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NNI Indigenous Leadership Fellow: John Petoskey (Part 2)

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In the second of two interviews conducted in conjunction with his tenure as NNI Indigenous Leadership Fellow, John Petoskey, citizen and long-time General Counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses the legal doctrine of tribal sovereign immunity and the future of the doctrine with respect to the Michigan v. Bay Mills Indian Community case pending before the U.S. Supreme Court. He also discusses how GTB has worked to systematically build its justice system, and stresses the need for Native nations to adequately fund their justice systems.

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Petoskey, John. "NNI Indigenous Leadership Fellow: John Petoskey (Part 2)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 3, 2013. Interview.

Ryan Seelau:

"Welcome to Leading Native Nations. I'm your host Ryan Seelau. On today's program we have back with us John Petoskey, citizen and longtime general counsel of the Grand Traverse Band of Ottawa and Chippewa Indians. This week, he is serving as the Indigenous Leadership Fellow with the University of Arizona's Native Nations Institute for Leadership, Management and Policy. Good to have you with us, John."

John Petoskey:

"Thank you."

Ryan Seelau:

"We're here today to talk about a few other nation-building topics to build on the things you've talked about this week, and the first topic I would like to talk about is sovereign immunity. And the first question is hopefully sort of a simple one. Can you just tell us what in layman's terms the doctrine of sovereign immunity is and sort of why it exists and what the rationale behind it is?"

John Petoskey:

"The doctrine provides that a sovereign is not subject to suit unless there is a consent to that suit, unless the sovereign either waives sovereign immunity or -- in the case of Indian tribes -- if Congress statutorily enacts something that abrogates the immunity of the Indian tribe. So sovereign immunity for a state, for example, is recognizing the 11th Amendment of the U.S. Constitution and sovereign immunity of the United States, although not recognized in the U.S. Constitution, is part of the Law of Nations that was adopted in the early part of the constitutional history of the United States, that the United States could not be sued without its consent. So it's a doctrine that provides immunity for a sovereign, in this case the United States, a state or tribe from un-consented lawsuits."

Ryan Seelau:

"And what is sort of the rationale behind why it exists in the tribal context?"

John Petoskey:

"In the tribal context, it's to protect the tribal treasury, and it's also the same rationale that exists for state and federal that the governance process of the tribe should be immune from undue influence by private suits."

Ryan Seelau:

"And in your day-to-day work as general counsel, where does the doctrine of sovereign immunity come up?"

John Petoskey:

"Well, let me preface my response with my history with Grand Traverse Band. Grand Traverse Band was the first tribe to achieve federal recognition in 1980. That was two years after the Santa Clara [Pueblo v. Martinez] decision, which recognized sovereign immunity as a valid doctrine in the modern era of federal Indian law. And so in the early years of representing Grand Traverse Band, we would have a number of off-reservation creditors or off-reservation contract partners or tort people who would be suing in state court against the tribe and we would have to assert the immunity of the tribe, that it had not been waived nor had Congress abrogated that immunity and therefore the...it was generally in the context of a motion to dismiss that there was no basis for the lawsuit because of the immunity of the tribe. And in the early years, I probably did over 30 lawsuits of various litigants suing the tribe and the response from Grand Traverse Band generally evolved from those 30 suits to enacting statutory structures and resolutions that waived immunity and provided redress for people who were suing."

Ryan Seelau:

"Let's talk a little bit more about those statutes. Can you give an idea of some of the areas that immunity's been waived and what the thinking was behind that process and then, not going into specific codes, but what that looked like in practice?"

John Petoskey:

"Well, I know you said not going into specific codes, but I can only talk in terms of the specific codes. First of all, the constitution of Grand Traverse Band provides for a waiver of sovereign immunity for its tribal citizens to sue under rights that are similar to the Indian Civil Rights Act in the Bill of Rights of the United States Constitution and the constitution, the tribe's constitution, limits those remedies to prospective relief without any relief from the tribal treasury. The other two major statutes that the tribe passed was one on contracts and one on tort. The contracts we passed a general waiver of sovereign immunity for expectancy damages on the contract limiting the remedy to consequential damages and so our off-reservation vendors, when they do have a dispute with the tribe, do file a contract claim in the tribal court asserting expectancy damages and you just go through the regular contract analysis. With regard to torts, we have also waived immunity similar to the Federal Tort Claims Act in providing a limitation on remedies that are available for people who suffer, allegedly suffered a tort, and the big limitation that we have on that particular statute is that pain and suffering, which is the large area of tort case compensation, is limited to one-and-a-half times actual physical damages. And I might add that after we passed that statute our insurance premiums, the level of risk, actually declined because the insurance company could then therefore measure the level of risk and knew what the risk was less than not having a tribal waiver of immunity for tort actions."

Ryan Seelau:

"It's very interesting that the insurance premiums declined. Were there other benefits that you saw from the time before that those statutes were enacted to when the policy...when the constitution was passed and other policies came into play?"

John Petoskey:

"Yes. First, for tribal citizens it provides a method to dispute tribal council actions either in the executive or legislative capacity as being a breach of the Bill of Rights, if you will, that's... in our constitution it's Article X, which parallels the Indian Civil Rights Act. And so tribal citizens do bring causes of action against the tribal council or against the tribal councilors or against the executive departments alleging that the implementation of a particular tribal statute or particular tribal program is a violation of the Bill of Rights. The remedies that they seek are modification of the program, prospective relief in other words. With regard to the tort and contract issue, the tribe is involved with off-reservation vendors and also involved with off-reservation business invitees to its casinos and its hotels and we needed to provide a remedy for those people who come on to the reservation to engage in business with us and to have a determinate process of dispute resolution. When we did not have the waiver of sovereign immunity, we always had an indeterminate process of dispute resolution because the suit would be filed and in some cases given the merits of the suit the council would prospectively waive immunity for that particular suit to resolve that issue. In other cases, the council would not waive immunity and would just argue that we're immune from suit and not provide a remedy for the person who allegedly suffered harm. The statutes now provide a determinate response for all litigants on what they're going to do. And so when they enter into business with the tribe, they enter into business with the tribe knowing the risks and understanding that if there is a dispute, there is a remedy to resolve that dispute."

Ryan Seelau:

"I'm going to break my own rule and go into specifics a little bit, but procedurally in the contract instance or when the tribal council wants to waive immunity, is there a procedure or are those automatically in certain instances...?"

John Petoskey:

"No, there is a procedure. We have resolutions. The tribe does waive its immunity for transactional documents related to financing, for example, and we have chartered subordinate organizations and we have a Section 17 corporation under the Indian Reorganization Act that has a process for waiving immunity and that process has to go through the Economic Development Corporation through a resolution authorized by the corporation. That resolution then has to come back to the tribal council and the tribal council has to concur in the waiver prior to the waiver being effective. With regard to...there's one statute I didn't mention that I would like to mention very quickly and that is that the tribe has also enacted an arbitration provision, and primarily the reason we enacted an arbitration statute was because we have done substantial construction projects, multi-million [dollar] construction projects and we needed a methodology to resolve those construction disputes. The expertise of a tribal judge is not necessarily related to the complex problems related to construction activities and the American Arbitration Association has a wide variety of arbitrators that are specialists in different subject matter areas. You could have maritime...well, not maritime jurisdiction, but you could have commercial arbitration, you can have construction arbitration, and so this process that we enacted references the people who have the dispute, the off-reservation contractors and the tribe to go through the arbitration process with construction arbitrators, and it's a much quicker way to resolve disputes because the parties involved are speaking the same language in terms of construction activities. They're engineers, construction managers, they're architects and they generally have the same sort of two standard form of documents. There's two sets of documents, the AIA documents or the Engineer and Construction Management documents that really structure disputes between the owner, the construction vendor and the architect. And so we enacted that provision in arbitration to access that resource. Once the award is given in arbitration then it's enforced by the tribal court and if it's not enforced by the tribal court, which has never happened in our case, but the parties do have relief in federal court through the Federal Arbitration Enforcement Act. So that provides a lot of security for off-reservation contractors that come on to engage in business on the reservation."

Ryan Seelau:

"Has arbitration been used outside of the construction...is it available to other...?"

John Petoskey:

"It is available to other disputes. The arbitration procedure has been incorporated into our transaction documents for loans on the reservation. These are very large loans that we've negotiated with syndicated loan companies in which arbitration is used for the dispute resolution to determine whether there was a even of breach or interpreting the loan documents, which are extremely comprehensive."

Ryan Seelau:

"I want to turn back a little bit to sovereign immunity and talk a little bit about what role do you see sovereign immunity playing in negotiations with either state governments or local governments? Do you see it as having any impact in those...?"

John Petoskey:

"It does have an impact because sovereign immunity serves as a leverage value for the tribe to negotiate agreements with the State of Michigan in the context of what I'm familiar with. The Grand Traverse Band along with several other tribes in Michigan have negotiated a comprehensive tax agreement with the State of Michigan covering sales and use, income tax, utility tax and this agreement really resolves...it also covers tobacco and gasoline tax. The comprehensive tax agreement resolves a lot of disputes that the tribe could engage in or would have engaged in or other states and other tribes are currently engaging in, and that is the scope of the state's authority to tax for on-reservation transactions. What we've done in Michigan, it's called the...it's a tax agreement that is on the Michigan state website and it details what's called a tax agreement area in which the exemptions of the tribe will apply both for state income tax, sales and use tax, gasoline and cigarette tax, and also creates a situation where the sales tax is shared between the tribe and the state on a percentage basis that is subject to negotiation. Now a lot of those negotiations would not have gone forward if the tribe did not have sovereign immunity, because you have the Citizen Potawatomi decision of 1991 that directly relates to tobacco tax in which the Supreme Court held that the tribe was immune from the Oklahoma Tax Commission's collection efforts against the tribe for on-reservation sales of cigarettes that the tribe did not have to collect on behalf of the state, that there were other methods upstream that they could use to collect. And there have been well-publicized disputes between tribes and local taxing authorities, states in particular, in which things have degenerated into violence and road closures and burning tires and things like that. So that specter of civil unrest related to not having an agreement or enforcing an agreement through extra judicial means was one of the circumstances that both the tribes in Michigan and the state wanted to avoid. And incident to that was the immunity of the tribe, that the immunity of the tribe provided a negotiating leverage point as represented by the Citizen Potawatomi case for the tribe to argue with the state to say there's a different way of resolving this issue, we can do a mutual waiver of immunity, we can enter into this tax agreement and we can establish a regime in which the state and the tribes share the tax revenue and recognize the exemptions that are under federal law and this has been in existence since...we started negotiating in 1999 and very complex issues wasn't resolved until 2004. So it's been existence for about 10 years and it's been administered...the tribe -- both the tribe and the state are happy with the results and we are hopeful that will continue into the future."

Ryan Seelau:

"One of the interesting things about Grand Traverse Band's agreement with the State of Michigan in taxes to me is that if there's any disputes they first go to tribal court. My question for you is first of all, was that an important part of what Grand Traverse Band wanted to get out of the agreement and the other tribes? The second, you may or may not be able to answer this, but why do you think the State of Michigan was comfortable first going into the tribal court to deal with those types of disputes should they arise?"

