems. They also remain one of the foundations upon which our constitutional, legal and political jurisdictions and governmental authority rests.

Tradition is the root of the tree, yet we must remember the tree is constantly sprouting new branches and uniquely accommodating itself to the environment and times. People are always creating tradition. There was a time when what is now accepted as tradition was bold and new and it was probably fearful and certainly criticized in its infancy. Indian culture is the living branches of the traditional tree. Like our vision of sovereignty, our culture must evolve, find its place in the sun, and continue to create, innovate and reproduce new versions of its self. Then we need to continue to take concrete steps creating not just an environment but programs that allow us individually and collectively to turn our visions into reality.

Cultural match is particularly difficult when interfacing with the outside world. We don't always match. We don't need to. But it's important that when the outside world looks in it can understand and respect what it sees. The idea that money alone is the answer to all of our problems is a fantasy and without sovereignty and healthy attitudes about the value of money it won't last very long. I know now that money is much easier to make than to keep. Building an economic base is important to self-reliance, but self-reliance requires more than finding financial investors. It means building a community in which people want to invest -- not just the capital, but their hearts and their lives. Economics that are not driven by a broader vision and values will eventually fail us.

When I speak of investors, I'm talking about more than just cash-rich joint venture partners, I'm also talking a tribal member considering a job with the tribal government or its tribal enterprise. These investors are people worthy of our utmost respect. They offer time, energy, ideas, skill, good will -- or dollars. They are the reason for economic development, but they will only bet these assets on the tribal future because they see a benefit for themselves and are invited to share in the vision.

It also means taking a critical look at how reservation politics may be hampering rather than contributing to the vision of self-achievement and satisfaction for the future of the community. The age of psychology, of scarcity, are over for some tribes. We must rid the bad habits of fighting over scraps created. We must get back to a vision of plenty, a vision of community, a vision of sharing and mutual support. And yes, we must unify behind a vision bigger than the next per capita checks. We need to see, feel and imagine and reinvent what Indian sovereignty is and we need to do this [within] each tribe and within all Indian Country.

There are different paths and future emphases for tribes. Some will strengthen sovereignty through spiritual and religious beliefs and practices, some will provide new models for strong 21st-century tribal governments and others will focus on economic development. I hope all will focus on healing the pain of the past and the psychological damage of poverty and social disintegration that haunts each generation. It's critical we become aware of our misplaced shame and find ways to free ourselves of the patterns of self-destruction, unrecognized anger, abuse, racism that drives so many to alcohol, drugs and suicide. We have to learn to live life again, not deaden ourselves to it. If not for ourselves, then we must seek to be life-affirming for the sake of our children and the next seven generations.

Asserting sovereignty is taxing. There are always new uncharted territories, whether it's employees, local government or neighbors, the federal government, or the resistance of our own people. California tribes had to overcome powerful political and financial obstacles and a steep learning curve in our political battle for economic parity. Our political victory would have never been possible had we not leaned on and trusted one another. There is no greater service than sharing the road of success with others. There is only one greater honor than to be of service and that is to pass it on.

Thanks to Harvard University, Honoring Nations, and all the great leaders who have chosen by words or example to bring our people from the depths of extinction to the cutting edge of prosperity. We all need a nudge, support from someone or something, to take that leap of faith into the future and this is a long journey that we are taking together.

Sometimes it's absolutely thrilling and sometimes it's terribly discouraging. But when I get discouraged, I think of the blood that runs through my veins came at a high cost of unspeakable atrocities suffered by my ancestors and yours. That same blood has blessed this country's soil, I will not let their suffering go unanswered, and I know that they are with me and they are with you when we make the sacred journey to create a place for that next seventh generation. Thank you."

Great Tribal Leaders of Modern Times: Jayne Fawcett

Producer
Institute for Tribal Government
Year

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

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

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

People
Native Nations
Resource Type
Citation

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

Kathryn Harrison:

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

[Native music]

Narrator:

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

Growing up in Uncasville

Jayne Fawcett:

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

The museum today

Jayne Fawcett:

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

On becoming Christianized Indians

Jayne Fawcett:

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

The story of Gladys Tantequidgeon

Jayne Fawcett:

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

School choices and the experience of prejudice

Jayne Fawcett:

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

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

Jayne Fawcett:

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

The impetus behind the Mohegans seeking federal recognition

Jayne Fawcett:

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

Choosing the Bureau of Indian Affairs process over the congressional route

Jayne Fawcett:

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

Aspects of the BIA process

Jayne Fawcett:

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

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

Jayne Fawcett:

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

Allies and friends in the recognition process

Jayne Fawcett:

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

Response of government officials

Jayne Fawcett:

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

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

Jayne Fawcett:

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

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

Jayne Fawcett:

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

Citizenship in an Indian tribe

Jayne Fawcett:

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

Fawcett’s husband and children

Jayne Fawcett:

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

If there is a down side to prosperity

Jayne Fawcett:

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

The casino, Mohegan culture and the church on the hill

Jayne Fawcett:

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

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

Jayne Fawcett:

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

The United South and Eastern Tribes, USET

Jayne Fawcett:

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

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

Jayne Fawcett:

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

Electoral politics on the tribal level

Jayne Fawcett:

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

And partisan politics on the national level

Jayne Fawcett:

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

The most deeply rewarding work

Jayne Fawcett:

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

And greatest sadness

Jayne Fawcett:

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

The future of the United States and of Indian tribes

Jayne Fawcett:

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

Fawcett loves her role as Ambassador of the Mohegan Nation

Jayne Fawcett:

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

The Mohegan Congregational Church and tribal culture

Jayne Fawcett:

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

The legacy she would leave for her tribe

Jayne Fawcett:

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

When non-Indian view her story

Jayne Fawcett:

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

For the celebration of federal recognition, Fawcett wrote a song

Jayne Fawcett:

[Fawcett singing]

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

[Native music]

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

Editing
Green Fire Productions

Photo credit:
Jayne Fawcett
Mohegan Nation

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

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

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

© 2004 The Institute for Tribal Government

 

Great Tribal Leaders of Modern Times: Gay Kingman

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Institute for Tribal Government
Year

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

In this interview, Gay Kingman of the Cheyenne River Sioux Tribe discusses her 25-year career as a teacher, principal and tribal college president. She also discusses her work as Executive Director of the Great Plains Tribal Chairman's Association as well as some of her past roles, including Executive Director of the National Congress of American Indians and Public Relations Director of the National Indian Gaming Association. Kingman is a fierce defender of tribal rights and sovereignty.

