identity

Native Leaders and Scholars: The Movement Away from Blood Quantum

Producer
Native Nations Institute
Year

Several Native leaders and scholars discuss the growing movement away from blood quantum as a primary criteria for determining eligibility for citizenship in Native nations.

Native Nations
Citation

Coates, Julia. "The Process of Constitutional Reform: What the Cherokee Nation Did and Why." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 2, 2012. Presentation.

Ettawageshik, Frank. "Reforming the Little Traverse Bay Band of Odawa Constitution: What We Did and Why." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation. 

Gray, James R. "Educating and Engaging the Community: What Works?" Remaking Indigenous Governance Systems seminar. Archibald Bush Foundation, Saint Paul, Minnesota; and the Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Prior Lake, Minnesota. May 3, 2011. Presentation.

Hershey, Robert. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 6, 2010. Interview.

Robert Hershey:

“You know, when we did an analysis of the provisions of constitutions on membership, we thought that blood quantum would probably be the number one criteria, number one factor, for the determination of who can or cannot be a citizen/member of the tribe. And it was actually lineal descendancy. So I think that there’s an increasing tendency in revising membership criteria, that going to lineal descendancy -- probably residents on the reservation and lineal descendancy.”

Julia Coates:

“Culture doesn’t flow in our bloods. It’s something that we take on, and that investment, that understanding of nationality and of the people and of the communities is also something else that we can take on to greater and greater degrees and make those investments. So to me, those other categories, it’s not about where people are in a fixed way, but it’s about what people can become, and I think that that’s what we have to, we have to open the doors for those possibilities, for those potentials, because if we don’t, we’re just going to have people drifting away into the generations. We’re not going to be able to retain anybody with these very limited and fixed sorts of categories that we seem to be holding to.”

Jim Gray:

“The membership issue was incredibly critical for us to move forward. Having left so many Osages out of the political process for so long, the political pendulum swung the other way completely. And the attitude that the Osage people had -- once we had our sovereignty recognized so that we could determine who our own citizens were -- we wanted to include as many Osages as possible. And the only way we did that was through the lineal descendancy definition of that 1906 roll. That eliminated the blood quantum issue, that eliminated the residency issues. We wanted every voice, every Osage we could possibly count included in our government. And by doing that, we left nobody out, and at the same time, it did create its own set of problems, and I’m not going to sugarcoat that either, because there was a lot of people who were mixed blood, full blood, that really resented the fact that there were others that did not have that kind of blood quantum in their situation having equal status. There were Osages that had language issues. ‘If you can’t speak the language, you shouldn’t be Osage.’ We had Osages that said if you don’t live on the rez or the three districts, you’re not Osage. We had Osages that said, ‘If you don’t own land and you’re not a shareholder, you’re not Osage.’ So, realizing that there was no one answer that was going to fix all the problems, we took the one that included the most amount of people and made that work…Even to take it one step further, we did include dual memberships so that if you were Cherokee, for example, and Osage, you could be registered in both tribes. Because I think Cherokees have dual membership as well.”

Frank Ettawageshik:

“If you chose, you could become a naturalized citizen of most of the nation states in this world, and it would require renouncing other citizenships in some cases, some cases it doesn’t, but you could go and you could study and you could learn and you could take a test so that you had the basics of what you needed to be a citizen. And somewhere along the line people started looking at us and thinking in terms of blood quantum, and they started to use it as a way of measuring us. And they sold it to us. They sold it to us so well that we think it’s our own idea now…Well, this whole concept of tying citizenship to blood quantum is something that we’re going to really have to think about in the future, because we have people who -- at home we refer to people that are -- we say ‘apples’ -- they’re red on the outside but white on the inside. In other words, they have, they look Indian, they maybe have an Indian name or Indian family name, but they haven’t lived the culture, they don’t know the language, they don’t live on the reservation, and some of them don’t even live anywhere near other Natives, and yet they still would meet the blood quantum requirement for being a citizen of our nation. Some people talk about when the blood quantum gets diluted we lose a lot. Well, it isn’t just the blood quantum. When the knowledge of our culture and our language and the tie to our land gets diluted, have we not also lost just as much? And so somehow we have to be thinking about what it means to be a citizen and we need to think of, ‘If we were going to have a naturalized citizen of each of our tribal nations, what is it that we would require of that person to become a naturalized citizen?’ Now, under all the regulations with the Bureau [of Indian Affairs] and all these other things, though we could never get any funding for this person, so we would have to think about what that meant, and there’s all these other different issues that are out there. But we shouldn’t be thinking about that as the criteria for what our citizens are, for what citizenship is, because that citizenship is really what’s going to perpetuate us in the long run.”

Sophie Pierre: Embracing Ancestry as the Basis for Ktunaxa Citizenship

Producer
Native Nations Institute
Year

"One of the key elements or one of our key pillars of course are our people, and our people embody our language and culture and you don't have a choice what you're going to be born as. Any of our people, when they're born, we're Ktunaxa, just as Italians are Italians and it doesn't matter if they marry a Chinese [person], it doesn't change them from being Italian. Well, same thing with us. And there's been so much interference from the government in terms of our own Aboriginal identity, Indigenous identity -- and I'm talking about all governments, not just in Canada -- that I think that one of the key elements of rebuilding nations is to take back ownership of the recognition of our own people..."

People
Native Nations
Resource Type
Citation

Pierre, Sophie. "Enacting Self-Determination and Self-Governance at Ktunaxa." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Phoenix, Arizona. October 21, 2008. Interview.

One of the key elements or one of our key pillars of course are our people, and our people embody our language and culture and you don't have a choice what you're going to be born as. Any of our people, when they're born, we're Ktunaxa, just as Italians are Italians and it doesn't matter if they marry a Chinese [person], it doesn't change them from being Italian. Well, same thing with us. And there's been so much interference from government in terms of our own Aboriginal identity, Indigenous identity -- and I'm talking about all governments, not just in Canada -- that I think that one of the key elements of rebuilding nations is to take back ownership of the recognition of our own people. And I know that it creates difficulty because there's a lot of...there's very few pure blood as you would imagine, as you could say in this day and age just because of all the interaction that we've had with the rest of the world. But that doesn't take away from someone who can trace their ancestry...if you can trace your ancestry to being Ktunaxa, then you're accepted as Ktunaxa. I've mentioned before that our language and culture is very important and in the Ktunaxa language the word for our ancestors is '[Ktunaxa language]' and the root word of that '[Ktunaxa language]' comes from '[Ktunaxa language],' which is a root. You talk about the roots of a tree and any kind of a plant it's '[Ktunaxa language]' and when you put those two words together '[Ktunaxa language],' meaning 'our roots.' And so if you can trace your ancestry to being Ktunaxa, then that's who you are and you're accepted as such.

Gwen Phillips: Defining and Cultivating Strong, Healthy Ktunaxa Citizens

Author
Producer
Native Nations Institute
Year

Gwen Phillips, Director of Corporate Services and Governance Transition with the Ktunaxa Nation, discusses how Ktunaxa people gained a sense of Ktunaxa identity and belonging traditionally, and the different criteria that Ktunaxa is considering including among its citizenship criteria today.

Native Nations
Resource Type
Citation

Phillips, Gwen. "Reforming the Ktunaxa Nation Constitution: What We're Doing and Why." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

“But as a nation in our treaty making, in our self-government expressions, and even prior to assertion of those things in a formal way, we’ve already said, ‘We don’t care about status and we don’t care about residency, that we as a nation will determine who are citizens.’ And so we’ve created a number of categories, one of which is a descendancy through blood. But another one is adoption and there’s another one that basically -- well, it’s kind of a quasi adoption. An adoption would be sort of the formal place. But there’s another one that’s a recognition clause, and it’s kind of in contention right now, because some of the elders, the real elders -- and I’ll talk about the people that were there 100 years ago -- they’ll tell us that, ‘Come, sit, let me talk to you.’ After a while -- and you were sharing these stories with us at the break -- pretty soon that person’s a Ktunaxa. They think Ktunaxa, they act Ktunaxa, they speak Ktunaxa, therefore they are Ktunaxa. That’s the old elders, and then you get the ones that were sort of in the residential school place and subject to a lot of racism and subject to a lot of racial-program criteria and all of the above, and they get kind of, ‘Uh, no, you’re white or you’re this or you’re that or the other.’ We’re coming back to that point of recognizing -- because of the loss of our language -- that it might be important for us to say, ‘Hey, you speak Ktunaxa, you want to speak Ktunaxa, you want to be a citizen?’ That we might actually tie something to the language ability, because we need people to speak, and if people see a privilege of being associated with us and are willing to actually be a keeper of that language, some of us are going, ‘I don’t care what color you are. If you will be an active keeper of the language, we will turn you into a Ktunaxa person.’ So there’s differences in opinion about what a Ktunaxa is, and as we describe strong, healthy Ktunaxa citizens, it doesn’t say anything about blood. It’s all about the way you behave, the things you do, the associations that you portray, etc.”

Gwen Phillips: The Relationship Between Constitution, Culture, and Citizenship

Author
Producer
Native Nations Institute
Year

Gwen Phillips, Director of Corporate Services and Governance Transition with the Ktunaxa Nation, discusses some of the issues that the Ktunaxa Nation is deliberating as it engages the question of how to redefine its criteria for citizenship.

Native Nations
Resource Type
Citation

Phillips, Gwen. "Reforming the Ktunaxa Nation Constitution: What We're Doing and Why." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

“And we have to be really cautious as we use words, because words create worlds, we’ve come to see. And worlds are different all over the place. They’re different for every one of us, the world that we come from in our immediate. So the constitutions that we create really have to be reflections of ourselves in our immediate place and space [Ktunaxa language], the word [Ktunaxa language] means something that is actually connected to the earth. The picture in the middle is some hoodoos, and in that particular region of our territory is where our creation story is said to have taken place. The very end of it, when the humans were brought to the earth. ‘We came from the dirt,’ it is said, so [Ktunaxa language], the suffix of that or the root word of that one with the added suffix of [Ktunaxa language] means taking your life from the earth. [Ktunaxa language] means literally as me, a human, my children, my grandchildren, my great grandchildren. So when you understand the connection of those phrases, those terms, it’s immediate and it’s huge. It’s not saying necessarily that we own the land, that we take our lives from the land. [Ktunaxa language] -- also Ktunaxa words. The Ktunaxa language is one of the isolate languages in the world. It’s not related to any other language. It’s only spoken by my people. It breaks down into no further dialects. In Canada we have 11 aboriginal language families. My language is one of those 11, and it’s the most critically endangered of all of those languages at this point in time. My land, my language, my people. If nothing more, our constitution has got to speak to, understand, and reflect those concepts back to ourselves.”

Jill Doerfler: Defining Citizenship: Blood Quantum vs. Descendancy

Producer
William Mitchell College of Law
Year

Scholar Jill Doerfler (Anishinaabe) talks about the colonial origins of blood quantum as a criterion for determining "Indian" and tribal identity, and explains how the federal government imposed that criterion upon the White Earth people in order to divest them of their land. She also stresses the need for a return to citizenship criteria that protect, enact and strengthen Indigenous cultural core values, and details White Earth's recent effort to abandon blood quantum in favor of lineal descent as the primary criterion for determing citizenship.

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

People
Native Nations
Resource Type
Citation

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

"[Anishinaabe language]. Thank you so much to the Bush Foundation and also to Sarah and Collette for helping with the organizing today. I'm really honored to be part of the program. As Sarah mentioned, I did grow up at White Earth, that's where I'm from. I'll just make a note that I'm not a White Earth citizen. I'm what we call a first-degree descendant, which is that my mother is enrolled at White Earth and I am not enrolled due to the current blood quantum system. So that's part of my legal political identity, my personal identity as Anishinaabe transcends political boundaries I think in many ways.

We've heard some wonderful presentations so far today and today what I'm going to do is talk a little bit more about blood quantum, a little bit about the history of blood quantum and what's been kind of happening at White Earth the past few years. My research is on citizenship and identity and I've been working on it for a number of years. Ultimately what we know and I think what we'll come to talk about in our discussions is that there's no perfect system. All of these systems have pros and cons and we have to think about what can we work with that works best for each individual tribal nation and that is your decision to make so we're just here to share some information.

I always like to start out with, what is blood quantum because even though it's something that we're all familiar with and probably everybody here could sort of go around the room and tell us your blood quantum, what it is officially and then maybe what you think it is correctly, what the Bureau's [of Indian Affairs] gotten wrong. Ultimately, blood quantum is this western concept. Initially it was a literal concept at the turn of the 20th century where scientists thought that they could literally measure blood. Today we're sort of slipping into maybe a little bit more metaphoric understanding of blood quantum. We understand that blood can't literally be measured in that ancestral sense, but that it's a metaphor for affiliations that our ancestors had historically that then parcel themselves out through time and genealogy. So it's literal, it's metaphoric, it's a measure of race, maybe politics, maybe nation, maybe Anishinaabe blood, maybe White Earth blood, maybe...so there's that slippery concept as well between Indian blood, Anishinaabe blood, or White Earth blood. How is all of that measured out? How does culture fit in there historically? It was thought that that was part of the measurement that those kind of cultural affiliations and loyalties were literally in the blood. Today we don't believe that so much, but it's part of the history of blood quantum.

So originally, it's a scientific calculation of degree of percentage of an individual's either racial and/or national ancestry. It assumes that cultural beliefs, language, intelligence, political loyalties, all types of certain behaviors, all of that was thought to be transmitted biologically and to be held in blood quantum, and so blood quantum assumes that those things are transmitted literally or metaphorically in the blood. And as we've talked a little bit about, it's an attempt to racialize American Indian identity. It's an attempt to kind of undermine political status and turn the tables and say, ‘Oh, you're really a racial group. This is really about race versus about political identity.' So how is and how was blood quantum calculated, how have we seen this change over time to some extent? I'm going to share here a little bit of the history of White Earth and I would encourage each tribe to think about their own history of blood quantum, how they got their initial blood rolls and to look at how that happened.

