Indian Reorganization Act (IRA)

Lenor Scheffler: The Lower Sioux Indian Community's Approach to Citizenship

Producer
William Mitchell College of Law
Year

Lawyer Lenor Scheffler (Lower Sioux Indian Community) provides an overview of the Lower Sioux Indian Community's approach to defining citizenship, which is predicated on residency within the Lower Sioux reservation's boundaries. She also discusses how eligibility for tribal social services is tied to residency. 

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

Resource Type
Citation

Scheffler, Lenor. "The Lower Sioux Indian Community's Approach to Citizenship." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Colette Routel:

"Good afternoon everyone. My name is Colette Routel and I'm also one of the co-organizers of this conference along with Sarah Deer. I teach at William Mitchell College of Law. For our afternoon, we're getting started with a panel on other citizenship requirements. After spending the morning talking about the choice between lineal descendency or blood quantum, we now have two speakers that are talking about things such as residency requirements, tiers of citizenship and adoption. I'd like to call up now the two speakers, Lenor Scheffler and Sarah Deer.

Once again, their full bios are in the program, but I would like to highlight just a little bit about each one of them. Lenor Scheffler, who's sitting here to my immediate left, is a partner at Best & Flanagan, where she runs their Indian law practice. She's a member of the Lower Sioux community and she was born near Morton, Minnesota. She is a 1988 graduate of William Mitchell College of Law. She's actually on our school's board of trustees, and she was the first Mdewakanton attorney that we know of anywhere in the United States. After she left William Mitchell, she began her private law practice and like I said she works at Best & Flanagan, which is one of the larger law firms in downtown Minneapolis. She's been very active in the Minnesota American Indian Bar Association and there's a list of her long accolades as well, too, in the bio.

Next to her is Sarah Deer, who you've all heard from this morning. Sarah is a citizen of the Creek Nation in Oklahoma. She's been teaching at William Mitchell College of Law since 2009 and before that she worked for the Tribal Law and Policy Institute and for USDOJ [U.S. Department of Justice] doing grant work for them. Sarah's main area of expertise is actually on violence against women. She was instrumental in helping Congress draft and get passed both the Tribal Law and Order Act in 2010 and then the reauthorization of the Violence Against Women Act much more recently. Sarah's going to talk about her recent scholarship on her own tribe and their constitutional revision process. I'll turn it over to them. Thanks."

Lenor Scheffler:

"Thank you. Good afternoon everyone. Good to see you. Hopefully the food was good and you'll stay awake. If not, we'll have to jump up and down or something. [Lakota language]. I wish you a good day. Glad to be here with you. I am going to talk a little bit about my experience and I have a councilman here who can correct me if my information's a little off. But Gary Prescott, one of our councilmen at Lower Sioux, I'm proud to have him on our council and here today. At Lower Sioux, we rely on a residency requirement and so I'll be talking about that, but generally I just wanted to make a couple comments.

In my practice, which I've been working in Indian Country now it'll be 20 years next year, which is like, 'How did that happen?' And when I work with my tribal clients and they're talking about constitutional reform, the one issue that is the...or the biggest issue of stumbling block after things like land and jurisdiction maybe, but is membership. How do we define who we are as a tribal person, as a First Nation person? Everybody -- depending on whether you were born on the reservation, off the reservation, depending on your age and how much blood you have, your background, your experience -- everything comes together about how you define yourself individually as a tribal member of your particular tribal nation and also how your tribe looks at you and how the outside world majority society looks at us. So it's very complicated, confusing, emotional, challenging -- all of the above -- and so I'm really glad that there's this conference where we can have some discussions and conversation and hopefully you've been able to share some good ideas about this very important topic.

The Lower Sioux, when I was born, under our constitution, which was an Indian Reorganization Act constitution, you had to be born to a member who resided on the reservation and you had to be able to identify your descendency from the 1886 rolls. And so when I was born, my mom lived on the reservation and we can trace our ancestry back to 1886 and beyond. But then, over time our lives have changed, chunks of us have moved away. One of my other councilmen told me that we have approximately over 1,000 now members at Lower Sioux and there's a certain number that live on the reservation, and we also have a service area that we identify or recognize so many miles outside the reservation, and we have then also large numbers of our tribal members who live outside even that service area. And our membership ordinance has privileges and...membership and privileges. I can't remember the exact title now. I should have looked at it before I came here. But residency...if you're a resident of Lower Sioux or in the service area, and in this case now it's up to five years, then you are eligible for certain privileges that are set out in the ordinance and if you have...if I would choose to move back -- which was one of my desires was to retire at Lower Sioux -- I would have to establish residency and there may be some other, if I recall, some other categories. But when you have those privileges, those include the health benefits, the voting, the land assignments, those sorts of things, because our constitution also says when you get a land assignment or a land lease, you have to develop it and reside there and if you abandon it for a certain number of years, then you have to relinquish it back to the community.

So it's been a very interesting experience in my lifetime to watch my community. We all knew who each other was even though, as you know, when our censuses were made by the United States government over the years they were not always accurate and we knew who actually was the child of that couple or who the real mother was and we also know there are examples that people happened to be visiting Prairie Island when they took the census and so a Yankton person might be counted as a Prairie Island person. So we know there are flaws in the records that the government has provided saying who we are in each of our communities, but we as tribal people, we know exactly who our people are, in my opinion. That's my personal opinion.

And so watching at Lower Sioux...and most of us at one point stayed there. Some people left for jobs, some people left for education because there wasn't much there. What I remember is the gravel pit and the gravel roads when I was a kid and then it changed and we had gaming and that brought a whole different experience. I think of our...my childhood as rather idyllic and sheltered living on the reservation. It wasn't perfect, but it was pretty wonderful in my mind and a great place to be, but I knew I had to leave and others made those choices. To watch going from everyone being included, everyone knowing each other to having the influx of workers and relatives who grew up in the Twin Cities or relatives who grew up in other parts of the country because of relocation, people coming back because they're retiring, people are wanting to come back, our community changed. And as those things changed, choices were made about, 'How do we define ourselves?' And as a lawyer, I will defend a tribe's sovereign right to say who their citizens are. And I've also seen when that sword of sovereignty cuts the other way and people are disenrolled or people are harmed by what I would defend as a lawyer, but as a tribal person may have other opinions.

So over the years, our tribe has made choices. How do we account for the people coming back? How do we account for the people who have been here on the reservation their whole life? So we have some benefits. How do we share those benefits and how do we weigh those values and choices that people have made and how do we...because in our Dakota, Lakota, Nakota we are all related. We want to be a relative, we want to live among our relatives and so how do we make choices when we are all related? And so I think it's not been easy for my tribal people to make those choices and sometimes it was in a good way and sometimes it may have been a challenging way, but I believe that they did the best and they do make the best decisions they can.

So residency has been something...it really has helped the members who live there, who choose to live there, who may not be able to leave. The benefits that come with residency makes great sense. I don't mind it that I don't have the benefits, but I...what's so important to me is that I am a member, that I have roots, that that is my home, that is where I come from. So regardless of what label somebody puts on me or says what I get or don't get, I'm individually a person, it doesn't matter. My parents taught my sisters and I that education was everything and to work hard so that we could take care of ourselves whatever we did or wherever we were because my dad said, "˜You're a woman, you're a minority, and the only thing people can't take away from you is your education.' And so we made different choices and so residency to me individually is not as important, but I have other relatives who have retired, my aunts and uncles for example, and it's been very nice because they've not necessarily had 401Ks in their lives where they've lived. I have one uncle who lived in Oregon for most of his life on the Warm Springs Reservation, another auntie who lived off the reservation, and it's been nice to see them to come home with what little retirement they do have, but they get some privileges now and in their old age they have a place to be and to connect and so I think that has great value.

So residence...and it just depends on your opinion, because I also have had my dissident period, I will admit, in the "˜90s, and...where there was about 200 we counted of members of Lower Sioux and descendents and came together and some of us wanted just to be able to vote whether we lived on or off the reservation and others wanted to be able to take advantage of the privileges that were happening at that time -- per capita and other benefits -- regardless of whether you lived on or off the reservation. And so ultimately there was actually a lawsuit. A number of us just dropped out because I wasn't that dissident-like. I don't shake up things that much so we dropped off, but others...actually a case went to the Eighth Circuit, the Maxim case, about privileges and benefits and caused some changes. So it's been an experience that it just depends on where you're sitting as to whether having a residency requirement for the benefits is a challenge or not. But to me the most important is that is...the important thing is that that is where I'm from and where my family's from -- Prairie Island is actually where my grandmother and my great grandmother and Santee is where my grandfather, great grandfather is from -- so it's that connection in place that seems to me most important.

The tiers of citizenship, I've heard of that and maybe that is an option because it is such a hard question to decide who gets to be in and who gets to be out. I have clients who are full blood from other tribes and they say, "˜I do not...,' the chairman of one of my clients from Wisconsin said, "˜I do not want to sit at a council meeting some day and look at the next chairman and he's got blonde and blue eyes. That makes me crazy.' Or I talk to my friends at Prairie Island, my relatives at Prairie Island and they have...they have some descendency and they do have folks that don't necessarily look like majority society says all of us Indians should look like. So I guess my comments are just to give examples and a perspective that, be thoughtful about how you define yourself and find a way...we...gosh, people, we have survived since time immemorial, we should be able to figure out this citizenship piece. We put our heads together, we be relatives with each other and to each other. It seems to me we should be able to figure this out. We can survive this long...I don't believe that we will all waste away because of how we define our citizenship. I think we will figure out a way to do it, but I think it just takes effort and respecting your past, respecting your values, talking to each other and listening to each other and then having the courage to make a decision and then live with that decision and work with it. I think that's another thing maybe...because of all my tribal judge work in my lifetime, too, I'm not afraid of making a decision and just dealing with it, but I think that's what our people have done.

I did a law review article through William Mitchell Law Review in 2012, my perspective on the 1862 uprising or conflict or war -- whatever you want to call it -- and I focused on membership and the challenges that we as Dakota in 1862 faced because we had our people who were already assimilating, cutting their hair, wearing majority society clothes, sitting in wood houses and trying to farm and assimilate, and yet we had our people who were saying, "˜No, we are going to hold on to our traditions and we shouldn't have to do this and we should be able to be who we are.' And contrast those experiences and the complexity of those relationships not only with the United States government and majority society but among ourselves. I contrasted that to a lawsuit that was called Wolf Child v. United States, which was a trust case that had been around for the last almost 10 years now and that was a case again about trust responsibility and a group of plaintiffs having lawyers and they were from our community, Lower Sioux, and saying the government had a trust responsibility to these 1886 descendents, those "friendly" Dakota which is a good and bad term: you either 'hang around the fort Indians' or whatever you wanted to call those folks. And so the case was talking about that issue and whether those descendents...that we should have the benefits that come from those 1886 lands, those lands that were set aside by the federal government for those friendly Mdewakanton Dakota.

And so I contrasted what was happening in 1862 and what was happening with this lawsuit, because that lawsuit brought out the best of us and the worst of us in that having to show your descendency caused people to reconnect with their roots, find out where did great grandma...where was she baptized, was she baptized, where was she born, trying to show that you were descended from those friendly Dakota. But it also divided families that, 'This isn't right, we shouldn't do this litigation.' I'm not a litigator and so I have a theory that litigation gets us nowhere usually, but it does sometimes. But I don't like litigation. You don't have control over what's happening or what the decision's going to be. And so that litigation also, I think, divided us because some families...people who had been in exile from 1862 went to Canada or other parts of the U.S. saying, "˜We want to come back, we want to have land, we want to be members in our communities from where we were born...where we descended from.' And so those...that was dividing in similar ways in my mind as what was happening in 1862. But unfortunately, at this ripe age of, my membership card probably says I'm an elder now, but and after 20 years of practicing law I still don't have an answer about the citizenship and what we can do about it or to take care of or resolve some of those issues from 1862 to today except that the faith that I have in our people and what we've learned and the hope that we can keep moving forward. So those are my perspectives." 

Bethany Berger: Citizenship: Culture, Language and Law

Producer
William Mitchell College of Law
Year

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

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

Native Nations
Resource Type
Citation

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

Sarah Deer:

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

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

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

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

[applause]

Bethany Berger:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ian Record: Citizen Engagement: The Key to Establishing and Sustaining Good Governance

Producer
National Congress of American Indians
Year

For Native nations, establishing and sustaining the good governance necessary to determine and then achieve their strategic priorities hinges on citizen engagement: the ability of a nation and its government to consult and educate its citizens about the major decisions it makes and implements in order to move the nation forward. This panel session explores examples of successful, innovative approaches to citizen engagement, and discusses the transferrable lessons other Native nations can learn from as they work to enhance their ability to effectively engage their citizens.

This video resource is featured on the Indigenous Governance Database with the permission of the National Congress of American Indians.

People
Resource Type
Citation

Record, Ian. "Citizen Engagement: The Key to Establishing and Sustaining Good Governance." 70th Annual Convention & Marketplace. National Congress of American Indians. Tulsa, Oklahoma. October 15, 2013. Presentation.

Ian Record:

“As some of you may know, the Native Nations Institute for Leadership, Management and Policy at the University of Arizona is the partner organization with the Harvard Project on American Indian Economic Development. So for instance, my boss Steven Cornell is also the co-founder of the Harvard Project on American Indian Economic Development. We share a lot of staff, we work on a lot of projects together, and we both continue this research that began in the mid to late 1980s that’s come to be called 'nation building.' How many of you are familiar with that term 'nation building' in the context of Native nations and sovereignty? Okay, some of you. So basically just to give you a quick nutshell before I sort of dive into the content of this particular session, what began this research was Drs. Cornell and Joseph Kalt -- who were joined shortly thereafter by a Navajo educator named Dr. Manley Begay -- were looking at data that was coming out of Indian Country -- socioeconomic data, a lot of the data that all of you are probably well familiar with: poverty, social ills, employment, unemployment, things like that. And what they were finding was that if you took the whole picture, Indian Country was pretty poor, but when you look reservation to reservation, there was great variety in terms of economic performance and in some of those indicators that I referred to and they wanted to figure out why. So that began this long line of ongoing research into, what is it that tribes are doing that determines whether or not they are successful, and not just with their economic development priorities, but with any of their priorities, be those culture, political, social, etc.?