John Petoskey:

"Well, first we wanted them to go to tribal court because our view of National Farmers and jurisdiction was exhausted in tribal court remedies, but also for some cases where it was on-reservation transactions involving tribal members. We felt that we had exclusive jurisdictions in some context and so we were very...not adamant, but we had very strong views that any initial dispute resolution should go to tribal court. The state has had ongoing relationships with the tribes and the Michigan Supreme Court and the tribal courts have had past reciprocity agreements, the Michigan court rule is at 2615 and that rule recognizes tribal court judgments and orders, subpoenas and other matters and so long as the tribe passes a reciprocal rule for the recognition of state court orders in its tribal court system. So that was the key, the existence of that rule and the history of mutual cross recognition without going through the full faith and credit analysis that had to be done previous to that, in which you had to petition the court and then establish on an itemized basis that the particular subject matter issue that you were involved in met the full faith and credit requirements of the host jurisdiction. All of that process is no longer done in Michigan because it's done via a court rule, Michigan Court Rule 2615 and Chapter X of the Grand Traverse Band court rules. And so it's become a matter of local practice for attorneys up there to understand that they can get their state court judgments enforced in tribal court and that the tribal court judgments conversely can be enforced in state court. So the existence of that rule gave comfort, if you will, to the state, and in addition we wrote statutes to reflect the agreement that we had negotiated, the substantive agreement that we negotiated, the state didn't have sign-off authority on them, but once they saw the scope of the statutes and our enforcement mechanisms that we established for the agreement then they didn't have an objection to having the agreements resolved in tribal court and we have done that. We have, in fact, enforced our tax agreement against our tribal members who have violated it in tribal court for the benefit of the State of Michigan because they are part of the revenue-sharing agreement of the taxes that are generated."

Ryan Seelau:

"Following up briefly on this Rule 2615, was that something that the tribes in Michigan fought to get to occur or do you know the history behind how that came about?"

John Petoskey:

"The history behind it was Justice Cavanaugh who was on the Michigan Supreme Court was interested in this reciprocity between tribal courts and a cousin of mine who's also a lawyer and a tribal judge, Mike Petoskey, and Justice Cavanaugh, started a committee years ago to have coordination between the courts. Justice Cavanaugh attended the Federal Indian Bar meeting in Albuquerque, New Mexico, sometime in the 1980s and that's when Mike and Justice Cavanaugh first met and developed a friendship and in part it was that friendship and the rule-making process in the court that they utilized to...in the Michigan Supreme Court that they utilized to resolve the questions of full faith and credit between tribal courts and state court systems."

Ryan Seelau:

"Are you aware of how many of the tribes have passed the necessary rules or statutes in order for this reciprocity to..."

John Petoskey:

"There are 12 tribes in Michigan and approximately, off the top of my head I don't know the precise number, but I would venture to say 9 or 10 have passed that rule and of the tax agreement, for example, again, it's the same thing, about 9 or 10 have signed onto the tax agreement. There are a couple tribes in Michigan that take a contrary view and that there shouldn't be the reciprocity agreements, there shouldn't be the tax agreements, and they have their own political views as to the source and scope and extent of the tribe's sovereign authority and how to implement that. And I'm not criticizing that. I'm just saying that people do take contrary views from the path that we have taken."

Ryan Seelau:

"I don't want to get too far into it, but in those contrary views to sovereign immunity, the mechanism by which the taxes are not being exchanged?"

John Petoskey:

"Yes. Yes. Yes, sovereign immunity is asserted as a basis for not...sovereign immunity is asserted as a basis for those tribes that continue to sell untaxed cigarettes, for example, or engage in transactions that they allege are not subject to the sales and use tax of the State of Michigan and that ties into a different question, which is, what is the scope of Indian Country based upon the exterior boundaries and the scope of the treaty provision areas?"

Ryan Seelau:

"I want to turn attention to something related and something that you've talked quite a bit about in your time as an [NNI] Indigenous Leadership Fellow and that's the Bay Mills Indian Community case and you gave a talk on the case yesterday so we don't need to go into all of the history and details, but I was wondering if you could just briefly give a quick synopsis of what that case is about and perhaps more importantly why that case has been in the news lately or what the concerns about that case going before the Supreme Court are."

John Petoskey:

"Okay. So the Bay Mills Indian Community alleges that under a statute called the Michigan Indian Land Claims Settlement Act, which implements an Indian Claims Commission judgment, that the terms of the statute created automatic restricted fee if they used resources from Michigan Indian Land Claims Settlement Act funds to buy property. They presented that theory to the National Indian Gaming Commission in a geographic specific amendment to their gaming ordinance, which the National Indian Gaming Commission informally rejected. They then revised their amendment of their gaming ordinance to basically parallel and parrot the provision of what Indian Country is in the Indian Gaming Regulatory Act. And based upon that provision of their gaming ordinance and the acquisition of an off-reservation casino located in Vanderbilt, Michigan, which is in basically the backyard of another tribe, the Little Traverse Bay Bands of Odawa Indians, they opened a casino alleging that the acquisition of the property created automatic restricted fee and that based upon the federal rules promulgated May 20, 2008 in regard to the Seneca Indian Land Claim Settlement Act, that restricted fee was not subject to Section XX of the Indian Gaming Regulatory Act. In other words that it was effectively a loophole, that they didn't have to go through the after acquired property analysis under Section XX and that restricted fee automatically became Indian Country, and if it was automatically Indian Country, they could engage in gaming and they opened a gaming facility. The State of Michigan along with Little Traverse Bay Bands sued for an injunction arguing that Michigan Indian Land Claim Settlement Act did not create restricted fee. They based their authority for the suit under a provision of the Indian Gaming Regulatory Act, which was 2710.D.7.A.ii which provides a five-part test for a state or tribe to sue in federal court to enjoin a gaming operation on Indian lands conducted in violation of a compact that is in effect. And so in that statement, there are about five elements that you have to meet for the cause of action. That provision both establishes federal jurisdiction, creates the cause of action, and waives by statutory abrogation, waives the immunity of the tribe that you're suing against. So Bay Mills argued that the complaint by the State of Michigan and Little Traverse Bay Bands was defective and did not meet all of the elements of 2710 because one of the counts alleged that the casino was not on Indian lands. Therefore if you're construing the complaint, if it's not on Indian lands and the conjunctive nature of 2710.D.7.A.ii of the five elements that the Little Traverse Bay Band had a defective complaint by alleging that the casino was not on Indian lands, if it's not on Indian lands there's no federal jurisdiction and there's no waiver of...there's no abrogation of immunity by the statute because the statutes in order to abrogate the immunity under case law have to be strictly construed and followed. That argument was not successful in the federal district court by Judge Maloney and he had an expansive reading of 2710 and relied on a 10th Circuit case that focused more on whether the gaming activity is a violation of the compact and ruled that there was also federal jurisdiction under two other related provisions, 1331 for the federal question of whether or not the Michigan Indian Land Claim Settlement Act created the restricted fee, and also that 1362, which provides authority for a tribe to sue in federal court, that that provided an additional basis for federal jurisdiction. He did modify both of those provisions when Bay Mills pointed out that the Sixth Circuit decision had already issued opinions contrary to that in 1331 and 1362, but he did reaffirm the proposition that an expansive reading of 2710 focusing on whether the tribe, Bay Mills, was violating the compact was a sufficient basis for the abrogation of their immunity under federal law and continued...and rejected their motion for reconsideration on the injunction. At that point, Bay Mills filed an interlocutory appeal to the Sixth Circuit and then briefing was completed and oral argument was held in May of 2012 and then opinion was issued by Judge Kethledge of the Sixth Circuit was the author and he essentially accepted Bay Mills' proposition that 2710.D.7.A.ii has five elements and all of the elements have to be met for there to be federal jurisdiction and for there to be a statutory abrogation and if you construe the complaints of the Michigan...the State of Michigan and the tribe, they are alleging that the casino is not on Indian land, therefore effectively they knocked themselves out of court because they are missing an essential element. So that is the case that's up on appeal. There are some ancillary issues in there that I don't want to go into that relate to the State of Michigan's argument under the Assimilated Crimes Act and also the scope of 1331. The issue that is up on appeal is whether 2710 waives the immunity in the expansive reading that Judge Maloney had in the federal district court or whether 2710 has to be read in a very restrictive manner...explicit manner such as Judge Kethledge said in the Sixth Circuit. So the state's argument, which was filed in August, argues that there's a statutory misinterpretation and that Judge Maloney is correct in his interpretation, but then they go on to an extreme position by saying, "˜And even if Judge Kethledge is right that sovereign immunity, in this particular case, should be modified by the court as part of the common law of the court, the state is urging the Supreme Court to essentially override its common law jurisprudence on sovereign immunity,' and that's where the big danger lays because the jurisprudence has established in the past through CNL in 2001 and Kiowa in 1998, there was a developing analysis of on-reservation, off-reservation, commercial versus governmental and the state is urging that the Supreme Court should adopt an analysis that off-reservation commercial activity is subject to a common law diminishment of sovereign immunity. They are urging the court to say any activities that are off the reservation of a commercial nature the tribe cannot assert sovereign immunity. So that's where the big danger is."

Ryan Seelau:

"I'd like to change topics a little bit now and talk about the sort of legal foundations of nation building. And what I want to talk to you about specifically is sort of the role of culture in legal institutions or in legal doctrine and things of that...and I was wondering how you, over your career, have seen the role of culture play out in legal systems because previously you talked about how, in the previous interview you talked about how you worked...in various parts of the country you worked with the Pueblos in New Mexico and you worked with Alaska native villages in Alaska and you've worked in various contexts and I was wondering how you see the same sort of goal, which is carrying out justice in Indian Country, how you're seeing that process change based on the culture that you were working within."

John Petoskey:

"The example that I used is actually quite dated and I don't think it's relevant to New Mexico anymore, but earlier in my career I worked at Indian Pueblo Legal Services and I worked for the eight northern pueblos and one of the pueblos I worked for was Taos Pueblo and at Taos there was an individual who was a tribal member that only spoke the Taos language and she was suffering from extreme alcoholism that impaired her judgment. At that time they called it 'organicity.' I'm not certain what that phrase means, but she would not leave the village and she was creating distress by her behavior in the village through her alcoholism. The pueblo had made numerous attempts to correct her behavior in their internal mechanisms that I'm not familiar with and then they came to the Legal Services and said, "˜Well, how do we deal with this particular situation?' And in the state law system at the time for somebody that was suffering from extreme alcoholism where they were doing harm to themselves you could petition under the New Mexico Health Code for an involuntary commitment in the district court of New Mexico to place the person in an institution against their will, an involuntary commitment petition is what it was called, but the problem in that case was that the person lived in Taos and would not leave the pueblo. So there was no subject matter civil jurisdiction for an internal relation that was taking place at Taos. So the court didn't have civil jurisdiction, the New Mexico Supreme Court did not have civil jurisdiction to initiate the process, nor would the individual come out of the pueblo. So given that set of circumstances and the language problems connected with her simply speaking the Indian language as her primary language, I met with the pueblo officials and with three caciques and explained that I thought what we should do is establish if you will a panel of caciques that would address this issue in the context of New Mexico law of the elements that you had to meet for an involuntary commitment under New Mexico law. And so they agreed with that and the panel of three caciques were convened with the person who was suffering from alcoholism and I went through the New Mexico Health Code on the elements that had to be met to prove that this person should be subject to an involuntary commitment and it was translated into the Taos language for the individual and explained what was going on and the caciques then agreed that she met all of those criteria and ordered that there would be this involuntary commitment. I then wrote up the order following the procedures that had just taken place and took that order to the New Mexico District Court and sought full faith and credit of what had occurred at Taos Pueblo and had to go through a hearing with a district judge in New Mexico arguing that the process that occurred at Taos Pueblo conformed with the procedural due process values of the New Mexico Health Code and the judge did order that the person was...could be involuntarily committed to a facility that was under New Mexico's control and that's what occurred. And so that was somewhat of a creative use of...I'm not saying that in a self-congratulatory sense. In response to your question that's what I'm saying. It was a use of using the cultural norms of the caciques having the authority that this person, the person suffering from alcoholism, respected and going through that process even though it was New Mexico substantive law, but explaining it to the pueblo officials and the pueblo officials opining that they agreed that this individual should be involuntarily committed because of her behavior."