This is a photograph of Ransom Powell, who was an attorney and hired as a special investigator by the United States government to look at blood quantum at White Earth and figure out the genealogy and the blood quantum of 200 families, about 5,000 people at White Earth at the turn of the century in the 1910s. And so here he is posing with three ladies at White Earth. And he came to do this investigation, to figure out White Earth blood quantums because at that time it was tied to land and so that's what it was about: figuring out who was a 'mixed blood' and who was a 'full blood.' The legal definition at the time was a mixed blood meant any drop...one drop of white blood meant mixed blood and so that's the definition that Powell was working with and he's sent to do this investigation and figure out who's a mixed blood and who's not. And so what he does is he starts by asking a variety of questions to people at White Earth, asking them about their blood quantum or the blood quantum of people that they know. Was Person X a full blood? Was so-and-so a mixed blood? And the answers that people gave at White Earth I always say are better than any answers I could ever even make up. So the historical record on this is very rich. So Powell asked these questions, he and his little team of investigators, and what people would do at White Earth is basically avoid his questions or refute them time and time again. So I'm just going to share a few quotes from the investigation.

One person said -- in response to these questions about blood quantum -- she said, ‘There was never no question about blood in them days, no sir.' Not just within recent years talking about blood, so here the lady who is on the stand is saying, ‘This is something totally new, we haven't really talked about that before. It's only come up within recent years, only within allotment years when blood quantum is coming to matter for land sale.'

Here's a nice quote where we see the investigator being quite accusatory saying, ‘Many of those...isn't it true that many of those who are known to have White fathers were living as Indians and considered in the tribe as Indians just as though they had no White father?' So you see here the investigator trying to get somebody to admit that there are people at White Earth who have White fathers and they're just like other Indians at White Earth and one person says, ‘Yes, sir.' And we see this time and again in the record. In fact, there are many people in 1910s at White Earth who had white fathers who were living in the tribe as Indians and they weren't excluded for that fact.

Another person asserted that there was no mixed bloods, that there's no such thing. That wasn't a concept or category. Part of this is also translation that's going on here between people who may be speaking Anishinaabemowin and English speakers and translating. It may also be refuting the category, that that's a U.S. government kind of category and we're not willing to use that category here. There's no such thing. That's something the U.S. made up. So there are different possibilities for interpretation on those.

Other people talked about how Anishinaabe people created their identity, they made themselves who they were through their actions and so a woman was being asked about her husband in this case and she says, ‘He was a full blood. He made himself a full blood.' And the investigator goes on to ask, ‘Oh, you mean by living like an Indian.' And she says, ‘Yes,' and they go on and she explains that through his actions he creates his identity. It's not something that he's born with, that he's locked into, that he has no control over. He has the control to create who he is by what he does.

Then those questions aren't going that well for Powell, right? This is like not helping him create his blood roll so he's like, ‘Let's move on. Let's also think about phenotype. Let's start asking some questions about skin color, complexion, hair, that type of thing.' And he gets an equally array of colorful answers. Here's an example. The person was asked, ‘Is so-and-so light skinned?' The person from White Earth says, ‘Yes, she was light. Some Indians are light, but she was an Indian.' And so here again, not using a category of mixed blood or full blood, just using the term 'Indian' and just saying that skin color doesn't necessarily determine identity.

This one is similar, but the person does choose to use the term 'full-blooded.' So in this case the man says, ‘Yes, he was light but he was a full-blood Indian.' And then there are an array of answers where people say, ‘I never took particular notice,' ‘I can't remember,' ‘I can't recall,' ‘I can't say what they were,' ‘Who knows,' ‘They were a medium shade,' and so there's all kinds of evasive answers going on and Powell is not getting anywhere really with these questions either. And so ultimately what has to happen is we need some anthropologists, right? We need somebody to come in with some scientific knowledge and help.

So Powell brings in Dr. Ales Hrdlicka and Dr. Jenks and they come and they do physical examinations. They measure heads, they scratch skin, they do hair analysis. Hair analysis samples were sent down to the University of Minnesota to the College of Ag [Agriculture] and Animal Sciences to be analyzed and they start working on their blood roll using that because they're not going to get the answers they want from the Anishinaabe people at White Earth. So ultimately we get our base roll via that process and then once you have your base roll you are free to calculate your blood quantum...here's a handy chart created by the Bureau if anyone wants to utilize this, it's available to them. So you have your base blood quantum and then you take both of your parents and you calculate on down the line and that's how we've gotten our blood quantums. I know other tribes have similar stories. You got a base roll somehow and then you calculate from there.

So, what meaning does blood quantum have? That's a big question for tribes to think about. Is this a good system? What does it tell us? How can it...is it useful in citizenship? What meaning does it have? We can think about people with an array of different blood quantums, maybe they have Oneida blood, maybe they have English blood, Ojibwe blood. What does it tell us about that person or Person B who has a little more variety of ancestry here? What does it really tell us about Person B? Do we know where they live? Do we know what their belief system is? Do we know what language they speak? Do we know how they were raised? No, it gives us this ancestral kind of picture, which may be useful to some tribes, but it doesn't really give us a whole lot of information.

What does blood quantum do? How has it functioned? Practically, it's functioned in a variety of ways. It's ultimately designed to erase and eliminate American Indians. The feds used blood quantum to try to reduce the numbers of people that legally are native. A couple of quick quotes. Scholars have done lots of work on how blood quantum has functioned and what it's done. Eva Garut has said that the ‘ultimate and explicit federal intention was to use blood quantum standard as a means to liquidate tribal lands.' Definitely the case at White Earth. ‘And eliminate government trust responsibility to tribes.' Dr. David Wilkins and Dr. Heidi Stark have said that ‘blood quantum is a new form of federal termination of Indians who are eligible for federal aid and services.' We also heard some comments about that earlier today.

So, nations are faced with those questions about blood quantum. What is it, what does it do, how does it work? And in looking at citizenship requirements, we've been, as was mentioned, we've been going through a process at constitutional reform at White Earth. The current effort started in 2007 although there were other efforts in the late ‘90s and also previously in the ‘70s and ‘80s as well at constitutional reform. But the effort I was involved in got started in 2007 and when we talked about citizenship, we talked about the history, we talked about how the Minnesota Chippewa Tribe came and White Earth came to use blood quantum in the ‘60s, what happened before that, look at that history, think about our values. And we asked many, many questions and here's just a few things that we talked about in our discussions. And citizenship was something that we probably spent the most time on during our constitutional convention process. Delegates found this was an emotional issue, it's an issue that impacts everyone and it really sets the foundation for the nation: who are we, who do we want to be, that type of thing.

So we asked questions like, ‘What kind of citizenship requirement will put our beliefs, values and culture into motion?' ‘How can we enact those values?' The things that John was talking about today, those big picture things, love...we talked about love as one of our primary values. How can we put that into action? How might our values of love and family be expressed in citizenship regulations? Which citizenship requirement will strengthen our nation? At that time we had a variety of options in front of delegates to take a look at, but these are the types of questions that some of you are thinking about changing citizenship requirements, replace your values in there and think about what can we do, how can we best express these things. Ultimately, the constitutional delegates at White Earth felt that lineal descent was the best option, that it allowed people choice where people create their identity, they have the choice to apply for citizenship provided they can bring the documentation necessary, but it puts that back on families, it puts a focus back on relationships in families. Is it by any means perfect? No, but that was the route that was decided to go with.

Sometimes we get this question when it comes to lineal descent. Won't there be too many of us if we kind of go with lineal descent? And here's a round dance event with lots of Indians. ‘Isn't this too many Indians here?' That's something for tribes to think about. How do we think about citizens? Are they assets to the nation? In what ways can a larger population be a positive thing?

What about resources? This is the other thing that comes with lineal descent. What are we going to do? We can't...we don't have enough for everyone as it is now, we're not going to have enough for more people. Citizenship and resources, entitlements, programs have to be to some extent divorced and they are already in tribes now. All these programs and services generally have requirements, an income requirement, a residency requirement, why not do a nice reciprocal requirement where if you're going to get a scholarship you have to volunteer a number of hours at the tribal pre-school in the summer? Why not require learning the language? Why not require taking courses on history? So I would encourage tribes to think about how qualifications for programs can be a little bit different than citizenship and how those can be parceled out, because not everyone is entitled to something and the chairman shared earlier the entitlement issues and that came up at White Earth as well. ‘Well, how are we going to have enough houses for everyone?' Well, the tribe isn't responsible for providing everyone a house. As Anishinaabe people, we have the responsibility to take care of ourselves and we have the responsibility to care for our families and so you end up bringing back some of those traditional values as well about our own responsibilities that we have. How can we keep our culture alive is something that we also talked about. We have to do that, speaking of responsibilities and actions and making our identity. It's not passed down in blood, it's not literal in that sense. That's our responsibility with our families and our communities to do that sharing and that teaching.

A few bits of information: how to move forward with your decision. Ultimately, I think what helped us was an inclusive and open process. All of our meetings were open; people could say and share anything they wanted. We looked at the history of citizenship in quite a bit of detail and then we looked carefully at how we could practice values within governance. And then ultimately patience and perseverance, right? This isn't an easy decision; you're not going to figure it out in one day. We worked on the initial constitution for two years, even though we had drafts from efforts previous to that and then of course now the decision is in the hands of White Earth citizens who are voting as we speak. It's a by-mail voting process that's going on right now and we'll be counting our votes next Tuesday to find out if we will move forward with a new constitution or if we will continue under our current structure. [Anishinaabe language]."

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

Producer
Jr. Distinguished Indigenous Scholars Series
Year

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

Resource Type
Citation

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

David Wilkins:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Audience member:

“Half. Half Passamaquoddy.”

David Wilkins:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutions and Constitutional Reform - Day 1 (Q&A)

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Native Nations Institute
Year

Presenters and moderators from the first day of NNI's "Tribal Constitutions" seminar gather to field questions from seminar participants on a variety of topics ranging from dual citizenship to the relationship between a nation's constitution and its economic development environment.

Resource Type
Citation

Cornell, Stephen, Jill Doerfler, Robert Hershey and Miriam Jorgensen. "Constitutions and Constitutional Reform - Day 1 (Q&A)." Tribal Constitutions Seminar. Native Nations Institute for Leadership, Managment and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A Session.

Justin Beaulieu:

"Okay, I have a question. It's kind of three parts. So the first part is citizenship. This is important to me personally because my kids and myself are involved. Citizenship, is there any tribes that have identified dual citizenship with another tribe where, like historically where, I can be a citizen or a member of like Mille Lacs, White Earth, Red Lake, etc., and then what impact does that have on federal status? If I'm federally recognized from one tribe, can I not get...I don't understand that. So the second part of the question is, are we putting the cart before the horse when we talk about putting this in our constitution not knowing if that's going to pass or not because how do we consider the next generations when we haven't defined really who they are yet? And then the third part is, has any tribes faltered with their constitutional reform because citizenship was included in there?"

Robert Hershey:

"What was the third part again?"

Justin Beaulieu:

"Has any tribes faltered with constitutional reform, like not passed it because there was a citizenship clause in their constitution, was it not ratified and what not?"

Stephen Cornell:

"So, who's going after that?"

Jill Doerfler:

"Well, I can say a couple things, I guess, probably with regard to White Earth. We don't have a clause that says anything regarding...that precludes dual citizenship, but we didn't really address it specifically like citizenship among multiple tribes and we felt...there was a question at White Earth if citizenship should be considered separately and that was sort of considered separately in the late "˜90s' efforts for reform where we kind of talked about those different options. And at that time, in the late "˜90s, the plan was to put up the new constitution and then put up citizenship sort of at the same time, but then have citizens vote on all those options. And as we worked on our effort more recently in the 21st century, we felt that it was better to put it up as a whole because then you can see the scope of the government because if you have a different type of citizenship that might impact other parts of the constitution and we felt that it would actually be better to put it up as a whole than to separate it out. So that's what we kind of came to."

Stephen Cornell:

"The only thing I'd add -- and this comes to a portion of your question -- there's nothing out there that says you have to redo a constitution all at once. And there's sometimes issues that people find particularly difficult to deal with, and as Jill was saying, this was an issue for them and they decided to put it altogether in a single package, but you can imagine a situation where a nation might say, "˜We need to make some critical changes; it's being held up by one issue over which we have real concerns. We're having trouble resolving that issue. We're going to set that issue aside and deal with it later.' Now that gets complicated for exactly the kinds of reasons Jill talked about, but there's nothing that says you've got to do it all at once and that's what most tribes seem to try to do, but this is your constitution and you're the ones who know whether some issue is going to derail the entire effort and whether one option should be to hold off on that until you can get some consensus over what it should look like. But in the meantime, let's do what we can do because we need to make these changes. So I just wanted to point that out."

Robert Hershey:

"Let me add one other little point to that. The majority of constitutions that we've looked at -- and we did a study of about 200 membership ordinances in different constitutions -- and the majority, the vast majority prohibited dual membership. And I think you'll see that more common than not. One of the tribes we were asked to assist, the question of membership was not even a part of the proposed amendments, but there was a suspicion that it was somehow part of the proposed amendments when it was not at all and that derailed the entire constitutional process. And I agree with what Steve said too, it's probably the trickiest part in there. It may be better to develop some sort of a consensus on the things that seem...like removing the Secretary of the Interior approval language at least initially on some of the ordinances to get that forum going. We have a tremendous amount of constitutional conventions that took place with White Earth to go ahead and inform the public and yet your turnout was a fraction of the people that were involved in the community so I think really it's about the process of education to where it becomes familiar because you're asking people to try and adopt something different than what they know what the status quo has been."