And so what I wanted to do today was focus on what we are encountering as we continue our on-the-ground work, working directly with Native nations. And I wanted to acknowledge a couple of my colleagues here in the audience today. We have Herminia Frias who is also with the Native Nations Institute. She’s a former chairwoman of the Pascua Yaqui Tribe, and I’m going to put her on the spot during the second half of our session today because she can speak firsthand to the great challenges that come into play when you think about citizen engagement. And then also Renée Goldtooth, who is the Manager of Leadership & Management Programs. And for those of you who are interested in the...are looking through these brochures that I’ve circulated, Rebuilding Native Nations online course series, Renée is the course guide. So if you really like Renée, if you think she’s got a great personality and you want to see more of her, I encourage you to check out those courses. Sherry [Salway Black] mentioned that in the back of the room we have a videographer and it has been our practice at the Native Nations Institute for the past several years is to always get tape. It’s one thing for all of you, all of you are very fortunate in respect that you can afford to come to this sort of session and learn what you’re going to learn from these esteemed panelists, but not all the folks from your nations have such an opportunity. And so what we’ve been working to do over the past several years is to make the perspectives about nation building, make the knowledge about nation building, the success stories that you heard about this morning more widely accessible to all of those that need to have a voice in the nation-building work of your nation moving forward. And so what we’re doing today is we’re going to be videotaping this session and at some point in the very near future this video will be featured...a video of this session will be featured on this Indigenous Governance Database. So you can go there and you can learn...if you say, ‘Wow, this Jim Gray was really saying some interesting stuff,' or 'I love what Ysleta del Sur Pueblo is doing around citizen engagement,’ you can share that link with your friends, your colleagues, your elected leadership and they can learn what you’ve learned today.

So just to give you a quick idea of what we’re going to do today over the next two hours or so, I’m going to go through a very quick framing piece to kind of get you guys thinking about some of the issues around citizen engagement and then I’m going to turn it over to our two panelists and I’ll do very short introductions of them right now. We’re going to ask that you hold your questions until after they’re done presenting and then we’ll engage in a lively question and answer and discussion. Does that sound good to everyone? Okay.

Well, first I’d like to introduce Jim Gray. Many of you know him or know the name at least. Jim is the former principal chief of the Osage Nation and served in that capacity until about four or five years ago. He was instrumental in the Osage Nation’s government reform process and basically what they did was they overhauled their entire constitution and system of government from the ground up and he’ll talk a lot about that during his presentation, in particular the citizen engagement challenges inherent in that process, and then what they did after that process was over, and how what they learned in terms of citizen engagement through the government reform process has benefited them in the years since.

And then second, I’d like to introduce Patricia Riggs. Patricia Riggs is Director of Economic Development with Ysleta del Sur Pueblo, a nation that also experienced some significant change over the past decade plus and really focused on educating and engaging their citizens as the way to move their nation forward and they’re doing a lot of amazing things. And what you’re going to hear from her is how they’ve taken citizen engagement as sort of the pivot upon which all of the foundational change and the achievement of their priorities is going to be determined moving forward. And so for instance, we’ve been working, the Native Nations Institute has been working with Ysleta del Sur on an ongoing basis and it’s really interesting to see how they continually fine-tune their approaches to citizen engagement and how they really focus on the particular audience they’re trying to reach. So for instance, if it’s youth that they’re trying to reach, they make sure that the messaging that they use and the way, the methods by which they inform those people is determined by the audience, that particular audience. The same thing with elders and so forth, and we’ll touch on that later.

But what I wanted to do right now is take about 10 to 15 minutes and talk about this issue of citizen engagement as we see it from our research lens and as we see it in terms of our on-the-ground work, working with tribes to strengthen their governments, to engage in some of this foundational reform that Jim and Pat are going to talk about and then talk about some of the challenges inherent to the citizen engagement question and then talk about what we’re seeing as some of the strategies that were working. And I’m sure Jim and Pat will pick up on some of this as we move forward.

As I mentioned, what we’re about is -- at the Native Nations Institute and the Harvard Project -- is nation building, or as Chief Oren Lyons always likes to remind us, ‘Nation rebuilding,’ because, as he says, ‘Tribes were once very powerful, vibrant, sophisticated native nations who had developed over centuries and millennia their own very complex and very thoughtful systems of government,’ and the question is, ‘how do we reclaim those and rebuild those?’ And really what it’s about, it’s about foundational change. It’s about foundational change. It’s about changing the status quo that has existed in some communities for entire people’s lifetimes, people’s entire lifetimes, right? If you think about the Indian Reorganization Act, most of those were instituted in the 1930s. There’s not many people in your communities -- if you have an IRA government -- that remember how you governed prior to that, what sort of system you had in place. And so really when you think about this, it’s foundational change that talks about completely recasting how the government serves the nation, how citizens interface with the government and so forth. And so it requires that everyone, leaders, leaders of that nation, employees, people that work for the government -- whether you’re a senior manager, a department head or just an entry-level employee -- and those citizens, where are they in the nation-building process? And my colleagues and I, we’ve seen this time and again: the leadership gets a great idea and they just run with it and they run out the door and they get that train moving down the tracks and they forgot that the people are still at the station. And so it’s critical that all of these folks are onboard that nation-building train before it leaves the station.

If you’re thinking about, 'How do we get this train moving and how do we keep it on course,' what we’ve seen in terms of nations much like these two that are represented here today, what we’ve seen that works is when nations take a thoughtful, multi-faceted -- that’s critical, multi-faceted -- approach to citizen engagement. Really it’s about the ability of a nation and its government to elicit their citizens’ participation, active participation in the decisions both big and small that the nation makes and then educating them about those decisions and why they were made. And so if you think about it as this ongoing cycle of listening, deliberating and educating -- and this is an ongoing process, it continues on, continues on -- and really this is the first and foremost job of leaders, if you think about it. And I think what we’ve witnessed in our work with so many tribes across Indian Country is the mindset and I think thankfully we’re seeing it less and less where the leader’s sort of tunnel vision is, ‘I’m a decision maker. I was elected to make decisions,’ when we’ve had many very wise leaders tell us, ‘My job is as much to be an educator as it is to be a decision maker. I’ve got to make sure our people understand what it is we’re doing and why, and not only that, but that I’m consulting them to get guidance on what decisions to make.’ Because that’s how Indigenous societies worked traditionally. And the question is, 'How do you get back to that if you don’t have it right now?' So there’s that ongoing cycle of listening, deliberating and educating that really needs to take place and I would remind folks that this may look very different from one nation to the next. It’s really up to you to determine what this looks like and what this involves and what sort of processes you need to put in place, what sort of mechanisms do you have to have that work? What sort of individuals need to be delegated certain responsibilities to make sure that this process continues to function, not just today, not just tomorrow, but permanently? I wanted to share a clip from our 'Leadership' online course. This is one of our video assignments that appears in our 'Leadership' course about the role of leaders as educators."

[Video]

Heather Kendall-Miller:

"Leadership goes beyond just having an active role in making things happen. It also requires the ability to inspire others to take action."

Joseph P. Kalt:

"There's one more thing, and it's leadership. When we say that, we don't mean necessarily leadership as decision-maker, we mean leader as educator. Someone carries into any community the ideas, the ways of doing things, the new ways of doing things, the old ways of doing things. And it's leaders that do that. Not just elected and appointed officials, but all the dimensions of leadership. And the challenge that you face -- you all are leaders. You got out of bed this morning, or yesterday you flew here. You're not here because you're crawling under a rock and hiding. You're here [because] you're leaders, and the challenge is to carry these messages of effective nation building into communities. And the more you do that, what we find, the more successful the leadership of a community is in getting on the same page and talking about the fundamental nature of these needs for running things ourselves, founding them on our own institutions that are culturally legitimate. Then suddenly, the community starts to stand behind you and then you get stability and then you build a community and then the kids stay home instead of moving away and you've rebuilt a nation."

Wilma Mankiller:

"But I do believe that an essential part of leadership is -- besides all the things like making sure you're working on legislative issues and legal issues and health and education and jobs and all that sort of thing -- is to try to help people understand their own history and understand where we are within the context of that history and to believe in ourselves; to look at our past and see what we've done as a people and to remind people that if they want to see our future they just simply need to look at our past to believe in ourselves, to believe in our intellectual ability, to believe in our skills, to believe in our ability to think up solutions to our own problems. I think that is critical to our survival."

Gerald Sherman:

"I think nation-building leaders need to first just start talking nation building and getting people to think about it a lot and trying to win other people over to get other people to understand what it's all about because what I've seen is you'll get one leader in and they'll understand some of these things but one leader it's hard to make a system change. I've seen it in like the Bureau of Indian Affairs, they pull in some good people to head the Bureau of Indian Affairs thinking that they can make a change but there's a very strong system that exists there and they just can't change it."

Jaime Pinkham:

"When you look at the issues facing tribal communities, issues about per capita distribution, blood quantum, constitutional reform and others, those are very difficult issues that are communities are facing and quite honestly they could be wedge issues that would eventually fractionate communities and so doing education within the community must come first to talk about nation building, to overcome these challenges. I think when there was a time when tribes looked at the greatest threats were from the Colonials and from the Cavalry, then it was from the states but really my fear is that the greatest threats because of these wedge issues that are really pressing on our communities, the greatest threats may come from the inside. And so if we don't do a good job of developing the sense of nationhood within our communities through education and empowerment that the challenges are going to come from the inside not from the outside."

Rebecca Miles:

"Engagement, getting engaged with your people frequently. A lot of times you see tribal council that the first time that they're chewed out they just, it's just now we're in this hole and we're not coming out. And that happens and it's really at no fault of a tribal leader because you can only get chewed out so many times, but instead you do have to have the courage, you chose to run, face your people, get them involved to the extent of, no, they're not micromanaging you as the government, but you've got to inform them and know what it is you need to inform them about. There's just some things that are not...you're wasting everybody's time. That's just not something you inform people about. There's other things that you want to hear from them about. If you want to change enrollment, you better talk to your people. If you're going to make a big decision like our water settlement, go out and get your input from your people and if they have the wrong perception, then whose job is it to change that or work to change it? It's yours, and a lot of times tribal leaders do not think it's their job to do, to be that public person and it very much is your job. You've got to get out there and talk to people and you have to be able to tell them things that they don't want to hear."

Robert McGhee:

"I do believe that at first you are an educator. You are educating your other general council members, well your other council members, especially if it's an idea that you're proposing, or if it's an issue or a concern that you have, you're educating them. But you're also educating your tribal members. Like I said before, in order to make, have a strong government and to have a government that's going to last and to have focus and change, you're going to need the support of the members. And I think if you have any opportunity that you can educate, I think you should, especially on the issue. However, I think the flip side of that is being the student. And there's a lot of times that it's the general council that can educate you, it can be your elders, it can be the youth, that can educate you as a tribal leader to say, 'This is the issue impacting us.' If it's youth it's usually drugs, alcohol, or social media issues, or bullying. And if it's the elders, it's like, 'How can you provide a sustainable, in our last years, how can you make these [years] a little bit better for us?' But also, let's tell you about why this didn't work in the past. So I think they're both valuable tools. I mean you have to be an educator, you have to be a student, but I think there's always being just willing to listen."

Ned Norris, Jr.:

"'You can accomplish anything in life provided that you do not mind who gets the credit.' As leaders -- and that quote is attributed to Harry Truman -- as leaders I like to think of myself in that way. That what I have to do -- the people have entrusted in me their trust to lead them and to guide them for the term that I have been elected. As a leader, I should not ever take advantage of that trust that the people have placed in me. I should never take the position that, 'That was my idea, not yours.' I should not take the position that, 'It's my way or the highway.' As a leader, that should not -- that's not something that we should be doing as tribal leaders. The [Tohono O'odham Nation] vice chairman and I -- Isidro Lopez -- when we ran for these offices, we ran on a campaign that we say in O'odham, it says [O'odham language], and [O'odham language] translates to 'All of us together.' And what we wanted to be able to do was to bring the people together, to bring our people together, to give our people the opportunity to actively participate in the decision-making process. Too many times, we get tribal leadership that think they are going to impose those decisions on the people. We can't accomplish that, we can't accomplish what we need to accomplish if we are going to dictate to our people. That's not our purpose. Our purpose is to lead, our purpose is to work together, and our purpose is to bring our people to the table so that we can hear what they have to say."

NNI Indigenous Leadership Fellow: John Petoskey (Part 2)

Producer
Native Nations Institute
Year

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.

People
Resource Type
Citation

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."

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

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

Ian Record:

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

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

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

Ian Record:

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

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

Ian Record:

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

David Wilkins:

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

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

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

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

Ian Record:

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

David Wilkins:

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

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

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

Ian Record:

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

David Wilkins:

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

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

Ian Record:

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

David Wilkins:

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

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

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

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

Ian Record:

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

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

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

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

Ian Record:

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

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

Ian Record:

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

David Wilkins:

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

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

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

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

Ian Record:

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

Brian Cladoosby: The Swinomish Indian Tribal Community's Approach to Governance and Intergovernmental Relations

Producer
Native Nations Institute
Year

In this wide-ranging interview with NNI's Ian Record, Chairman Brian Cladoosby of the Swinomish Indian Tribal Community discusses Swinomish's unique governance system, its approach to building relationships with other governments to achieve its strategic priorities, and what he feels are the qualities that leaders need to demonstrate in order to lead effectively.

Resource Type
Citation

Cladoosby, Brian. "The Swinomish Indian Tribal Community's Approach to Governance and Intergovernmental Relations." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. March 24, 2010. Interview.

Ian Record:

Welcome to Leading Native Nations. I’m your host, Ian Record. On today’s program we’re very honored to have with us Brian Cladoosby, who’s chairman of the Swinomish Indian Tribal Community. Brian has served as an elected leader of his nation for the past 25 years, the past 13 years as chair and he’s also on the executive board of the National Congress of American Indians. Brian, welcome.

Brian Cladoosby:

Thank you.

Ian Record:

I’d like to start by asking the first question I ask virtually everyone I sit down with and that is, how would you define Native nation building and what does it entail specifically for your nation?

Brian Cladoosby:

Native nation building is nothing new. It has been here since time immemorial and people think that with the advent of the Indian Reorganization Act that Indians finally got their act together, but we have been nation building since time immemorial. It is just a process that goes through different iterations. And so right now, we have the opportunity to be in the advent of...I guess under the policies that have been implemented in the last 20 or 30 years, but as far as nation building, tribes have always been building nations.

Ian Record:

Dr. Stephen Cornell of the Native Nations Institute and Harvard Project refers to governing systems as fundamentally tools for creating the future that Native nations want. How so?

Brian Cladoosby:

Well, governing systems are things that have always been a part of your community, and every once in a while there’s new innovations that occur that help get your tribe not to its ultimate goal, but maybe to the next step of where it wants to go as far as governance I guess in the 21st century.

Ian Record:

I’d like to ask you a question now about Native nation governments and this issue of legitimacy, which is a common subject of debate, particularly among tribes in the 21st century as they look to take full advantage of Indian self-determination policies and self-governance. The NNI and Harvard Project research finds that for Native nation governments to be viewed as legitimate by the people that they serve that they must be both culturally appropriate and also effective. How do you view this finding, based on your experience?