Ryan Seelau:

"Another experience professionally that you have mentioned, which in some respects is very different from what happened with the pueblos, but on the other hand, also involved getting the sort of cultural norms into a concrete legal document was that of the Chickasaw Constitution being written."

John Petoskey:

"Oh, yes."

Ryan Seelau:

"I was wondering if you could talk a little bit about that story and what you observed and how the Chickasaw people...what the process they went through to sort of write and get their constitution done."

John Petoskey:

"So in 1908 the Curtis Act was passed and what the Curtis Act did was allegedly dissolve the Choctaw, Chickasaw and Cherokee legislature and created a system of appointment of governors for those...for the five civilized tribes in Oklahoma and that system existed from 1908 to the 1970s when the National Indian Youth Council, a place I worked at, in the late...in the early "˜80s, but in the, I think it was 1973 two attorneys, Tom Lubin and John Kelly filed a lawsuit on behalf of private plaintiffs called Harjo suing the Secretary of Interior and the case was entitled Harjo v. Kleppe arguing that the 1908 Curtis Act did not dissolve the Chickasaw legislature. So here you have a historical basis of the five civilized tribes having a history and a culture of constitutional government of checks and balances and having vibrant complex governments servicing the needs of Choctaws and Chickasaws in the...after their removal from the southeast to Oklahoma, they had a legislature, they had the Light Horsemen Cavalry, they had enforcement of their...they had a functioning democracy and a constitutional form of government. And then you had the United States basically destroying the government saying, "˜You can...we are going to destroy your constitutional government' and that's what the Curtis Act attempted to do. And the argument in Harjo v. Kleppe was that the Curtis Act did not, in fact, dissolve the Chickasaw government and the regime that the Secretary of the Interior had set up over the last 50 years of appointing the governor was clearly in violation of the constitutional cultural history of the Choctaws and Chickasaws and that the Curtis Act's implementation by the Secretary was incorrect. That argument and proposition ultimately prevailed in the federal district court and in the federal court of appeals and that was due to the litigation efforts of, as I said, Tom Lubin and John Kelly. And so when I came into the case in the 1980s, it was implementing that decision to reform the constitutional government and our clients, which were the, if you will, the dissidents against the governor of Chickasaw and the dissidents against the governor of Choctaws were leading a method that was...had to be administered by a federal supervision because of the level of animus that existed between the parties to re-establish a constitutional government and it was negotiations under federal supervision of a constitutional structure that was to be re-implemented at Choctaw and Chickasaw in a constitutionally supervised election of the constitution once it was completed. And that was basically bringing back the cultural tradition of a legislature in Choctaw and Chickasaw in the mid "˜80s and the constitution was approved and the tribe continues today."

Ryan Seelau:

"I'd like to talk a little bit now about Grand Traverse Band's justice system, ask you a few questions about that sort of along the same lines, but first I was wondering if you could just talk about maybe just a brief history of how the justice system, not how it started but when it started and what it looked like and then how it's grown into -- you've already mentioned the arbitration proceedings that are now available in the justice system, you mentioned in the previous interview about peacemaking -- and just sort of take us a little bit through the timeline of how that's grown over time."

John Petoskey:

"As I mentioned, the tribe was recognized in 1980. The tribe was engaged in litigation with the federal government over our constitutional provision on membership. At that time [President] Reagan and James Watt was the Secretary of the Interior and our membership was expansive in terms of the number of people that we said were eligible for enrollment in our tribe and then the Reagan administration and James Watt's position was essentially that the membership shouldn't grow because that's a bigger liability on the part of the federal government and therefore we're arguing for a more limited membership, and that took some time to resolve that issue because our argument was that the tribe determines its membership and not the federal government. The federal government actually alleged in letters that they would and essentially terminate the tribe again by taking away federal funding and taking away the recognition and the tribe's reaction was, "˜It takes an act of Congress to do that. You're going beyond the scope,' and so things...it took several years to resolve that membership issue. I only say that because, as a consequence, the constitution was not actually ratified until 1988. And so...but we were developing the tribal court even though we didn't have a constitutional basis for that tribal court because of this membership dispute. But in our constitution, we provide that the judiciary is a separate branch of government and is independent. So once the constitution was provided, we wanted to assure that independence of the judiciary. And one of the legislative acts that was done was to fund the judiciary on a percentage basis of our net income that did not...that could not be varied without essentially a super majority of the legislature changing that. And so that worked relatively well for the first couple of years, but then our enterprises became very successful, and as a consequence the percentage of funding for the tribal court went up dramatically given the fact that it was based upon a percentage of the net income of the tribe. And so there was the super majority to revise that allocation of funding to comport with the amount of money that the tribe was making at the time. And that's still a question that we have on how properly to fund the judiciary without using the power of the purse string to incapacitate the judiciary. The percentage method was one solution that we thought. It didn't work out because of a mechanical application of that percentage method and a rising income stream has a disproportionate impact on the amount of money that's available to the judiciary, and so I am really open to other avenues that people have on how they fund the judiciary on a basis that doesn't use the power of the purse string to limit the judiciary. That's what part of the independence question that frankly...a riddle that we have not solved. And I'm not certain how other tribes do it. I know there's that common problem in the federal government that has that. Justice Roberts is always complaining about the lack of funding that Congress is giving to the federal court systems. It's not a problem that has been solved in the greater federal system, but I think it's a problem that tribes should attempt to come up with a solution [for] if they want an independent judiciary. But having said all that on the funding, part of developing the culture of a strong judiciary is to recognize the power of the council and what it can do with an opinion that they don't like that the judiciary issues. It's easy to say that you shouldn't remove an individual or fire an individual for an opinion that has been issued and Grand Traverse Band does not do that. We have in our constitution the individual is appointed for a term of years, compensation cannot be reduced while the individual is in office and the only...but an individual -- and this is in our constitution -- individual can be removed for gross neglect, misconduct in office, and we incorporate by reference the American Bar Association Judicial Code of Conduct for a basis for removal. And Grand Traverse Band has undertaken removal proceedings against a judge on the basis of misconduct in office and that involves not a decision of the tribal council -- the tribal council is a litigant, a petitioner -- involves a decision of the appellate judiciary people at Grand Traverse Band judging a member of their own on whether or not the petition has merit for removal. So that's what I've always advised the tribal council. You can either appeal a decision you don't like, you can wait until the power of appointment is up and appoint that individual and you can use, and I know this...you can use political considerations in the appointment process. It's perfectly legitimate in my view when you're appointing a judge to say, "˜I don't want to reappoint you because you made XYZ decision that I disagree with.' That's an appropriate political exercise of the power of appointment. Or you can petition for removal under a decision that you don't like and those are the three methods that the council has used in its relationship with the judiciary. And conversely, the judiciary has removed members of the tribal council where the council members have committed self-dealing acts and the petitioner in that case is a other...majority of the council members vote to file a petition for removal against an individual councilor, the judicial panel hears the matter, an attorney is appointed for the councilor that is subject to removal and it's a litigated question on fact and law, on whether or not the particular alleged behavior amounted to misconduct in office by the tribal council. So the judiciary has opined in the past that the petition that the council filed by majority vote for removal was...had a meritorious basis and the councilor was removed from office by an opinion of the judiciary. So it goes both ways. Those are building strong institutions."

Ryan Seelau:

"We don't have a lot of time, but I want to ask at least one last question, which I think relates or is connected strongly to what you were just talking about and that's this week several times you've talked about how at least at Grand Traverse Band you've seen the sort of process...the justice system-building process as a goal of moving from an indeterminate process to a determinate one and I was wondering if you could tell us what you mean by that and explain why you think that's a good goal to have."

John Petoskey:

"Okay. This was in response to a -- which I have heard repeatedly here and also in other contexts -- that politics should be out of the judiciary, and it's using 'politics' as a negative word. My point was is that I don't think that is the appropriate description. Politics is, in some senses is a dirty word, but in my perspective it's not necessarily a dirty word because it's the process of governance of competing interests that constituents bring to the tribal council and they...this has happened on occasion that a tribal member will have an adverse decision from the judiciary and will call up a councilor and say, "˜This is a bad decision by the judge. You should do something about it.' And then people say, "˜Well, that's politics, that shouldn't happen.' My point is that that conversation between the constituent and the council member is hard to control because that's a council member listening to his or her constituent talking to them as a representative. It's a republican form of government and so the impact that the tribal citizen has is to complain to their elected official and that's what they do so I don't see that as necessarily bad. I do think it's inappropriate though if the elected official then attempts to intervene in the process and to change the end result and that's where I bring up the dichotomy of 'determinate' and 'indeterminate,' because when the elected official intervenes in the process, there are no rules that govern the elected official's behavior and the scope of his intervention and the standards that define what is permissible and impermissible. In other words, it's indeterminate. And the types of activities that should be allowed are only determinative activities where the standards of conduct and the rules of conduct and the appropriate actions are defined by past precedent in which people are arguing about standards that are already in place. Where we get in trouble is when we enter into relationships where there are not pre-existent determinate standards and that goes across the board. Everybody wants to know that what is happening is going to be resolved by a determinate process. They may not agree with the end result, but they do not disagree with the process and in the United States, Bush v. Gore is a perfect example of that. Both the partisans on the part of Bush and Gore disagreed with the end result that the Supreme Court had, but they didn't disagree with the process. Once the decision was made it wasn't...armies weren't called out to enforce it, there wasn't contrary protests of...it was over. Everybody agreed the process had worked and you continued to disagree with the opinion, but it was a determinate process that ended. And that should be the goal of judicial systems and legislative systems to act in a determinate manner and not an indeterminate manner because your constituents, your vendors, your business invitees, your tribal citizens will all appreciate that even if they disagree with the end result because they recognize that the process is determinate and legitimate. Indeterminacy makes illegitimacy."

Ryan Seelau:

"I think that's an excellent point and I'm glad that we were able to talk about it a little bit. John, thank you for sitting down with me and talking again. That's all the time we have in this program of Leading Native Nations. To learn more about Leading Native Nations, please visit the NNI's website at nni.arizona.edu. Thank you for joining us. Copyright 2013. Arizona Board of Regents."

Joseph Flies-Away: The Role of Justice Systems in Nation Building

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, Joseph Flies-Away, citizen and former chief judge of the Hualapai Tribe, discusses the central roe that justice systems can and should play in Native nation rebuilding efforts, how justice systems serve as platforms for healing and cultural renewal, and what Native nations can do to create strong and independent justice systems capable of facilitating nation rebuilding.

Native Nations
Resource Type
Citation

Flies-Away, Joseph. "The Role of Justice Systems in Nation Building." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 20, 2009. Interview.

Ian Record:

"I'm very pleased today to be here with Joe Flies-Away, who's a member of the Hualapai Tribe and also, until recently, the chief justice of the tribe for the tribal court system. And we're here today to talk about tribal justice systems and specifically the role that they can play in Native nation building, rebuilding Native communities. And so that was actually going to be my first question to you is, what, based on your vast experience not only as a tribal judge, but also in the other capacities you've served for your nation as a legislator and also a planner involved with developing the economic development arm of your nation, what role or roles can tribal justice systems play in rebuilding Native nations?"