Miriam Jorgensen:

"I don't know of a tribe that has dual membership, although I heard that it was possible in Oklahoma. So I was glad to hear from Mike Burgess that is the case and I think one of the things that's important to think about is to go back to the fundamental idea of what matters to the nation in terms of its citizenship. If it's valuable to them because that's the way that many people see themselves or that there is a segment of the population for which dual citizenship is really important about what the definition of that community is, it might make sense to include it and I wouldn't be surprised if that's part of the reason in Oklahoma where because the Oklahoma Indian history and what, 45 nations relocated to Oklahoma, something like that..."

Herminia Frias (moderator):

"...Thank you. Marcelino?"

Marcelino Flores:

"Thank you to all our presenters, and what I'm understanding so far is that each tribal nation needs to come to an understanding of who they are and how they will govern themselves, but none of this happens in isolation. And I can appreciate Jill beginning to mention that where we're going is one of those questions and Stephen Cornell mentioning perhaps firewood issues and probably appropriate at the council meetings, but the question that I have is there are some things that just cannot be ignored and I think they need more clarification and understanding and that is the role of economic development, health care and housing, particularly for health care. We're largely dependent on the federal system and it's changing, it's very different now. We really don't know what it means to be under Obama Care, especially within the State of Arizona. So how do you address these larger issues in the context of constitutional reform?"

Stephen Cornell:

"I think that's a great question and I'll take a first shot at it. In some ways, I think in the areas you're talking about and I'm going to circle around and come back to your point. We had a tribal chair who said to us once, "˜We get a lot of money from the federal government for programs, a lot of that is treaty-based obligation and our attitude is, 'They owe that to us.'' But he said, "˜I pursue economic development because in my experience every one of those federal dollars is a leash around my neck and it restricts my freedom.' He wasn't talking about himself when he said "˜my,' he meant "˜my people.' 'It restricts our freedom because in order to get that money we've got to agree to year evaluation criteria, we've got to get your permission on how to spend it, we've got to spend it in the way that you think is best for us, not the way we might think is best for us.' And he said, "˜So economic development to me is a freedom program. It's how do I create the resources that allow me to escape that federal leash?' And he said, "˜Don't get me wrong. They owe us the money. They'll never pay us enough money to pay for the land they took, but I don't want to be sitting here having to ask their permission to do the things we think are important for our people.' Now you imagine getting, let's say he reached the point where he could afford health care for his people and where he could provide the housing and there are some nations that are doing that right now, that are pursuing tribally managed health care, for example. The real question is, if he got to that point, has he got the governing tools he needs to deliver on that responsibility? If you say to the U.S. government, "˜Treaty says you're responsible for health care, but you don't do a very good job of it. And I could sit here and wait for you to do a better job of it, but the chances are I might die waiting. So instead, we're going to take responsibility for that because I've got people whose lives are at stake and now we're getting the money to do it.' And now the question is, "˜Can I do it well?' That's going to depend on your constitution. That's going to depend on whether you've got the governing tools in hand that allow you to deliver the things you want to deliver to your people. Now you can get bogged down in the treaty argument and who should pay for it argument and all of that, but at some point you have to say, "˜There are things we want to do for our people and we've got to show that we can deliver.' So that to me is where all these things come back to constitutional questions. They come back to, what do you want to govern and do you have the tools to do it well."

Robert Hershey:

"This is where the Secretarial approval clause comes in too. If you're an IRA [Indian Reorganization Act] tribe, does that say something about your ability to get bank loans and foster economic development? You have the Supremacy Clause of the United States Constitution, the United States government behind you. Some lenders might look at the fact that you're an IRA tribe and they may go ahead and say, "˜Well, you're legitimate,' as opposed to another form of government, too. So that's something that...I said I wasn't going to give you a preview of tomorrow, but that's something I'm going to bring up."

Miriam Jorgensen:

"So now we know everybody's going to come back, Robert, because we're all excited about what you're going to talk about. I just want to say one thing and it's kind of to back up what Steve was saying and I will say that this comes from sort of thinking about what governments are structured to do. If your government is structured to provide health care to citizens and to seek funds to do that from the federal government, to provide housing to citizens and to seek funds from the federal government to do that and to provide streams of income to citizens and to use...rely on particular federal structures to do that, you have a government that's structured to do those things. But if you have a government that is structured to provide greater freedom and opportunity to your people and greater freedom and opportunity for the nation itself to be a self-governing, self-determined, sovereign entity, all those other things are likely to come, but you're going to have the government capacity to do it. So you have to think, "˜Have I built a government that's just about service provision or have I built a government that's capable of doing lots of other things and in the process, is therefore able to underwrite economic development, to underwrite the freedom of individual Native citizens of my nation to be able to access more streams of capital, to be able to have more opportunities and at the same time, yes, maybe I as a government am providing those things to them, but I'm structured to do much more.' So I think that's really the question that nations have to wrestle with -- are you going to limit yourself at the outset by saying, "˜I care so much about service provision that that's the only way I'm going to structure my government,' or, "˜I know that governments have lots of things that they need to do and if it does all those things well, it's going to be able to do service provision well as well.'

Herminia Frias:

"Thank you. We have a question in the back here from Nimrod? Oh, one more response from Jill."

Jill Doerfler:

"I'll just make one quick comment relating to that about services and citizenship and sometimes a concern that comes up is if we increase citizenship then what about services, what about putting strain on that and in a lot of ways our goals are to create strong nations with strong citizens who don't necessarily need housing assistance, but who, because there's good job opportunities and economic development within the nation, don't need to access those, but instead are maybe pumping resources back into the nation rather than extracting them. And so we talked about that quite a bit at White Earth as well. We want strong citizens who contribute and in some ways that don't need certain services maybe."

Mohammed Fardous:

"Hello, my name is Mohammad Fardous, and actually you already answered part of my question, but the question is that is it important to address the economic development in the constitution? If so, what factors should be addressed? Thank you."

Herminia Frias:

"What was the question?"

Mohammed Fardous:

"That economic development, is that important to be addressed in the constitution?"

Herminia Frias:

"Oh, is economic development important to be addressed in the constitution?"

Stephen Cornell:

"To me, that's something for an individual nation to decide. You may be in a nation where you feel the culture of dependency that has been forced on you by subordination and so forth is so deeply entrenched that you want to say -- and one of the things that you may state in a preamble or somewhere in a constitution -- one of the things you value as a people is to be able to support yourselves, to have control over your life, which in this modern time and in this country is going to require dollars. They speak. If that's important to you, you may want to say, "˜One of the things we want this constitution to do is to support prosperity, economic growth for our people so that we can be truly independent of some other government and their control of the purse strings.' I don't know, but to me that's up to an individual nation. It depends what you're most concerned with, and I don't think there's one answer, just as on so many of these issues we've been talking about there's no one answer. The answer is, what resonates with your sense of who you're trying to be and of what needs to change and of what you're trying to protect? That's what a constitution's about. Who are we, what do we need to change, what are we trying to protect? How do we do that? So it's really up to you."

Miriam Jorgensen:

"I think at the same time, though, every constitution is about economic development, but not explicitly. This goes back to the notion that we know that regardless if you're a tribal community, you're a state or provincial government, you're an international nation state, there are fundamentals that support economic progress. One of them is the fair resolution of disputes, and if your constitution sets up that process, it is fundamentally saying something about economic development. You have to have laws like I was talking about that people will abide by so that you can be a society that is a rule-of-law society, and that's not in an oppressive kind of way of, "˜Here's the law and you have to follow it and I said so,' but rather, "˜Do we have laws that we together as a nation agree on that these are the highest expression of ourselves and the way we want to live our lives and to some extent this is how we want to do business?' So does the constitution put in place processes that allow for rule of law to exist? And those are not necessarily saying anything directly about economic development, but they're structuring a governing authority that can support economic development."

Robert Hershey:

"I just want to reiterate the thing that you said about having a dispute-resolution mechanism. That's having a tribal court that has an independent judiciary because you're going to have to have people, if you're going to have investors coming from off the reservation, you're going to try to raise money for economic development projects, they're going to have to have confidence in that dispute resolution forum."

Stephen Cornell:

"And we're going to talk about that tomorrow."

Herminia Frias:

"Jill, did you want to add anything?"

Jill Doerfler:

"No."

Herminia Frias:

"Okay. We have another question in the back."

Jamie Henio:

"Hello. My name is Jamie Henio with the Navajo Nation and my background is primarily in housing and criminal prosecution, but the idea of government reform and constitutions is new to me right now. And I've started working for the Speaker's office about seven, eight months ago and this is...the idea of government reform is pretty much a hot topic on the Navajo Nation right now. So I'm thinking here, listening to everybody and the term 'IRA tribe,' what is an IRA tribe is my first question, what's that? And then the other thing is Navajo Nation, they're looking at...well, there've been attempts in the past, 1930, 1955 and 1960 to develop a constitution, adopt a constitution, but it failed every time. So right now that's where the movement's at again, too, is to develop a document that will govern the Navajo Nation. So if the Navajo Nation should adopt a constitution at this time, would they be considered an IRA tribe and under the control of the Secretary of the Interior? That's my other question."

Robert Hershey:

"Okay. An IRA tribe...well, first of all, after the terrible policies, after the terrible schizophrenic policies of how non-Native society has intruded upon and committed acts of aggression and genocide against Native peoples and then through the allotment period in the late 1800s to the 1920s, in 1934 some of the Solicitors and some of the people in Washington felt that they could go ahead and foster a restructuring of that terrible allotment period where Native peoples lost about two-thirds of their lands. They created what was called the Wheeler-Howard Act in 1934 and that was the Indian Reorganization Act and that basically then from that the BIA [Bureau of Indian Affairs] went out and issued pattern constitutions for the tribes to adopt. I think...it was nothing that the tribes or the nations asked for at that time. What it was, I think it was a convenience mechanism for the United States government also to go ahead and foster its relationship and its so-called trust responsibility with Native nations at that time. So that's the genesis of the IRA. Navajo came about in...and I know that you've had three attempts at constitutional conventions and reformations and that has not passed and I have a historical document written by a Navajo student of mine that I can get you too that talks about that. I think it may have been lost somewhere from...that was given to the nation, but I have a copy of that for you. The fact that you would adopt a constitution does not necessarily make it so that you would be adopting it under the terms of the Indian Reorganization Act. You can adopt a constitution in another way, by yourself. The way Navajo came through the Navajo Business Committee in the 1920s was by virtue of Standard Oil coming to the Secretary of the Interior and basically saying, "˜We want your oil and your shale,' and therefore they established a series of business agreements that then became the councils, which then became the series of concessions and agreements with the Secretary of the Interior and a lot of mismanagement. But it was motivationally driven by non-Native people trying to seek Navajo mineral royalties at that time, out of which then your statutes and laws have evolved keeping in mind the fundamental laws of the Diné. So it does not mean that you have to become an IRA tribe."

Herminia Frias:

"Thank you. Kevin? Which mic is that? Six."

Kevin:

"The gentleman that was talking about economic development, I think every one of the constitutions that are in place in one form or another discuss it in a manner and you were talking about disputes. Well, the issue is if self-determination is applied through a lot of federal programs, that's also under that principle of economic development and the right to govern ourselves. But we have to remember that it's not an act that gives us that right, it's our birthright. So as we can all understand that it's our right as human beings to go in that direction, it's already applied. We just have to apply it. It's already there, written in probably everybody's constitution in one form or another, in the programs that we receive, the ones that do receive them, the monies are there for that principle. Thank you."

Herminia Frias:

"Thank you. We have a question, yes."

Audience member:

"I kind of...I have a question, but I don't know if I'm asking to you guys or maybe to the tribes, because in 2000 we went and passed our new constitution, 2000, the year 2000. So we had an IRA and we made changes. We made it to fit us as Yavapai people, to fit how we're going to do economic development, how we make laws, how we interpret and how all these things happen. But today I think our constitution, when you look back, we're having problems with membership, and I think that's one of the things as tribal people and leaders that you need to look at, what's going to affect you in 50 years. Because me as a leader, I try to look out for 50 years ahead of time or the babies that aren't even born yet. I don't look for today or tomorrow, that's what...that's how I was raised and one of the things, I know that's what we're struggling with is membership and we're working at it but I know like you...one of you speakers presented today that the U.S. Constitution hasn't been changed and it's hard to change and sometimes you don't want to always change your constitution, but as Native people we change every so many centuries and we don't know how many people are actually of our descendance or have just came in and moved in our territory. So I think really the question goes...I don't know if it goes to you guys or us as people. We're the ones that identify ourselves and define ourselves. How many years do you let go by...because here we're...this is year 13 for us with our constitutional change from 1934 and it's been working, but the membership part has been hurting us because we...like this lady here, she's a teacher and she sees all the children that she knows are going to always live within our reservation and their parents are tribal members, their grandparents were tribal members, but we can't enroll them. And I sit there and I argue with my council because I will say, "˜Let's just enroll them. We know who we are. I know that baby's never going to...or that baby's going to live here or that baby may be doing something good in the future and we're not even going to be a part of it,' but it's because our constitutional change that binds our hands and that's why it's so important like what the...like what you did with your community when you had all your forums and meetings and...our committee is doing that now and this is learning for them and I'm glad that they're here, they're learning from you that this is what we need to do is to identify, do everything you can with your community, involve them because in 2000 our community was not involved in this change of constitution. And it is a good constitution and we're tweaking it now. So like I said, I don't know if it's up to...I know it's up to us, but because you guys are the professors and you guys know the rule of thumb or you know the U.S. Constitution, how do we go as citizens of changing them? Do we look every 10, 15 years or do we just not do it and just say, "˜Hey,' cause we do have some elders that say, "˜Just leave it. Just leave it. Don't change it.' So how...what do tribes do that you guys have worked with, I guess is what I'm asking."