Brian Cladoosby:

Well, it’s kind of sad that in the 21st century we still have to define ourselves as legitimate as opposed to illegitimate, and we all know what the term 'illegitimate' means. So it is something that we as tribes continually have to strive to show that we are governments that provide essential governmental services to our people through a varied host of programs that we have within our reservation boundaries and off reservation.

Ian Record:

How about internally in terms of the people that the nation represents, the citizens of the nation? We often hear for instance that Indian Reorganization Act governments for many tribes are viewed by their people for a variety of reasons as not legitimate because they don’t necessarily sync up with their own culture and what they feel [are] the appropriate ways to organize and exercise authority.

Brian Cladoosby:

I guess you have your internal and external individuals who do not view our governments as legitimate. From an internal perspective and from the Swinomish perspective, we don’t see that. Our citizens recognize that we operate under a constitution that was created by our elders that was basically a cookie cutter from the BIA [Bureau of Indian Affairs] in the 1930s, but it has worked at Swinomish over the years. And so from the internal perspective of our Swinomish members, they view our government as legitimate and they view that the constitution and bylaws that we follow as a legitimate piece of paper that we follow.

Ian Record:

And is the legitimacy that they hold for the government, is it in the fact that you do follow the constitution?

Brian Cladoosby:

Yes, yes.

Ian Record:

Isn’t that a critical piece of it?

Brian Cladoosby:

That is a critical piece, because if you are not governing by what your constitution says, then you are basically breaking the law and that is not good.

Ian Record:

Right. So how do, you touched just briefly a few minutes ago on this issue of outside perceptions of governmental legitimacy by Native nations of governmental effectiveness. Not making any judgment on your tribe -- from what I know of your tribe you do govern very effectively -- but when tribes govern ineffectively, how can that, how can outside perceptions of that governmental ineffectiveness undermine the defense of sovereignty?

Brian Cladoosby:

Well, I guess it’s like a situation where in any organization or any group of people where someone breaks the law or gets in trouble, you are basically guilty by association where if Tribe A is doing it, Tribe B must be doing it took because they’re all the same. And so when Tribe A gets in trouble and it hits the headlines, Joe Citizen who does not know very much about Indian tribes just decides, ‘Well, all the tribes must be like that.’ And so when that happens, and you see the local letters to the editor or the reports on TV, you have to respond to that to let them know that, ‘Look, we don’t condone what they have done and we’ll be praying for them, but that’s not Swinomish.’

Ian Record:

This issue, you kind of touched on this issue of education, of a need to educate the general public. It’s not, it almost seems like for most tribes it’s not enough just to govern effectively, but you also have to spread the word about how you are governing effectively because you do have these stereotypes to overcome, like the stereotype that all Indians are the same or they all do things the same way. Is that something you guys tend to in your nation, this need to educate the general public?

Brian Cladoosby:

Yes, because we, I have heard growing up that tribal members are nothing but welfare recipients from cradle to grave, and that was a perception that was out there that all we do is just live off government money, we get free housing, everything given to us. And so when you have that perception out there, you have to work really hard to educate the citizens, especially in your own area. They don’t know that some tribes in my state are the largest employers in their county. They don’t realize that the Swinomish is one of the largest employees in Skagit County. We employ more non-Indians, sadly, than Indians in our casino and they come from the cities within our county. And so from that standpoint in providing healthcare and good wages, we have to let them know that we are a big part of the community and that we are contributing to the economy. I like to use the analogy of military bases. Military bases bring in millions and millions and millions of dollars to the local economy. And in the last decade when they started going through the base closures, people were up in arms. Well, people don’t realize that if a tribe went away that would really cut out a big part of their economy, but still people perceive us as not being productive people to society. And so it is really tough to be out there to let them know that we do a lot of good things in our communities.

Ian Record:

You touched briefly already on the fact that your nation is an IRA, what’s called commonly an IRA tribe. And you adopted in 1936 your nation an Indian Reorganization Act system of government. I believe it was reformed in the 1960s. What is the contemporary legacy of the IRA for your tribe in terms of its governance? Where does the Swinomish Indian Tribal Community stand when it comes to IRA governance?

Brian Cladoosby:

Well, just like all tribes that adopted the IRA constitutions that were boilerplate BIA constitutions, if you look over the history, you’ll see that a lot of them in Washington State were pretty much identical. So we are still struggling today to try to crawl underneath that basically thumbprint or whatever that the government had put on us through IRA. There are still some things in the constitution that we today need to do to alleviate ourselves from some of the things that we have to do to report back to the BIA. And so we’re still trying to create the constitution that really fits Swinomish and Swinomish’s needs.

Ian Record:

So it’s very hard, you would say, it’s probably difficult to summarize, cast a summary judgment on whether IRA is good or bad, that there are some parts of the IRA that work for you and other parts that need improvement?

Brian Cladoosby:

Yes, definitely. Definitely there are a lot of parts that work for us that have worked for us effectively since 1936, but there are other parts where we definitely need to make changes to make our governing more effective for Swinomish.

Ian Record:

One of the things we hear from leaders of other Native nations who are IRA tribes is the fact that aside from this issue of cultural match, did the people at the time have an active role in the formation of that IRA government? Did that IRA government, whatever system they adopted, did it mesh with what they felt was appropriate? There’s also this question of can it meet the 21st-century challenges and the increasingly complex governance challenges that tribes face? Is that something that you’re wrestling with, realizing is this system adequate to the 21st-century challenges we face?

Brian Cladoosby:

Well, one thing that I have to give the original framers of our constitution because there are certain parts in that that made Swinomish a stable government, having five-year terms underneath that IRA constitution really created stability at Swinomish. And so from that standpoint it really created a good structure where we don’t have large turnovers on our council. So from that perspective, it’s been good. On the other side of it, we still have to get a lot of our approvals from the BIA for leasing and things like that, so those things are antiquated that need to be changed to get us into the 21st century.

Ian Record:

I want to switch gears a bit now and talk about intergovernmental relations, which you have vast experience with. Your nation is engaged in a number of fronts in the intergovernmental arena. As you know, since the 1980s, there’s been incredible growth in this area of intergovernmental relations between native nations and various other governments, not just the federal government. What in your opinion is driving this growth?

Brian Cladoosby:

Well, we've come to realize that we are not an island, even though we live on an island, that the things that happen off the reservation or on the reservation by tribal and non-tribal [entities] impact our government. And so a classic case that you see across Indian Country is checkerboard reservations and we were one of those checkerboard reservations. And when the Dawes Act was passed, and when it was finally I guess repealed or whatever in the 1930s, we fell right in line with the rest of the United States as far as losing 50 percent of our land into fee. And so we had to create a system. We had to quit fighting with the county and create a system where we could get together on land use planning and we created a model for Indian Country I believe to work under.

Ian Record:

So a number of leaders, that we’ve talked about, view intergovernmental agreements as critical nation-building tools. Do you share their sentiment?

Brian Cladoosby:

We’ve been creating intergovernmental agreements since 1855 at Swinomish when my grandfather’s grandfather Kel-kahl-tsoot signed the treaty with the U.S. government ceding vast acres of land to the U.S. government in exchange for some reserved rights and some promises that were put down on paper. So we have been, we are a government and we have to be viewed as a government and we have to look at other governments and when we need to make agreements with them that benefit us and them, we have to do it. I don’t see it as something that gets in our way of our sovereignty. If it diminishes our sovereignty, that would be a problem, but many of our agreements I think are of where we’re not coerced into signing something we don’t want to sign. So I don’t see a problem with tribes exercising their right to sign agreements with other governments. It’s just something that we have to do and that we’ve always done.

Ian Record:

As long as it’s on your terms?

Brian Cladoosby:

Yes, as long as we’re not being negatively impacted.

Ian Record:

Jaime Pinkham, who you know, former treasurer of the Nez Perce Tribe and formerly with the Columbia River Intertribal Fish Commission, is quoted as saying that entering into these kinds of relationships and agreements does not represent a compromise or loss of sovereignty as you mentioned, but in fact the exact opposite -- it’s an exercise or flexing of that sovereignty. Can you expand a bit on how these agreements, these relationships advance a nation’s sovereignty and maybe talk a little bit more about the specific ways it’s done so at Swinomish?

Brian Cladoosby:

Well, the land use-planning agreement that we signed with Skagit County is a classic example of how two governments have both indicated or flexed their muscle when it comes to having jurisdiction within the boundaries of an Indian reservation. And so we had fought for years with the county saying that, ‘Look, this is our land. These people might own this land, it might be in fee, but we still retain control over that.’ And of course they’re saying, ‘No, you don’t. These people pay taxes to us. We’re going to retain control.’ And so what we did was we came up with an innovative approach where we sat down with the county and zoning the reservation was very important to us, controlling the utilities was very important to us. So we recognized that to get them on board with the program we wanted to put into place, we created a system where we encourage the county that they would zone the Swinomish Reservation identical to what we had it zoned and they bought into that concept. And so what we have now is a situation where there is no differences of opinion on what the land is going to be zoned. We also came up with an approach where, if you as a non-Indian owned fee land wanted to get a permit from the Swinomish Tribe, you could. We took our ordinances and we mirrored them so all permit fees, ordinances, everything were identical to the counties, and so you could as a non-Indian fee land owner could come to the tribe to get a permit. We would send that to the county and they would check to make sure that it abided by the zoning rules that we put into place or vice versa. If you went to the county and got a permit, they would send it to us for our review to make sure it wasn’t going against what we had the land zoned for and if there was any conflict, we created a five-person board; two appointed by the tribe, two appointed by the county and an independent person that we both agreed to. And since this has been put into place, we’ve never had to use that board so it has worked.

Ian Record:

Do you think you would have ever arrived at that position had you taken a different track, say litigation, to try to resolve this dispute?

Brian Cladoosby:

Maybe at the end of the day, there’s always an end to litigation somewhere either by a judge ruling or the parties coming to an agreement before the litigation was over, but if forced to go down that road we will. We’ve had to do that in the past with our water agreement and that’s another good example of seven government agencies getting together to create a document that was supposed to last 50 years, and water is for fighting and whiskey’s for drinking, the old saying goes. And so we created a, in the ‘90s, an MOU with seven governments, three tribes, with the county, with the city of Anacortes, with the Department of Ecology and actually, the Skagit PUD, which is another government. They operate the water system in Skagit County. So we created a 50-year agreement and this was also a very historic nationwide agreement that was, people probably don’t know too much about it, but we set aside our senior water rights for 50 years. And you’ll never hear a tribe say they set their senior water rights aside for 50 years to have peace in the valley, to make sure that there was water left in the river. Out of that deal came an in-stream flow agreement that was put into place and it was the first in-stream flow set in Washington State in three decades and it was on the Skagit River. And so we were very happy that we created this document. After the 2001 in-stream flow rule was put into place, within two years the county basically did not like some aspects of that and so they sued [the Department of] Ecology for that in-stream flow rule. And so in 2006, that was supposed to be a 50-year agreement, it didn’t even last 10. And so in 2006, the seven parties, the county took [the Department of] Ecology to court. There were seven parties involved, including three tribes. The county and [the Department of] Ecology came to an agreement on the in-stream flow rule that they wanted amended. And so the county and [the Department of] Ecology in Thurston County in Washington State went to a judge that was not hearing the case, didn’t tell the judge there were five other parties, told them they came to an agreement. So the judge that was not hearing the case dismissed the case. And so now, unfortunately, we are now suing [the Department of] Ecology because they amended an in-stream flow rule for the first time in their history on the Skagit. And so what started out as a wonderful process is now going to go down that road of probably years of litigation over water. And as you know, water litigation can go on for two or three generations or longer.

Ian Record:

So, yeah, it sounds like just because you enter in an agreement doesn’t mean it’s going to turn out good. As Jaime has mentioned, it does take I think some due diligence to constantly maintain that relationship and make sure when, for instance, with the other entities they have turnover in leadership and turnover in terms of institutional memory and what people understand to be the spirit of the agreement if you will. That’s a constant struggle you face, isn’t it?

Brian Cladoosby:

Yes, it is. Another thing that we did at Swinomish was we’re the first tribe in the state to have an MOU with our county sheriff where we were cross-deputized and that’s been, that’s going on 20 years now where our officers have been cross-deputized and it just takes good leadership on the sheriff’s level to recognize that our officers are just as effective and trained not only at the state academy, but the BIA academy also. And so that has worked out wonderfully and the sheriff has recognized that, ‘Hey, I’ve got 17 more officers out there patrolling Skagit County,’ and the response time to the Swinomish Reservation could be anywhere from 10 to 40 minutes depending on where a county sheriff is and now the response time is just minutes. Having a good working relationship there and having an agreement with the sheriff is pretty good and that’s worked.

Ian Record:

This specific agreement you mentioned where, and we’ve seen a lot of tribes do this, Gila River being one of them, where you take this action of either taking over a service or coming to an agreement with another jurisdiction to jointly provide a service like law enforcement and you have these very dramatic improvements in things like response time. And that improves the overall quality of life for your people, does it not?

Brian Cladoosby:

Well, when they did a study, a county-wide study here a couple years ago of the crime rate in Skagit County and the safest place to live, the story started out in our paper by saying, ‘The safest place to live in Skagit County is on the Swinomish Indian Reservation.’ That’s pretty cool where you associate a lot of stereotypical attitudes towards Natives for high crime rate or high alcoholism, high drug use and there must be a lot of crime, but that was not the case when the study came out. So we were pretty happy to read that.

Ian Record:

So what, based on your experience, are some of the typical benefits that nations gain by forging these sorts of long-term sustainable relationships, either with other non-Native governments or with other tribes?

Brian Cladoosby:

Well, every generation wants to create something of a foundation for the next generation to build upon and it’s important that we try not to leave too much of a mess for the next generation to deal with. So relationship building is key. Everything in life is based on a relationship, everything. I don’t care what it is, with your wife, with your children, with your siblings, with your mom and dad, grandpa, uncle, aunt, coworkers, friends. Everything in life is a relationship and it takes trust and commitment to build those relationships and that’s what we have been doing with our neighbors at the local level, the county level, the state level and the federal level. And as you said earlier, these politicians change and so that educating usually starts over when the next elected official comes in or the next sheriff comes in or the next governor. But when you have long-term agreements that someone can walk into and you can set it on their desk and say, ‘Look, this is what we’re about. This has worked in the past and there’s no reason why it can’t work in the future.’

Ian Record:

So what advice would you give to other Native nations, your fellow Native leaders, for how to build these effective and sustainable relationships?