Joseph Flies-Away:

"Well, the first question to look at or the first issue is what is a justice system? A lot of people just think it's a court, but a justice system may include many parts. And so if it's just the court system, judicial system, the judges and that, that's one part, but then the whole system...so people need to always think about, what are they talking about? But a good judicial system, a court system would contribute to stability and peace and harmony and the things that people talk about. In economic issues or economic development, it creates a plane on which other people may want to be a part of or invest in. So there's a lot of different ways to look at it. I break things up when I talk about these issues in four parts; the people, the policy, the place, and the pecuniary possibilities. The people part, the court system or justice system, can create peace and harmony or goodness between people or solve conflicts, resolve issues between people, parties, whatever. The policy is the law, common law. Court systems help develop common law. The legislators will write law but a court system will develop court orders, which will create a common law. So that policy section is about law and government structure. The third, place. Place is like environmental support. So issues that may be clean air, clean water or contributes to good environment types of things. And then structure, like water and sewer and all that type of thing. Some governments are billing for water usage, sewer, solid waste and all this kind of thing. So that area, they can help make good decisions when someone's in conflict with a utility company. So that's the place. The pecuniary possibility is the economic development. They could help in decisions that create a good place for people to feel comfortable about doing business, about doing commerce, about entering into contracts, those types of things. So all of those areas can be covered by a good judicial system if it is functioning well and the parts are running well. A lot of times, however, that may not be the case."

Ian Record:

"So what does a...you talked about judicial systems, justice systems and you talked about it in a broad sense. What do those systems look like or maybe what do those systems require to be effective?"

Joseph Flies-Away:

"Well, I guess one of the things to look at with that question is it depends on that tribe. A lot of tribes will opt to develop a court system that's modeled right after the Anglo-American state court and they want to just, ‘Okay, we should be just like that.' Other systems may want to be a peacemaker court or more culturally based, culturally accordant type of system, where it brings in elders or brings in panel of people to help solve an issue, consensus-based issue or consensus-based decision making. So it would depend on what system they're in. But if they're doing a, say an Anglo-type state court system, they have to have all the parts. They have to have the ability to file papers, the ability to have that claim be processed in a court docket by court clerks, go through the system, be timely, mailed out, timely served, timely set on the docket schedule hearing and all of those parts that you would necessarily need to have a hearing, and then the decision process with the judge or jury -- or if it's a civil case, depending on what it is -- all those parts need to be well working. But sometimes there's always a problem with one part and so that may mess it up, but all of those, if it's an Anglo system-like model, then all those things.

The peacemaking side, it would be up to the tribe. That's a development that tribes are doing. They can create a system any way they want to make it. The one thing they need to have -- that I tell people when I talk to them -- is, ‘Just make sure you give notice to all the people and due process. If you do all that and however you do it is going to be great.' So how they fashion that system is going to be based on whether or not they give good due process and notice to the parties. ‘Here, this is what you need to come to court for and this is what we're going to talk about, be prepared. And these are the people who are going to be there to help decide,' and what not. But all the tribes, they can create... like Navajo has peacemaking. They have a peacemaker that comes in and that person will sit and hear all these parties, the families, everyone, and go through maybe a day-long discussion or maybe longer. A peacemaking in that sense... culturally accordant decision or dispute resolution systems like that, they actually take a lot of time, which we don't always have. That's the conundrum.

So it depends on the tribes. If you have a state model, it's those things that are necessary which most of us maybe can see. Well, hopefully you haven't been to court all the time. But if it's a tribal system, a culturally accordant system that's based in their culture, then I don't know all those parts. It would be based in what they have developed and it would be unique, and again, as long as they have due process. So there are different ways of looking at it. Justice systems in Indian Country are for Native people. They can be so creative if they really want to be, but a lot of people have chosen not to be yet, so hopefully they'll be developing more."

Ian Record:

"You mentioned some tribes that...or the fact that tribes can be very creative in developing their justice systems and reclaiming their justice systems in many cases. Do you...can you possibly share some examples of tribes that have been creative?"

Joseph Flies-Away:

"Well, I've...the Grand Traverse Band [of Ottawa and Chippewa Indians] up in Michigan, they have a peacemaking-type person who does peacemaking and they do that. Karuk, they have peacemakers. Navajo Nation, they have peacemakers. They have sentencing circles up in Canada, places like that. So there are...and in Alaska, they'll have a panel of five elders...but they had five elders come and they sit there and they heard a lot of juvenile cases and they would sit there and lecture the kid for whatever he or she did wrong and so they can create all that. The problem...and like in Bethel [Alaska] they kind of do similar things or up in Barrow [Alaska] they would have a group of judges not... and maybe some elders but they would make decisions collectively. The collective decision-making process is a very tribal practice. So that's how they do it. Sometimes the issue is writing down their decision. Who's going to write it down? And we need again to have...that's part of the due process -- a decision that's a record, record a record, keep the record, make a decision, give it to them. Sometimes that doesn't happen very well, but those are places that have tried to do that and others are trying to develop wellness courts or drug courts. State court systems have what they call drug courts, Native courts have healing to wellness courts and they kind of follow the same process, but they have a team that helps make decisions and the judge helps make the decisions for an individual person who's dealing with drugs and alcohol problems, so then they're doing different things in that. So different tribes are doing those types of things."

Ian Record:

"So essentially what you're saying is, as tribes are reclaiming control over their governing systems, you're seeing an increasing amount of diversity among justice systems in Indian Country?"

Joseph Flies-Away:

"Yeah, some are just, like I said, modeling, but a lot of others are trying to do something that either is like what they used to do or is a hybrid of what they used to do, because we can't go back and do it exactly the same. We can't go back and be exactly how we were, but you can find ways or maybe the spirit of it and bring it forward and put it into a structure or process that models something that was in the past, and I see that happening in some places."

Ian Record:

"A lot of the Native Nations Institute and Harvard Project research has focused on this issue of court systems and their role for instance in creating that environment you talked about, an environment for investment, an environment of confidence, of stability. What...and what the research has shown is that among nations that have what are termed independent court systems where there's...there are, essentially those court systems render decisions, practice jurisprudence free of interference from the other either branches of governments, functions of government, elected officials who represent those other functions of government. Those nations tend to perform better in the area of economics and things of that nature. What from your experience do independent court systems require, justice systems require?"

Joseph Flies-Away:

"Well, that's a separation of powers issue, and I might not agree with all the research that's there, partly because...and I would suppose it's true that they do better if there's an independent court system, but even though...and there's very few who have a constitutional separation of powers court. The latest is maybe 30, 35, 40, I don't know. Somebody would have to do that research and figure it out. Not many people have that. They do it by statute to create a separate branch that is independent. However, what gets in the way...you can write that down in a constitution and a code, but yet the persons who come into the positions of council or even the judges, they do not effectuate it. They act in ways that go against separation of powers. A councilman will go see the judge, the judge will go see councilmen and they talk and it gives the people the appearance of, ‘Well, they're talking, they're in cahoots.' So even if you have a structure, it may not work that way because of the people who are part of it -- people, policy, place, pecuniary possibility -- so the people are always going to be a part of it. But I agree, however, that when the legislative branch or administrative branch of government does not interfere with the judge or go over there and say, ‘Hey, you've got to do it this way,' sure, it's going to be...it will make the decisions feel that they are right or fair and without anyone getting in the way. And it creates an environment where people will say, ‘Well, I'm going to participate in that or try to participate in commerce there because I'm going to get a fair deal.' So, yes, I would agree with that and out there it does work. There are places where there's no separation of powers, however, and it kind of works, too. There's many tribes, so looking at all of them might be very difficult, but again it goes back to the people. If you have a person in the judge job and people in the council job who in their minds understand the importance of separation of powers, say, ‘We don't mess with them, we shouldn't get in their way.' They have no law, they have no constitution, it could work there, too. So it goes back to that human part of it. And I've seen that a lot of time, which the research that people quote doesn't take that into account as much as I think it is there in Indian Country."

Ian Record:

"So yeah, there's this issue of what's culturally acceptable, it may not...or socially, it's expressed through the social mores versus something that's hard and fast on paper."

Joseph Flies-Away:

"Well, in a lot of tribes there was a distinct separation of powers between individuals. Chief did this, medicine man did this, head man did this and gosh, in the Pueblos, very identifiable. You do this, you do that and you don't do this. So it is a cultural base of separation of powers. But there is also this collective decision-making process so...but we have been, since interruption by Anglo-American people we get confused. And so we were, ‘Oh, we knew back here,' but then all these people come and mess us up and we're kind of like confused here and we're trying to move forward and make it right again. But I think there is a history of that. We've just got to find it, appreciate it and maybe there are places where it was always a collective decision and we are so different. That's one thing people should realize. Tribes are very different in the United States, in Canada, all Indigenous people all over the place are different and they can't say, ‘Oh, well, they're Indian and they're going to do it all the same.' We aren't all the same and so individuals working or individuals seeking to do business with them or in commerce or any other way they need to know what type or where they're coming from or where that group is coming from."

Ian Record:

"You mentioned about this issue of investment, that when you have an effective court system, an effective rule of law in place and working in the community and the nation, that it creates this stability and this confidence for investors in commerce as you mentioned, but doesn't it also hold true for citizens of that nation, for members of the nation to say, ‘Hey, if I have a dispute or something, it's going to be resolved fairly on the merits,' that sort of thing?"

Joseph Flies-Away:

"It goes to that, too. Custody issues, divorce issues, all of those types of things will be effective beneficially by a good court system that isn't tampered with by anyone, that they are listening to the information, the evidence presented, they're listening to the parties only and they're making the best decision based on the law written or the law and custom and what is told to them and any kind of dispute that is brought, elections, all types of things. If there's no tampering with it, the independence of those institutions of dispute resolutions then create a better environment for everybody in all those ways."

Ian Record:

"So you mentioned there's a need...in order for tribal justice systems to be effective, not only to be effective, but to be legitimate, viewed as legitimate in the eyes of most importantly the people that it serves, that there has to be a sense of fairness and the sense of essentially political support. So support by elected officials in the other branches, if you will, that this is their function, this is their job. And you also mentioned previously that this issue of...for tribal justice systems to be effective, they need to have effective bureaucracies within those systems. We've heard tribal leaders from other nations lament the fact that in their communities often fellow leaders don't view tribal justice systems as essentially a stand-alone branch, but they view them more as a department of the government and perhaps as a result don't fund them accordingly, don't really support them to the degree that they need to be supported. Is that something you've experienced, and how critical is that issue?"