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

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Citation

Kingman, Gay. "Great Tribal Leaders of Modern Times" (interview series). Institute for Tribal Government, Portland State University. Portland, Oregon. 2004. Interview.

Kathryn Harrison:

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

[Native music]

Narrator:

"Gay Kingman, a member of the Cheyenne River Sioux Tribe of South Dakota, is the great granddaughter of Chief No Heart and daughter of Violet and Augustus Kingman. Her paternal great grandfather was Dog's Backbone who was killed in the Battle of Little Bighorn. Gay spent 10 years researching her grandfather and the Indians who fought at Little Bighorn. She was greatly rewarded when legislation was passed to establish a memorial in their honor. Gay's parents had high expectations for their daughter sending her to a school run by the Presentation Sisters where Gay was encouraged to continue her education. She earned a BS at Northern State College in Aberdeen, later receiving a master's in education at Arizona State. During her college years she married and had two sons. Her outstanding career as an advocate in Indian Country was preceded by 25 years in the education field as a teacher and administrator. Venues where she served include Pine Ridge, Eagle Butte, Minneapolis Public Schools, United Tribes Technical School and the Scottsdale Public School system. She was the superintendent of Pierre Indian Learning Center in South Dakota and the president of Cheyenne River Community College. Through all her efforts on behalf of Indian Nations, Gay has remained at heart an educator, one who liked to work with the student no one else wanted, the student causing the most trouble. This depth of commitment to social justice, this willingness to take on tough and stubborn jobs has informed every social task she has embraced. After her sons were grown, Gay went to Washington, D.C. accepting a prestigious educational award. President Carter had created the Department of Education. One of Gay's jobs was to see what could be done for Indian people in the Department of Education. She served as president of the National Indian Education Association which meant lobbying, testifying in Congress and fundraising. Quinault leader Joe De la Cruz brought Gay into the National Congress of American Indians and she was quickly installed as Executive Director bringing the venerable old organization from a financial crisis to a state of stability. She learned the maelstrom of Washington, D.C., developing allies in Congress and with staffers in finding opportunities to educate members of Congress who didn't have Indians in their districts. She cultivated many relationships with national Indian leaders such as Roger Jordain. In 1989 a propitious event occurred that would take Gay's life in yet another direction. She issued a call to the Indian community to come in and help her clean the NCAI offices. One man entered the door whose interest was not in clean floors but rather in taking her out to dinner. Timothy Wapato and Gay Kingman married in 1990. Gay a Democrat and Tim a Republican have been a dynamic political couple working both sides of the aisle through many daunting challenges, not the least economic development in Indian Country. In the early 1990s the times were contentious. Senator Daniel Inouye told tribes they had to get together and do some good education and media on gaming and how it could meet the needs in Indian communities. In 1993 Gay was appointed the Public Relations Director of the National Indian Gaming Association and Tim became its Executive Director. Many individuals, not the least Donald Trump, were hostile to Indian gaming and worked hard to limit it with legislation. To combat these efforts Gay created a PR campaign, Schools vs. Yachts which she conducted from the grassroots to the national level. For this campaign she won a prestigious PR award. Gay's human rights leadership extended to the University of Madrid where she was a guest lecturer at a discrimination and human rights symposium chaired by Bishop Desmond Tutu. In 1998 Gay left her D.C. career to return to South Dakota to take care of her 100 year old father. Today her sons continue in the path that Gay, her father and her ancestors established. Vernon works with Indian business development and Chuck, a lawyer, is engaged with the National Tribal Judges Association. Gay Kingman is a member of the Policy Board of the Institute for Tribal Government.

Family history: Dog's Backbone and Little Bighorn

Gay Kingman:

"My parents, my mother was Violet Rivers Kingman and my father was Augustus "Gus" Gilbert Kingman. My mother... They were both Cheyenne River Sioux tribe members and both part French because the Canadian French came down on the Missouri and intermarried with the Sioux and so we're all part French as well. My grandfather, I remember very well my Grandpa Rivers was, they called him the Little Frenchman. He was a blue-eyed man and would...he fished in the river and would sell fish so I'd go out in the boat with him once in awhile. My father on my dad's side was a descendent of Dog's Backbone who was killed at the Battle of Little Bighorn and he went to school as a young man at Hampton, Virginia. It was one of the first off reservation boarding schools. It's still in existence today. It's a prestigious Black university. I've been there twice now to do research on my grandfather. So the Kingman name will be honored this June 25th at Little Bighorn and I've worked almost 10 years on doing that research and they'll be laying a warrior marker where Dog's Backbone fell warning his tribesmen that the soldiers are coming and the bullets are coming fast and furious."

Gay Kingman's tribe

Gay Kingman:

"I was secure in who I was as a tribal...a member of the tribe and it was never questioned until I guess I grew up and went away and then I always...then I found out there were other people or other tribes and everything. But we had...the tribe that I'm from is a large tribe. We have over probably around 12,000 members, 12,000 something and our land base is quite large and our leadership is...we have an exceptional leadership all throughout history. So I come from I guess a tribe who I'm very proud of and we have four Bands of the Sioux Tribe at Cheyenne River. And those four Bands, on my father's side I'm Minnecojou and then on my grandma's side I'm Blackfeet Band. I guess...I did get an education growing up on my own culture and traditions but it was not anything out of the ordinary. It was just an accepted thing that happened."