Brian Cladoosby:

Well, if I was an advisor and a consultant and making these big bucks advising these tribes and these other councils, I would just say that, sit down, and it’s more important to sit down with your enemies than your friends. A good case in point, we had what we called our Indian fighter in Skagit county, a county commissioner that was there for 12 years, and it was under his administration that the water, 50-year water agreement was turned upside down. And so it got to the point where I was tired of negotiating with the other two county commissioners who were friends because it would take two of the three to get anything passed. And so finally at the end I says, ‘I’m not going to negotiate with anyone except you,’ the person that was, who we perceived as the Indian fighter. I says, ‘You need to be at the table. You need to be sitting there. I’m tired of the others negotiating then bringing back agreements and you voting against it. I want you to be at the table.’ So when you have a perceived enemy out there who is just fighting tribes, that’s the nut that you have to crack and that’s the person that needs to be at the table with you. So my advice is to create relationships. Work harder on those that don’t agree with you because it’s not hard to convince your friends, it’s really hard to convince those that you perceive as your enemies.

Ian Record:

And isn’t it, doesn’t the building and sustaining of these kinds of relationships entail an education effort that goes just beyond those key decision-makers in the other governments, whether a county commissioner or a state elected official? Doesn’t it involve kind of this ongoing educational effort of the citizenry of both your tribe and also the larger public that’s going to be affected by the agreement at hand?

Brian Cladoosby:

Right because there’s a lot of perception out there,  For example, right now the tribe is engaged in a lot of issues surrounding protecting critical areas on the Skagit River. The Skagit River has all species of wild salmon still spawning in its tributaries. So I take that very, very important to be able to protect that natural resource for future generations, the salmon in the water. And so with that comes bumping of heads with different industries: the building industry, the dam operators, forestry, agriculture. And so when you have all these groups impacting the resource, sometimes even though you’re getting along with the electeds, you have these other groups that might not be elected officials that you also have to deal with. And so even though you’re getting along with the elected officials, there’s still these other groups that are not elected that you have to deal with. And there’s a perception out there that we don’t get along with the farmers or we don’t get along with the developers because we’re too radical on protecting the water and the salmon. And so yes, that is, even though you have a relationship with these [elected officials], you still have to deal with the general public who are out there impacting our resources.

Ian Record:

Because ultimately it’s that general public that’s going to apply pressure, good or bad, on those elected officials that represent them, right?

Brian Cladoosby:

Exactly, and when you have like for example the egg industry who has a very, very strong lobby and you’re trying to get them to protect the critical areas on their land, they’re like, ‘I’m not giving up any land. I’m not putting any buffers between my farmland and where the salmon spawn. That’s not the American way. I own this land, I can do whatever I want with it.’ And right now they’re using three chemicals on their fields that cause cancer, they’re known cancer-causing agents and their employees have to wear these alien suits to apply these chemicals. So a situation like that, an example like that where we’re saying, ‘Look, try to keep as much of that out of the water as possible.’ And their answer is, ‘Don’t have to.’ The county commissioners and the state has said that, ‘I can spray on all my land all the way up to these critical areas.’ So that’s an example there where you have to fight to protect what you, what has been given to you.

Ian Record:

I want to switch gears now and talk a little bit about leadership. You earlier today recited a story, a personal experience that you had involving your own father and your own sister. And it really speaks to me to the challenges, the very tough inherent challenges of being a tribal leader. Can you I guess relate that story and talk about how important it was that you responded to your father’s plea in the way you did and how,  I guess what message that sends to not only your family, but your entire nation about how decisions are going to be made.

Brian Cladoosby:

In life you’re going to make decisions every day, whether you’re a leader or whether you’re just average Joe Citizen and those decisions are going to impact you and there’s only going to be two outcomes from a decision you’re going to make: they’re going to bring you pain or they’re going to bring you pleasure. And so as a leader you have to, you have to rely on God and you have to have high standard of morals to be a good leader. And when you have to make decisions, you can’t base your decisions on what’s best for me or what’s best for my family or how am I going to profit or gain off this decision. And so when my dad calls me and he wants me to call the housing director to tell him to give my sister a job, that was really hard for me to say no to him, but I had to because the relationship with my director would have been totally different. Because if my sister messed up on the job and he wanted to fire her but couldn’t because he was looking over my shoulder because I told him to hire her, our relationship would have been totally different. I’ve got to give my directors the ability to make the choice and it’s just the way our Creator is, he gives us the ability to make a choice without putting any undue pressure on us and I felt I owed it to my director to give him that same opportunity. And so I don’t think a lot of my people know about that, that I had to do that. I never told very many people about that, having to make that decision. I didn’t advertise it, but I think it’s just important that as a leader you have to make the decision based on what’s right, not what’s best for you or your family.

Ian Record:

And whether you like it or not, you’re setting an example, aren’t you? You mentioned your housing director and this is a good segue into my next question and I’m going to pull a direct quote of yours here from a presentation you recently made where you said, ‘I have two Ph.D.s and they both work in my planning department.’ What do you mean by that statement and why do you choose to include it in your remarks?

Brian Cladoosby:

It is just a way to lighten up the crowd that I’m speaking to and just to say, ‘I’ve got two Ph.D.s,’ people think, 'Wow!' And then I say, ‘Yeah, they’re working in my planning department.’ My point there is to the fact that we’ve assembled some of the best and brightest minds in Indian Country and to be able to say that you have two Ph.D.s working on toxins in our shellfish and working on climate change and working on air quality is just an outstanding statement. I’ve got some of the best fish biologists in my organization, I’ve got attorneys, I’ve got accountants, I’ve got police, I’ve got medical doctors, I’ve got dentists. For a small tribe, I’m very proud of the infrastructure that we’ve been able to create. We’re not a big tribe and we’re not a big gaming tribe compared to some of those, but we put our money back into our resources, into people to help our community grow. And so to have quality employees like that makes my job a lot easier.

Ian Record:

I bet, and doesn’t it, isn’t that a necessity in this day and age, in the Indian Self-determination era, or as someone now called it, the 'Nation Rebuilding' era, when so many Native nations are setting very lofty goals for what they want for their present, what they want for their future? Doesn’t it necessitate building essentially these unrivaled infrastructures and bringing in talented people, cultivating talented people to make sure they can get the job done?

Brian Cladoosby:

It not only sends a strong message out there to the non-Indian community, it sends a strong message to Indian Country. And so the long-term goal is to be able to take and say, ‘I’ve got two Ph.D.s and they’re tribal members,’ that’s the ultimate goal. But yeah, it’s important to show those outside of Swinomish what we’ve been able to create and that it only makes us stronger heading into the future.

Ian Record:

You mentioned the fact that Swinomish has five-year terms. I was wondering if you’d give us a brief snapshot for those that don’t know much about Swinomish government about how exactly Swinomish government is set up. How are leaders elected? How did you rise to the position of chair? Just kind of the general snapshot of that because it does differ in fundamental ways from a lot of other IRA tribes.

Brian Cladoosby:

It’s amazing that in 1936 when we passed our constitution we probably had less than 200 members back then, that the council [saw] fit to have 11 members serving on the council, and you’ll see a lot of other tribes that have five, seven or nine and some of the very, very large ones that have 12 or 14. But I think it was important that they create 11 members to represent a lot of the people at Swinomish and to have five-year terms is unheard of in Indian Country. I’m yet to find another tribe across the nation that has five-year terms. And we have 150 years of council experience at the table and you cannot understate how important that is to have that continuity. And so I’m very proud that our elders did put that in place. We are elected. We have elections every year and we have two people up every year except the fifth year we have three people up. So it’s two, two, two, two, three, and so there’s not a large turnover ever on the council so it creates stability. And so we have elections once a year and after the elections we...the month following the general council meeting and the elections, the 11-member body elects the executive members of the council, so the chairman, vice chairman, secretary and treasurer. And so when I first got on council 25 years ago, I told my friend that, ‘One day I’m going to be chairman,’ and he laughed at me. When it did happen, we had a good laugh about that and so it’s just a lot of patience. I waited 12 years. That’s a long time on tribal council to rise to the top. On the 11th year I was the vice chair, then the 12th year the chair, but it’s the council that elects the members.

Ian Record:

I want to move, you’ve already addressed this 'nation is an island' issue, which was one of my follow-up questions, but I was wondering if you, you’ve been leading your nation since essentially the mid-1980s in an elected capacity. So that mid-1980s mark, that’s not long after the passage of the Indian Self Determination and Education Assistance Act. So you’ve been at the helm of your tribe for the better part of the Indian Self-Determination era and I was wondering if you could talk briefly about what that act has meant for Native nations. What did it do? How have some Native nations including Swinomish really taken the ball and run with it so to speak?

Brian Cladoosby:

Well, the key to any effective government, no matter what it is, is to have good strong leadership, and as I said we have a good strong leadership base at Swinomish. And so when this piece of legislation was passed, we were still struggling financially. We were debt managers basically at the tribal level and your typical BIA ready to come in and take over the tribe because our finances were all out of shape and we just cut back staff, cutting back hours, cutting back benefits. And so it, even though once that act was passed, there was no magic wand that came with it that made us this successful overnight. Just like anything else, it took time to be able to see some of the fruits of that, but slowly I think tribes across the nation are being able to -- through strong leadership, effective leadership -- being able to see the fruits of that legislation.

Ian Record:

What do you see as the future for Swinomish and for tribes across Indian Country, perhaps the big challenges on the horizon, maybe the resourcefulness that tribes can apply to overcome those challenges?

Brian Cladoosby:

Well, we’ve gone through the last 100 years of various different policies that have been basically implemented to try to 'benefit' our people, from the assimilation policy, which was very, very detrimental to our people where it basically took our children out of their homes and the government tried to create basically non-Indians or White men out of them and that was very detrimental. And so along with that came poverty. We were always a strong, sustained people at Swinomish where we never had to worry about anything. All of our natural resources were at our front door, there was no classes. Everybody’s wellbeing was taken care of and that assimilation policy brought unfortunately drugs, alcohol, poverty, unemployment. And so then with the advent of welfare, which created a...people, encouraged them to have a lot of babies. The more babies you had the bigger your welfare check. And I grew up in a welfare home waiting for the first of the month. And at Swinomish, it was jokingly referred to as Mother’s Day. Going forward you have to break those cycles. You have to break the cycle of alcoholism, you have to break the cycle of education, you have to break the cycle of being dependent on the government and getting back to being self-sustaining. And so they say it takes two generations to break the cycle, and the government was just about there in breaking our culture, two generations to break a cycle. So what we have to do going forward is to create an atmosphere where we want our kids to know how important education is. My grandfather went to boarding school. That was a very, very bad memory for him, just the abuses there were just terrible. So he did not encourage my mom to go to the White man’s school because of what he remembered. And so my mom’s generation didn’t put a high emphasis on education to the next generation, my generation. And so what we need to do is break that cycle and we’re seeing that in Indian Country now where we are recognizing that education is important. Alcoholism: I’m very proud that my granddaughter, for the first time in our family in 100 years, will be raised in a home without drugs or alcohol. That is awesome! And so we have to break the cycle of addiction. And so we have to create an atmosphere where our people want to work again and we have to have a homeland that they’ll have a place to live. So going forward, it’s just making sure that we have jobs, making sure we have housing, encourage education, and try to get our dependency away from drugs and alcohol, eliminate it as much as possible.

Ian Record:

Well, great, Brian. Really appreciate your time and your perspectives on all these critical governance issues and thank you.

Brian Cladoosby:

Thank you

Rae Nell Vaughn: Tribal Court Systems in the 21st Century: The Choctaw Tribal Court System

Producer
Indigenous Peoples' Law and Policy Program
Year

Former Chief Justice of the Mississippi Choctaw Supreme Court Rae Nell Vaughn provides a detailed overview of the growth and evolution of the Mississippi Choctaw's governance system and specifically its justice system, stressing the importance of Native nations providing a fair, effective, culturally relevant forum for enforcing tribal laws and resolving disputes.

Resource Type
Citation

Vaughn, Rae Nell. "Tribal Court Systems in the 21st Century: The Choctaw Tribal Court System." Indigenous Peoples' Law and Policy Program, College of Law, University of Arizona. Tucson, Arizona. September 16, 2009. Presentation.

"Thank you for taking time out today to come and meet me and listen to what I have to share: my experiences and expertise in tribal court systems. Our topic will be the "˜Tribal Court Systems in the 21st Century' and my point of reference, of course, will be Mississippi Choctaw. How many of you have ever heard of Mississippi Choctaw, the Mississippi Band of Choctaw Indians? A lot of people at home in Mississippi, when you say that, the first thing that they equate it to is gaming, casinos, Silver Star, Golden Moon, the bells and whistles of gaming, and they tend to forget there are people and there is a government, a society there. As Ryan [Seelau] said, I served as Chief Justice for the Supreme Court for the tribe. I worked with the judiciary for 11 years. I served for the tribe...I worked with the tribe for a total of 23 years in a wide variety of areas -- in health, education, in culture -- and so I'm kind of like the full-package deal. And so having the opportunity to serve the people as a judge was the most humbling invitation for me to have been offered and to have accepted and it was such a traumatic experience for me. I'm a tribal member. I'm a member of the tribe. I lived there for the majority of my life. I was a bit of an Air Force brat for just a short period of time, lived in Massachusetts. My father was stationed at Otis Air Force Base. Came back home to Mississippi and then we went off to Kansas for a bit and then came back and been there ever since. Where's the southern accent, you may ask? It's there, it'll creep out sometimes when I start really rolling along and you might hear a "˜y'all' after a while, so just be looking for it.

What I want to begin talking about is the history of the tribe. As you know, with all tribes across Indian Country, there were a lot of treaties and agreements that tribes went into. Well, our tribe went through such a process as well, and in 1832 we signed our final treaty. We signed. It wasn't like we wanted to sign, it was more or less, "˜You are signing. Here's the pen and here's the line. Sign on the dotted line,' of giving or seceding all our lands to the government. That was the final secession of our lands. However, we did have a number of people who refused to move, to remove and go on the Trail of Tears and we are the descendents of those tribal members who refused to go. Early in the 19th century, the tribe was hit with an influenza epidemic and our membership, our people got down to under 1,000 in the early 1900s. We had no support from the state. We were living in very terrible conditions, working as sharecroppers in the cotton fields, losing a lot of who we are or who our identity was, living in very poor conditions and again, with no help from the state or from anyone. Yet in 1945, applications were made to become federally recognized and we were successful. And in 1945 that happened, we became recognized as the Mississippi Band of Choctaw Indians. However, in my language the name of our people is 'Chahta,' and that is the name of Choctaw and of course, with the non-Indians translating it to 'Choctaw' is how that came to be.