Joseph Flies-Away:

"I experience that in my own court, yes. It is unfortunate, but it's the same with the United States government. When the U.S. Supreme Court was created, they were in the basement, they were in the closet, they were in the bar, they were in the old place where the legislator was. It wasn't until 1958 that they got their own building, and that's like 150 years. So we're just following them. But yes, tribal governments, some of them will tend to not give the full -- I'm not sure of the word -- but they don't give it all to that court system and say, ‘You are a branch of government,' particularly in those that are branches, for instance at Hualapai. Hualapai there are two branches of government, the judicial system and the legislative, but the judicial system does not get all the resources it needs. It doesn't have a building, but maybe we have to wait 150 years like the United States Supreme Court, which I guess isn't so bad. But yes, and then they think of it because they are funded by consolidated grant funds from the Bureau of Indian Affairs. It's like, ‘Well, we're just giving them money and it's a programmatic decision and so they're just funding them at this amount.' The court system there though gets a lot of money from that grant. But it's not enough for that branch of government to really do the best job possible, to really be the...make the best decisions. To do what it needs to do for the people, it needs a lot more resources and that's the same for a lot of places that I've been. I've been to a lot of court systems and a lot of tribes from Alaska to Florida seeing what they do in different ways and that is a story that's similar, that the governments need to pay more attention to their...particularly if they have a constitutional branch of government, support it like a branch and not like just a program. And it would do them well. But it does go on, but you see little efforts like at other places where they're building big buildings like Gila River, Fort McDowell, they can see some contribution or some investment in those court systems, but that's just the shell. What's inside of it there are sometimes issues with. Pretty shell, the feeling isn't yet solid. So that also needs...but then they're at least going in a good direction."

Ian Record:

"Among those nations that perhaps haven't realized the importance, do you think it's in part this sense of, they're either dismissing or not understanding how important tribal justice systems can be as a vehicle for advancing their nation-building priorities?"

Joseph Flies-Away:

"Well, that goes to a leadership issue, so that's a whole other realm of things, but tribal leaders sometimes are new, they're just figuring out what their decisions must be and they are bombarded with papers and papers and papers and people and, ‘Can you do this for me?,' and all this stuff, so there is so much volume of requests and responsibility, that part of it is just that, 'I can't get to it,' and they don't have enough time to really study and appreciate that part of their government. So part of it's just that. Other part says, well, they might not like the court system. Maybe the court did something bad to them, I don't know, but I think the main part is they just don't have enough time to devote to really understanding that. And again, they are new sometimes, they're young, they haven't spent much time and they have a...councilmen have a particular focus sometimes. They wanted to be on council maybe for a particular issue and then they're spending more time on that -- environment and economic development -- but yet if somebody was really teaching them, like if NNI [the Native Nations Institute] was really showing this, that how is that all related. They have to see that and somebody needs to bring it altogether. And sometimes I see a lot of training that's always separate and it's not whole. So there's different issues why, but I always just think sometimes...I guess it's a positive reason, they just don't have enough time. There's too much to do as a council leader, council member and it's...they're drowning in work."

Ian Record:

"One of your judicial colleagues, a woman named Theresa Pouley, she's a judge at the Tulalip Tribal Court, who...they've become one of the pioneers in Indian Country in terms of reclaiming their justice systems. They started essentially a restorative system of justice."

Joseph Flies-Away:

"Yeah, I think it's the heart, 'good-heart' thing. Is that them?"

Ian Record:

"I can't remember, but the reason I bring her up is we had occasion to bring her here to address one of our assemblies of tribal leaders for one of our seminars and she said something, which really struck me, which was that many nations are really missing out on the opportunity they have with tribal justice systems to use those systems, to use the form of a tribal court, for instance, as a vehicle to express the core values of the people, to really...to share those core values, to advance those core values among the people because in those scenarios within that forum, you're dealing with issues of family, you're dealing with issues of community, of society and this is where we have a real opportunity here. And she said that's what they're trying to do at Tulalip is through this, developing this common law through this restorative justice approach, to really re-instill a lot of those core values."

Joseph Flies-Away:

"Yeah, the court system is...our judicial system -- or whatever you want to call it -- is one of the places that will save the culture, if they look at it that way. A lot of people don't see that. Any issue brought to the court, the court...there's written law, but then if they could look and see, well, 'What was the practice, common practice, the culture in this area?' And upon decision -- and if they have appellate court and goes through and solidified there -- a cultural understanding of something can be written down and recorded, and that is the way it will be from hence on. Yes, a lot of tribes don't think of that and that is one thing that a judicial system can do, if the people in it know, but a lot of times, the players don't know that. They want to be the judge or there's a judge and they're judging, but they're not thinking about that and...but it is...a judicial system is a way to save culture in a way and it's just not used that much all the time."

Ian Record:

"So I want to talk...we've touched on this issue of political interference in tribal jurisprudence and I guess I will just ask you flat out, based on your experience, what are some of the impacts, I would assume a lot of those impacts would be negative, when politics is allowed to interfere in tribal jurisprudence?"

Joseph Flies-Away:

"Well, it creates a system where people can't believe there's going to be good decisions -- inconsistency: ‘Well, this guy's going to go over there and have the judge do something different, but then another person will come and it'll be like the one before.' It creates inconsistent decision making, favoritism, and altogether in that situation. I've had previously council members try to say to me in writing, ‘This is what you should do.' And I would write back, ‘No, you can't tell me to do that.' And it's only happened twice to my recollection, because we actually have a separation of powers by constitution; there's laws there. But in other places, it does happen, and unfortunately that's where the people then start having no belief in that system. They'll say, ‘Why should I go there? It's only going to be changed or so and so is going to be able to change it or affect the decision,' and they don't feel comfortable, there's no comfortability in the decision-making process, there's no faith in it, and then again inconsistent decisions because X will get this and Y will get that because of the interference. And it may happen in different ways directly. One way that I think it does occur is by money. Sometimes the legislative branch will say, ‘Well...' or the administrator might say, ‘Well, you're just not going to get all your money,' and then the judge, ‘I guess I have to do something else,' or something. So it's different ways it can happen. But I think that's becoming less and less, I would hope. I would really hope that that's how it is because when I talk to judges, we only talk and they have that sense of -- particularly if it's written down -- you can't do that, but even if it's not there, we all understand as judges there's a separation by practice or just by feeling, I guess, that judges make the decisions and they're not too affected, and a lot of us understand that and they do their best. Unfortunately maybe in some places some judges come and some judges go, they get fired and that happens, too."

Ian Record:

"So in that situation when you have a justice system that is experiencing political interference and you have that...essentially the people in the community receiving that message that you're talking about. Well, this shows them that this is the way things are being done, it's inconsistent. That message also ripples beyond reservation borders, does it not, to the outside world?"

Joseph Flies-Away:

"Yeah, it would go beyond. It goes through to other people in the next communities and they'll call it a 'kangaroo court.' There are...we're looking at courts in California and Public Law 280 states and some people would prefer not to go to the court system, their own court, if they had one. Some have one, some don't. If they were going to develop their court system...I remember one individual saying to me, ‘No, no, I don't want to go to a court system here. My decision...they'll tell everybody what happened.' They have the faith...no faith in that, so they would even choose, even if they had a justice system... a court system on the reservation, go to the state system because they have jurisdiction as well on certain issues. So that's just among the members, but then people talk, they'll say, ‘Well, god, our court system is ridiculous. You can't get a good decision there,' and it goes beyond and then it creates a whole system where no one wants to deal with the court. But again, I am believing that that's less and less. I'm hoping. I mean, people probably could tell me, no, that's still happening, but I would hope that it's becoming less and less."

Ian Record:

"Switching gears just a bit, Joe, I'd like to talk a bit about this issue of tribal jurisdiction and what from your perspective are the major challenges facing tribal jurisdiction today, kind of just in the panoramic sense, and then how can Native nations overcome those challenges and specifically how can they use their own justice systems to overcome those challenges?"

Joseph Flies-Away:

"Well, the jurisdiction question is just by itself a question that judges have to ask [in] every case: ‘Do I have jurisdiction in this matter,' and while in some cases it looks obvious, sometimes it isn't and...but I believe court systems or judges for tribes should push the envelope on jurisdiction as much as they possibly can legally anyway, if they're a member and something happened over here, but they're still a member and it says you have jurisdiction over members and why not. I've had judges tell me, ‘No, you can't because it happened over here, the incident,' but you still have jurisdiction of the member and we kind of go back and forth on it. But I would push it a little bit because it... the more jurisdiction you exercise, the greater power, the greater sovereign power you're exercising. So it's a bigger thing. But there are other jurisdictions next to you, or even tribes actually argue over cases, kids' cases for instance. One party's here, one party's there, and there's a kid involved. I've had discussions with judges where, ‘That's my case,' and ‘No, no, no, that's my case,' and I'm, ‘Come on, we've got to...let's figure this out.' And so I've been able to talk with judges and we would figure it out. ‘Okay, well, you do this part of it until that part's done and then we'll finish it over here,' or vice versa. So even tribes have jurisdictional questions that they can work out. I know a lot of judges who have talked together and we call each other on certain cases. It's the state system if you're Public Law 280 or [it's] unknown who does have jurisdiction, like it happened here to a member or something. I've talked to state judges before asking them, ‘Are you going to take this case or what are you...,' like a probation issue, something happens on probation over there, on probation here, something happened at both places and sometimes they'll say, ‘Well, you can just handle it, I'll waive it over here,' and go back and forth on it. So it's that having the power to deal with something is something all courts have to first decide and then you get into issues. Well, if there's another judge thinking the same thing, then you have to deal with them or the lawyers do that. In some cases there are no lawyers in tribal courts. So the judges play more of an active role. When there's no advocacy like that, judges do a little bit more. As more and more lawyers come to tribal court, then maybe we'll do less and less of that, but...because they're really supposed to do that, but a lot of tribal courts don't have the lawyers to say, ‘You don't have jurisdiction here, judge,' and, ‘Yeah, you do,' kind of thing. But the court I believe should assert as much jurisdiction as possible if they can find it in their law and they have a good basis to do so, because again it supports their sovereignty. If they don't do that, if they're always letting it go, they can always say, ‘Concurrent jurisdiction exists, they can do it too, but we're going to do it too,' then they're letting go bits of their power, bits and pieces of their strength to somebody else and that's not a good thing. So it's...that's a question again, every judge has to ask each time a case comes, ‘Do I have jurisdiction?' and in fact in your findings the court has jurisdiction pursuant to a section of the code or whatever, we always have...we should be saying that in our findings. I think for certain tribes, it's much more easy when it's a tribe that's like Hualapai that's all trust land as opposed to like Salt River or Gila River where there's checkerboard fee land involved and all of those types of things. ‘Oh, it's on the reservation, it's fee land,' and every...all those questions you have to ask and certain tribes have it a bit easier, other tribes have it a bit difficult and in Public Law 280 states, a lot of questions."

Ian Record:

"So what I'm hearing from you is this goal of pushing the envelope of jurisdiction is essentially a strategic exercise, where you have to say, ‘Okay, what is going to serve our best interests,' because there's certain areas you could get into but it may not serve you."

Joseph Flies-Away:

"Well, the first priority is the case. I can't think like a tribal council member when I'm a judge, but you look at the case first and if there's a question about jurisdiction that you think you have it or not, then you would, I would push the envelope on jurisdiction if it looks like by law, because that's exercising sovereignty. But I shouldn't be making the decision, ‘I'm going to exercise jurisdiction just because I can,' it should be based in something before I do it, but I think in those decisions a judge would extend their jurisdiction, the long arm of jurisdiction that other courts do, they should do that in the best, in situations when they believe they have the power to do it. Not just...I've seen some cases where judges have just did it and they had no jurisdiction, tribal court judges. It was...they lacked jurisdiction, but they just did it. I don't know if it was a mistake or ignorance or whatever or just being cocky, sometimes that happens."

Ian Record:

"So have you seen some trends emerging in this area of pushing the envelope of jurisdiction through tribal justice systems that you could share, maybe some major areas? I know you mentioned child custody and things like that, but..."