Parents' hopes for their daughter

Gay Kingman:

"They set high expectations and it wasn't anything that they demanded but it's just accepted that you do these things. As my family had been great leadership in the tribe, it was just accepted. And so my parents started me playing the piano at I think I was like five years old and I kept that up through college. They sent me away to school so I could have a better education than I could receive on the reservation. That was all expected and I accepted it and went through with it because I believed that they knew what was right for me. I think those kinds of expectations you put with your children and I know for my own sons I didn't demand it but they were expected to go on to college as well and they did. The Presentation Sisters, and I was the only Indian there in school because as I said it was in Aberdeen, South Dakota and it's off reservation. They encouraged me as well as every student there to go on to school. As far as my tribe, the tribe encouraged us and they had financial aid opportunities for us to go on to school but if you think back in those days that was early ‘50s and girls weren't expected to do as much and it was that way on the reservation as well. A lot of the men were expected to go on to college and do great things but women it wasn't and we were geared into being a secretary or we were guided into areas that weren't as I guess progressive. And so after I got my two-year degree I had gone to Presentation College then for two years and I asked to go back onto my four-year degree and the person in charge of financial aid said, ‘No, you've got your two-year degree.' And so I thought, ‘Well, I want to go get my four-year degree of education so I can teach, not just a two year.' And so I went before tribal council and I remember I was so scared to go before the tribal council at that time and I asked them, I said, ‘I want to go on to school and get my four-year degree,' and one of the councilman I'll never forget, he said, ‘Why is it some students finish in two years and some finish in four.' They just didn't understand the degree and how many years it takes and the advanced degree but they gave me the financial aid and so I was able to go on then to Northern State College in Aberdeen and graduate with a four-year degree in Elementary Education. I finished in '63, 1963 and went immediately into teaching. Meanwhile backing up a little bit when I was 19 I got married and I had my first son in 1960 and I always tell my sons that, ‘You have to go on to school because you went to college before you were born,' because I was having them and I was in college and I was doing education and working too because when you go to school you never have enough money to fully compensate you for all of your needs. And so I worked at Penney's and got very low income. And then next door to Penney's was a Woolworth's and they thought I was a pretty good worker and a good checkout so then they gave me a nickel more an hour so I moved over to Woolworth's. It was really a struggle but it was fun because many of us Indian students were struggling together to get through college."

Choosing education as a field of study

Gay Kingman:

"I liked children and so I think education is a way that, it's a springboard too for any other field that you could go into so I went into education and minored in music because I'd had years of study in music, played in the church...played organ in church since I was 11 years old. I guess it was a springboard for me in my career because after education then I went into tribal affairs nationally. We didn't have a good career counseling either in those days. Today I think young people are exposed to all of, a wide diversity of careers. I began teaching on the Oglala Reservation, Pine Ridge, South Dakota and it was grade school. My degree was in Elementary Education so I taught from like first through third grade and then I transferred to...this was for the U.S. Government. Then I transferred to my own reservation, Cheyenne Eagle Butte and taught there and that also was...I think it was like third and fourth grade and then I moved to Minneapolis and taught there in the Minneapolis Public Schools. I've always been one though that I liked to work with the student that nobody else wanted, the student that was causing the most trouble. I can really relate to them well and they relate to me. And so when I was in Minneapolis, the school I taught in was in the south side and I had students there who came from poverty area and students there who had troubled home life. And the class that I had were those students that nobody really wanted and we had a great time. I think...I have such problem with parents who let down their children because many of the problems stemmed from the poor home life or the parents who were drinking or the parents...I had one child whose mother was a prostitute. I used to have to go get the child out of...in the morning sometimes from her home because she'd sleep in and nobody would wake her. And then I was offered a principal-ship. So I moved from Minneapolis to Bismarck, North Dakota and I ended up actually beginning a school. It's kind of every teacher's dream to put into a school all that you've wanted for children and so I started the Theater Jamison Elementary School at United Tribes which is...it's a college, it's University Today. So I moved to Scottsdale and I had a position as the Director of Indian Education for the City of Scottsdale and we had kind of the reverse from what I'd been used to. When I worked on the reservation, our children were more needy, had more poverty. In Scottsdale we had a lot of needy students but it wasn't because of poverty, it was because maybe their parents were gone all the time and they were neglected or whatever. So one of the things that I did with the students in Scottsdale was set up an exchange program with Chinle, which is a school district on the Navajo Reservation and we would bring our students from Scottsdale to Chinle, to the Reservation and they'd actually stay in Navajo homes and they would be exposed to the family and their way of life and then we'd have Chinle students come to Scottsdale and they'd learn what it was like to live in the urban area. And it was wonderful because when we first got to Chinle the Scottsdale students said, ‘Well, there's nothing to do here.' But it wasn't long and they were jumping in the sand dunes and they were hiking up and down Canyon de Chelly."