And so with the establishment and recognition as a federally recognized tribe comes what? The development of a government, the establishment of a government, and one of the very first things you have to do in establishing a government is looking at your laws, your foundational laws. And what's that? That's the constitution. And of course, this is not to say that our own tribal structures were not good, but we were being forced to look at models or not to look at it, we were told to. Okay, let's just put it out there. We were told to do it, that's what it is. It is what it is. And so we adopted an IRA constitution and once that happened, then began the function of the government. Now this government is a two-[branch] government, an executive branch and a legislative branch. They went through a lot of challenges because of course, as you know, you've got the BIA [Bureau of Indian Affairs] agent there assigned to you and he pretty much was trying to run the show, basically trying to tell the government what to do.

I don't know if you are, and you probably are...for those of you who are familiar with Mississippi Choctaw, Chief Phillip Martin, who has for the past 40 years led the tribe. And I had the opportunity to read his book because one of the things...and he is my role model, he has been my mentor; he's known me all my life. It took him forever to finally call me -- once I got married -- call me by my married name. It was always, 'Rae Nell Hockett,' 'Rae Nell Hockett.' I'm like, "˜Chief, I'm Rae Nell Vaughn now. I'm grown up.' It's not that snotty-nosed little kid runny down the dirt road. So anyway, I had the opportunity to talk with him, to read the book, and it gave me so much insight about who he was and how he came to be as a leader, and how important all the experience he had led him up to how he was going to lead. Of course he had the boarding school experience, he had the World War II experience having gone to Germany -- all these different experiences molded him into who he ultimately became to be. And so during this period of time, once the tribe began its structure of government and getting government rolling, Chief Martin then became involved in government. I promise you, this is not going to turn into a Chief Martin story, but he's so interwoven into the tribe I would be remiss not to talk about him. So of course, there's this constant butting of heads in regards to what the people want and what BIA wants or they don't want to give you. And so Chief Martin and the other members of the government began taking control, began pushing back, began looking at the things that they needed to do to help the people and to help the people prosper. Like I said, it was a very tough time.

Ryan and Ian [Record] and I were talking a couple of days ago, and in my memories I have flashes of what I remember. I'm 45 years old, so a lot of what has happened has happened during my lifetime and the things I remember, I do remember being in the cotton fields with my grandparents and family, I do remember lining up to go to the outhouse and that was the last time at night, if you didn't catch it then you were on your own, of living in a home with no heat, no running water. Now think about the time frame I'm talking about here: no transportation, no employment, nothing, very rural, very isolated area, very spread out. Communities were very far apart from one another. It was a very challenging time. A friend of mine said, "˜But you know what, Rae, you never really know how poor you are until someone tells you you're poor.' And I can remember during that period of time growing up and being around my grandparents and my great-grandparents. I had the good fortune of having my great grandmother still with me -- who is a renowned basket weaver and has her pieces out in the Smithsonian -- but having that family network, that family connection was so very, very important and you'll see how it's interwoven in what I'm talking about, the close knit-ness.

So his charge, Chief Martin's charge as a member of the community was to get the government up and going and they began doing that. They began making their way to [Washington] D.C., trying to get additional dollars, trying to get assistance. Now let me tell you, the BIA agent did not like this at all. He's like, "˜I'm the big dog here. I should be the one going up there. If anybody's going to go up there, that should be me.' And so there again was that butting of the heads, of people stepping up and taking leadership. Now you know as well as I do that there are ramifications. There could be ramifications for that, and also think about where we are -- rural Mississippi -- at a time where there's a lot of racial tensions and issues and problems going on. And here we are, this small group of Native Americans, the only group of Native Americans that are recognized in the State of Mississippi and yet we're just an afterthought for anyone. They began strengthening the government. The government then [was] able to receive federal dollars from a program called CAP, and what the acronym stands for fails me at the moment, but it was a very important stepping stone for the tribe to begin laying foundations for infrastructure in the sense of services to the people. I promise, we are going to talk about justice systems but I really want you to understand where we were to where we are now.

So, in the midst of that, people are getting enrolled with the tribe. No one's rushing to do that. So you had maybe by the "˜70s maybe a membership of 2,500 to 3,000 people enrolled. And of course our enrollments were skewed like everyone else. There are some people that are enrolled that are blonde-haired and blue-eyed, but knew the agent and got enrolled. So they're tribal members. We do have a group of people down on the Gulf Coast who are mixed but are questionable, but it is what it is. So as the government began to exercise governing, the population is growing. Then came the need of law enforcement, of services, and then ultimately of courts. In the early "˜70s, we had the establishment of the CFR courts, which fell under the regulations of the BIA. Now this was more of a misdemeanor court, is a misdemeanor court; it was handled by one tribal member judge and one clerk. That was it. One clerk, if you could get a clerk, if you could find a clerk. Temporary housing all over the place, just wherever you could find a spot and it could be shared facilities. They barely had actual physical buildings in the governmental area, but it's just wherever you could find a spot. And so that's how they operated court and that's how they enforced law enforcement. Now let's back up with law enforcement. You had only maybe two officers having to patrol large areas and I know that there are some tribes even today that continue to struggle with law enforcement issues. And so we had this structure set up in the early "˜70s and technically it worked, but it didn't work as well as it could. Of course we were reliant on funds from BIA, so we did the best we could do.

Then, under the leadership of Chief Martin, moving from a member of the council, which he was -- and I failed to state that -- then, ultimately becoming identified as the chairman. At that time, through the governmental process of the council, council members were elected in. Then the council itself voted amongst themselves, identifying who the chairman would be. So Phillip Martin then was voted in as the chairman. And so under his leadership, they began looking at industry once they laid down this foundation of infrastructure. It was a long road, a very long road. There were moments of prosperity early on in the mid...late "˜70s with the establishment of Chahta Enterprise. One of the very first companies that they developed was the construction company Chahta Development, which was the flagship, which was what brought revenue in, which is what supplemented the tribal government. And then as that company took off, they began going into other ventures. In the early "˜80s, we then went into the automotive industry. Under Chahta Enterprise, we did work with Ford, NavaStar -- and I'm talking about companies, I know Ford -- but they did a lot of wire harnessing-type assembly, blue collar work, but it was work. However, in the mid "˜80s, as some of you may know from history, we had issues, we had problems with the economy; even then the automotive industry was up and down. And so the tribe was riding on this wave of prosperity and then the wave would dip, but money was coming in. And so then, as more money began coming in for the tribe, and also you have the [Indian] Self-Determination Act, which also kicked in as well and kicked in additional resources, the tribe then took on managing its own services, managing itself under Public Law 638. One of the very first areas that we were able to manage were the courts, law enforcement, and detention. Now mind you, it was a phased-in process because ultimately you have to find personnel, space, operations, and management. And it was during this period of time that we had a lot of exterior things going on that the tribe was dealing with, for example, in regards to the court. In regards to the court, you had the [Mississippi Band of Choctaw Indians v.] Holyfield case, which I'm sure some of you may be familiar with. This is the adoption case of the tribal, two small tribal children who were adopted off reservation, and this case was the test for ICWA [Indian Child Welfare Act]. And then came 1994, when the Mississippi Band of Choctaw Indians opened its doors to gaming: Silver Star. Just to give you a sense of how successful it was at the beginning, we paid out our loan in six months, of the money that we borrowed to build this facility -- six months. And let me tell you what I heard Chief Martin had said: "˜Well, you know what, if this doesn't work...,' because really we were looking at, "˜Well, is this going to be a bingo hall? What is this going to be? Is this really going to go?' He said, "˜You know what, if it doesn't take off, we'll turn it into a manufacturing plant.' Well, it didn't happen. Silver Star expanded maybe three or four more times after that and they thought, "˜Well, why do we need to expand? Why don't we built another piece of property across the street?' And in early 2000 I think it was, we then opened the doors to the Golden Moon.

And so in the midst of all of this, you had not only your population increasing of your tribal membership, but you also had an influx of people, non-Indians coming through the reservation, vendors, customers. You had a major highway that ran right through the tribal lands, Highway 16. And so in 1997, the tribe then reorganized again and restructured the tribal court system. And I'll get to the specifics of that a little further into the slide, but one of the other things that happened in 1997 was an accord that was signed between the State of Mississippi and the Mississippi Band of Choctaw Indians. And this is very historical and it's very important because this accord recognized each party as a sovereign to say, "˜I recognize you, Mississippi Band of Choctaw Indians. You are a sovereign government and we need to work in partnership.' Some might say, "˜Well, this is just the olive branch, this is just the PR,' but it's significant because once this accord was signed, it opened doors, it began opening doors, doors that we weren't able to open. And I've always said, when we've had positive impact, positive experiences, when the tribe has had the opportunity to see progress, it's always been about who the players are and the timing. And it's key; it's key. And so this was an accord that was signed between the late Gov. Kirk Fordice and of course, Chief Phillip Martin. And it was, it was very historical and we have several historical moments throughout the history of our tribe.

I talked about the organization and structure of the previous court, and I think it's important because one thing that you will learn as practitioners is the importance of support of your court and the makeup of your court. The CFR court structure, as I said, was one tribal judge and one clerk, and then of course in the "˜80s and mid "˜90s, you had a tribal court judge, a member, a tribal member who served on the bench. And then you had a special judge who came in to deal with more of the complex cases that would come before the court and he was a law-trained individual -- I know him -- Judge Vernon Cotton, who's now on the circuit court with the state. Two clerks, a probation officer, and then you had tribal member associate judges who kind of came and went. We never really had a lot of consistency and we'll talk more about that as we go on.

This is the current overall organization of the tribal court system and you'll find that in your handouts. As I shared with you earlier, tribal Choctaw government is set up as two branches and the tribal court is a statutory court, which falls under the umbrella of the Judicial Affairs Committee, which is the oversight committee. They do not participate in the day-to-day operations of the system. We work with them in regards to issues such as budget and code development. They also are the ones who, when there are issues of violations of canons of ethics, things of that sort, they are somewhat of an ad hoc committee on discipline as well. You have the chief justice, who is also the principal judicial officer for the system and is the administrative liaison between the two branches. One of the distinctions of this court or the uniqueness is that we have the ability to create individual divisions of court. So you had a criminal court, you had a civil court, you have your youth and family court and you had -- which we'd never had before -- our traditional form of court, which is the peacemaker court, Ittikana Ikbi. "˜To make new again' is what that translates into. Prior to the Supreme Court, establishment of the Supreme Court, you had what was called the 'Court of Appeals,' which was made up of course of the judges who did not preside over that court, so you had a three-panel court of appeals. But because of the increase of cases that were coming to the court, there was a need to have and develop a separate tier. And so, as Ryan said, that court was established in early 2000.

The Supreme Court consists of course of the chief justice, two associates justices. During my tenure, I had the great fortune of having sitting with me on the bench Frank Pommersheim, Professor Pommersheim as most of you know, and also Carey Vicenti. You don't know the wealth of information those two men bring to the bench: the analysis, the logic, everything. I was just very fortunate to have had the experience of working with those two gentlemen and think very highly of them as well. We also had a pro tem justice who is a tribal member; her name is Judge Roseanna Thompson. She's a linguist, graduated from Penn State and wore two hats: she ran her language program, but she also worked with us in the court. A wealth of experience and knowledge as well; love her to death. Aside from the judiciary, the bench itself, you have the administration of court. Once, of course, you issue a ruling, what happens with all of that and who are all the players that are involved? And this was an expansion of the system itself because we saw more of a need, that the court needed to be more involved and it needed to be more defined and more developed.

And so we established a Department of Court Services and within that service we have a director, school attendance officer, adult and juvenile probation officer, diversion coordinator. The diversion coordinator's responsibility was the development of teen court, which some of you may or may not be familiar with. That's more of a sentencing court for juvenile delinquents. Once they went through formal court and were adjudicated as a delinquent, if the judge felt like the offense wasn't as severe and this young person might be just right at the line of either he's going to go down that road or maybe we can correct it and get him back on the right path. We sent him to teen court. Our very first experience with teen court was amazing. Of course, as you know, with teen court it's made up of their peers, young people who are sitting in different capacities as prosecution, as defense, sitting as a juror, sitting as a bailiff. The only adult in that courtroom was the judge, which could be a member of the community, which could be one of the practitioners of the bar or one of the other judges. I've sat several times in teen court. And so we had our first case and it was a breaking-and-entering case. And it's just like what you may have heard time and time again. They were ready to give this guy a big sign saying that he was guilty of his offense. They wanted to put him out on the road and let everyone see what he was guilty of. They wanted to give him beaucoups of community service hours. And so we had to kind of reel them back in just a little bit, but we had told them and talked with them about how important it is for the juvenile delinquent to understand the offenses that they're committing. That it's not so much against you as a community member, but it's against the tribe, and in essence it's against yourself. And so you have to make this right with the tribe. It's been a very successful program. And that's one of the things with this system that we're looking at is looking at other alternatives to provide justice for our communities in Indian Country.

We also have a youth court counselor who works with juvenile delinquents once they get into the system. We had a receptionist, administrative assistant, custodian, of course, your clerks; we had seven clerks and a file clerk and they are the heartbeat of your system. They are the ones who make the system run. Yeah, the judge can sit up there and drop the hammer, the attorneys come, they argue and there we go, but it's those clerks who make the system run and who cannot allow the system to run. So as practitioners, I strongly suggest you get to know your clerks. You just wait, for those of you who probably are already out there practicing, you know what I'm talking about because you piss a clerk off and you're not getting anything timely, if at all. I assure you. I have seen it. I have received complaints on clerks. So I know. And then again, and I'm not going to belabor the point, but this is the overall structure of the tribe and the court falls here as an independent agency with the tribe. However, yet it continues to be under the executive branch and I want to talk a little bit about that as well.

'Independent agency' -- words are sometimes more cosmetic. A lot of courts in Indian Country are set up the way we are. They're statutory courts, and sometimes aren't given the respect that they should be given. Let me assure you: tribal court is not a program; it is not a social program. It is a form that is established to protect the people and enforce the law. But for whatever reason -- and there are many I'm sure -- there continues to be this tendency of a perception that these are just programs. "˜Tribal court is nothing more than a program like social services, like legal aid, it's just a program.' And until we can, as practitioners, begin changing that mindset...and we have to. We really have to. I'm not quite sure the audience I'm talking to, I know you all are students, the majority of you are and maybe end up working for your tribe or if not for another tribe or for a sovereign nation -- whether it be here or abroad -- but one of the things that, one of the messages I hope to get out and that I hope you take with you is that there needs to be respect for that institution, that it is not a program. And it gets lost in translation in the big scheme of things with tribal government. Tribal governments struggle. You have some governments that are running well, you have others that have a lot of strife going on, but having the ability to exercise your sovereignty by operating a court and providing law and order and justice is one of the very key elements for government. And you, as a practitioner, possibly as an attorney general for your tribe or as just general counsel, you need to keep that in mind, and also protecting your tribe, protecting that sovereign. And it is. It's a term that's used in many senses and much sense abused. We've had that discussion about pulling the sword of sovereignty and wanting to use both sides of it, using it all the time. And I've always told...like I tell my children, "˜You need to pick your battles. You can't fight every one of them. You'll never win the war.' Everybody's heard this but, of course, I'm not going to belabor this. You guys are law students, you know what this is all about, what sovereignty is. If we can go on to the next because I know my time is going here.