Stephen Cornell:

"Well, I was going to ask Miriam because I can't remember whether it's Cherokee or Osage who built into their --Cherokee -- who built into their new constitution the provision that they would revisit it every 20 years I think."

Miriam Jorgensen:

"Actually, it was in the 1976 constitution, that's what motivated the..."

Stephen Cornell:

"...The change, yeah. So it's a...you'd have to think what the appropriate interval is for you, but it's certainly one thing to consider is to say, "˜The world changes and do we wait for a crisis to arise that forces us then into some quick forced constitutional reconsideration or do we say, no, we're going to revisit this document every 10, 15, whatever it might be years, and we'll prepare for that and we'll know it's coming. And therefore it won't be this process that happens in crisis conditions where you don't have time to think about what you're doing adequately because you've got to respond to something that happened. Instead, this will be part of our deliberate, continuing growth of our government.' The world changes; your nation's changed. We sometimes have...I think the anthropologists are probably to blame, but probably all of us are, this notion of these unchanging forever communities that lived in North America. Well, heck, there were trade relations, people had new ideas, people tried new things, people discovered that the climate changed or that you moved because you were following a resource and you had to do things in new ways and the rules changed because you said, "˜Ah, we've got to come up with a new solution for this, deal with the situation we're in now.' Why shouldn't that be part of your new tradition of how you govern, that we're ready to change when the world demands that we respond to new conditions."

Herminia Frias:

"If I can add to that, I think that sometimes we get fixated on that this is done and we forget that this is really a living document, this is really something that we need to adhere to and pay attention to as our society changes. So thinking about it, how is it that we do things today, how is it that we do things tomorrow, and how is it that we're going to do things 25 years from now? It changes."

Miriam Jorgensen:

"So I don't think Jill's going to necessarily blow her own horn on this, but I think that their experience at White Earth is probably real similar to what could go on for you guys at Hualapai. Jill's presentations about historically where their blood quantum rules came from, where their membership and citizenship rules came from, and really telling the history of that. I had read things that Jill had written before meeting her and I encourage you, if you never read any kind of an academic article in your life, to read her 2009 piece in American Indian Quarterly. It's beautiful, it works from the point of storytelling and it puts you in the position as if you were community members in 1910, '13 when the Indian agents came around and assigned blood quantum and you get the understanding that it's an entirely constructed idea. And I think that a lot of citizens today in tribal communities don't understand a lot of that history and they think that it's something that's been...that's definite as opposed to something that's more or less made up and you gave that, a version of that kind of talk multiple times, and it really starts to break down on people's understanding of where these rules come from and opens them up to a greater acceptance that there could be different rules and it can be more inclusive of children and grandchildren and great grandchildren and who's going to be in that community."

Jill Doerfler:

"Well, thank you very much, Miriam, for noting that. Yeah, I didn't get a chance to talk at length about it in my presentation today, but as I said, my research has been on Anishinaabeg identity historically, and so part of that was how people were talking about identity and citizenship in the 19-teens and the historical record on it is amazingly rich. And so we have people at White Earth talking about identity and blood quantum and I was able to use lots of quotes from them extensively to say...what they said time and again was A, "˜we don't know what you're talking about when you try to say blood quantum,' and B, "˜that doesn't really matter to us. What matters is our families, what matters is how we live our lives.' I'll just give two quick examples because I can't help myself. One, what happened is they're asking people at White Earth, "˜is so and so a mixed blood,' and they want to know because of land sale. That's what they're really looking at, but I was interested in the identity. So they asked a woman, "˜Isn't it true...is your husband a mixed blood?' and she says, "˜No, my husband is a full blood. He made himself a full blood.' And so we see there her answer being surprising...I don't know how many people would say that today, they make themselves, but at that time Anishinaabeg people created their own identity by their actions, what they did made them who they were and they were really in control versus this idea of blood quantum, which is sort of pseudo science and it's something that we don't have control over, that's just some kind of number assigned to us at birth by our tribe or the Bureau of Indian Affairs or something like that. And the other fabulous quote that I'll mention, as a person was being asked time and again about another person's blood quantum and he finally said, "˜I don't know. That person has been dead a long time. If you really want to know, you should go ahead and just go dig him up.' So Anishinaabeg people always have some good humor and that's one of my favorites because they're like...there's no answering these questions about blood quantum. And so I think I'll leave it with that."

Herminia Frias:

"Thank you. Justin?"

Justin Beaulieu:

"One of the things that I was going to touch on with her question is that I did a research paper about blood quantum too because it was important to me. And one of the things that I identified was that the only people or the only things that are really identified by how much of something they are is some animals and Native Americans. That's the only thing. So if we're going to categorize ourselves into a category with animals because that...it's always kind of been about resources. The federal government didn't want to be babysitting a bunch of Indians so they said, "˜We're going to make...if you have a kid with a white person, they're half,' and then eventually we're going to be extinct before we're dead. So that was good to them. That was good for them and if that's what we want to continue, that's going to be our legacy, I guess that's our choice."

Herminia Frias:

"Thank you, Justin."

Mike Burgess:

"Mike Burgess again. Not to answer the blood quantum issue, but this young lady, you had a question that you made a statement that how often or how many...when should you change your constitution? My response to that would be and a suggestion is, when your leaders no longer honor it. And so when your leadership doesn't follow through with what that constitution abides by, because I was struck by one statement here that was up on the screen that the law must be followed, rightly or wrongly, be followed. So a constitution that does not define how leadership should be held up, it should be a constitution that has generally your bylaws or your rules of behavior or your ordinance for conducting themselves. So on the reverse side of that, leadership that wants to be in office that can't honor those rules doesn't need to be there in the first place. I bring this up because of my own people again. One constitution, it was [Three] Affiliated Tribes, we broke apart in '65, new constitution in '67, been amended 14 times. We've attempted to change the constitution three times in the last ten years, but my people...put it in political rhetoric, you live with the devil you know. So people who are afraid of change have to be instructed, taught and shown that change is good and beneficial. And so the few of us in my people that want to make these changes, we can't get heard and that voice has been squelched. Well, thankfully the internet is there and even that is misinterpreted at times. But there are these things that can be put in place and for one, we are discussing among ourselves not anymore lowering blood quantum, but raising it. And someone asked me, "˜Well, when and where would you have the cut off line to raise it?' So in 1976, every Comanche enrolled at that time received a per cap and I explained to them, "˜When we first got started with this blood quantum stuff on the reservation days, everybody was a full blood and one-quarter of our tribe was not full-blood Comanche. So why don't we go back to that time frame to 1976 and everybody's a full blood and our children come up half or quarter or three-quarters.' So you're not faced with this reducing blood quantum to get more numbers, which hasn't benefited us in the long run precisely because of per cap, educational benefits, and half the people who don't live at home want their medical card, their education and their per cap and never come home. So some of us are discussing this idea of citizen responsibility, coming home to vote each year, being recognized in the community at specific events and times. So we are having to come back to what some of you have now, citizenship requirements and things of that nature. So I wanted to expand on your question of when to change the constitution. Thank you."

Herminia Frias:

"Thank you. Charissa, right down there."

Audience member:

"This is in regards to the blood quantum. I was just...I teach my kids not to be...not to be prejudiced, but I'm also defending myself and my tribe when I say marry your own tribal members so we don't face these kind of issues. We have a lot of benefits, we have a lot of resources on our own land within our own tribe, we have our language, we have our traditions, we have our ceremony, we have our land. In our tribe, in our tradition, you have that umbilical cord when you're born, then it falls off. We bury it where we're from. We pray for it and we bury it and that's why it's important to teach your kids to marry within your tribe, marry within your tribe so we don't face these kind of problems. And it's important; if you start now when they're young, when they're older it goes on and on. And I tell my kids that. I don't want you to marry somebody that's not a non-member. "˜Why?' I said, "˜Because you're going to lose it, you're going to lose the identity of being a full-blooded Apache.' "˜Well, mom, what makes me Apache?' I said, "˜What makes you Apache? Look at all the hills around you, look at the horse you ride freely, look at everything you do; you hunt, you pray, you dance, you play. You do that because you're Apache. If you're out there, you won't do it. You'll be sitting on a city bus, you'll be doing these things. You'll be following the federal government and the state government. On our lands we have our own laws and we should keep our own blood quantum within our own tribe. Thank you."

Herminia Frias:

"A question in the back."

Jamie Henio:

"Thank you again for letting me speak. I just wanted to share a story regarding the constitution and the Navajo attempts at the constitution. Last year, I was fortunate enough to listen to a speech by a former Navajo leader at the Navajo Nation Bar Conference. And he explained the previous attempts to the constitution and he shared a story with the audience and it goes like this. Back in the early days, there was a big movement about adopting a constitution on the Navajo Nation and you have your pro-constitution people here running around trying to convince everybody saying, "˜This is good for you, this is life, this is life-sustaining.' Then you have your traditional people here who were sort of against it. So they had a big meeting and at that meeting the traditional leaders and the pro people met and the traditional leaders were saying, "˜Okay, you're saying this piece of paper, this document is life-sustaining. Okay, let's put it to a test then.' He goes, "˜We'll build two fires here. One here for you and then we'll build another fire here. On this fire, that's your fire. On our fire what we'll do is we'll go to our flock, get a sheep, we'll butcher, we'll make some bread, we'll fry some meat and cook it and stuff. On your fire, get a big tub of water, boil it and then what you'll do is we'll be cooking meat over here and we'll eat. On your fire take the piece of paper that you're touting around and put it in there and boil it and then we'll see which sustains life.' So you get it? He's telling people, "˜Take your constitution and boil it and eat it and see if it'll sustain your life for you.'"

Robert Hershey:

"And you think mutton sustains life? Ooh. No, I'm teasing. I'm teasing. I loved it. I ate it every day."

Jamie Henio:

"Well, the thing is then later on the guy says, "˜You know the reason why they rejected the constitutions? Because we still have that fear of the livestock reduction program.' And that's why they've been rejecting the constitution because they think that might happen again. So that was his point at the end after that."

Herminia Frias:

"Any other questions, comments? Okay, we have one more at least."

Audience member:

"Hello. I just wanted to make one point, something that Miriam said, which I think...I hadn't thought about before and that's when looking at sources of law to put into constitutions this recognition of international law. I hadn't thought about that, but Indigenous people are making progress all over the world when they're back against the wall and no one will listen and courts will not listen domestically that they're starting to make progress in international law with the Rights of Indigenous Peoples, the declaration on rights and obligations of man. I think that the way for this progress to continue is for it to be recognized in tribal constitutions. For example, the gentleman spoke about the birthright and where are you going to find that in a body of law to cite? But in something like an international document where self-determination and the importance of land to Indigenous people is emphasized. I think that's a great point, something I hadn't thought about."

Robert Hershey:

"I'm going to talk about that tomorrow, too. Thank you -- one of my students, an attorney, bright guy."

Herminia Frias:

"Anyone else? Yes, sir."

Roger White Owl:

"Hi. Roger White Owl. Three Affiliated Tribes. One of the things I guess I wanted to ask the panel, one of the things is as we look at this concept of the social contract in constitutions and what they are really about how important is ambiguity in these documents that you have a living document that isn't just technically written because even the great Greek philosophers said that the worst government was run by lawyers. So that is..."

Miriam Jorgensen:

"And I think Shakespeare said it, too."

Roger White Owl:

"Just how important...because as we see...as we see...as we see, as Mr. Burgess said, pointed out is that your constitution should not be too technical to where your people can't understand it. It's the people's document and so that's the reason why that attorneys make the worst lawmakers according to even Greek philosophers and the very essence of what we know as Western jurisprudence. And so as we look at that, it needs to be...our constitutions need to have this bit of room to be interpreted as the concepts of the rule of law in government and everything else is expressed in implied powers. That's what we have within the constitution and in constitutional interpretation. So how do you guys feel, how ambiguous should a constitution be?"

Miriam Jorgensen:

"Well, I can't give you an amount, like it should be 60% ambiguous and 40% not, but I think it is true that a degree of ambiguity is important and exactly for those reasons that you say a living document, that it allows there to be interpretation of that document that moves with the times. I've written a little bit about this and we talk about it as breathing room in a sense in the document, that you don't have to resolve every single issue by going into great detail in the document. That's what I was kind of getting at when I said about the rules of procedure, a lot of those rules of procedure for legislatures are very loose, they're sort of like, "˜Well, we're going to assign it to the legislative body to establish its rules of procedure. We're going to tell them how representation should occur and what the quorum should be. We might even tell them the dates on which they should meet or how often they should meet or the actual way that they establish their rules are going to be a little bit looser, that we're not going to specify this necessarily in the constitution, we'll just give some direction.' And that allows things to change a little bit if they need to. I think however that in order to have one of those constitutions that has breathing room in it, your constitution absolutely needs to specify a body that's responsible for interpreting the constitution because if you don't assign somebody to interpret the constitution, you've got this somewhat ambiguous document without any ability to say, "˜Okay, at this point in time this is what it means.' Our interpretation may change a little bit, we may change and grow like Steve was talking about, we may change to adapt to the times or to changing circumstances or whatever but you still need somebody to do that... that constitutional interpretation. And if you go back and look at the Mohegan constitution, that council of elders, which I said has that funny role, it's both a legislative body with respect to custom and tradition and certain kinds of traditional law, it's also a constitutional interpretation and judicial review body for that tribe. And so it has very clearly assigned this role." 