The American Indian Movement (AIM)

Gay Kingman:

"I was personally impacted by the American Indian Movement when I was in Minneapolis, that began in the late ‘60s and I saw for myself the reason for the American Indian Movement and there was a lot of persecution of Indians in those days and probably exists today but it's gone more underground, it's more subtle. There was a lot of abuse by the police to Indian people. So my husband, the boy's father couldn't...got involved in this because he couldn't let some of the abuse that was happening and he was well educated as well and so he used his ability to write and to speak out against the abuse that was happening. For example, some of the pregnant woman got beat up...there was...in Minneapolis there's an area where a lot of the Indians lived and the police beat her and there were things like that. So a lot of the Indians got together and they formed what they called then the American Indian Movement and they would take people home from the bars before the police got to them because the police would abuse them. They'd get beaten up. And that's how the American Indian Movement began. And I think it had good intentions and it was the best way to do things at the time and it was the best way to help the Indians. My husband then and I started the school for a lot of the children because the children were being pushed out of the public schools. The school wasn't addressing their cultural needs or their other needs coming from the reservation to the city and so we started the Survival School for those children that weren't in school and my husband ended up running that as I worked for the Minneapolis Public Schools. And it's still in existence today and it's an acceptable school today but at the time we had such a hard time getting it going because people thought that it was something that wouldn't last. But yet we had a lot of success with the students that attended because we could attend to their needs, we could address their cultural needs, language was taught as well as we learned the values in the Indian way. To this day Clyde Bellecourt and the people that began it are still good friends because their intentions and what they did were very honorable. Today they run the...some very good programs for people in Minneapolis."

Life as a teacher, mother and activist

Gay Kingman:

"My own children were part of everything that we did. In the Indian way your children go along with you, you don't leave them at home with a babysitter so they were down with the American Indian Movement at the meetings. I taught in the same schools that they went to so I was there daily with them. My husband and I ended up parting ways at Minneapolis. He remained with the American Indian Movement in the Survival School and I left to go to Bismarck and run the school and begin the Theater Jamison School. I did so principally because I felt that the needs of my children would be better served that way for me to be in a more established position and give them a better home life that way."

Sons growing up, a career change, going to Washington

Gay Kingman:

"For the first time in my life I didn't have my sons and it was terrible. I'd walk down the hall to where their bedrooms were and I'd just get a lump in my throat. There really is an emptiness syndrome. So at that time I thought, ‘Well, if they're leaving home, I'm going to too.' So that's when I went to Washington, D.C. I had accepted a educational leadership position and it was I guess a prestigious award that I got. I was one of 500 that was selected, 50 of us were selected to study policy in the Nation's capital and actually we worked at the same time and then we had classes going on at the same time. So I worked for OMB and my position was the transition team for the Department of Education. President Carter had come in and he created the Department of Education and so when you do a big transition like that in government it's almost an unwieldy situation because education had always been in Health and Human Services, HEW, Health, Education and Welfare and they took the Education out and made it a standalone department. And so one of my responsibilities was to decide what we could do for Indian people within the Department of Education. Today as a result of that there is a Department of Indian Education within the Department of Education and it works with Indian students in public schools and public schools across the United States that have a significant number of Indian students receive funding to assist them with Indian children. And it depends on the need in the community. There's also funding for universities that have Indian students and they can get funding for scholarship programs to set up for Indian students. So that's within the Department of Education and I guess I had a small part in trying to get that set up within the Department of Education. Always people think of the Bureau of Indian Affairs when you think of Indians. Well, in the Department of Education now there's Indian Education.

As President of Cheyenne River Community College, Gay works toward its accreditation. She eventually heads National Congress of American Indians, NCAI, getting it on solid footing

Gay Kingman:

"My career was going and I was working in these various positions. I'd also been asked by people I worked with and I got elected to certain offices nationally and I served...I got elected to a three-year term for the National Indian Education Association and served as secretary and treasurer and also president of the National Indian Education Association. That is an organization of schools and colleges nationwide of Indian Education and when I served as president it meant lobbying in Congress and advocacy for Indian education, trying to get more funds for respective programs. It also meant running our office and so these were going on parallel to my career and it also helped prepare me also for the advocacy and I guess the politics that happen in Washington, D.C. Then I was also elected to a three years term on the National Congress of American Indians. Now the National Congress of American Indians is much broader than the Indian Education Office. It is made up of all of the tribes nationwide who can have membership and it deals with all of the programs that Indians have nationwide such as economics or health and human services or education or it could deal with legislation in Congress, many Supreme Court law cases that have come down, whether good or bad for us and what that means. So when I got elected to the Board of Directors that meant a very wide perspective then that I would have to work with. I served as secretary for the organization and then I was elected as treasurer as well for the organization and served there three years. I remember it was Joe De la Cruz asked me if I would be interested, cause Joe was on the Board of Directors and I said, ‘Well, I never thought about it but I would be.' So the Board met and put me in as Executive Director, National Congress of American Indians. So I went into...I didn't even go back to Eagle Butte because the urgency was so demanding at that point so I went directly to Washington, D.C. from the meeting. And my son was working at home for the tribe as a comptroller for the tribe and so I called him and asked him to go pack up my things. I'd written a letter of resignation and of course the chairman of the tribe was there so they knew my situation and I went to Washington, D.C. to become the Executive Director. And I wasn't prepared totally for what we found. We found a financial mess. The organization was almost on the verge of bankruptcy. Federal grants that the National Congress of American Indians had at that time were in danger of being pulled because no financial reports had been submitted. It was just a real mess. And then the main thing was that there was no credit, no credit for any of the hotels so we couldn't even have meetings. And so I put out the call to some of the tribal leaders at that time and here again Joe De la Cruz and Wayne Duscheneaux, they immediately responded and they sent people in to help. I remember Joe sent in his financial person to help begin sorting out records. Another tribal leader sent in some staff. I believe a tribe in Michigan sent me some workers because we had to terminate, we had to let go the staff that was there. We just didn't have the funds to make payroll. And I called on some of my friends then who were living in Washington, D.C. One, Carol Gipp, whose field is business and finance so she came over and started helping. I called upon my son who is an attorney and an excellent writer and so he came over to help. And so we kind of got by that way and we began sorting out the financial situation and we began making headway and I had meetings set up...I remember [unintelligible] with a tribe in Wisconsin helped greatly with the federal people because we had grants with Department of Energy and Environmental Protection. And so we had meetings set up with them to work out what arrangements we could make to get our grant back in good financial sitting. The years that I was there, the couple of years until my contract was up, I received a resolution of support from the National Congress of American Indians acknowledging all my hard work and that we put the National Congress of American Indians back on a firm sitting again and it was able to move ahead. New people coming on were able to take it from there and keep the progress going. So our old and venerated organization that had begun back in 1944 was on firm sitting again. I especially enjoyed all of the people because I got to meet Indian people nationwide and work with them. I got to know all of the staffers in Congress and work with them and some very, very outstanding, very supportive Congressmen and Senators such as Senator McCain. He remains an idol to me today. If you think all this man has done, he was a POW for seven, eight years of his life and his arms were broken and he can't even comb his own hair, physically he went through so much. And so he stood up, he stood up for Indian people many times. Senator Inouye who is Democrat, again a warrior who's lost an arm in the war fighting for his principles and what he thought and we have him on our side and he's stood up for Indian people many, many times. There's many people like that including staffers that kind of come and go because they're not well paid in the Congress but many of them, we've lost some good people in Congress like former Congressman Elizabeth Furse. We need people like that in Congress to understand where we come from as Indian people."