And it does, sovereignty begins at home. Again, talking about the exercise of it. And it is truly in a fragile state for Native people. Socially, we have a lot of issues that a lot of these tribes are dealing with and the majority of the time this ends up in the well of the court. That's where a lot of these things are handled. And again, stability and consistency of a good court system is key. You have a high dropout rate of students, high suicide, you have increase in violence -- and this is just speaking in generalities -- you have poor health conditions at times, high poverty rates. They're also factors that we must remedy. And that again goes back to that close knit-ness of the community, of how we can create a more healthy and stable community for all our communities in Indian Country.

Again, exercising the sovereignty and it does, it belongs to the people just like as American citizens it belongs to us. How do we exercise those rights? Vote. I used it. It worked. I'm happy. At the tribal level, tribal members delegate those powers to tribal councils through voting and with electing a chief, which in 1977 the tribe amended its tribal constitution to elect the chief. Chief Martin ran for the very first election of chief and guess what? He lost; he lost. That was during the [gerald] Ford administration, I remember because right after the Nixon administration Ford had a hard time getting things going again and so did this, the first chief, the first identified chief had a difficult time. And then after his four-year term was up, Chief Martin then ran and was successful and was elected the second chief of the tribe. The tribal council then delegated and established the tribal court, as we talked about earlier within the issue of the reorganizational slide that I showed you.

Principles of the expression of sovereignty: the fundamental expression is the formation of tribal government and the determination of tribal membership, which continues to be a pressing issue for all tribes. We've seen it in California of where people get disenrolled. We've seen it in various tribes, even within my own tribe. There have been informal discussions about dropping the blood quantum. Our constitution says a half or more and they'd like to see it drop down to a fourth. Will that happen? I don't know, but it is a strong discussion that's taking place right now. And membership is key. Membership: I have a really big issue with membership because membership, as defined by the federal government, is based on blood quantum. Well, if I'm a full-blooded Choctaw, my family relocated to Chicago, grew up there, never came back to the reservation, don't know the language, don't know the ceremonies, but I'm full blood based on what my papers tell me, aAnd then you have a child who is a quarter Choctaw, family lives on the reservation, family's very well known in the community, they participate with the tribe, they know the language, they speak the language, they're fluent, they're involved in ceremonies. So why is it that we look at a document that tells me that this person isn't qualified to be a Choctaw? What kind of weight does that have? As far as I'm concerned, it doesn't. It holds no weight, because it's who you are as a Choctaw person, who you are as a Navajo, who you are as Eastern Band of Cherokee. It's who you are. There are big conversations, like I said, concerning membership that [are] taking place and it's a hard call, it really is. It's a very hard call.

And then you have the legislative expressions, adopting tribal ordinances and laws, which they do. The tribe meets four times a year, holds their regular business meetings as well as special called meetings. Throughout my tenure with the court, we've developed new codes in regards to domestic violence, having a code that addresses that specifically, and even within that code there were issues concerning who we are as Choctaw people and having to look at these models that we were given and 'Choctaw-izing' it because some of the things that -- which you may or may not agree with --hindered or conflicted with culture. And that's not to say that I'm sitting here a proponent of domestic violence, that's not it, but it's trying to get this message out that when an offense is committed, for example, concerning firearms, because that was the issue at hand, as a tribal man you went out hunting. And so if I am found guilty of domestic violence, I can no longer have a firearm, which interfered with their hunting which is a part of the culture. And it was a really big issue, that code was tabled so many times because it went back and forth, but it finally was passed. They made amendments to it. Instead of not ever allowing them to have a firearm, they penalized them for five years. I, for one, did not agree with that and wanted to stick with what we had laid out at the beginning, but I knew it was a cultural question. And these are hard things, these are hard things and this is just an example of what councils have to deal with. That's just one part of it, that's not even the business aspects of it. And then of course you have your administrative portion of it where your tribal leadership has an administration, which basically deals with the day-to-day operations and execution of social programs and services. And then you have the judiciary, which is the tribal courts, the enforcements of unwritten law and written law.

Well, what is tribal law? For us, in our general provisions, we have our customary law, we also have the tribal code and then when the code is silent we go to federal and state law as well. And if I'm blocking anybody please tell me, I will move myself because I know I can be a big gray blip on the screen. We also have -- as I stated earlier -- a peacemaking code. And I'll tell you, it wasn't very well embraced at the beginning because at that time people...and people in general, in general society, they want their time in court. They want to be before that judge and they want to tell you why that person is guilty, but what does it really solve? Does it really solve the issue at hand? Because sometimes the issue that's brought before the court is just the very tip of the iceberg, you're not really getting the full story. When we began looking at the development of this division of court, we had the opportunity to go down to Navajo Nation and to visit with their peacemaking court and the communities knew this and we brought that information back. And so then we began operating the court. And there was a lot of comment, "˜Well, this is just Navajo court. You're trying to operate Navajo court.' But it wasn't because, as we know historically, living in a society, living in a community, you had rules, you had laws. It may not have been written, but there were laws and rules of your society that you knew. For tribes, it was oral; you knew it, it wasn't written down anywhere, they told you, they talked with you, you listened. And so we got this peacemaker division going.

You'd think we would have had the opportunity to have a case that was just minimal, just real basic. Nope, not the case. There's a family in one of our outlying communities, major issues, very dysfunctional family. The father was a very aggressive...he was a bully, he was a community bully and also an alcoholic, which doesn't mix well either. And he was stirring up issues and for people to tell you that they're afraid to be at their home, that they didn't feel safe in their community is hard to imagine, but you had people feeling like that. He was having issues with another family, the Hatfields and McCoys almost, and it was getting to that point. What ended up tipping this entire issue and bringing it to court was that these young boys from this particular family, the bully's family, went into the home of an elderly person, an elderly woman, hurt her, stole from her and vandalized her home. Well, let me tell you, the charges started flying. We had cases being filed, counter filed, it was just loading us up, and it got to a point where we had to sit down and talk with the community because we weren't going to be able to get down and resolve the root of the problem. And so it took some time -- it took six months. It took a long time to finally get a lot of the people in. There was about a total of 35 people were involved in this entire issue and I applauded the peacemaker. He was very diligent and he got...he made it happen. And I think one of the other things that helped him was that he was a minister. But it happened and they sat down and they talked.

As much as people said, "˜Well, this is Navajo court,' and it wasn't. And I respect Navajo court, don't get me wrong and I'm not putting Navajo court in a poor light or anything, but we Choctaw-ized this process and it was a process we already had, but it was a more structured process. We were able to bring in people who would also help facilitate this issue. Six months of going back and forth, of talking, letting people vent, and it does escape me at the moment, but whatever the issue was, it was minimal, it was so minimal, but it grew arms and legs and it took off. And I know how some people can be, they don't forget. They don't forget in the sense of they're angry and upset with you, but they can't remember what it was they were angry and upset about and because my grandma was, I am too. I don't know why she was, but I am too. And so it was getting down to those root issues. And that's how it was very therapeutic, very therapeutic for the community. Another side note to this though: the bully continued. So, unfortunately, we ended up excluding him from the tribe, but we had the support of the community and that's a hard thing to do. You certainly don't want to be excluded from your community, but if you're a detriment and creating an unsafe community, there are no alternatives and that is a part of our code as well, which makes our code unique as it does with other tribes as well.

Of course we have the written laws, constitution, our ordinances, codes, we have opinions and decisions that we have for our tribal courts and is available for review. And then of course the additional laws, written laws that we have are peacemaker resolution orders, which in this instance they do hold the strength and power of an order of court, of formal court, which is a very unique thing. Okay, if we can go on. I want us to have time to talk so you have the handout. These are pretty basic pieces of information that you're very well aware of and I'm not going to go over those things, but these are the types of cases that Choctaw court deals with: of course child adoptions, protection and custody issues, alcohol-related crimes and other social crimes, domestic violence, commercial cases. We have a very strong civil court, which deals with a lot of the cases because of the economic development that the tribe is involved in. One of the first things -- and as practitioners you need to know -- one of the first things that lender is going to ask the tribe is, "˜Well, if there's a dispute, where is it going to be heard? Where is it going to be heard?' And time and time again they say, "˜It will be heard in tribal court. It will be heard in Choctaw tribal court.' Now, if you don't have a stable and consistent court system, and let me tell you, you know as well as I do, our legal community is small. Information goes from one end of the coast to the other. Information goes faster now with internet. If you don't have a stable system, they're not going to do business with you. They just won't do it. We also have, of course, repossession, which falls under civil, you have youth court issues, traffic, and of course our peacemaker issues.

So what's on the horizon? What's on the horizon for courts and for governments? We must be aware of the upcoming policy changes. We know that there can be negative impacts on governments, specifically on courts. We struggle yearly as to the types of funding, well, what are we going to get? As a system, how much money will we get from the federal government? How is this particular act going to affect us? There was the issue of the Tribal Justice Act back in the "˜90s. Sure, you put an act together, but you didn't give us any money and it had a lot of good pieces in it, of strengthening tribal justice systems, but when you don't fund it, it's only as good as whatever the ink you used to sign the thing with. And as we know, federal policy has been characterized by dramatic shifts and you have these here. And of course the Self-Determination Act, which followed after termination. So I say all that to say this: it is critical that you're aware as practitioners of what's happening out there in the landscape because what affects one will ultimately affect us all. And so you must always look at any type of policy development with the backdrop of the tribe, of tribal sovereignty, of the federal trust responsibility, of the government-to-government relationships that have to occur, and that have to be cultivated and have to be perpetuated and continued. And that laws and policies have to be unique and specific for Native Americans. I say specifically for Choctaw because that's the tribe I'm representing.

So, in closing, we must continue this pursuit of self-determination. We have to encourage this with our governments, with our people, with the courts and the protection of our sovereignty not only within our courts, but also outside of our courts is very important. Again, building collaborative relationships within tribal, state and federal governments, through inter-government agreements such as the accord that I talked about and then here on the federal level with the ICWA.

A story I'd like to share with you. When I first came on the bench for the Supreme Court, I sat down with one of my mentors and I said, "˜I want to make a difference here. I want us to take this system to a level of respect because we, like everybody else, got beat up. "˜Kangaroo court! They don't know what they're doing! We need new people!' What is it that we can do?' And we had a really good brainstorming session in talking about the things that I wanted to do. Now, let me again remind you, I live in the State of Mississippi, and we've never had a strong and positive rapport with state government. One of the things I had wanted to do was to open a door and to have dialogue with our counterparts, which had never ever happened. And in early 2000, the chief justice of the Supreme Court for the State of Mississippi came down to Choctaw with his associate justice and we sat down not so much as judges, but as people and talked about a lot of issues. That one conversation sparked a lot of other activity. We began having these exchanges, having the opportunity to go and speak to the judges of the state, having their justices come down and talk to our bar and talk to our government. And it's those types of relationships that many tribes don't have the opportunity to develop for whatever reason.

Also, we worked very diligently with our U.S. District Attorney. Now as some of you may recognize, those are very difficult relationships to have and sometimes you may have a U.S. District Attorney who just doesn't give a crap, isn't going to work with you, who could care less. But we had the good fortune of having a U.S. District Attorney by the name of Jack Lacy who was phenomenal. He retired recently, but he left such a great legacy in the sense of working with this tribe and we were able to have many cases that may have been...that may not have ever been brought before the federal court happen and go through and it was because of his own diligence as well. But it was having that relationship, cultivating that relationship, and that is very important for those of you who may end up working with tribes. It's very key.

And then lastly but not leastly, learning from other tribes and sharing successes and challenges. As you can tell, I love to talk and I love sharing this story and I love sharing other stories, but we learn so much more from these exchanges that we have. And sometimes we're all on the same page, we all have the same passion for the people and for working for the people because these investments that we make, and it may sound like a cliché, is for our future generations to come and it's laying these strong foundations for them. But it's also cultivating this generation that's to come to lead us and they need to have the proper tools, they need to know that there is a strong government, they need to know that there is a strong form of court, they need to understand what it means to vote, what it means to stand up for what's right, and it's having that ability to share these types of things with other tribes, what their successes, what their challenges are and working together because what we fix or are able to do for one has far reaching effects for all of us across Indian Country and it's important. It's important.

So with that, I leave you with this. It's always been my philosophy, the tribal courts are guardians, we are the guardians, we are the gatekeepers, the protectors of the sovereignty, of our children, of our families, of our communities, of our tribe. The strength, respect that you give this system speaks volumes, it creates an atmosphere of trust for the people that it serves and also the respect of those from the outside as well. But more so, it's for the people to feel that when they walk through the door of that justice complex, they know that they have a fair forum that they're going to."

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

Producer
Jr. Distinguished Indigenous Scholars Series
Year

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

Resource Type
Citation

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

David Wilkins:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Audience member:

“Half. Half Passamaquoddy.”

David Wilkins:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NNI Indigenous Leadership Fellow: Frank Ettawageshik (Part 1)

Producer
Native Nations Institute
Year

Frank Ettawageshik, former chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses how LTBBO has set a solid foundation upon which to engage in nation rebuilding through its development and ratification of a new constitution and governance system that is culturally appropriate and capable of effectively exercising LTBBO's sovereignty. He also stresses the need for Native nations to develop and institutionalize nation-specific civics education of their people in order to create civic-minded citizens who can contribute to their nation-rebuilding efforts.

Resource Type
Citation

Ettawageshik, Frank. "NNI Indigenous Leadership Fellow (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 6, 2010. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host Ian Record. On today's program, I am honored to welcome Frank Ettawageshik. Frank is a citizen and the former chairman of the Little Traverse Bay Bands of Odawa Indians. He currently serves as the Executive Director for the United Tribes of Michigan, and recently was chosen by the Native Nations Institute to serve as its 2010 Indigenous Leadership Fellow. Frank, welcome to the program."

Frank Ettawageshik:

"Hi."

Ian Record:

"I'd like to start off by asking you a question I ask virtually everyone I sit down with, and that is: what is Native nation building and what does it entail for your nation?"