Robert Hershey: The Legal Process of Constitutional Reform

Producer
Native Nations Institute
Year

Robert Hershey, Professor of Law and American Indian Studies at the University of Arizona, provides an overview of what Native nations need to consider when it comes to the legal process involved with reforming their constitutions, and dispels some of the misconceptions that people have about the right the federal government has to interfere in what changes Native nations make to their constitutions.

Resource Type
Citation

Hershey, Robert. "The Legal Process of Constitutional Reform." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Presentation.

Robert Hershey:

"Let me just introduce myself just a little bit. I'm Robert Hershey; I was born and raised in Hollywood, California, born on Sunset Blvd. in Cedars of Lebanon Hospital to...yes? I went to Hollywood High School for typing in summer school. I went to John Marshall High School, and the reason we had such a lousy football team is because our mascot was the Barristers. So I don't know if I was destined to become an attorney from the start. However, I skateboarded down the Avenue of the Stars before there were Avenue of the Stars. It was still concrete at that time and growing up in Hollywood as a young kid -- and you might think I'm only 39 with prematurely moonstruck hair -- but really I was born in the late '40s. It was a magnificent time to grow up and to be totally involved in a fantasy world that was very, very difficult to have any concept of racial hatred and discrimination, except when the African-American community decided that they certainly were not getting a fair share of things.

The Indians in my world were all portrayed on television and in movies and it's very important to consider the imagery of American Indian policy, how interwoven it is, because the idea of an Indian is a white construct. We use the term 'Indian and non-Indians' all the time, but at the same time it is something that is just made up. You didn't refer to yourself, ‘I'm Indian.' You referred to yourself by your name, you referred to yourself by your kinship, your family relationships, the nation you belonged to, the societies you were part of, but there's this whole fantasy thing that still dictates today American Indian policy and it paints Indian people with one long, broad brush. Every time there's legislation in Congress it's usually, it's a panoramic landscape of which it paints everybody with the same ideas.

So you come from Hollywood, California, and you find yourself going to big movie theaters that are 10 times the size of houses and you get a really different kind of view of where you were going to be. My grandparents had to leave Europe, they were chased out of Europe because they were Jewish. Fortunately it was before the Holocaust. They went to Cleveland, Ohio, then they came out to California. My parents met there and I was raised there. I went to college at the University of California at Irvine. I studied pre-med. Got tired of memorizing molecules and wound up in law school. I came here to the University of Arizona. When I graduated college at the University of Arizona from law school, I got a job on the Navajo Indian Reservation. How many Navajo speakers are here? Uh oh. I'm in trouble. I was hoping there wasn't going to be any, but we can share mutton together. My mutton story is that where I would go eat mutton every day, one day I was backing up to go back to work and I backed my car into a telephone pole and I still have the muscle spasm from that and that's from 40 years ago. That's my second mutton story. I worked for Diné be'iiná NáhiiÅ‚na be Agha'diit'ahii. So-so? How did I do? I did all right. Thank you. D.N.A. Legal Services, so I was a legal aid attorney there.

And my first experience, and I'd never been on a reservation before, but my first experience, because I was a part of the outdoor life my whole life, and my first experience on the reservation was I rented a house, actually rented a cabin. It was a one-room cabin -- no water, no electricity -- way back in a canyon off the road and the mud chinking was missing. When the wind blew my curtains on the inside of the cabin would blow. I had a two-burner wood stove. I'd fire that thing up, get that stove pipe going red hot, open the front door to a snow storm and I was absolutely in heaven. But when I first went there, my Navajo landlady, my landlord Bertha Harvey, she was about 70 years old, still riding her horses, still chopping her wood and she asked me one day, she said, ‘Robert' -- because she lived much closer to the highway and I lived about a mile and a half back in the canyon -- and she said, ‘Robert, would you...' She called me 'Shinaaí­' and, ‘would you mind taking my goats back to the pen that's next to your place?' Being from Hollywood, what am I going to say, I'm going to say I don't know how to do goats. I didn't know how to do goats, but anyway I said, ‘Sure, I'll do that.' And this one black goat who was the leader of the pack, his name was Skunk and he wore this big bill on him and he took off, he took the whole flock up into the hills and I chased after them and chased after them and chased after them and finally I couldn't get them to come back with me. So I slowly slinked back down the hill after about two hours and I told [her], I said, ‘Bertha, I am so sorry. I lost your goats.' And all she did was start laughing at me. And she says, ‘They know where to go!' So I go back to my house, walk back another mile and a half back and they're in the pen where they're supposed to be. I'm supposed to talk to you today about legal process. My first question, was that legal what she did to me? Then when I worked with the Apaches, they're real good jokesters and they do these joking imitations of the white man. Oh, when I left the Navajo Indian Reservation one of my Navajo friends, she put a thunderbird around my neck, a beaded thunderbird and she said, ‘This will bring you luck in your whole, white life.' And I said, ‘Okay, I got that.'

So I have been very fortunate and I'm absolutely amazed and in wonderment and as I said yesterday, I said, I'm so honored to be with people that care so much and it's been a 40-year commitment on my part to work with and be honored by and in this situation and watch the success of Native peoples. You may get discouraged at times, but look around you, look at the success of Native nations. I am astounded and so happy to be part of that and have based my career on being a participant in that. So thank you very, very much for allowing me that opportunity. So what's legal? Give me a concept. What is legal? Go ahead. I need a mic to give to this young man here. Yes, sir. What's legal?"

Audience member:

"It would be an activity permissible or sanctioned by the people."

Robert Hershey:

"Okay. Who else has an idea about legality? What's legal? Because we talk about legal process, we know...we heard so much about law, but I want to know what's legal. You basically said, ‘It's sanctioned by the community.' It's an agreement. It's an agreement. Who else has an idea of what's legal? Go ahead."

Audience member:

"Like a binding contract between two people."

Robert Hershey:

"A binding contract between...again, an agreement. Right? In reality, [it's] an agreement. Yes, sir."

Audience member:

"A treaty."

Robert Hershey:

"A treaty. A binding contract between two people. Anybody else? You've been talking about reformation of constitutions. You've been learning a lot about constitutions. This is something that you heard before; I'll reiterate. This is nothing that gets fixed in stone. This process of amendments you hear and you hear about, ‘Can we amend our constitution, can we keep it moving forward, can we start a constitution?' It just keeps rolling forward. It's as dynamic as your culture and as your culture rolls and rolls and rolls into contemporary societies that you've created, the constitution supports that and it gives you a greater understanding. Later on I'm going to tell you what I consider also different conceptions of what a constitution might look like. There was one comment that was made to me yesterday by a man who said that, ‘The treaty gave us rights,' and, ‘What about our treaty rights?' Let me tell you, I view things a little differently. Native peoples enjoy all the inherent attributes of sovereignty. Think of it as a big pie. You are inherently sovereign. You inherently control your own destiny. Treaties took away parts of that right. Court decisions take away those rights. Congressional statutes take away those rights. What's left is your inherent ability in addition to your traditionally inherent and aboriginal abilities to govern yourself. That's what's left.

When you hear the word 'sovereign', 'You're sovereign. You have rights of sovereignty,' do you know where that comes from? This is not going to be a federal Indian law lecture, but very, very briefly, in the early 1800s there was a series of three cases. The first case legitimized the Doctrine of Discovery. It basically says that the colonizing power of the United States could go ahead and be unapologetic about subjecting you into their dominion and control. They had plenary authority. The second case basically called you dependent...domestic dependent sovereigns. That's where that term 'sovereignty' came from, which over the years has also been my coin of the turn domestic dependent abuse at times or domestic dependent violence, but that's where that word sovereignty comes from. The third case involves, ‘Well, wait a second, if you are domestic dependent sovereign, then we must have some sort of a guardian/ward relation over you, therefore we have the trust responsibility.'

So since the 1800s, the early 1800s, that kind of relationship has been established and the United States then has taken away lands, it's allotted your lands to take away more lands and then, by the 1930s, that's when it passed the Indian Reorganization Act and those are the types of constitutions that we're talking about now. In addition to the Indian Reorganization Act, there's the Oklahoma tribes' organizing documents, there's other specific statutes for tribes that have organized in constitutional format. Is it all voluntary? And why isn't it voluntary? Because there was not equal bargaining power, there was a conquest, there was a power here and there was subterfuge and there was deceitfulness and dishonesty and saddled you with certain systems of government that you're still fighting against or rallying against today.

Now let me ask you this, and this is something that I would like some participation in, when we talk about the Secretary [of Interior] approving constitutions and having that kind of authority over you, there are a great deal of pressures that the Secretary of the Interior and the BIA [Bureau of Indian Affairs] and through the superintendents in the different agencies they exert over you. I would like you to share some of those stories before I go into what the secretarial process is all about. There have been cases where the Secretary, the agency personnel, they basically say, ‘If you want to go ahead and change your constitution to remove the authority of the Secretary to approve your actions, then you will either lose federal recognition or you will no longer be a participant to the benefits and advantages of the Indian Reorganization Act governments. You will lose that government-to-government relationship,' those kind of threats. In addition, financial pressures, can you say no to them? Are you strong enough economically to say no to them and carry on by yourself? I would like to hear some of you talk about the things that the BIA and the Secretary and the agencies have disclosed to you or have said to you when you've discussed with them the remodeling or the amendment or the reformation of your constitutions. Can somebody tell me some of the stories? Red Lake has its own history. Red Lake was not an IRA tribe. Navajos have no constitution. They've tried. Yes, please. Because I think it's important for us to share at this time the experiences that everyone's had with the Bureau before I get into the scope of what I think their powers are. Thank you."

Audience member:

"In the 1980s when I was tribal chairman, one of the things we became very much aware of was how ineffective and how not responsive to our needs the BIA was. We discovered some of the same things that Elouise Cobell wrote about and we made the BIA rectify those. When we saw how they were dealing with our land and how the land transactions weren't being carried out to the full extent that they are supposed to be, we decided to do something about it. And we didn't follow the same process you're talking about here today. We didn't follow like this very highly democratic process, but what the tribal council did was identify what we needed to do and that was to take away the authorities that the BIA had over us and take over the governance of the tribe ourselves because we knew that we had people who were much more capable than the individuals who were working for the BIA. We came up with the ideas or with the reforms that we needed, and one of the things that we figured we needed to do was to claim jurisdiction over all people in all lands within the exterior boundaries of the Fort Berthold Indian Reservation. And then we gave the authority to carry out those jurisdictions to the tribal business council. And we also went for a name change because the Three Affiliated Tribes was what we called...colonial appellation; it was given to us by the BIA. So we wanted to use our own tribal name. We wanted to call ourselves the Mandan, Hidatsa and Arikara Nation. After they drafted... after the legal department drafted those up for us, we went to every community, every district and showed it to them, we explained it to them. And I know you kind of poo-pooed that idea a little while ago, but it worked for us."

Robert Hershey:

"What was that?"

Audience member:

"Where we wrote out what we wanted, we took it to the community, they gave us our... to the communities, they gave us our blessing. They gave us their blessing and...we answered all their questions, we were honest with them and to me, I think the whole issue at hand was one of trust. Did our people trust us enough to let us do this reform? And by being open with them and honest with them and letting them know what we were doing and why we were doing it, when it came time to vote, they voted overwhelmingly for the changes. And that has helped us immensely down the road. After that we took over all the services that the BIA had. We took over the realty department because they were not doing a good job with realty and we knew that. It worked. These amendments worked out very well for us. I was wondering this morning when you were talking about that Violence Against Women Act and you were saying people need to change their tribal constitutions. Is there something within that Act that says we have to proceed in a certain way or if we already claim jurisdiction over all people and all lands are we okay with that already? That's just kind of an aside I was wondering about. But anyway, when it came down to actually running that Secretarial election, there were other things we wanted to do at the time, but the BIA told us that the people in Washington did not want us to have more than three amendments presented to our people because they thought it might confuse them. So we went along with that and later on we did another secretarial election to get other things done that we wanted to do."

Robert Hershey:

"And is your constitution still, the amendment process still subject to the approval of the Secretary of the Interior? If you wanted to amend your constitution again, do you have to have another..."

Audience member:

"We still have to have the Secretarial election. We were encouraged to leave that in there. One of the things I just want to mention that we found later on is that our...a number of our people, if things didn't go just the way they wanted them to, they kind of longed for the BIA again. And we found that kind of interesting because if they couldn't get their way with the tribe they thought maybe the BIA, if they still had control of the tribe maybe they would have let them have this, that or whatever."

Robert Hershey:

"Thank you for sharing that 'cause I do want to talk a little..."

Audience member:

"I have one other thing I want to say, too. If you're going to do this, you have...the tribe has to be the one to push on these. The BIA is very lax. They don't...they're not going to push things forward for you. We had a young man who was one of our tribal members, Ray Cross, and we had another legal counsel, Kip Quail. But Ray Cross, one of our own tribal members was very, very aggressive and he just...he pushed everything. It was always, ‘Okay, when is our next meeting? All right, when are we going to meet next?' And he was telling the BIA not...he was telling the BIA what to do. We didn't let them tell us what to do."

Robert Hershey:

"Absolutely. Thank you. You brought up a question that many of you might be thinking about. The Tribal Law and Order Act of 2010 and also the Violence Against Women Act. They require certain constitutional rights, United States constitutional rights like the presence of a counsel, in order to go ahead and have increased sentencing authority or to assume jurisdiction over non-Indians in domestic violence cases on the reservation they have to be afforded United State constitutional rights, not just Indian Civil Rights Act cases. So if your constitutions have a provision in there where you have adopted the Indian Civil Rights Act and made that part of your constitution and that has old sentencing authority in it, it does not provide...it may be a limitation and that may be something you have to amend to go ahead to keep in pace with the jurisdictional advantage and the punishment that can be meted out under these two new acts, so that may be something. Yes. Thank you."

Audience member:

"Thank you."