Sometimes encountering negativity, looking for the good things and meeting Tim Wapato

Gay Kingman:

"With me, the politics that I ran into were Indian politics and I had a hard time because all my life I've always believed to see the good in things and you can do good but when I ran up against some negativity in politics it was hard to fathom and I didn't have...I could not get on that level and deal with it...I'd rather take the high road so that's what I did. But one of the good things that came out of my time at the National Congress of American Indians, it was soon after I got in in 1989 the place was a mess and so I had asked the Indian community in Washington, D.C. to come and help me clean. And so the doors were open and we had people doing floors and dusting and washing and everything and in walked this man I'd never seen before. I thought he came to work so I said...I was going to put him to work and said, ‘Will you do this and that?' and he said, ‘No,' He said, ‘I'm house hunting.' But he said, ‘I'll come out and take you out to dinner later.' And I thought, ‘Sure, just another Indian man, he's making promises he won't keep.' So we were all working and we had the National Congress of American Indians building all spotless and here he came back and he did take us to dinner. That was my first time that I met Timothy Wapato who eventually was to become my husband. The more I talked to him I thought, ‘Well, this man has some intelligence,' and I liked what he did. He was the Commissioner of Administration for Native Americans. I never thought in my life that I'd ever get married again ‘cause I was always so busy and never had time for it. I liked my life. I was satisfied with what was happening. But when I met Tim Wapato, he eventually asked me to marry him and I said, ‘Well, let me think,' and finally it was like a month later we were on a plane together going somewhere, Albuquerque or somewhere and I said yes. So we did get married. We got married...we've been together since 1990 and got married. We called this spiritual man at home Orville Looking Horse. He's keeper of our sacred pipe which is on the Sioux...sacred pipe of the Sioux Nation which is housed on my reservation, the Cheyenne River Sioux Tribe. So I called Orville and told him and he said...he didn't say anything. And of course you don't pressure spiritual leaders anyway so I thought, ‘Well, we'll just pray and see what happens.' And time got closer and closer. So meanwhile Tim had asked some of his spiritual leaders from the northwest and they said, ‘Well...' and it's a seven drum religion and they said, ‘We'd be happy to do it but we feel that we don't want to come into another spiritual man's area and you should start there first.' And so we didn't know what to do and one morning about 5:00 in the morning the phone rang and it was Orville. He didn't say, ‘We're going to do it,' or anything, he just told me what to do, what preparations I had to make to get ready. So we were married on the equinox of summer on June 22nd and Orville performed the ceremony. He brought sage from our sacred area there and green grass, it was a traditional ceremony. It was interesting because the tribe sent one of our cultural people to tape the ceremony and so for the next week or so our wedding played on our reservation and they showed...our wedding is part of the archives now of Cheyenne River Sioux Tribe."

As a political couple in Indian Country, one a Democrat, one a Republican

Gay Kingman:

"I think it's advantageous that Tim and I were in different backgrounds, he Republican, me Democrat, he in different areas of expertise than mine because when it comes down to it, when you advocate for Indian people it doesn't matter whether you're a Democrat or Republican or Independent. What matters is that you get for Indian people what needs to get done. The same way with the issues that Tim worked in the past had always been environmental or law enforcement. Mine had always been education and administration. We figured out that we'd been at many of the same meetings but we'd never met. In our careers we could work both sides of the aisle because he being Republican he could work that way for Indian people and I could work the Democratic side of the aisle. Being nonpartisan I think is the best thing I think when things come together for Indian people."

In the early ‘90s as some of the tribes began gaming, some of the governors objected: the National Indian Gaming Association (NIGA) enters in

Gay Kingman:

"The times were contentious and Senator Inouye was telling the tribes, he said, ‘You've got to come together on this.' It's a time much like today where there's a lot of adversarial problems thrown at Indians not because it's right or it's the truth but because there's a lot of anti Indian sentiment out there. So a friend of mine, Raquel, who was chairman at that time of the Oneida Nation was running for president of the National Indian Gaming Association and in those days NIGA, National Indian Gaming Association was kind of operated out of a shoebox. There was no office, it was kind of wherever the elected leader resided was where the office was. So when we were working for Sycuan Danny Tucker was chairman and they were looking at maybe trying to do some gaming and Indian people are always looking to bring in economic development for the people. So I said to him, ‘Well, why don't you run with Raquel on the National Indian Gaming Association.' I got up and went out of the room to go to the bathroom and here again the board was meeting and when I came back in Tim said to me, ‘You're the new Public Relations Director.' I said, ‘I am?' And he said, ‘Yes.' They'd asked Tim if he thought I would take it and Tim says, ‘Well, I don't speak for Gay Kingman,' he said. He said the right thing. So anyway they'd gone on to other issues and so finally they told me that I was the new Director of Public Relations for the National Indian Gaming Association and this is in direct response to Senator Inouye's telling tribes that they had to get it together, they had to come together and do some good education and media outreach on what their needs were and why they were wanting to go into gaming. It wasn't very long thereafter, I'd say maybe a couple of weeks that they'd asked Tim to be the Executive Director. So together then we remained in Washington, D.C. and Sycuan ended up donating our time to the National Indian Education Association and our mission at the time, the direction that they gave us was to set up the National Indian Gaming Association with an office in Washington, D.C. and the old advocacy and education to Congress and to the media and to, at that time, the governors because we were having such difficulty with the governors. So we moved...we remained in our townhouse. We lived just a few blocks from the capitol and we had our office set up within our townhouse. Our computer was in our living room and our fax was on the dining room table...no, our fax was on the kitchen table, on our dining room table we had some of our other things. But we hit the ground running. We didn't have any time to take a breather because things were happening within each state. There were real problems with the governors, they didn't want the Indians to do gaming, the Indians were saying, ‘Well, we can...within the state you're doing gaming, why can't we.' And there were lawsuits that were going on. Many, many of the states were really having contentious situations. Anyway, this whole scenario was going on and finally the Cabazon case had come down saying that if a tribe...if its state is doing gaming then the tribe can too. So I want to say all hell broke loose and it was, it was just all over then. The governors were complaining to President Clinton saying, ‘You can't let that happen. It's immoral, these Indians can't do gaming, they couldn't regulate, who are they.' So we were dealing with this whole thing and then at the same time Donald Trump through Congressman Torricelli had introduced legislation to deny Indian gaming to the tribes saying that they couldn't. And so we were having to deal with that too. Hearings were set up and the House Interior and Insular Affairs was to hold a hearing so we brought in, we got Indian people to come in. Grandmas came in and elderly and children came in. We just really...people wanted to protect what they had and it wasn't by any means near what we have in gaming today. It was real small scale but yet they knew that they were making money on it and it was good revenue and it was economic development and they needed to keep it. So we set up the hearing and I put...I researched Donald Trump's yacht and got a big picture of it and put it outside the hearing room door and at the same time got a picture of the school at Mille Lacs that they financed with Indian gaming proceeds. And Senator Inouye and Senator McCain came over, here again our star warriors came over and testified in support of Indian gaming and then it was Donald Trump's turn. And the chairman of the committee and that time, it was a Democrat, was Congressman George Miller from California. And Congressman Miller, I don't know if you know him but he's a very strong supporter of Indians and civil rights of people and he's also a very strong personality physically. He's a big man and very articulate and so they...when Trump got up to testify, Congressman Miller started asking him his questions and Trump had a very politically correct speech written but as he listened to Senator Inouye and McCain and some of the Indians testify he was getting angrier and you could just see him. He was writing on the side of his speech and then all at once he just crumpled it up and tossed it. So we didn't know what was going on and here was Donald Trump getting angrier. And so when George Miller started asking him questions, he just let it out. There was nothing politically correct about what he had and he called...he said, ‘Well, those Indians don't even look like Indians,' and he meant some of the Indians on the east coast eluding to that they were mixed Black. And George Miller, you don't fight with the chairman in his own committee and it was the most astounding thing that happened. And after Donald Trump testified, his people pulled him right out because they knew what he had done. And we had videotaped...I had videotaped the whole thing and so when Donald Trump left, the press followed him and Tim and Rick Hill were outside standing in front of these pictures of the School vs. Yachts and they held a press conference. And both Rick Hill and Tim Wapato are very articulate and extemporaneous speakers and they can think on their feet and they held the best press conference. And I immediately took the videotape over to a studio and viewed it and pulled out the excerpt of Donald Trump and him opening his mouth and getting in a fight with the chairman and we put that up on satellite feed and got it to all of the major networks by the 6:00 news and it repeated again on the 10:00 news. We made a seven second video of it. We got that out to all of the areas that had remote stations so they could get it too and it played nationwide. We called the legislation, the anti Indian gaming legislation, we renamed it the Donald Trump Protection Act. And so after that happened, that episode, no congressman or senator wanted to touch it and in fact it failed in committee. We won big. We defeated the anti Indian gaming legislation but by no means were we out of the woods because there were a lot of battles yet. All of the governors were still crying because Indians were beginning to game in their states. It was the early stages."

The National Indian Gaming Regulatory Act had passed in 1988

Gay Kingman:

"Here again we won a lot in it but we lost our sovereignty in the way that...Indians have always been able to game. We've gamed since time immemorial. We've had our stick games, we've had all of our games but when it came down to organized gaming I guess or slots or gaming that the states realized we were going to get some revenue out of then they wanted to deny it. So in the Indian Gaming Act that passed the Congress allowed the states to enter into a compact with Indians to do gaming. It was an erosion of our sovereignty because Indians have always been able to do gaming. Now we had to go to the state and work on a compact to do gaming and in some states they even refused to do that, they refused to do a compact and in some states it wasn't a negotiation, it was a dictatorial relationship like in my state of South Dakota. The governor just said, ‘We're dictating this is how it is, take it or leave it.' And the tribes took it. In my state there's not a lot of revenue out of gaming anyway because we just don't have the market, we don't have the populations. In this state of Arizona Governor Fife Symington, the tribes eventually even had to go to negotiated rule making on getting a compact. Governor Fife Symington would not do a compact with the tribes. This is a time when Tim and I were running night and day. We were in all of the states sporadically depending on where the hot spot was at that time and working with the tribes locally and then we'd do a lot of media outreach to call attention to the issue. We were back in the office and we would get reams and reams of fax papers from the different areas."