Joseph Flies-Away:

"Well, not specifically, but courts...like in these cases with civil traffic in a road that runs through a reservation. The state has a right of way and then the tribe...it's the tribe's land and they're both going to, there might be a little speeding, they're already giving tickets like that, but some other issue happens and they're going to take that case, but at that same time the county judge is going to want that case because maybe a state officer has filed it there. And then if there's a...then sometimes they'll -- maybe they'll talk, I would -- but some tribes don't talk to their county, they don't get, they have no communication, so things like that where there's ambiguity or there's concurrent jurisdiction. In divorces, it's like if the law on a tribal reservation says, ‘Had to live on the reservation for 90 days, 60 days,' and... but the person actually... it's not... the fact is not so clear and they may assert jurisdiction over that and then the other party might go to the state court and there might be a little issue there and then somebody would really have to present some facts to figure out what law applies and who's going to...but if you believe it, if you believe you have it and I...judges I know, they would probably assert the jurisdiction if they could see it in the pleadings, in the law, they would tend to do that, I believe."

Ian Record:

"I want to switch gears here at this point. We're going to wrap up with kind of a general discussion of what tribal justice... strong, effective tribal justice systems require, but I wanted to touch a bit on this issue of federal Indian law, which is not only a huge issue for tribal judges and tribal justice systems, but it's a huge issue for Native nations overall and certainly a topic that Native leaders need to keep abreast of. And with that in mind, I wanted to ask you a few questions, the first of which deals with something that you as a lawyer are well aware of and that's the Marshall Trilogy, the Cherokee cases, which were handed down in the 1830s and..."

Joseph Flies-Away:

"I wasn't alive then."

Ian Record:

"You weren't alive then, yes. We'll be sure to get that on the record but...and talking with...the federal Indian law experts still universally regard it as the foundation of federal Indian law, and I was curious to know from your perspective how those three Supreme Court decisions continue to impact Native nations and tribal jurisdiction today."

Joseph Flies-Away:

"Well, the one that I think about of those three...Worcester...I can't even say it -- Worcester v. Georgia, I can never say that word. The 'domestic, dependent nation' line and I'm pretty sure it's that case, but I once wrote domestic dependent nation in something I wrote, but our dependent domestic nation, I wrote it backwards, I guess. But that one line in those cases where it deemed a tribal government a nation, I believe has a lot of strength to it. The dependent domestic or domestic...when I teach federal...when I taught federal law, I taught once, I teach in circles and I draw a big circle. Well, I draw a circle and a circle, and then I tell the students, ‘This is a tribe and this is the United States,' and then we do a history. And then I go, ‘Here's the United States,' this is after conquering and we're in the middle and then we throw the state in there at some point, but I do it in circles and I have them say, ‘Okay, here's where we were,' and then as we go...and there's a dotted line, too, because they can come into it, a solid line means you've got no say so like membership would be...and then you have a circle with a circle and in that middle part what you can share and the parts you just don't. I teach it like that and so domestic dependent is, well, you're a circle within a circle, you're within that bigger circle, but you still have a lot of say about what's inside. But I ask the students this question, and I would ask tribal leaders if I taught this...well, I do, I actually do this. I did this at Ysleta del Sur [Pueblo]. I said, ‘What is it, how do you see these circles with Texas with the United States,' or if I'm in California, ‘with California and the United States,' wherever I'm at, I'll include the state and I'll put them through this exercise of drawing these circles, and it's very interesting to see how they all come up with it. And then I'll talk about the nation part and then domestic...but dependent meaning, ‘Well, yeah, we get a lot of money from them, we're dependent on them,' but yet we go through that discussion, but I leave at the end, ‘But we're still a nation,' and that that one case, we should always remember that, that tribal leaders should be conscious of the fact that we're nations. A lot of tribal governments like to use the word 'tribe' and in fact at home some say, ‘Why are we using the word 'nation'? We use the Hualapai Nation and then some like Hualapai Tribe.' Well, the word 'tribe' is a very small word as compared to 'nation' and in English, 'tribe' is a small group of people, 'nation' is a bunch of tribes. And in fact, Hualapai was 13 bands of people and so there was a Pai nation and Hualapai was one band. And so actually if we want to push the thinking to our people that we are a 'nation,' then use that word. If we continue using the word 'tribe,' which some do and that's their decision and that's fine, but it's a smaller sense of it. So I look at that case and I think about the nation and where we fit and the goal however is how we started out. Here's Hualapai or whatever tribe and here's the United States. Go through all of these circles mingling in and I...he processes or the exercises I have the student go through how they all mingle with each other, but the end is to be again like this. The only way you're going to get there, though, to be an independent nation is to do a lot of economic development, to be able to pay for your own things, should not be dependent anymore, to come out of that circle to be not domestic. But that's going to be hundreds, thousands of years away perhaps, but maybe not. I don't know. Some places maybe could do that. So when I teach federal Indian law and we talk about those cases, I really concentrate on that aspect of it and the court was saying, ‘Well, these tribes, though they were conquered...,' and they use all that stuff, Doctrine of Discovery and all those types of things in there, that... Justice [John] Marshall was saying, ‘But they still have a lot of power to themselves and Georgia's laws aren't going to matter, that state's not going to matter to Cherokee.' And so you've got to pull out from those cases what empowers tribal leaders and what empowers tribal members to think like a nation and if you don't do that, we're going to be thinking about a smaller group of people always within a larger group of people, always under their wing, always being under them and never being their own and I think that tribal people need to pull out of that. And if it's just by the meaning of that word, that's one way to do it. So I use those cases to try to pull out those things and of course the legal issues, but I think they're more empowering in a way rather...not just a legal thing...I mean, that's important, but how we are thought of and what we can take from that forward for our people. That's what I think of that. So it may not be such a legal..."

Ian Record:

"It's a philosophical..."

Joseph Flies Away:

"It's a more..."

Ian Record:

"...Mindset change."

Joseph Flies-Away:

"Yeah, the change...because we've been conquered and cowed people and so we're like, ‘Oh, we've got to pull out and become out here like we started.'"

Ian Record:

"So a more general question, your thoughts on what impacts colonialism, the assimilation policies, and other federal policies generally have had on...had on preexisting Indigenous systems of justice, of dispute resolution, and I guess I would speak to the gravity of the challenge facing many nations in terms of having to rebuild those systems."

Joseph Flies-Away:

"Well, again, if we started here and these people came and interrupted and said, ‘You're going to be like this,' and a lot of us ended up being like this, it took away who we are here. It took away the practices and the ways of our people, of the common practice culture, it took away that. It took it away completely or it took parts away, but a lot of places it just completely took it away. So while we had previously a certain way of doing things, the interaction or the coming of these other people just took away the practices so we aren't who we were. Now tribes can go back and try to reclaim that, but you can't go back and be exactly like that. There are certain practices, like at Hualapai a long, long time ago, if you were really, really bad, they might kill you. There was... I was reading this one thing and I asked my great grandmother, there was medicine people who did not heal, if you didn't heal, they'd beat you up or might kill you. So malpractice was an issue because there was a lot of medicine men back then and they must have been healing because otherwise they would have been out. So we won't do that. The death penalty, tribes probably couldn't do that anymore. So you can't go back and be exactly who you were, but you could pull from that and bring it forward and you can incorporate it. And a lot of people are merging the new way with the old way. I hear people like at a conference like today where they're trying to be back here, but yet all people grow, you go forward. I have this thing, which I wanted to share with them, but I didn't do it. The people gather, ground and grow. That's my community nation-building statement -- that people gather, ground, and grow, and now I say 'green' because of all the green stuff. So they... whoever the people are, they come together and they gather and they figure out their structure and how they're going to relate to each other and they ground themselves and they build structures and institutions and grow, they get stronger and they're going to keep doing that. So it... in that growth portion, they can bring the past forward and take what was powerful and good -- language and what they can remember -- and bring it forward and ceremonies and if they've forgotten all the ceremonies or have in parts of it, well, they can recreate parts of it and bring it forward and put it into now. So tribes can reinvigorate things, and if they did that, then perhaps they'd be a lot more stronger, but when all those people came and messed everything up, they really screwed Native people up. But we have the power to move forward and build better things, better and new things, if they can just see that. Some are, some aren't, some are lagging, some are moving forward, but I think perhaps that's just how they're meant to be at that moment and then perhaps later they'll do better, or maybe not."

Ian Record:

"So I asked you generally about colonialism's impact on tribal justice systems, one of the major watershed pieces of legislation that Congress passed for Indian Country was the Indian Reorganization Act, which was passed in 1934. Many Native nations still operate to this day with essentially the boiler plate system of government, the boiler plate constitution that the IRA set in place, and I was wondering if you could speak to the legacy of the IRA for tribal justice systems."

Joseph Flies-Away:

"Again, if we looked at who we were and interaction and then a specific legislation like that -- again, not all tribes signed that, not all tribes are IRA tribes but Hualapai, many are -- it created a constitution for them. It basically said, ‘This is how you're going to be. And it took away the previous way or the way that they were prior and they rearranged their whole structure basically. And it formed a structure of government that just was antithetical or contrary to what they were before. So we're stuck in that in a way. We have at Hualapai a council government. Actually had a 1934, 1955, 1991 constitution. We used to have in one of the previous ones, a chief sit on the council, but for some reason they took that out. I thought that was kind of cool when I found that out, but that's gone, but we could have had like a representative on council from each of the 14 bands. If we were knowing what we could do, we might have done it differently, so when the big-circle government said, ‘This is how you little circle governments are going to do it,' they really interrupted how we were, and I think we struggle with that. I heard someone today talk about Robert's Rules of Order. I said, ‘Who the hell was Robert and why do we care, right?' A lot of people want to follow these rules and why? We could develop our own. When people brought in all these things, a lot of our members, our leaders perhaps, they think we have to stay like that, and we don't have to be that way. So it kind of just stifled everybody. But maybe...and for the sake of it, some of them take it and they do well with it. So there are, but I think a lot of us struggle with that form of government that was told to us, ‘You have to do it like this now,' whereas, it wasn't the way we were. But I think over time, if it's been 100 years, going to be 100 years, maybe they have then adopted it because tribal people are very...they're good at adapting. You gave the people the horse and they became the best horsemen. So if you gave them the IRA government, maybe they're going to make the best of it. I'm thinking positive. But it just...that legislation, however it came when they...one thing I should say, however, when they were trying to do that, that was...it was a way though to give more power back to the people too, I guess. They were saying, ‘Here, you have a way to be...' It was a way of saying, ‘You're going to do your own government,' but they gave it...they gave them a form. They should have said, ‘You have the way to do government, figure it out.' But they didn't -- they gave us structure. So it in a way is good, and then I think now tribal leaders are beginning to say, ‘Well, wait a minute. We don't have to be like this. We don't have to be exactly like United States with a three-branch government and all this kind of stuff.' Hualapai has two branches of government. We can do different things. And I think that that kind of thinking is becoming more and more. So there was many, many years of just stifling. But people did well with it. There was also the corporate shell situation, which they were able to start doing business without being sued and whatnot, so some of that was good. But it is a way...you go somewhere and...it's almost like you see nowadays when America goes all around the world and say, ‘Here, you're going to be like us.' And they're still doing that. They should think back, ‘Wait a minute, we shouldn't be doing this all the time. Let's just kind of help them out, but let's not tell them how to be.' And they don't think they're doing that, but that's how it seems. So there was just an interruption and maybe now we're kind of coming out of that."