Robert Hershey:

"Anybody else? How about somebody who has a good story about the BIA? Raise your hands. There's a young man over there who's got a good story about the BIA."

Audience member:

"I am not a young man, but thank you. We had trouble in our reservation and some buildings burned and tribal council moved their meetings off the reservation under the Roger Jourdain regime. And I had a friend that worked for the BIA in Minneapolis and she called me and told me to come down. And so I went down to the BIA in Minneapolis and she showed me an order from the Bureau of Indian Affairs. At the time, there was a lot of mineral concerns that are still going on right now, but this was like in the 1970s, late 1970s and the directive from the Bureau of Indian Affairs was to allow oil companies and people that...companies that were looking for minerals to allow them to do that without informing the tribal council that the Bureau, local bureaus on each reservation throughout the United States, giving them the authority to go ahead and allow illegal coring and other matters that was going on. And it did happen in many Midwestern states. So I took that directive and I took it to Roger. Roger got mad at me. He said, ‘Where the hell did you get this?' I said, ‘Well, it doesn't matter where I got this. What matters is the directive from the Bureau of Indian Affairs.' I said, ‘This is what I'm giving you.' And it wasn't too long after that the superintendent of Bureau of Indian Affairs on the Red Lake Nation was booted out and Roger informed other tribal councils about that directive from the Bureau undermining tribal governments. And so that's a story I have about them."

Robert Hershey:

"Okay. Thank you. Someone back here too. Because what I'm getting at here is that there are some sentiments on the reservations that the BIA there is to protect some people from actions of tribal councils and they do appreciate that oversight, as much as they do interfere with the tribes exercising their own self-determination. So there is that kind of split...

...Not only is there dependence on this bureaucracy, but some people are advantaged because of this bureaucracy. And so when you adopt the BIA constitutions, how many people are living today that have not been a part of a BIA constitution from a government, especially if your nation was there from the 1930s and adopted that constitution? So these are very powerful institutions, so that your leaders that are part of the IRA government, tribal council, they wear the clothes of power by virtue of these forms of government. So you're trying to change that, too. Now I've worked with a number of nations in constitutional reformation. One tribe has been trying to amend its constitution since 1975 and they've appointed a committee, a constitutional committee, but we heard yesterday too there's some fatigue that sets in and that fatigue...and so you have attrition, you have people falling out. And I've been at council meetings where there's been a call to the audience, ‘Who wants to be on the constitutional committee now? Who wants to be there?' And maybe one person might step up and give it a go. But we've advised these constitutional committees and some of these constitutional committees think that they are in effect a shadow government. I don't know if that's been an experience there where they think that they should have the power. They say, ‘The council's not doing this, this, this so we're going to change the constitution to make sure that they don't do this, this and this.' There [are] other people that I've worked with that have been trying to amend their constitution since 1990. This is a long, arduous process. Please don't feel that you have to get this done within any quick period of time. Before I continue...Yes, councilman.

Audience member:

"Just kind of a question, if you can discuss or point out the state of the organizations for example like the BIA and their role is changing, but they have some changes that are going on like some generational differences that are being felt and also I've heard that -- Ben pointed out at the legislative level -- where younger leadership is coming in and they're met with these older...at the state level it's become evident as well. There's just a generational gap in the organizations. And how is that changing and where do we see that going because I...one of the things, the good things I was going to say about the BIA is that they just got emails maybe about five years ago, which I thought was remarkable. They've come a long way."

Robert Hershey:

"I talked to some of my students...I've had two students that got a job a year-and-a-half ago at the solicitor's office. They were...I'm very proud of them. They were chosen out of about 1,000 people, there were four jobs open, two of our students from the Indigenous Peoples Law and Policy got jobs in the solicitors and I called them to ask them these types of things. There's still a climate of kind of hush-hush. There's still the politics going on there. Most of your experiences with the BIA are going to be at the agency level and so those experiences are not necessarily resonate all the way up to the central powers in Washington where you're going to get like a consultation policy from the Secretary of the Interior. Well, it looks really nice. They've done a fairly good job, but like all consultation policies, they're usually adopted before they consult with the tribes as to what a consultation policy should look like. And I'm going to come back to that in a little bit, but there may be a generational issue. But being youthful does not guarantee that you're going to have dramatic success. The youthful people on the Navajo Reservation in the 1920s are the ones that wanted to go ahead and start this process of exploration of shale oil development. But again, it's going to be your own individual experiences. Usually it's the agency superintendent levels that are going to determine...and those relationships I've seen have changed a bit to where they've been more supportive. But let me go on and talk about still how they make their determinations. Go ahead."

Audience member:

"[Unintelligible]."

Robert Hershey:

"We can't retire. I'm sorry. We can't. You would all have that experience. One second, sir. I want to get to one other thing. They've given me a sign there and I've got about six hours of material to get through. How many people do not have an IRA constitution here? Navajo, Red Lake does not. Sorry?"

Audience Member:

"[Unintelligible]."

Robert Hershey:

"It looks like it, but it's not under the IRA, am I correct?"

Audience member:

"[Unintelligible]."

Robert Hershey:

"So you still went ahead and had the Secretarial approval. So there are those kinds of constitutions that have not been adopted under 25 USC Section 460, which is the Indian Reorganization Act, but you've put the Secretarial approval language in your constitution, so you're still bound by the Secretarial approval. Yes?"

Audience member:

"With our committee here one of the things we were looking at is to...striking that out of our new constitution and..."

Robert Hershey:

"You want to know the consequences."

Audience member:

"Under the law, and maybe international law, would it still be recognized in international law because it was signed off, our original one was signed off by the government."

Robert Hershey:

"Okay. I'm going to get to that in a minute, the consequences of removing the approval process by the Secretary of the Interior."

Audience member:

"Does that include Red Lake's unique status?"

Robert Hershey:

"That would include Red Lake's unique status as well because it basically...excuse me. Was it by statute or was it by just an inclusion that you put in there?"

Audience member:

"Inclusion."

Robert Hershey:

"Inclusion. You may get some backlash from the Secretary on that; however, you can get it done. There's been some threats that I've been made aware of where the Secretary would basically say, ‘Well, you're no longer going to be federally recognized.' Those of you that have succumbed to those kind of threats, that is not true. You cannot lose your federal recognition under the acknowledgement process by virtue of removing the Secretarial language. What will happen is if you remove the Secretarial approval language, like I said yesterday, in one sense, in one sense that you could remove the language that's filtered through all the language of the constitution that they have approval: attorneys, they have to approve mining, they have to approve leases, things...you can get rid of all that language. It's only when you go ahead and try to remove the Secretarial approval clause, ‘amending the constitution,' if you already have it in the constitution, that then you would no longer become an IRA tribe. It does not mean you lose your federal recognition. Yes, ma'am."

Audience member:

"[Unintelligible]."

Robert Hershey:

"Well, it is related to the trust responsibility and here's how, and that's a reason why some of the BIAs, how they view whether you can go ahead and amend their constitution or not. They're basically saying, ‘We have to support our trust responsibility to you, therefore we have to have oversight.'

Now, for the Secretary to...first of all, in the materials you have are the statutes, the Code of Federal Regulations that talk about the process of what you have to do to go ahead and have an amendment. How many people have...if you've had no constitution whatsoever and you want to become an IRA constitutional tribe, then you have to have 60 percent of the members that are on your reservation petition the Secretary of the Interior to have an election. If you already have, then you get together the people that want to go ahead and have an amendment to the constitution or a revocation of the constitution and then you have to go through a process where you tell the Secretary, the Secretary has 90 days to go ahead and look at your amendments, give you suggestions and advice under the trust responsibility, approve or disprove and then you have to...if they disprove, then you have to decide whether you're going to go ahead with the election or not; I'll tell you the grounds in just a minute. And then, once the election is had, 30 percent of your voting, the eligible voters must show up at the election, a majority of which then determines whether those amendments pass. The Secretary then, if they pass, the Secretary then has 45 days within which to approve or disprove of those amendments. If they don't make a decision within 45 days, they automatically become an amendment to the constitution.

Now here's where the trust responsibility comes in, because prior to 1988 when the Indian Reorganization Act was amended, the Secretary was insinuating itself in all manner of decisions as to whether or not it could approve or disprove your constitutional amendment provisions. And they...basically for any reason whatsoever, and the tribes were really getting hung up. As a result of the 1988 amendments, the Secretary only has the authority to disprove your...if your proposed amendments are in violation of federal laws, congressional statutes, court cases. What the Secretary is also doing is they say that they have the authority to insinuate themselves into the approval process if your proposed amendments violate federal policy. And this is where that trust responsibility comes in because there's no standards that talk about the violation of what the policies are. They can bring anything up. Now this is especially acute in membership issues, when you're trying to amend the constitution in terms of...the regulations are given in your materials under one of the numbers. You can read through that. So it is still unclear and it is not demarcated exactly what the authority is. The BIA Handbook of 1987 is still in use. There are working drafts of later, of 2009 handbooks, copies that I've seen and they're really hard to find, this handbook how the BIA determines whether or not it's going to go ahead and rule whether or not something is approved or not. For the most part the BIA has been approving. The consequences of not being an IRA tribe; if you remove that language, what are those? What else do you have in place at that time? There are communities that want that certitude, that they have the United States government exercising its trust responsibility through the Secretary of the Interior and steadfastly saying that, ‘We have the supremacy of the United States government behind us because they approve what we do.' The Secretary has no authority to approve your ordinances or resolutions, statutes, providing you have not given them that authority in your constitution. It's only in terms of the amendment process.

Now I want to move on because I have a few things to show you here. Somebody asked about the United States, the Declaration of the Rights of Indigenous Peoples, some of the international law documents. I'm not going to run through all of it here but please, all of you should have a copy of the United Nations Declaration of the Rights of Indigenous Peoples in your council rooms, in your attorney's offices because these laws are binding. Now there's no real teeth in them, it's not that if the United States Office of the Solicitor or the United States government in itself violates any of these principles, that you can then sue them, take them to task, but you can incorporate these principles within your constitution should you choose to do so -- I'm sorry these are not well written. I'm going to buzz through these because they're different -- but you have the right to determine your own members, you have the right to control your own lands, you have the right to make decisions about just about anything and no state government, United States -- and when I say state governments, nation states -- can go ahead and interfere with those rights as long as you continue to assert them through this process.

Now, the Advisory Council for Historic Preservation; if some of you are involved in sacred sites litigation, holy place litigation, the Advisory Council for Historic Preservation -- I'm sorry you can't see these -- just put a clause in there, it just came out last month that they're supporting the United Nations Declaration on the Rights of Indigenous Peoples within their advisory council materials. This is an EPA [Environmental Protection Agency] policy. This is just for draft. It says, ‘Do not cite or quote.' Too bad. There's another provision in the EPA draft that basically says, ‘that we support the United Nations Declaration of the Rights of Indigenous Peoples.' This is the Indigenous and Tribal Peoples Rights; this is the Inter-American Commission on Human Rights, one of the international law documents, the International Labor Organization Convention 169. Your attorney should be well versed in this. In fact, on April 19th at ASU, the Special Rapporteur for Indigenous Peoples Human Rights is part of a symposium at Arizona State University on incorporating these Indigenous international law principles into the domestic discourse. Native peoples, Native societies and nations in this country have been reluctant to embrace this because they've held so fast to the trust responsibility. This is the frontier. This is the inclusion of the Indigenous Peoples Rights in the new constitution of Nepal. You will see this. And in Bolivia you will see this. This is the National Congress of American Indians. They have a draft.

Now, I want to think about something other than what you've been talking about, these kind of documents that you try to embrace within a written, English language written structure and whether or not there are other concepts of how you formulate government. How many people have conversations about plants, about place names, about a certain site, about a mountain? What's the story there, how does that envision, how does that help you then translate into what's appropriate to be written rules of conduct? The O'odham here, they basically teach their children, or at least traditionally, they taught their children, they waited until bedtime and when the child was just about ready to go to sleep they would tell them in their dream so they could dream about what was appropriate behavior or when they would wake up.

There's different ways of expressing what a constitution may be -- a land management plan. This is the Poplar River First Nation in Manitoba and what they have done is that they've organized together, they've mapped out their lands, they have a vision statement, which you might consider like a preamble to the constitution. One of the speakers just before me was talking about land management, comprehensive land management. The constitution reformation does not have to come before a comprehensive land management [plan]. One may inform the other. And in the process of developing comprehensive land management strategies, I suggest that you map your intergenerational memories. You probably already have done that. You've taken the statements of your elders. You've archived them. You've protected privileged knowledge. You've put them in your archives, you've created maps, you've created place names, you've gathered stories. These are important not just for whether or not you're going to go into aboriginal title litigation or whether you're going to design a constitution, but whether there's preservation of language because all those stories inform custom and tradition that can be used by your tribal courts in establishing common law.

So what they've done here is they have the vision statement, they spent 10 years working on this comprehensive land use plan. As a consequence, shortly after this they worked in concert with the government of Manitoba. The government of Manitoba passed Bill 6 and Bill 6 basically set aside most of the eastern shore of Lake Winnipeg in Manitoba as conservation area joining the traditional lands of the Poplar River First Nation. You can get there. Go on their website and download this plan. It's magnificent. This is the constitution, according to my colleague Ray Austin, Professor Ray Austin, former Navajo Supreme Court Justice. He's one of our professors. He's a distinguished juris in residence at our college in our program. This is his constitution of the Navajo Nation. ‘Mother Earth and Father Sky and the rights and responsibilities and the protections afford each.' He says he can go ahead and talk about the whole Navajo system of government through this. He incorporates the terms hozho, hozho k'e, nayee, other concepts here.