Educating Congress on the issue of taxing and Indians; the role of Congressman Hayworth

Gay Kingman:

"One of the other things that happened was Bill Archer, Chairman of the Ways and Means Committee, decided that he was going to tax Indian gaming so he came out with language saying that he was going to tax Indian gaming. Tim and I happened to be in, I think we were in Spokane at the time and we turned our phone off that night cause we were so tired and that morning when we turned it back on we had like 60 messages and it was all because this had broken just that afternoon which in D.C. was late afternoon and we didn't get it. And so we immediately headed back to D.C. but Tim as Executive Director immediately put onboard two people who were tax experts. We held training sessions for staffers on why Indians don't pay tax and why we don't pay tax is tribes were sovereign before anyone ever came to this United States. After the Constitution was set up based upon the tribes and the confederacy on the east, in there the Commerce clause were in there that you don't pay taxes and it's in a lot of our treaties. I'm from a tribe that has a treaty and this is our land, we gave...we got our land reduced because of the influx of non-Indian people across this United States and the treaties we signed that this would be our land for time immemorial, it can't be taxed due to the Constitution and due to our sovereignty that we've always had and yet this was what Bill Archer was trying to do. And so we tried, we really tried to educate each member of the Ways and Means Committee. Now if you've ever worked with the Ways and Means Committee it's called Gucci Gulch because the Ways and Means Committee handles all of the big money in the United States, the airlines and they handle everything that is huge money and the people that work there, they wear very fine clothes. And here we were kind of a rag tag little group of Indians trying to educate Congress and if they needed something we had a piece of paper telling them that this is it. Then meanwhile Congressman Hayworth from Arizona, this state, was a new congressman and then we said, ‘Well, you can't just educate him, he's got to carry this.' So Ivan Makil who was chairman at Salt River Tribe at that time, a young, astute chairman, really saw the danger in this and so he came and worked with us side by side. Every time Congressman Hayworth would kind of waiver a little, Ivan would be right there because these were his constituency could do it best. So when it came time to vote Chairman Archer had commissioned a report from GSA on why tribes should pay taxes and meanwhile J.D. Hayworth, while Congressman Archer was waving this GSA report on why tribes should pay taxes, and when it was Hayworth's time to speak he pulled the Constitution of the United States out of his pocket and he said, ‘It says right here in the Constitution of the United States,' and he gave the section and everything and he said, ‘that Indians do not pay taxes.' And he slammed it down on the table and he said, ‘I'll take the Constitution of the United States over any old GSA report anytime.' And you're not supposed to clap or anything in the committee but there was applause. And finally it came time to the vote and this was like 3:00 in the morning and so Tim said, ‘I'm going to go stand up there and look them in the eye because if they're going to vote against us, I'm going to see who it is.' So he went up there and he stood like this and looked them in the eye as each came time for roll call vote, which congressmen had asked for and when it came time for the final vote it was in our favor, we had won. Indian tribes would not be taxed and it has not come up again. We had won such a victory in the Ways and Means Committee and...Indian tribes historically don't go to that committee, we go to Education or we go to Interior and Insular Affairs or we go to the Senate Indian Affairs but that's a committee we don't usually work. When we won there and we won big, we were immediately celebrities almost. People were calling us, our phone was ringing off the hook but there were so many issues again."

Gaming, misperceptions and prejudice

Gay Kingman:

"In response to Indians are getting rich I think out of 560 some tribes nationwide there's still only 200 and some that do gaming and of those 200 and some that do gaming there's only a few that have the very wealthy gaming that we hear about. My tribe, the Cheyenne River Sioux Tribe, doesn't have any gaming at all. The tribes in South Dakota that do have gaming like the Oglalas, they're not getting rich. They make just barely enough to make payroll and maybe have a little income to the tribal general fund, the revenue fund. We don't have the population. You've got to have the population and the market to do gaming. This tribe here, Gila River, they have access to all of the Phoenix area, there's a huge population. And in the wintertime when we get all the snowbirds, it nearly doubles. So this tribe here has access to all that population and that market and so I would imagine here that their gaming is very, very...the revenue that they generate is very high. So that's one thing, it's a misnomer that all tribes are rich. But all my life this is what I've had to deal with, whether it's this misnomer about Indians are rich or this misnomer that we're drunken Indians or this misnomer that we're dumb. These are misnomers that all my life that I've tried to educate people on that Indian people are like everyone else, we have our good people, we have our bad people, we have unfortunates, we have wealthy. It's the sprinkling of America and I would love to have the opportunity to talk to people about these ideas that they have that need correction."

Moving to Scottsdale, Gay and Tim take her aging father in

Gay Kingman:

"At that time he was only 98 and he loved Arizona. And he was getting along really well and he'd go out and sit on the patio all morning and watch the birds and he just really loved the weather and the climate. And then after he reached 100 we thought we better move back home and take him back to South Dakota so he could be near his relatives and people could come visit him ‘cause everyone was wondering how he was. This man was getting on up in age and they wanted to see him. So we moved back to South Dakota and I'd had a home there since early ‘80s and so we just moved back and began renovating it and my father was able to visit friends and relatives. Of course at his age a lot of his close friends had moved on. I took care of my father and I was really happy. I'm so glad to have done it. There were some hard times, some things he didn't understand and he couldn't hear and he was getting very, very forgetful, sometimes he didn't know us. Most of the time he was in real good shape. He ate very, very well. He loved his oatmeal every morning and he ate almost around the clock little bitty meals. He didn't like to go to bed. They say as you get older that you revert back to your childhood and he did. He was like a child. He was like my baby. But we had such remarkable times with him too. His bedroom was down one level. I have a level house and one morning he came up and he says, ‘Oh, I made it.' And then he looked at Tim and I and he said, ‘I don't know what I'm going to do when I get old.' And at that time he was probably 103. He was great."