Frank Ettawageshik:

"Well, it has a lot of different parts to it. Some people think it's the constitution, some people think it's economic development. And those are components of it, clearly, and are very important, and maybe some of the more visible parts, but nation building to me is the, building the capacity of the citizenry of your nation to deal with change and to deal with the issues that come before it, and to do that in a healthy way. To me, you're building...a nation is wealthy, and it has true wealth as opposed to money. And, you know, economic development can bring you a lot of money, but it doesn't necessarily bring you true wealth. And the...you need wisdom to figure out how to take money from economic development, how to use a document that you've created if a constitution, how to actually have the institutions of your society, not just governmental institutions, but you know, institutions of your tribal society, of your nation, have them become strong. And that, to me that's what nation building is."

Ian Record:

"Dr. Stephen Cornell with the Native Nations Institute has framed nation building as in part the challenge of remaking a nation's governance tools. Do you agree with that statement, and why?"

Frank Ettawageshik:

"Well, I think it's important, but you have to...the tribal government is not the tribe. The government serves the tribe. And to the extent that you have...you need proper institutions. And those institutions may be governmental institutions, but they may be institutions of your society. And you need to have them be strong in order to truly do the nation building. So it, you know the implication of the question would be if you do constitutional reform, you got, you're all done. And...but to me, I think that it's a little deeper than that. And so clearly, an inadequate governing document can be a huge hindrance towards the development of good, of proper governance. I mean it can be a real problem, and needs, you do need to have a good constitution for your government. Now that constitution, in some cases it may not be written, and you know, but nevertheless, you need to have a system of governance that's in place that the society understands and that your tribal citizenry understands and is able to use and that they feel comfortable with. Otherwise you, you can impose a system that, that for instance is not, that may be a good idea somewhere, but may not be a good idea in your community. You can't do that. You have to have something that works."

Ian Record:

"Follow-up question to that: you've obviously been central in the nation building efforts of your own nation and have gained deep insights into what a number of other Native nations have been doing over the past 20, 30 years during the course of your career working in a number of different arenas -- how do you see this question of why some Native nations have proven more successful than others in achieving, not just their economic development goals, but their community development goals? These social institution-building efforts, if you will?"

Frank Ettawageshik:

"Part of that is a question of leadership. You need to have the, you need to have the right combination of people together. Some, there's what, the 'Great Man theory': Does history make the great man, or does the great man make history? And I've always been a proponent of the belief that history makes the great man, or the great person, or the great leader in this case as it may be. And that it's not, it's less the force of a single personality, and it's more the outgrowth of the culture. And that when people are at the point that they're ready to do certain things, those people who can accomplish those will become apparent within their communities. And our peoples have suffered immensely. For over 500 years, our wealth has been gradually transmitted away from us, our wealth, not just monetary wealth, but the wealth of our resources, the access to our resources. Even if they're there, we sometimes, the game warden stops us from hunting so that we, for the food that we always hunted. And we have, that this loss, gradually, over the years, has been very difficult for us. We've maintained our elements of culture and items through that. But our, many of our institutions within our tribal societies have suffered at that over the years because of a lot of, just the loss of many people, say through the small pox epidemics and the measles and all the other things. We lost a huge amount of institutional knowledge within our tribal societies. And that that...that made it more difficult for us to grow –- we were in survival mode and we had to try to figure out how to pull things together to survive.

So, different communities and different tribal communities, different tribal nations are at different points in their recovery, because we are recovering. This is the first generation, or maybe the second, in our history that actually has more rather than less in most cases. In fact, in my life I've seen our tribal nation go, really this is the first generation that has had more rather than less when it comes to access to resources. When it comes to this, the community support for strengthening cultural society, strengthening cultural teaching, that we actually have more rather than less now. And that's an unusual situation for us. So in the cases of, in the case of money, we have, there's money from a casino, we have to figure out how to deal with that. How do we deal with money, how do we deal with the problems that come from a market place that moves up and down and back and forth? And how do we deal with that? Whereas before we were always on the low end of everything, we were broke. And so if the market fluctuated, we already were at the bottom, and you know, it didn't really take us much further down. But today, we actually have made advances, and so we can suffer through changes in the national economy for instance. So these are things that are, that you know that I think about that in trying to understand and learn as we look towards the future."

Ian Record:

"Dr. Cornell also...in a related question, Dr. Cornell refers to governing systems as fundamentally tools for creating the future that Native Nations want -- essentially a vehicle for strategic planning and implementation. Is that something you agree with, is that something that you've envisioned your government doing as part of its role, fundamental role?"

Frank Ettawageshik:

"Well, the government clearly has a role for these things. You know, we have a planning department, for instance. And the planning department was really the first independent department that we created that was, that became out of the, when we started doing a modern administrative government as opposed to our traditional government. This was a, and it was important because there's financial planning and we had to learn how to do budget projections and running grants and all the other things. We also had, we had to deal with phone systems and how do you, how do you get it, deal with an expanding phone system from one to two to three to five to twenty-five to fifty to one hundred. You know, how do you deal with all of those systems. So we've had to learn to do all of that as we've had expanded offices, and as we've had expanded resources to run those offices. You know, we had an archives and records department that we had to create within the government because it was no longer possible to store our records in boxes under people's beds and in the hall closet in people's homes. We now started having fairly large collections of data that needed to be stored and taken care of. And then you have financial record keeping data that has to be stored for a long time. So we, these are kind of things we had to, you know, to figure. So yes, to those extent, we do have to, you know, you do have to have these institutions. But at the same time we have to be careful to not expect that our tribal governments do everything for people. That, that there's a, as I said the government serves the tribe, but the government isn't the tribe. And that's a very difficult thing because they, literally, the tribal citizens often actually ask us to do things that, it would probably be better if we didn't. And you know, there's a number of different things that I, that I think about in that regard that are, that I think sort of... One of them I guess I'll talk about is buying the meat for the feast, for instance.

Once we started having some money, people felt that we needed to provide the money to buy the meat for the traditional feast that we were having. And I felt that we'd had these forever, and that we should try to continue to have them in that same way. The government didn't necessarily need to be involved in that to make those things work. But we started providing the funds. And this gradually turned into providing the money to actually cater the entire feast. And we ended up having this where instead of having the women come and help cook and do a lot of the work, we had, you know, the casinos they have from...the catering folks came in and they just took care of everything. And we'd had this, and we were in a northern climate, and then we had a snow day, and very, we ended up having ten people come to this feast and a lot of people got really upset thinking, 'Well, nobody wants their traditions anymore. Nobody wants to attend the feast, nobody wants to do this and...' So it almost died because government, and for me it died I felt because government had gotten involved and started to, you know, question the date that it was held, and start to wonder who could come, and who might not, and started providing the money for this whole thing, as opposed to doing it the way that we had always done it.

So the next year when it came time to do the feast, we -- in a very long meeting at our elders lunch with the, we had just the week before the feast -- we discussed whether we, the people were right that nobody wanted to come to the feast and that we should just do away with it, or what should we do. Well then this long discussion got turned back into a potluck and got turned into everybody was coming and we had the biggest group that had been at this feast in 25 years. And that continues to this day being run that way, where we, everybody pitches in and works together on it. And it's the way it should have been. Well, that's to me a shining example of what government shouldn't do, and then what government should do. They should stay out of it. Government, in this case, got the grants, provided the funds, and built the facility in which we hold the feast. So it's a government hall that the community can use, and then the community comes in and uses it. And not only uses it for this event, but uses it for all types of other events: birthday parties, and for funerals, for state dinners, for all different kinds of things that are used in this facility. But most of the things that happen there are not government functions. Most of things are functions of the community as a whole."

Ian Record:

"So essentially what you're saying is that it's government's role to empower community and not necessarily replace community."

Frank Ettawageshik:

"Yeah. I think that's a good summation of it. And to me this is, we have to really be careful of this. When we look at what we're asked to do as a government, and also what we choose to do. And those things are, and they have to be thought through, you know. This long-term thinking about the implications of what we do have to be thought through."

Ian Record:

"Isn't part of that just the struggle with managing growth? What you're seeing, particularly with the advent of gaming, so many tribes, the amount of resources that they're receiving and then having to figure out what do we do with this? It just grows, has grown astronomically over the past 15-20 years, and it's kind of, it's been a challenge for some tribes to kinda take a step back and consider these very issues that you're talking about."

Frank Ettawageshik:

"Well, the communities have a lot issues. But there are people who are quite critical of how tribes do some of these things and look at them. But I actually think that, you know, we need to look at it like this: we really figured out well how to be poor. We got that figured out really good. We know how to take a chicken and feed 30 people with it, you know. We can, we can figure out things. We got being poor figured out. But when we have money, we have to figure out how to do that. Lots of people with lots of money have a real hard time. Lot of old money families have all kinds of different issues. They're different issues than the ones of not having money. Well, as tribal citizens, tribal communities, having money is something that we have to figure out how to work with, and it's going to take a generation or two or three of four to try to work through those issues. How do we deal with not being the poorest ones on the block? How do we deal with, with not, with actually having resources that we need to allocate as opposed to just barely surviving? And those are different kinds of, different kinds of roles. So it's a natural, it's a natural issue. People who win lotteries --there's been studies done about the people who win lotteries. And most of them, after, oh say ten years, are probably worse off than they were before they won. Every now and then there's an exception, but because they don't know how to deal with the issues of having, of having money, and having access to resources. I look at it -- once again it's like I said earlier -- it's like having money versus having, taking that money and turning it into true wealth. And that's were you need to have, you need to put a lot of you effort into training people how to deal with that."

Ian Record:

"So let's talk a little bit more about that. How would you define true wealth?"

Frank Ettawageshik:

"A safe, peaceful community. Where you have, you know, you have adequate education, you've got healthy people, you have adequate resources. And you can perpetuate and grow your culture. Not just talk about the way things used to be, but actually adapt and grow to the changing times and have your culture be alive, not just static, something that's in a book or something that's been studied and that...you know, so it's...to me true wealth is this. And true wealth sometimes involves having money, resources, and doing things with them. But true wealth can also be merely just good schools and safe homes and jobs. But that's, that's being wealthy, being, having a strong sense of self-worth, a good strong sense of place, not just in, in the physical place, but a place in culture, a place in history, a place in the preservation and continuation of culture and your environment."

Ian Record:

"I'd like to switch gears and turn to a topic that you're well versed in, and that is constitutions. Back in 2005, the Little Traverse Bay Bands of Odawa Indians adopted a new constitution, and I was curious to learn more about what necessitated your nation to undertake that major step, and I guess give us an overview of what that involved."

Frank Ettawageshik:

"Well, in our case, we were not on the list of federally acknowledged tribes. We felt we always had been acknowledged, but we felt that the government had somehow forgotten that; that they had neglected to keep us on the list. And so we spent 120 years in a legal battle with the United States government over this issue. And when Richard Smith went down with his ship in a storm in Saginaw Bay in 1871 in Lake Huron, he took with him the institutional memory as being the scribe at the treaty negotiations, the Treaty of 1855, Treaty of Detroit of 1855 that covered a substantial portion of the lower peninsula of Michigan, and a substantial piece of the upper peninsula of Michigan as well, in which today there are five federally recognized tribes, and a couple of others that are working toward federal recognition. And we had to fight with the U.S. Congress, with the executive branch, within the courts for all of that time. We had people who were involved in lawsuits, people traveling to Washington, all laying the groundwork for eventually us being successful in the passage of Public Law 103-324, the Reaffirmation Act for Little Traverse Bay Band of Odawa Indians and the Little River Band of Ottawa Indians, both in Michigan. And this bill was signed on September 21, 1994.

There had been numerous legislative attempts over the years on things that would have affirmed our status in one way or another. There were a number of different things that happened, and there's a huge long history just behind that treaty, and behind the ramifications of it. But we spent this time working for this bill, which reaffirmed our status -- it didn't grant recognition to us, and it didn't restore recognition to us. It reaffirmed that we'd always had it, which I think is an extremely important, subtle difference. And in that bill it made sure that we be on the list of federally recognized tribes, so we'd be added to that, to the List Act, you know. And then we also were...it called for the development of a tribal role, and there was a certain timetable for that. It called for the development of a tribal constitution that, the one we subsequently developed. But it also recognized as an interim document, the constitution that we were operating under at that time that was our interim constitution, and then we were going to, we had to move forward with a new constitution.

Fortunately for us in this process, we had seen, we could learn from the issues of many neighboring tribes, and other tribes across the country, in the documents they'd had. We had very early on -- when we were trying to figure out how to work on our issues -- we had a grant from the Administration for Native Americans, and in that grant we wanted, we were gonna put on a conference, you know, a meeting for the tribe to discuss constitutions, to discuss the issues of federal acknowledgement. And we -- our attorney and I -- we were talking on the phone, and we wanted the Vine Deloria book, The Nations Within, we were discussing that book and we said, 'Well we need somebody that can really talk about that book, and talk about the issues in it. That's really what we need in the community to help move us along.' And finally one of the other of us, and I don't, never have remembered which one of us said, 'Well, why don't we just invite Vine?' And so we subsequently did invite Vine who came to our, came to the community and he -- along with a number of other people -- through the day gave discussion about constitutions and issues and laid the groundwork for helping us understand the issue of constitutions, and really what was wrong with a lot of the, what's called the boilerplate IRA constitutions that are out there, which, by the way, was pretty much what we were operating under is our interim constitution, was patterned after one of the boilerplate IRA constitutions; all of the powers in the council, and the council creates the court by passing a law, the executive and the legislative are all embodied within one institution, the tribal council. And as long as you have good people in a system like that, it works. But there are no checks and balances really. If the, if somebody, if a tribal member sues the government for something and wins in tribal court, the council can abolish the law that created the court, fire the judge, and then pass a new one and get a new judge and just keep doing that over and over until they get one that finally rules their way. That could happen, and actually things like that have occurred various places around Indian Country -– judges have been fired. So you really need a robust dispute resolution process, or a strong independent tribal court. One, and that's an important part of this. Well we discussed these things with, when Vine was there, and helped us start the process of thinking about this. And at the same time, this was prior to the passage of our reaffirmation act, Vine agreed to testify and came and gave the lead testimony for, at our hearing for, what became Public Law 103-324, when we went to the U.S. House for our first hearing on the bill.