Ian Record:

"So you mentioned that Hualapai back in the 1930s adopted the Indian Reorganization Act and what we've seen a cross a lot of tribes who did adopt the IRA is this, essentially this boilerplate clause that left in the hands of the council or the legislative body, the authority to create a court system, and that was essentially the only mention of a judicial function in these governments that they set up. Is that something that Hualapai struggles with, is that something you've seen other tribes struggle with, this trying to reconcile this to say, ‘The judicial function really needs to be a separate function or have its own identity'?"

Joseph Flies-Away:

"In '34 we had that boilerplate. In '55, it was similar. But we had a -- what do you call those courts -- a CFR court. And though we had a tribal policeman do all the things that the superintendent guy would tell him to do, it was '91 that we got our own separation of powers. So from the ‘80s to the ‘90s, consultants or lawyers, people are saying, ‘You guys got to do this.' I wasn't around at the time, but it happened and we separated it and we became a two-branch government, but we're one of the few, there's not very many. I don't know what happened back there in the past, but I know there were tribal judges in a tribal court since 1950-something, and a tribal person would be sitting in that chair making decisions for the people, after the superintendent was no longer doing it, and the tribal judge was deciding, but it was more like a CFR court and they were following the laws of the white man. They weren't able to apply custom and tradition or they were told that that didn't matter, I'm not sure, but that wasn't what was applied. It was the old code that the American government gave you, ‘You can't do this, can't do that,' and they would then have a sanction and they would sanction. Whereas before, perhaps they would sit all in a group if you were acting bad and say, ‘You were acting like this or you did this to my family and we're telling your family. If you keep doing it, we're going to beat you up or we're going to throw you in the canyon,' or whatever it might be and in front of everybody that person will be told what will happen if they continue acting in a way contrary to the norm, in a bad way. And that's kind of how things were decided. If there was an issue and it was too close for that particular band, they would ask perhaps a head man or a chief of the next band over or someone not actually related to come in and listen and help decide. We don't do that anymore. But there's no reason why we cannot bring that back. I would like to do that, but we're...but our system is so embodied or entrenched with that Anglo adversarial system, partly because other people who've come to our tribe, outsiders, Natives even come to our tribe, they promote that because that's what they know. People come with what they know. I would rather just [whirring sound] and go back and try to bring something better, but it's hard working for your own people, so I don't know if I'll ever do that but tribes can do that. If they are told...but like I also tell judges and tribal leaders, developing a government, developing a judicial system takes many lives. You're going to be like Moses, if you know who Moses is. You're not going to see the promised land, but you're going to contribute to it, put some seeds in there, and then hopefully someday you'll get there. That's how I look at it, just kind of move it in that direction, but I won't see the end."

Ian Record:

"Back to this issue of the federal Indian policy arena and...I want to ask you a question specifically about what's going on currently in the U.S. Supreme Court. And I was curious to get your opinion on how should Native nations view the current U.S. Supreme Court given its current composition, its recent cases with respect to Indian Country, and perhaps maybe some thoughts from you on what you would advise tribes to do in response to kind of strategize about how to approach the court given what's going on."

Joseph Flies-Away:

"Cases probably shouldn't be brought there right now. I don't know. I have my own theory about certain things with Supreme Court Justice [Antonin] Scalia and his originalist thinking. To me, if that's...that's what he...you're supposed to go with what they said back then. Well, back then, they thought of tribes as nations. Then why do you keep stripping it away. He's hypocritical in my thinking. So the only strategy I can think of is if you'd go to court, argue with the Supreme Court, you'd play on him and you'd say somehow in an off way how hypocritical he is if he doesn't go back to the originalist thinking by thinking tribes are independent nations, how they thought of [them] back then, because when it comes to tribes, that's the only time he goes the other way, it seems to me. But other than that, I wouldn't go to that court, not with those justices, but that's the only thing I see there, unless I'm wrong. I've bought all these books on him and I'm reading them because it seems to me that's the only way with him. He talks this way and then he's going to be a hypocrite if you don't...a case comes to him and you push original thinking and he goes the other way. How could he do all these cases that way? It would be bad. But other than that, I don't know. I wouldn't want to tell anybody what to do, not now."

Ian Record:

"We've heard other people respond to that question, essentially echoing what you said, which is probably in tribes' best interest -- unless they have an unbelievably strong case -- is to not take a case up there. And absent that approach of taking cases to the Supreme Court, doesn't that behoove tribes...wouldn't it behoove tribes then to become innovative -- which we're seeing a lot tribes do -- becoming very innovative in terms of making sure that their rights are protected, advancing their rights in other ways, whether it's through MOUs with other jurisdictions, things... you've made allusion to this issue of concurrent jurisdictions working together on certain things rather than just butting heads."

Joseph Flies-Away:

"Yeah, the one thing about nations is nations have to deal with the other nations and they have to talk and communicate and they have to make deals or they have to work together. Sometimes tribes don't want to deal with the next person or the jurisdiction next to them, don't want to share information, but being a sovereign, that's part of being a sovereign. To be a true sovereign, you work with some other sovereign, you don't stay away from them, you've got to work with them. So in order to be more powerful, you have to deal with that sovereign and you make agreements, you make laws that work with theirs, you make your own laws that...or you lobby their lawmakers to do things that help you. So there are a lot of things that tribes can do and are doing and are becoming a little bit more creative. And that's again like giving the horse, tribal people are going to be thinking about it not like these people, they're going to think about it and then maybe come up with some other way and they're going to be, ‘Ah, we've got this and we're going to do it like this.' So there's different ways to do it and not...taking something to the Supreme Court is on a specific issue and whatnot, but you want to not have those issues, you want to start dealing with them up front, you want to start working things out. Nation building, part of my model is confrontation, communication, compromise and concord. So you confront the issue, you communicate it, that means talk about it, you compromise, you give and take, and then you reach that peace, concord. So you would move in that direction and tribes need to start doing that before it becomes an issue that needs to go to nine people or five people in cases that will make a decision that will go totally maybe bad for everybody, not just them. It affects everyone, unless it's such a specific matter that it only pertains to them, but most of the time in federal law, it's a huge issue like the Carcieri one, those ones before 1934, they are...after they can't put land into trust. It affects those people, but it wouldn't affect us or certain tribes, but that kind of creates these tribes against these tribes. So you want to start...again, being a true sovereign is working with other sovereigns and dealing with them and communicating with them and making compromises with them. So we can't stay away from people, we have to do those things. But a lot of us are kind of hesitant, either because we don't know how to approach, we don't know how to deal, but over time we're learning that. One time I called the judge and he said, ‘I've never heard from a judge from Hualapai before.' I said, ‘Well, this is me and I want to know something,' and so we talked one time. So it's happening and it's just a matter of time when we get really, really good at it. But again, as Moses, we might not see that part, but I think it's doable."

Ian Record:

"In fact before I get to those last two questions, what you just mentioned recalls another question I wanted to ask you and that is this issue of transparency in jurisprudence is something you've alluded to, and I was wondering if you could speak directly to that issue and how important transparency is to having effective justice systems."

Joseph Flies-Away:

"Transparency in how, what do you mean?"

Ian Record:

"Transparency in how the verdicts are rendered, transparency in the process."

Joseph Flies-Away:

"Well, it has to be fair. When I think of the word transparency, it's like they know exactly...well, the process they should be aware of how it works, but sometimes like in certain cases they don't, they can't know everything that's presented, certain things. But the process should be open...sometimes they want to close a criminal matter, but by law we're supposed to be open case. So the process should be open, everybody should know how it works, and then it should be consistent. And that to me is how I see transparency. It's consistent, people know what's supposed to happen; it's not going to change. A lot of tribes, however, have problems when they don't have court rules because when you don't have court rules, and this happens actually a lot. A pro tem judge like myself will go somewhere and there are no rules and something comes up, previous judge did it differently and I do it differently. That happens a lot when a tribe doesn't have rules. But everybody knows that so that's not a problem. They're going, ‘Oh, it's a different judge, he's going to do it differently or she's going to do it differently.' But in general, people should know how the process is going to work generally, and then they should be aware of it and kind of see it go through and follow it to the end, to the decision making and not be secretive and the judge goes into the back with the prosecutor or something like that. It shouldn't be that way at all."

Ian Record:

"I want to ask you about a topic that the Native Nations Institute has been spending an increasing amount of time looking at and that's this issue of sovereign immunity, and we convened an executive forum a couple years ago with leaders from nations, experts, lawyers in this area that are working in this area. I was wondering, from your experience, if you can comment on the issue of sovereign immunity and specifically how it can be used as a tool to advance tribal sovereignty."

Joseph Flies-Away:

"It can advance and not advance. So let me start at what sovereign immunity comes from. Sovereign immunity is a doctrine that comes from Anglo Saxon, the 'king can do no wrong.' So we have to ask, ‘Do we have kings?' Native Hawaiians, today, maybe they do. Maybe they say, ‘The king can do no wrong,' that's applicable in their culture. In tribal systems, maybe they had a chief kind of like a king and maybe they believe, ‘The chief can do no wrong,' so if that's applicable, then that's cultural, they can apply it, cultural law. But in other places it's not like that. Some tribes believe chiefs can do wrong, people can come tell you. You meet together and say, ‘We don't like this.' So it may not be applicable, that concept, ‘The king can do no wrong,' or, ‘The chief can do no wrong.' What I see sometimes is lawyers, if a tribe does something perhaps to a non-member Native, for instance, they do something bad to him or they do something that is a volative, basically under the Indian Civil Rights Act or whatever it is. That person can't sue because of sovereign immunity. The lawyers are going to say right away, present the defense of sovereign immunity. Now if we want justice, that's not providing justice. That's helping the tribe because they can't be sued, but it's not helping generally justice because if a tribal council made a decision...because certainly in my mind tribal councils can do wrong, they can make bad decisions, and I have seen it. And it may not be because of just spite or meanness or whatever, it could be just lack of knowledge or they acted hastily at whatever it was or whatever it is. But they make bad decisions and it affects human lives or it affects somebody. Now if that person has no recourse...and my idea about what they can do isn't they can sue for all the money, that's not what I'm saying. And somebody misconstrued what I was saying one time. I'm not for that. It's more of an equitable relief. If a council makes a bad decision, a person should be able to take them to court or take them to the judicial system and say, ‘Hey, you violated due process or you violated something,' particularly if they have their own bill of rights, which a lot of tribes now are doing. And that decision then would be vacated and they'd be told, ‘You did wrong, do it again.' And if there's a little bit of something that person deserves if they like got $20 taken...whatever it is, parking ticket, something...they should give them that, but not a million dollars. It's not a...my idea of being able to sue tribal government is not for monetary damages. It's for equitable relief and just that fixing what you did wrong because like I said before, tribal council members could be young or naí¯ve or not knowing, not knowledgeable in certain things and make a collective decision that affects someone else and is a bad one and it hurts them. I don't believe that doctrine should always be thrown out and lawyers do that all the time. And they'll say...and they'll write...I've seen many motions, ‘First motion, motion to dismiss, tribe is immune from suit for sovereign immunity.' And I wrote a couple opinions...I just...’No, it doesn't work that way. We have a constitution at Hualapai. It says, ‘Every person has these rights. It's not member, it's not Hualapai; it's person.' So if you're a person and if I define person as a corporation or whatever, if this council did something wrong, that person has the ability to go to court and sue something in equity so just to make a better deci...or to redo the decision or vacate it and do something differently.' But not for money and I'm very firm on that and other people will say, ‘No, we have to have that because it supports economic development.' Well, to me, if you're going to keep making bad decisions and screwing people over like that, that's not good for business. People won't do business with you any more, they're going to know, ‘We won't go over there because they'll do something bad, go on a contract with you, breach it and you can't sue them.' That doesn't help no one. So I don't...I don't even know why tribes even say the term. They should be saying something in their own language, but not using 'King So and So's' words because those English kings back then were horrible people. They would cut your head off. I just don't know why we even want to be close to that. And maybe some of us did the same thing, I don't know."