Tradition, politics, concerns for the future

Gay Kingman:

"Well, first of all I think it's only been one world and that's my spiritual world that's kept me strong. The way I was born and raised my parents brought me up to be very spiritual and whether it's the Catholic religion, which I was raised in but also the traditional religion. And so that's been what's kept me strong through everything. Everything else just fell in line with the spiritual way whether it's been the politics or advocacy or working in the non-Indian world, that's all tied in with the spiritualism. We're in a very similar situation as we were in 1993 when we were asked to take over the National Indian Gaming Association. The tone of the country is the same way. There's a lot of anti-Indian movements going on, we're getting beat up in the press. The tribes are stronger I think in many ways and then some of the tribes have a lot of capital to deal with these issues. But with capital comes also a lot of demands and so say for example some of the California tribes although they have a lot of revenue coming in from the gaming, the demands for that revenue have increased. Meanwhile in Congress we still have some of our friends. Senator Inouye is still there, Senator McCain is still there. We might have some new friends but we also have a lot that don't understand Indians that aren't friendly either. I think we need better education of Congress. And a lot that has spilled over from gaming is hurting us like on the east coast some of the tribes that have tried to do gaming. It's spilling over into what we call federal acknowledgement. One of the main problems we're faced with is within our own ranks as Indian people. I think we need to come together better. I don't want to say unity because we're always talking unity but going back to spiritualism and traditions and culture, I'm a firm believer that that's where we need to be. And with money comes prestige and all of the...I think some of the people with money want to embrace right away all the glitz and glitter of the non-Indian world, which is fine but don't lose your traditions and your culture cause that's who we are as a people. I see a lot of our young people who are floundering because they're going into gangs or they're taking drugs or alcohol. If they had their traditions and the cultures and the values that came from...that were taught in those, they wouldn't need that. And so that's I guess some of the problems that I see on the horizon that we're faced with."

Erosions to sovereignty

Gay Kingman:

"Yeah, I think it's a steady drip. I mentioned earlier the demands on the tribe because they now have a lot of money. For example the California tribes, they're small, maybe a few hundred people in a tribe and so the county is coming at them saying, ‘Well, we need money for roads, we need money for law protection,' so the tribes are negotiating with them to do that, which is fine but in a way it's eroding the sovereignty because they don't have to do that. They should be sovereign within themselves. It's also spilling off into other tribes like mine, my tribe because we don't negotiate with the county. We do to the point where we might have a mutual understanding but we don't give up any part of our sovereignty. We have a bill right now that's being floated around in Indian Country. It's called the Sovereignty Protection Act. I'm very fearful of it because what it's doing is...there are several sections in there that aren't very good like putting land into the PILT, the payment in lieu of taxes, saying that if you have trust land which isn't taxed then the United States Government will pay the county or the state in lieu of that land so they still get some money. Well, this is none other but taxation again, an attempted taxation and it's wrong because as I explained earlier it's our sovereign right, that land is ours in our treaties and in our heritage and it's ours, it shouldn't be taxed. But this legislation would allow that and tribes should rise up and deny this and it's floating around within our midst by our own people."

Gay's sons continue the family's legacy

Gay Kingman:

"My sons have followed in the path that was set by my ancestors, which is the responsibility we have to our Indian people. My one son is, as I mentioned earlier Vernon Robertson has his degree in business but he's gone on. He works for the Mille Lacs tribe and he's in there...he's Vice President of the Business and Economic Development, I'm not sure of his exact title. He's carried on. All of his positions have been to make things better for Indian people in the business world. Chuck, my other son, Chuck Robertson, with his degree in law is working also to make things better for Indian people. He's Executive Director of the National Tribal Judges Association and he works with all of the tribal judges nationwide in their respective areas. That was the other thing I forgot in the spiel that I mentioned that's floating around Indian Country that's so bad for us is the...in the legal area, which would provide federal court review of our tribal courts and this is wrong because like my tribe and our tribal courts are just as good or better than courts off the reservation. We'd be the first to jump on our own tribal courts and improve them if something went wrong and so the regulatory factor is very important. So I'm very proud of my sons in that they've carried on the tradition that I've tried to carry on in my life."

Gay lectures in Madrid at a Human Rights forum chaired by Bishop Desmond Tutu

Gay Kingman:

"What I learned was that there were other Indigenous people that are in the same category that we're in in our country. On June 25th of this year we'll be laying the memorial for the Indians that fought and died at Little Big Horn. My people, the Minneconjou Lakota, were the people that were totally annihilated at Wounded Knee, men, women and children. The children were followed up ravines and killed. The women were brutally mutilated and raped. For our people to have come through that and to have lived and to have survived is tremendous. And I like to think that my little part of the world where I've worked has had a hand in assisting with the improvement of human rights for Indian people. But I found out that it doesn't have to do with Indigenous I guess, with being a minority within a large majority. You're not respected and you're denied a lot of things. Our school systems on the reservation, if you look at the SAT scores, most of the school systems on the reservation are far below those off the reservation and it's not because the children are dumb it's just that they have less opportunities afforded them. These are all...there's so much to get done. In my life I guess I've tried to work on some of them."

A hope for the future and a legacy that could be shared

Gay Kingman:

"I'd like to see our sovereignty have true sovereignty where we're self-sufficient and our tribes are self-sufficient and our people aren't in poverty. My tribe and some of the tribes in the Great Sioux Nation live in, by the U.S. Census, some of the highest poverty in the United States, the counties that they're in and that shouldn't be in this United States with all of the wealth. When you think that we were self-sufficient here before the coming of the White Man, we had strong values that of fortitude and generosity and all of these things that kept us strong and I'd like to see that shared but until all people in this United States become out of poverty and self-sufficient, that would be my dream."

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

[Native music]

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

Editing
Green Fire Productions

Photo Credit:
Photo collection of Gay Kingman and Tim Wapato

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

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

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

© 2004 The Institute for Tribal Government