Emory Sekaquaptewa, magnificent Hopi elder, Chief Judge of the Hopi Court of Appeals, one of my most significant mentors, wrote about Hopi songs and ritual dances as being constitutions, as being the stories. So when we think of a written constitution, we ask our self, ‘Who's it for or to? Is it to show to the external world? Is it for our selves internally? Are there other ways that we can go ahead and express ourselves by virtue of mapping, by singing?' These are all constitutions. These are all rules of conduct. The Maya Atlas, the Toledo Mayo in Belize put together an atlas. I would have you look at their...this is something called 'Dreaming New Mexico' and it's not a very good rendition. A project in New Mexico that got together all the stakeholders, the Native peoples, the Pueblo peoples, the food peoples, the people that were bringing food in, the energy inputs, the ranchers, the farmers, people...all your community, all your neighbors and they visualized and mapped something different because we're all talking about ecological sustainability here in addition to the promotion of self-determination and sustainability of Native identity within your community. So you have neighbors out there as well. I'd like to hear if any of you have any other questions that I might be able to answer or comments. I would love to hear from you please. Kevin? No. Yes, sir."

Audience member:

"This has to do with citizenship. If you were born on a reservation, your allegiance is to that piece of land where you were born, correct?"

Robert Hershey:

"I would hope so."

Audience member:

"And so if you were born off the reservation then your allegiance is to the United States? Is that part of..."

Robert Hershey:

"Me?"

Audience member:

"Yes."

Robert Hershey:

"Am I allegiance to the United States?"

Audience member:

"Yeah. Do you have allegiance...? When you're born in Hollywood...?"

Robert Hershey:

"That gets...that's a political thing. I don't want to go ahead and cast a disparaging comment about the United States government in front of this illustrious audience, but I will if you want me to. I'm much more comfortable with Native politicians than I am with Anglo politicians. That might answer your question there. I've had many more positive experiences on reservations and working with Native peoples. It's been my whole career except for surfing and skateboarding. Thanks. Anybody else before...yes, I knew you'd come back here, Kevin. Give that man a microphone, please."

Kevin:

"One of the questions I have is all the IRA governments, when you get sworn into office, you have an oath to the United States government...when you swear into office, does anybody swear an oath to the United States government? That's one of the issues with the IRA for some of us. So when we swear an oath, even though I was elected in with my own people, I swear an oath to the Constitution of the United States because it's part of our constitution. That, in turn, we become a body politic of the United States government in one form or another. I want to talk about an issue with White Earth, but it involves the Minnesota Chippewa Tribe about the issue with the BIA or Secretary Interior. In our constitution, if we wanted to remove somebody from office, we have a process called Article X. And if Article X isn't heard by or acted upon by the reservation business committee, our tribal council or the tribal executive committee, then it in turn goes to the Secretary of the Interior for review. For the last 22 years, the four petitions that went to the Secretary of the Interior have all came back and said, ‘It's an intratribal matter, deal with it yourself.' In the issue that happened with White Earth years ago on a removal process, the BIA stepped in and let a person sit office early at the tribal executive committee with only two members to run a reservation. So the BIA stepped in and told that person they were able to do that by violating the tribal executive committee and everything that existed under the constitution. So I don't know if that...everybody else in here has to deal with them kind of issues, but we as the Minnesota Chippewa Tribe, that's what we have to deal with. By the BIA stepping in sometimes and setting precedence or telling us, ‘No, we're not going to deal with it even though trust responsibility is ours, we're not going to deal with it, you deal with it.'"

Robert Hershey:

"Some of the things that they say they have authority to do is stepping on electoral matters."

Kevin:

"Exactly."

Robert Hershey:

"They do and they still...and I've seen cases of that right now. And they're very reluctant to do [it] in membership issues, which is striking because the Pala Band of Mission Indians, this case that just came out, it's a horrible, horrible case of disenrollment and the Federal District Court dismissed the lawsuit and basically said the tribe is sovereign, too. They had a sovereign immunity clause there. One other thing, if you go to the BIA website right now and you scroll down in their general thing and they have a pattern constitution you can click onto, just about the same as it ever was. So I suggest that all of you take over the BIA, start writing new constitutions and let's do it right. So thank you very much. I appreciate your time."

Carole Goldberg: Designing Tribal Citizenship

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wilma Mankiller: What it Means to be an Indigenous Person in the 21st Century: A Cherokee Woman's Perspective

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Indigenous Scholars Lecture Series
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Former Principal Chief of the Cherokee Nation Wilma Mankiller discusses the common misperceptions that people have about Indigenous people in the 21st century, and the efforts of Indigenous peoples to maintain their identity, cultures, values, and ways of life.

Native Nations
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Citation

Mankiller, Wilma. "What it Means to be an Indigenous Person in the 21st Century: A Cherokee Woman's Perspective." Vine Deloria, Jr. Indigenous Scholars Lecture Series, University of Arizona. Tucson, Arizona. September 30, 2008. Presentation.

Thank you very much Tsianina [Lomawaima] for inviting me and for working on all the details to get me here. And I also want to thank Teresa wherever Teresa is who’s been in charge of taking care of a lot of logistics and has done a great job. And how I came to be here is that I mentioned to Tom [Holm] one time -- we’re both on this commission that he mentioned -- and I mentioned to him how much I love Arizona. And I told him. ‘If I ever had to live any place other than my home and the Cherokee Nation, I’d live in Arizona.’ And he said, ‘Well, we need to get you to Arizona then.’ And so I also wanted to thank Tom for the invitation to come here today and be with all of you. And I want to thank you. I was just mentioning to Tom how honored I am always when I do public speaking that people would leave their home and their family and their other activities and come to spend an evening just so we can have dialogue together and get to know one another, and I really appreciate that very much and want to express that appreciation to you.

For me it’s an incredible honor to offer remarks about what it means to be an Indigenous person in the 21st century as a part of the Vine Deloria series of events that are occurring here on campus. Many of us who had the privilege of knowing Vine are still trying to figure out how to live in a world without his physical presence and I believe that we can best honor him by doing exactly what this university is doing and that’s continuing to challenge the stereotypes and the misperceptions about Native people that still exist in this country. I also think that we can honor him by getting up every morning and making sure that we stand for something larger than ourselves. I think that’s a way of honoring Vine. And I also think that we can honor him by continuing the fight, his fight, our fight for treaty rights and for tribal sovereignty and also continuing the fight for our cultural survival.

So let me begin by saying that I don’t speak for all Indigenous people or even for all Cherokee people. The thoughts that I share with you tonight are derived entirely from my own experience. And most of my remarks tonight will concern Indigenous people of this country, but I have visited Indigenous people in lots of other places including China. There are very distinct ethnic communities in China, in Ecuador, in South Africa, in New Zealand and in Brazil. There are over 300 million Indigenous people in virtually every region of the world including the Sami peoples of Scandinavia, the Maya of Guatemala, numerous tribal groups in the Amazonian rainforest, the Dalits in the mountains of southern India, the San and Qua in southern Africa, aboriginal people in Australia and of course the hundreds and hundreds of Indigenous people in Mexico, Central and South America as well as here in this land that is now called America. There is enormous diversity among communities of Indigenous people, each of which has its own culture, language, history and unique way of life. Indigenous people across the globe share some common values derived from an understanding that their lives are part of and inseparable from the natural world around them.

Onondaga faith keeper Oren Lyons who spoke here recently once said, ‘Our knowledge is profound and comes from living in one place for untold generations. Our knowledge comes from watching the sun rise in the east and set in the west from the same place over great sections of time. We are as familiar with the land, river and great seas that surround us as we are with the faces of our mothers. Indeed we call the earth [Native language], Our Mother, from which all life springs. This deeply felt sense of interdependence with all other living things fuels a duty and a responsibility to conserve and protect the natural world that is a sacred provider of food, of medicine and spiritual sustenance. Hundreds of seasonal ceremonies are regularly conducted by Indigenous people to express thanksgiving for the gifts of nature and to acknowledge the seasonal changes and to remind people of their obligations to each other and to the earth.’

And the stories continue. In many Indigenous communities around the world, traditional stories embody the collective memory of the people. These stories often describe how things were in the distant past, what happened to cause the world to be as it is today and some stories project far into the future. The prophecies of a number of Indigenous groups predict that the world will end when people are no long capable of protecting nature or restoring its balance. Two of the most widely quoted prophecies are those of the Hopi and the Iroquois, both of which have long predicted that the world will end if human beings forget their responsibilities to the natural world. These prophecies seem particularly important in this era of increasing alarm about the catastrophic effects of climate change and questions, even questions about the long-term survival of humankind. Indigenous people are not the only people on earth who understand that they’re interconnected with all living things. Former U.S. Vice President Al Gore said, ‘At some point during this journey, we lost our feeling of connectedness to the rest of nature. We now dare to wonder, ‘Are we so unique and powerful as to be essentially separate from the earth?’’

There are many thousands of people from different ethnic groups who care deeply about the environment and fight every day to protect the earth. The difference between non-Indigenous environmentalists and Indigenous people who live close to the land is that Indigenous people have the benefit, the unique benefit of having ceremonies that regularly remind them of their responsibilities to each other and their responsibilities to the land. So they remain close to the land not only in the way they live but in their hearts and in the way they view the world.

To me, sometimes when I talk to mainstream environmentalists it’s almost like environmentalism is an intellectual exercise. The difference when you talk to people who, traditional Indigenous people who live close to the land is that they feel that the connection to the land and their responsibility to take care of it is a sacred duty, it’s not an intellectual exercise. When women like Pauline Whitesinger, an elder at Black Mountain or at Big Mountain, and Carrie Dann, a Western Shoshone land rights activist speak of preserving the land for future generations, they’re not talking about just future generations of humans, they are talking literally about future generations of all living things. That’s a profound difference. Pauline and Carrie live with the land and they understand the relative insignificance of human beings in the totality of the universe.

When all human beings, Indigenous people and non-Indigenous people lived closer to the land, there was a greater understanding of the interdependence between humans and the land. Author and feminist Gloria Steinem observes that ‘Once, indeed nearly for all the time that human beings have walked this earth, you and I would have been living very differently in small bands, raising our children together as if each child were our own and migrating with the seasons. There were no nations, no lines drawn in the sand. Instead there were migratory paths and watering places with trade and culture blossoming wherever the paths came together in patterns that spread over the continents like lace.’

So what’s happened in the non-Native world is that there’s an absence of the stories and the ceremonies to remind them, and so they have no memory of that time when they lived very close to the land and were responsible for one another and for the land. They’re not only distant from the land and from themselves, they have little understanding of their place in the world.

I remember one time being, I live in a very rural area at the end of a dirt road within the Cherokee Nation and so very conscious of seasonal changes and of things that are going on in the natural world. And I remember once being in New York City at the magical time of dusk and watching the people. Not a single person on a crowded street in New York City looked at or acknowledged the sunset over the Hudson River or even, I imagine, thought about the gift of another day. It made me wonder how many urban dwellers, millions of urban dwellers go about their lives without ever really seeing or thinking about the miracle of the sun rising in the morning and setting again in the evening.

Aside from a different view of their relationship to the natural world, many of the world’s Indigenous people also share a sometimes fragmented but still very present sense of responsibility for one another. Cooperation has always been necessary for the survival of tribal people and even today in the more traditional communities cooperation takes precedence over competition. It’s really quite miraculous that a sense of sharing and reciprocity continues into the 21st century given the staggering amount of adversity Indigenous people have faced. Within many communities at home and I think in tribal communities around the country the greatest respect, the most respected people are not those who have amassed great material wealth or achieved great personal success. The greatest respect is reserved for those people who help other people, people who understand that as Indigenous people we’re born into a community, a specific tribal group and that our entire lives play themselves out within a set of reciprocal relationships. The people that understand that are the most respected people.

There’s evidence of this sense of reciprocity in some Cherokee traditional communities. My husband Charlie Soap leads a widespread self-help movement among the Cherokee in which low-income volunteers work to build walking trails, community centers, sports complexes, water lines and even houses. This self-help movement, in which everybody gets together and helps each other, taps into the traditional value of cooperation for the sake of the common good.

Besides a connection to the land and this sense of reciprocity, the world’s Indigenous people are also bound by the common experience of being ‘discovered’ and subjected to colonial expansion into their territories that led to the loss of an incalculable number of lives and millions and millions of acres of land and resources. The most basic rights of Indigenous people were disregarded and they were subjected to a series of policies that were designed to assimilate them into colonial society and culture. Too often, the policies resulted in poverty, high infant mortality, rampant unemployment, substance abuse and all its attendant problems.

The stories are shockingly similar all over the world. When I first read Achebe’s Things Fall Apart, which chronicled the systematic destruction of an African tribe’s social, cultural and economic structure, it sounded all too familiar. Take the land, discredit the leaders, ridicule the traditional healers, send the children off to distant boarding schools; very familiar story. And then I read a report called The Stolen Generation about aboriginal children in Australia who were forcibly removed from their families and placed in boarding schools.

My own father and my Aunt Sally were taken from my grandfather by the U.S. government and placed in a government boarding school when they were very small, very young. So that story is very familiar to Cherokee people and to tribal people all over the world. Indigenous people everywhere on the planet are connected both by our values and by our oppression.

When contemplating the contemporary challenges and problems faced by Indigenous people worldwide, it’s important to remember that the roots of many contemporary social, economic and political problems can be found in colonial policies and those policies continue today across the globe. In the Amazonian rainforest, Indigenous people are continually battling large scale destruction of their traditional homes in the forest by multi-national mining, oil and timber companies. Some small Amazonian Indigenous communities are on the verge of extinction as the result of the murder of their leaders and the forced dispersal of their members. And to make matters worse, some well-meaning environmentalists who should be natural allies focus almost exclusively on the land and appear not to see or hear the people at all.