Ian Record:

"It's interesting: you talked earlier in your answer about how the fact that they may invoke sovereign immunity and it helps the tribe in that case, but then you make allusion towards the end of your answer that in the long run, it doesn't help the tribe much at all because people get the message pretty quick that..."

Joseph Flies-Away:

"Yes. They won't do business with you."

Ian Record:

"Exactly."

Joseph Flies-Away:

"And they won't interact with you. They'll just say, ‘You don't get a fair shot at that place. They're just for themselves.' And they say that in certain places now. You can't...because it's always thrown out that way, ‘Well, we're immune from suit.' Even the businesses, even the corporations, even the casinos, first thing is immunity. They get insurance and they do all those things, they should be able to do all that stuff and protect themselves. And I'm just saying if they did something wrong, something bad. If it's not that, then..."

Ian Record:

"And what we're seeing is a lot of Native nations are using sovereign immunity as a tool as I mentioned pretty innovatively, and in fact when they do waive it in a contract with an outside vendor perhaps, they're waiving it into their own court system."

Joseph Flies-Away:

"Yeah, they should do that first because that is their place. They may have to negotiate. Some people won't...they may do a clause, choice of law clause where it takes them to an arbitrator or takes them to something else, because if that person's just not going to do business with an Indian tribe, some tribes have to do that with these people. But the best thing is to bring...but they're going to look at that court system, they're going to look at, 'Who's the judge?' And I've even had someone say they did research on our court to see who the judge was...at me. So they'll do that before they agree, because they don't want to invest or put money into something where it's not going to be fair. And it's just so common-sensical. It's a good business practice. But I see too many right away, in my court, other courts, ‘Motion to dismiss, tribe is immune from suit.'"

Ian Record:

"Do you think some of that comes from a confusion among the people who call the shots in a particular nation that if you waive 'sovereign immunity' you're somehow waiving your 'sovereignty'?"

Joseph Flies-Away:

"Well, this goes back to acting like a sovereign, you have to work with other sovereigns, and waiving it or to do business with someone else, that's a part of it. That's being a sovereign. That's acting like a nation. So the tribal leaders, many times they confuse sovereignty with sovereign immunity. They're not the same thing. Sovereignty is the ability to be your own nation, you're one to yourself, you're your own country or whatever it is. Sovereign immunity is just saying, ‘Well, you can't sue me no matter what I do.' They're kind of related, but they're not the same thing. And some council members just make it the same -- if you waive sovereign immunity, you're waiving the sovereignty. But it's not like that and we need to educate them on the distinction between the two and maybe...I wrote an opinion one time in a case that...it was a trial court [case], but no one appealed it. I said, ‘Native people and at Hualapai have the concept of fair dealing and fair trade generally.' And you know, good trade, you see it on Dances with Wolves or whatever, I think that goes across all Indigenous people, it's kind of fair. You treat each other fairly in situations so that goes...that's a cultural concept that goes full with business. So you can't screw over these people, we have to be fair to them. And so that's why part of the basis why sovereign immunity in that case wasn't going to work and plus we had a constitution that says persons have rights, etc., etc. So those things together, the written and the cultural I put together and said, ‘No, we're not going to have that right now, not with this.' But then I said, ‘But it's not...' The person would not ever...we never got...it ended after that first hearing. But a person suing is not going to be able to sue a tribe for all its worth. I agree that tribes have to be protected from...we don't have any money. We didn't have any money, right. But it has to be in equity, it has to be just the fairness, the fairness that I believe is cultural to tribes. We've got to treat people fair and there has to be a mechanism in that court system or something, some...maybe it's an outside...maybe it's another branch of government, maybe it's a program, it's somewhere where they can go and say, ‘I was treated unfairly, I need a hearing and a review of this act,' and they need to have that. And if they're found to have done wrong or something, well, then redo it and make it fair. Equality and fairness I believe is a concept genuine to Native people, most people I think. I think it's a human thing really across the board. Some people just don't recall it and remember, they do it badly.' But the sovereign immunity by itself is something -- it's not tribal, it's not traditional, for most of us. Some tribes, I actually have heard them say, ‘No, we could never do nothing to the chief.' I heard them say that. Well, if that's true, then okay. They're being...they're applying their culture, but I don't see that in my tribe. I mean it's not what I've heard and read."

Ian Record:

"Wanted to end with a kind of nuts-and-bolts, everything-in-one question here, I guess a wrap-up question and that is...and this is kind of the topic we started with which is how can strong, independent justice systems serve as a tool for Native nations to meet the contemporary challenges of nation building and specifically how can Native nations or how do those justice systems empower Native nations to achieve their strategic priorities?"

Joseph Flies-Away:

"Well, the justice system again is a place where people go to resolve conflict and throughout all human existence and the rest of it, until we blow up, there's always going to be a problem, there's always going to be controversy, there's always going to be conflict. As much as there's going to be cooperation in the world, there's always going to be a conflict. They're balanced, they're one end of the spectrum, I mean one conflict...total cooperation-conflict, so it's going to be there. So a justice system is a place for the tribe where any disputes can go and be resolved. Now as...I go back to the people gather, ground and grow. They're going to gather, they're going to ground and grow and throughout this process there's always going to be those problems. A justice system or a place for dispute resolution, a good one or one that works from a 'good heart' kind of place, is going to contribute to that process, it's going to help them move forward in that community and nation building process. NNI and Harvard, they have the nation-building thing. I don't see it like that only. I see community and nation building. You have to have the people get along and we are related and we have links and relationships like the clanships and all that kind of thing. We're...that's the membership thing, we're members together. The citizenship thing or the nation-building thing is hierarchical. The community building is vertical or wait, no, which one's this way?"

Ian Record:

"Horizontal."

Joseph Flies-Away:

"Horizontal, the horizon, I always have to think of that. Community building is horizontal, this one, and nation building is vertical, this one, and so you have both. So that you have to...as the people gather, ground and grow, they're going to get along or not and they have a place to go, but as they build institutions and become more hierarchical and citizens and defining where you fit in the government, they're going to be like this, but that court system will help resolve problems as it moves forward. But it's never an end...it never ends, until we blow up like I say. That's how I...maybe someday it would happen. That process, the judicial system or whatever they're going to call it...people don't have to call it that, it's just we get that from Anglo words. It's going to help the people in their community- and nation-building journey in all aspects and if they have that there, then things will be a lot lighter, things will be easier, things will be consistent, things will be something where they will have faith in the ability to even do things, because if there's a problem, there's somewhere to go to resolve it. And so if all tribes had that, then their path to some end is going to be a better place or a better end...no end, but a better journey because they're going to keep moving in that direction. If they don't have that, they're always going to be hurting, they're always going to be fighting, they're always going to be not going in the direction that they should. Things won't be resolved, people get hurt, the feelings that...a lot of people don't in court systems want you to bring in your feelings, but you have emotion, human beings have emotion, so it's a part of that and I think tribal people are very emotional, we really hold on. So that will be affected. My paradigm, nation-building model also incorporates a spirituality of law model, which means, well, basically it's a healing thing. When law brings people together, it connects them, it builds ties and connections. A good justice system will identify how we're connected. Legislative people should write good law to tell us how we're related and how we get along, what our relationship is in whatever business or whatever. But when there's gaps, the court system can say, ‘This is the filler. This is how we should get along or not.' So when you build those kinds of connections, you are healing each other, so the spirituality of law in a court system is, the better the court system's able to identify how human beings are related and linked and are tied together, the more healing. When you are untied and disconnected, it causes sickness. Justice Yazzie says...used to say or he says still, ‘A criminal is one who acts like he has no relatives.' That means he doesn't act like he has any connections. So a criminal needs to be tied back to his family, to his tribe, to his people. So the court system should be able to do in ceremony or in process, in procedure, even if it's a trial, retie the lost links, which then would create healing, which is a good thing. If we don't, we leave them to be sick and lost and untied and disconnected and that's a bad thing. So that's how I see...that's how I see my work. That's what I try to do. But when we're doing it under the...in this adversarial system given to us, it's a very difficult task, but I still try to do that. That's how I see my role as a judge but not just as a judge, as a human being, as a community nation builder person, that's how I see that."

Ian Record:

"Well, Joe, I really appreciate your time. I thank you for your perspectives and your thoughts and yeah, thanks."

Joseph Flies-Away:

"You're welcome."

From the Rebuilding Native Nations Course Series: "Test: Does Your Nation Have an Independent Judiciary?"

Producer
Native Nations Institute
Year

Professor Robert A. Williams, Jr. shares a short test to help a Native nation and its leaders and citizens determine whether or not their judicial system is truly independent.

Native Nations
Citation

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

"So, like Miriam, I'm going to ask you to take a test to see whether or not you have an independent judiciary on your reservation. Get out your pens, check yes or no, and we'll tally at the end:

On my reservation, the Chair is related to the Chief Justice -- yes or no?

On my reservation, the Chair is poker buddies with the Chief Justice.

On my reservation, judicial review means the Council can review any judge who makes an unpopular decision and fire him.

On my reservation, checks and balances are something the tribal finance office can’t keep track of.

On my reservation, separation of powers means the Council doesn't ask questions about the judiciary's travel expenses, and the judiciary doesn't ask questions about the Council's.

On my reservation, the question of whether the tribe has waived its sovereign immunity is something that only the Council can decide.

Now, if you had six to five "no's" you are very independent, but if you only had one to two, it's kangaroo court city, babe. Where do you stand on that test? And as tribal leaders, you need to engage honestly with this issue of, 'Are you ready for an independent and strong tribal judiciary?'" 

Oglala Sioux tribe to vote on constitutional changes

Year

A more stable tribal government and economic development on the reservation could be the result of a vote on constitutional changes by Oglala Sioux Tribal members on the Pine Ridge Indian Reservation April 22, supporters say...Key proposals include an amendment to separate the tribe's judicial system from its tribal council and an amendment that would establish four-year staggered terms for council members and four-year concurrent terms for the tribe's president and vice-president...

Resource Type
Citation

Gease, Heidi Bell. "Oglala Sioux tribe to vote on constitutional changes." Rapid City Journal, April 14, 2008. Article. (http://rapidcityjournal.com/news/local/oglala-sioux-tribe-to-vote-on-con..., accessed February 9, 2012).

UA Institute Helps Native Nations Rebuild, Maintain Government

Producer
Arizona Public Media (Story by Ashley Grove)
Year

An institute at the University of Arizona is focused on rebuilding government structures in Native nations by research and outreach offered through online courses and more.

The UA Native Nations Institute has been working toward its goal of helping the Native governments for nearly 30 years, looking at why some nations are more successful than others at achieving their goals, said Ian Record, director of the Rebuilding Native Nations courses. The goals could be economic, cultural, or social goals, he said...

People
Citation

Grove, Ashley. "UA Institute Helps Native Nations Rebuild, Maintain Government." Arizona Public Media. University of Arizona. Tucson, Arizona. August 19, 2013. Video. (https://www.azpm.org/s/15589-ua-institute-helps-native-nations-rebuild-m..., accessed September 13, 2013)