When I was in Brazil, one of the people there was quite humorous and he said, ‘There was a time when a lot of famous musicians, American and English musicians, would wear T-shirts that said 'Save the Rainforest.'‘ And he said, ‘You never once saw a T-shirt that said 'Save the People of the Rainforest.'‘ Though the people of the forest, the people who live in the forest and have lived there for thousands of years possess the best knowledge about how to live with and sustain the forest.

When you think about it, of the fact that folks focus on the land and not the people, it’s not surprising really because Indigenous people are not in the consciousness of many, of the people in the larger society. There’s too little accurate information available about us, available in educational institutions, in literature, in films or in the popular culture. I believe that the battle to protect the human and land rights of Indigenous people is made immeasurably more difficult by the fact that so few people know much about either the history or contemporary lives of our people and without any kind of history or cultural context, it’s almost impossible for outsiders to understand Indigenous issues. And the information that is available is often produced by non-Native people; some of which is enormously helpful. Some of the anthropological work has helped tribes restore, some tribal people restore their languages and that sort of thing. So some of the non-Native literature is enormously helpful, but too much of it is written by people who spend 15 minutes in a tribal community, become an expert, and then go out and write a book or produce a film.

So there’s a lot of inaccurate information out there. And the lack of accurate information creates a void, which is often filled with nonsensical stereotypes, which either vilify Indigenous people as troubled descendants of savage peoples on the one hand or they romanticize them as innocent children of nature, spiritual but incapable of higher thought on the other hand. Whether the stereotype romanticizes or vilifies people, it’s still very harmful I believe.

Then the stereotypes about Indigenous women are particularly appalling. While the role of Indigenous women in the family and the community, now and in the past, differs from community to community, women have always played very significant roles in most tribal societies. Yet in the media and in the larger society the power, the strength, the complexity of Indigenous women is rarely acknowledged or rarely recognized.

I believe that these public perceptions of tribal people will change in the future because Indigenous leaders now understand that there is a direct link between public perception and public policy and they understand that they must frame the issues for themselves. If Indigenous people don’t frame the issues for themselves, their opponents most certainly will. In the future, as more Indigenous people become filmmakers, writers, historians, museum curators and journalists, they’ll be able to use a dazzling array of technological tools to tell their own stories in their own voice in their own way.

Once a journalist asked me whether people in the U.S. had trouble accepting the government of the Cherokee Nation during my tenure as principal chief. I was a little surprised by the question. The government of the Cherokee Nation predated the government of the United States and the Cherokee Nation had treaties with other countries before it executed a treaty with one of the first U.S. colonies. So that question really surprised me.

During the colonial era and before, many tribal leaders sent delegations to meet with the Spanish, with the English and French in an effort to protect their lands and rights. And these tribal leaders, they would travel to foreign lands with a trusted interpreter and they took maps that had been painstakingly drawn by hand to show their lands to other heads of state. They also took along gifts, letters and proclamations. And what’s very painful now is to look back in history and see that though the tribal leaders themselves, when they traveled to these other places, thought they were being dealt with as heads of state and as equals, historical records indicate that they were sometimes viewed as objects of curiosity and sometimes a great deal of disdain though they themselves, the tribal leaders, were very earnest.

The journalist with the question about Cherokee government needn’t apologize for her lack of knowledge about tribal governments in the U.S. Many people in the U.S. know very little about us though they’ve been living in our former towns and villages now for hundreds of years.

Again, it’s impossible to even contemplate the contemporary lives or future of Indigenous people without some basic knowledge of tribal history. [I’m going to skip some of this history because you probably know all of this.] Tribal governments in the U.S. exercise their range of sovereign rights and it’s interesting because one of the most common misperceptions in the larger culture is that all tribal governments are the same or even worse that all Indian people are the same or that we speak some kind of common ‘Indian’ language. And so one of the tasks I think we have is to remind people that each tribal government is unique and that different tribal governments exercise their sovereign rights in different ways. And some tribal governments have gaming facilities, some have a number of cooperative agreements with the state governments, other tribal governments believe that we are giving up sovereignty to execute any kind of government with a statement government so they don’t engage in those governments. And there are some governments like the Onondaga that have, do not do any kind of gaming, don’t believe in gaming, and they don’t receive any kind of federal funding at all, none. And so they, and they have their traditional government that they’ve had since the beginning of time. But by and large there are many tribal governments in this country now that have their own judicial systems -- most do -- operate their own police force, they run their own schools, they administer their own clinics and hospitals and operate a wide range of business enterprises and there are now more than two dozen tribally controlled community colleges. And the interesting thing is that all these advancements that tribes have made benefit everybody in the community not just tribal people. And the history and contemporary lives and future of tribal governments is intertwined with that of their neighbors.

And even within there’s a lot of difference between various tribal groups, each of which is very distinct, has its own culture, language and history but even within tribal groups there’s a great deal of diversity. And in our tribe, members of our tribe, the Cherokee tribe, are very stratified socially, economically and culturally. There are several thousand Cherokee people that continue to speak the Cherokee language and live in Cherokee communities in rural northeastern Oklahoma. On the other end of the spectrum, there are enrolled members of the Cherokee Nation who’ve never even visited the Cherokee Nation and so there’s a great deal of stratification in our tribe and I believe in other tribes as well.

Each Indigenous community is unique just as each community in the larger society is unique. Outside our communities, I think too many people view Indigenous people through a very narrow, one-dimensional lens and really we’re very interesting and very complex and we’re certainly multi-dimensional human beings that rarely do people outside of our communities see us in that way.

So what does the future hold for Indigenous people across the globe and what challenges will they face moving further into the 21st century? I think that to see the future of Indigenous people one needs only to look at the past. If we as a people have been able to survive such a staggering loss of land, of rights, of resources and lives, how can I not be optimistic that we will survive whatever challenges lie ahead in the next 100 or even 500 years and that we can project far into the future and still have viable Indigenous communities. If we’ve survived what we’ve survived so far, I’m confident we can survive whatever lies ahead. Without question, the combined efforts of government and various religious groups to eradicate traditional knowledge system has had a profoundly negative impact on the culture as well as the social and economic systems of Indigenous people. But again, if we’ve been able to hold onto our sense of community, our sense of interdependence, our generosity of spirit, our languages, our culture, our ceremonies, our medicine, despite everything, how can I not be optimistic about the future? And though some of the original languages, ceremonies and medicine has been irretrievably lost, the ceremonial fires of many Indigenous people across the globe have survived all the upheaval. Sometimes Indigenous communities after major upheaval and removal have almost had to reinvent themselves as a people but they’ve never given up their sense of responsibility to one another and to the land. It is this sense of interdependence I believe that has sustained tribal people thus far and I believe it will sustain them well into the future.

The world’s changing, but we can adapt to change. Indigenous people know about change and have proven time and time again they can adapt to change. No matter where Native people go in the world, they take with them a strong sense of values, a strong sense of who they are and so they can fully interact with the larger society and participate in the larger society around them but still have a sense of themselves. If you look at some of the people like Vine Deloria, or [N.] Scott Momaday, who won a Pulitzer Prize, or the Chickasaw gentleman, who was an astronaut, or the women who, including Maria Tall Chief, who became prima ballerinas, no matter where those people went they took with them a strong sense of who they are.

One of the things that I remember interviewing for my book LaDonna Harris and one of the things that she said strike me. She said, ‘You know, when I was living in Washington as a Senator’s wife, I did the same thing as other Senate wives did.’ But she said -- it didn’t matter who all was talking to her or what situation she was in -- 'I was Comanche and when, whatever was going on around me, I filtered that through my Comanche values and my sense of who I was. I could live in Washington in a similar house as the other Senate wives and do similar things but I never lost my sense of who I was as a Comanche woman.’ She said, ‘I’ve always hated that term that we live in two worlds.’ She said, ‘My world is that I’m a Comanche woman.’ So it was very interesting and I think a lot of people do that. And for the young people here today that are contemplating careers, it doesn’t matter whether you become a physician or a professor or a lawyer or if you live away from your homelands and can’t participate regularly in ceremonies. You can take with you the knowledge and the values wherever you go.

I believe that one of the great challenges for Indigenous people globally and particularly here in the U.S. will be in the future and now will be to develop practical models to capture, maintain and pass on traditional knowledge system to future generations. When we all lived close to one another, it was easy to pass on the knowledge. Many tribal groups even had people who were designated to remember things. It was their job to remember things and pass them on. But since people are very mobile and the world’s changed so much, we have to come up with new models to capture and maintain the knowledge and pass it on to future generations. There’s nothing in the world, nothing that we can learn anywhere that can replace that solid sense of continuity and knowing that a genuine understanding of traditional knowledge brings. We have to preserve that and we have to pass that on to future generations. There are many communities that are working on discreet aspects of culture such as language or medicine, but in my view it’s the entire system of knowledge that needs to be maintained and not just for Indigenous people but for the world at large.

Perhaps in the future Indigenous people who have an abiding and deeply held belief that all living things are related and interdependent can help policymakers understand how completely irrational it is to destroy the very natural world that sustains all life. Regrettably, in the future the battle for human and land rights will continue but the future does look somewhat better. Last year, after 30 years of advocacy by Indigenous people, the United Nations finally passed a resolution supporting the basic inherent rights of Indigenous people. The resolution by the way was passed over the objections of the United States government. The challenge I think for people working in international work now will be to make sure the provisions of the resolution are honored and the rights of Indigenous people all over the world are indeed protected. And the efforts of tribal governments in this country to take full advantage of the self-governance and self-determination policies of the U.S. government are once again a testament to the fact that Indigenous people simply do better when they have control of their own lives.

In the case of my own people, we’re an example of what happens when you have control and then when you lose control. In the case of the Cherokees, after we were forcibly removed by the United States military from the southeast to Indian Territory, now Oklahoma, we picked ourselves up and rebuilt our nations. We started some of the first schools west of the Mississippi, Indian or non-Indian, and built schools for the higher education of women. We printed our own newspapers in Cherokee and English and were at that time more literate than our neighbors in Texas and Arkansas and actually I think we probably still are. Then in the early 20th century, the federal government tried to abolish the Cherokee Nation and within two decades -- when we didn’t have a functioning central tribal government -- we went from being one of the most literate groups of people to having one of the lowest educational attainment levels of any group in eastern Oklahoma. And so that’s a direct testament to what happens when we have control and when we don’t have control.

For the past 35 years, we’ve been in an effort to revitalize the Cherokee Nation and now we once again run our own school and have an extensive array of successful education programs. The youth at our Indian school, the Sequoyah High School, recently won the state, the team, a student won the state trigonometry contest and several are Gates Millennium Scholars. Again, we do better when we have control over our own destiny. And a couple of years ago Harvard University completed over a decade of comprehensive research, which was published in a guardedly hopeful book entitled The State of Native Nations. The research indicates that most of the social and economic indicators are moving in a positive direction. Many tribal governments are strong, educational attainment levels are improving, and there is a cultural renaissance occurring in many tribal communities.

Within some Indigenous communities, there are conversations about what it means to be a traditional Indigenous person now and what it will mean in the future. I am an Indigenous woman of the 21st century, and I’m so glad I was born Cherokee and that my life has indeed played itself out within a set of reciprocal relationships in my family and community.

To me, being an Indigenous person in the 21st century means being part of a group of people with the most valuable and ancient knowledge on the planet, a people who still have a direct relationship with and sense of responsibility to the land and to other people.

To me, being an Indigenous person of the 21st century means being part of a community that faces a daunting set of challenges and problems and oppression and yet the communities, our communities find so many moments of grace and comfort and joy in traditional stories, in the language and in ceremonies.

I think, to me, being an Indigenous person of the 21st century, all these young smart people getting an education here at the University of Arizona, being an Indigenous person of the 21st century means trusting our own thinking again and not only articulating our own vision of the future clearly, but having within our communities and our people the skill set and the leadership ability to make those visions a reality.

Being an Indigenous person in the 21st century means -- despite everything -- still being able to dream of a future in which all people will support the human rights and self-determination of Indigenous people. We still have that dream and we still have that hope. Land can be colonized and resources can be colonized but dreams can never be colonized. I always think about the time of my grandfather and the early part of the 20th century, during that bad time when our central government was in disarray, and these people never gave up the dream of having a strong central tribal government and a strong community and they would ride horses to each other’s houses throughout the Cherokee Nation and collect money in a mason jar to send a delegate to Washington to remind the leaders in Washington of their obligation, their treaty obligations to Cherokee people. So our people never gave up their dream and will never give up their dream.

Being an Indigenous person in the 21st century means sharing traditional knowledge and best practices with Indigenous communities all over the world using the iPhone, the Blackberry, MySpace, YouTube and every other technological tool that becomes available to us.

Being an Indigenous person in the 21st century means becoming a physician or a scientist or even an astronaut who will leave her footprints on the moon and then return home to participate in ceremonies her people have had since the beginning of time. That’s what it means to be an Indigenous person in the 21st century.

And finally, to be an Indigenous person of the 21st century means to forego the feeling of going around with anger in our hearts over past injustices and it means not becoming paralyzed by the inaction we see around us or the totality of problems we face in our communities. We can’t be paralyzed by that and we can’t be angry over past injustice. I think it’s important for us to keep our view just as our ancestors did. We’re here because our ancestors thought about us and cared about us and fought for us. So it’s our job now to keep our vision fixed on the future. That’s what we need to do.

I really love my favorite proverb, which I’ll leave you with is a Mohawk proverb and because they teach their young people not to always be angry and focus on injustice or not be paralyzed by what’s going on around them, the problems they now face. So what they tell their young people is that you need to be thinking about the future and ‘it’s hard to see the future with tears in your eyes.’ I love that proverb. So I’ll leave you with that proverb, ‘ It’s hard to see the future with tears in your eyes.’ And thank you again for being here and open it up for some time for questions and answers. Thank you.