So we had, we created a constitution committee, we worked through the grant, we prepared a draft, an initial draft that was looking at our, sort of looking at us from a theoretical point of view. This is what we'd like to see, as opposed to this is what we actually are. And then we had a committee that worked for number of years putting a draft together. Our constitutional process involved -- the development of the constitution involved -- having a committee that worked on drafts, studying constitutions from other tribes all over the country –- the good ones, the bad ones, the long ones, the short ones, the...and trying to learn from the experience of other people, as well as try to find something that fit our makeup, and our community. So we then did a public hearing, a meeting in all, not just in Northern Michigan right where our people are, but we also have a lot of people who live in the cities who would move there for jobs down in the southern part of the state. So we had meetings not only there, but also in the Upper Peninsula of Michigan. We had a total of eight meetings where the, sometimes we had as few as five people show up, sometimes as many as sixty would show up to these meetings where...and we wrote a transcript of the meetings, and talked about things like: if you're gonna be a judge, can you ever, can you have a felony in your record? Is there a length of time that you could go where we could consider that you might be rehabilitated? OK, if you've lived in the community, if you had a felony when you're 18, and you serve your time, and you're out and then 25 years later when you're, you know, in your 60's and you're being considered after living an exemplary life, would you be eligible to be a judge? Would you be eligible to be on the council, or to be the chairman, or...and we discussed these things with the community, and came up with, for most instances that they would be, there's the ability to be forgiven, and, not in every instance, but in most. And then we talked about what age people would have to be and what the basic criteria would be. We talked about all these things throughout the community in these discussions. And then a draft was prepared. That draft was then sent to all of the membership, one to every member. And then we then asked for written comments. We also had a meeting where you could come and give your, you could bring your written comments, you could mail them in, you could come to the meeting, and you could talk and discuss the things, ask questions, and we had it in an auditorium and had a fairly large turnout for this meeting. Then we took those, the committee took all those comments, and all those thoughts and everything, and took them back and made changes and thought it through and came up with a new draft, which we mailed out to everybody, and then did this whole process again. And we mailed, I think three times, the draft out for comments and had meetings where we put everything together. This took years; this was not something that was a matter of months. This took years to do this. And we finally ended up with a draft that was ready to be submitted to the, that was ready to be submitted to the Department of Interior.

Now the bill that we had, the Public Law 103-324, the Reaffirmation Act, it...when it called for an election for a constitution, it called for a secretarial election. So the fact that there's a secretarial election is really the only tie to this constitution as an IRA constitution, 'cause they required approval. So this was an IRA constitution only to the extent that it was required that that secretarial election. Because it really was not...this constitution that was developed was a separation of powers constitution, far from those boilerplate IRA constitutions. And it has a checks and balances within the different departments, within the different branches of government. And in addition to those checks and balances, there's also an independent prosecutor's office that, to help ensure this. And then there's also, not a branch of government, but a constitutional entity, the election board is also an independent body. And so these were the kinds of checks and balances that we built into this document.

Eventually we -- after considerable negotiation with the Bureau [of Indian Affairs] -- of course we, when we submitted it it was for an informal review. So we get this informal review and it took a long time. They're supposed to, there's timetables built into this stuff, but nobody ever meets those, the feds don't and, you know, the tribe, we didn't either, and so it took a long time to get this process. But eventually we got through that and negotiated through their informal review and then we got a formal document. Then we sent it in for the formal review and then we had to argue about certain points in the constitution about membership and territory and things that we had to sort of go through and deal with. And eventually we got the Assistant Secretary of the Interior to sign off saying that we were ready for a secretarial election – this was in the fall of 2004. And so the Bureau then started out to do the secretarial election, creating an election board that was our election board plus a couple members from the bureau. And they did a registration for that and then from the registered voters who registered for that election, it was about a three-quarters vote in favor of the constitution, which was...the election was certified on February 1, 2005. One of the key points to this, so that was a process of getting that constitution. It was a very long involved process, involving the community..."

Ian Record:

"A very organic process from what you're describing."

Frank Ettawageshik:

"...Yes. The next thing though, there's another important part of this constitution that I think was critical to its success, and I don't want to leave this out in terms of this point, but we...when people do constitutional reform, often the new constitution just goes into effect on that, on a particular day. Well, we were going from the old, pretty much a boilerplate, IRA-type tribal council, all authority being there, to one of different branches of government. And the people elected under an old constitution couldn't serve under this new one adequately, you know, it'd be really confusing. So when we adopted the new constitution, one of the provisions in it, was that it would not go into effect until the people were elected and sworn in to serve who would be implementing the new constitution. So it was September 21th, I mean, it took from February, it took months to have the election, to go through the process, and have people sworn in who then took office, and the new constitution went into effect. And that was a really important thing.

The other thing we did that helped with the transition that I think is...would be helpful to people is that we hired a couple of consultants to come in who had studied constitutions and had worked with tribes. We brought them, we gave them our document, and they had not been part of the drafting of the document, but we gave them our document and we said, 'We don't want to know what's wrong with this. Don't give us a detailed analysis of what's wrong with this. What we want you to do is to help us understand how to implement it. What are the things that we're gonna have to know when it comes to implementing this?' And then we hired them to come and work with the council, the newly elected council. And the day before we were all sworn in, they came in and did this training with the tribal council and with the executive offices, with all of the judges who would be carrying over, the process and...to go through this...and key members of commissions and key staff. So we had a training session on what the constitution meant. What it meant to be on a separation of powers, who was supposed to do what, how you appropriated money for instance, you do, you appropriated money through a process where you authorized the expenditure, then you appropriated the money and then you had to approve the, a budget modification where you put the money. And so those were things that we learned for instance from this, is way to keep adequate track of finances and dealing with that. And, so we went through this and we actually had a fairly smooth transition and went into this process.

So we went six months without...I attended every meeting as the, I was the chief executive elected under that first constitution. I attended every meeting for six months, all of the council meetings. They started to get a little restive about that because I'm a chief executive and I'm not really part of the council, so well, maybe they didn't really want me there. But they really wanted the chief financial officer, the CFO, and they really wanted the tribal attorney. But both of them worked for the executive now, and they, I told them, 'You can't have the CFO and the tribal attorney if you don't have me.' And they really didn't want me, so then they finally agreed, 'Okay, well then we won't have any of the people there, you know, you'll come in periodically.' And so we did, we had a table in the back where we'd come in and visit the meetings and answer questions when they had them and give them information, but we didn't attend every meeting. Well as soon as I wasn't attending every meeting, they started taking actions that didn't have input from the executive, and therefore within three weeks we had our first veto. So you know, things got interesting and we sort of worked that through where the executive exercises his prerogative with veto or with signing a bill, or letting it happen without signature. Those are all provisions of the constitution we put in.

So this is stuff that we did in the transition. And I mention one other thing about constitutions in here I think is important, and that is that a lot of people said, 'Well gee, you know, the separation of powers looks a lot like the U.S. constitution, why are we copying them? You know, we don't need to just copy them, you know we need to do our own thing, you know.' And, you know, I think of a story and I, about a project, a gift that my son gave me that he, he provided this, he went to camp, you know I think he was eight, and he made this thing, and I got it and it, it was wood burned on it, you know, and it said 'To the second greatest dad in the world.' And I went, 'Well gee, what is this? You know?' And he looked at it and he said, 'Well, but dad, you know, this other guy he said, "˜To the best dad in the world' and I couldn't copy him.' So I get a real kick out of that one. But the point is, is that, you know, we need to be careful. If something's good, just because somebody else uses it doesn't mean we shouldn't use it, particularly when they copied us when they prepared these checks and balances within the constitution of the United States. And they were, they took advice from tribes and they, they lived here on this continent and many ideas in there are native to this continent, they grew out of it. Even to the rules, the decorum in Congress and the way things are done. Many of those things came from the observation of tribal councils, of council meetings and different things. And so, you know, we've made a major contribution to the way the U.S. government functions. And if there's something that works, we shouldn't be, shouldn't say, 'Oh well, we can't do it cause they're doing it.' We need to say, 'Does it work and does it fit us?' And if it does, then we, we should be, not feel bad at all about taking that to use and using it to our own benefit."

Ian Record:

"Well yeah, it gets to the point of it, just because they copied us doesn't mean they own it."

Frank Ettawageshik:

"Yes."

Ian Record:

"You know, they're the only one that can use it."

Frank Ettawageshik:

"Yes. And that's...and so those are important things that we need to, that we need to think about when it comes to this. And so the constitution that we developed, that we put in place, I served four years as the first chief executive under that. I left office last August now -- in 2009 -- and it was, you know we're in, so now we're into a new administration and was, as with anything there's gonna be pushes and pulls. There's constantly, there's a, always a tension. With checks and balances, part of what that is is a certain tension between the different departments. And that's really sort of designed that way. And if there's a little bit of tension it's not a bad thing. But you, you know the executive authority for instance, the council, is really nervous about not exerting executive authority often, and really a lot of what they'd like to do is executive, and like the U.S. Congress tries to assert legislative authority, I mean executive authority and there's constant pull between the executive and the legislative, and that same thing is true within this kind of a document. You're gonna have that, and you're gonna have a court that will have to decide if one thing, if you've gone too far or not. But it's really important and what's...

The other thing that's important about a separation of powers constitution for me is that it's cumbersome, it's slower. And because it's slower it gives time for people to watch what's happening, to think about it, and the tribal citizenry can get involved. And if they don't like it they can let you know. You want something that takes, something has to be posted for 30 days before you can act on it for instance. You need things like that in there to give people time. Even if very few of them actually take the time, they need to know that they can, and they need to -- for those people that are interested -- they need to have that opportunity to do that in order to feel comfortable that the government actually is doing what they like and is a reflection of the community. When things can happen overnight without any notice at all, it's bad. And the other thing is you have to be able to notify people what's happened. People need to understand what the law is. A council can sit around passing laws all the time, but if you've got several thousand members, and they can't all attend the meetings, and if they have no way of knowing what the law is, you can't very well pass a law and then go out and arrest somebody for not following the law, unless they've had an opportunity to be involved in that, to understand what it is, unless they truly consent to that.

So if a law gets passed that they don't like, you need a mechanism within that constitution for them to remove it, for them to take it to a referendum. And if you have an inactive government that is not doing what the people like, you need the ability to have initiative, so that they can initiate laws through action that's outside of the council and the chair if they feel that they need to. And so these are kinds of things that, that give people the peace of mind that the government isn't totally out of control, and it's something that they can have access to, and that truly the government serves the people as opposed to the government being the people."

Ian Record:

"I want to follow up on a couple of points you raised during your description of the reform process, or not the reform process, actually the development process involved with the new constitution at Little Traverse Bay Bands of Odawa Indians, and that is this issue of separations of powers. And you described very early on that separation doesn't necessarily mean non-communication between legislative and the executive branches of government, or the executive and legislative functions of government, that you need to have that communication so that each side is making informed decisions, and that separation doesn't necessarily mean there's no interaction between the two."

Frank Ettawageshik:

"Yeah. Yeah that's...you have to have a method for communication, and you need to...I think that it's, one of the things that I advocate for is when there is a law that's going to be held, that's going to be, that's being considered, that the legislative body hold a hearing on it and call in the executive to be witnesses at that hearing to ask questions about how something is working, ask questions about how this new law would work if it were passed, get opinions about whether they think it would work. Because if...it's one thing to out of, out of the air to sort of create a law that you think works, but when you, if it's, when it's implemented through the executive side, you can't have something that won't work that is, you know, you can, you can't sort of force something to work, you need to know if there's some likelihood that it's going to work. And so you may not, you may have executive function, executive people who don't like the law because it may be going to do away with their job, or it may be you're going to create more work for them, or it maybe going to make them do something that they don't like. But that's not enough reason to not pass the law. But if you pass a law that has one part of government doing one thing, and the other part of government undoing it, you need to understand that, you need to know what the implications are from how things are going to work. And so it's a good idea to have public hearings, to have this debate, and to have a longer debate over the legislation so that you have an idea how it's going to function. And plus things take a while to implement.

An example of this: we passed a notary public law, and this particular law was one that took...we built an implementation period into the law and there was a lot of communication back and forth between the executive and the...you know we gave a markup back to the legislature to look at, to think about it, and we went through the different things that would be necessary to consider. And we thought a six-month time period to implement it would be fine. So we set out, once it was passed, to get the surety bonds for notaries, and were assured that that wasn't going to be no problem, a couple of different companies told us there'd be no problem, they did that regularly. And then we had to get embossers and stamps. Well this was a tribal notary law, so when we went to get the companies to do it they said, "˜Yeah, we'll do that send us your stuff.' And we sent the stuff and they said, 'Oh, wait a second, you know, where's your state stuff?' And we said, "˜Well, this is not a state, it's the tribe.' Oh we can't do that. And one after the other, they were falling by the wayside, saying, "˜You know, they couldn't do it.' So we had to actually find a company that...and we found one eventually who said, well see this is a tribal law and this is, you know, we showed them, we talked about the constitutional issues and all this, and they, and they understood, they finally got around to understanding it. So eventually they agreed to pay us $50 for us to license them in order to produce our stamps and embossers. And part of the thing was is they realized, they said, 'Now how many tribes are there?' We said, "˜There's over 500.' They said, "˜Oh, maybe we could do this.' And so we have one company who agreed to do this. We think we're the first tribe in the country to actually have our own notary public law this way, because we couldn't find anybody who would produce the stamps and embossers until we worked with them. Then when we went to get the surety bonds for the notaries, the companies who assured us they could do it suddenly realized they couldn't do it because all of their stuff was for state authorized notaries and they had, they just couldn't figure out how to deal with it. We finally found a company who...it took months. We had to get a six-month extension on our six months to implement the law because this took so long and we finally found a company who, an executive there had just returned from a seminar on insurance and one on dealing with tribal sovereignty issues. And he was really intrigued, and he came back the next day and got this call from us and he said, "˜You know, let's try this.' And so he set out to develop a special form, and all the different things.

So we have, we developed a product, which we think is unique in the insuring for tribal notaries. And there's now ten notaries licensed at Little Traverse, within our tribal jurisdiction, for notarizing documents. The average person needs a notary once or twice in their life. This isn't a big, sexy thing for tribal sovereignty. It's not something you're going to get headlined on a paper and all these other kinds of things, this isn't it, but exercising sovereignty is not just those big things. Exercising sovereignty is all the grunt work. You know it took years to develop the statute to get the council in the right mind to think it would be something that needed to be passed. And then it took some of the tribe people in tribal community said, "˜You're doing what? You know, why would we need to do that?' And you know, but we eventually got people around to the idea that it was as good idea. It's an exercise of sovereignty and it's part of good governance for us to be doing these things. So this took a lot of communication back and forth between the legislature and the executive. And it's an example of a law that worked, and we -- not only did we do this -- but we also notified the governor's office of the state, said we're doing this, and her attorney, and we talked through all of that. You know we have regular meetings with the executive office of the state, annual meetings in Michigan, and we, because we were, we did these things, we didn't surprise anybody with what we were doing, and now that's the way we function, now we got this going. But that, that one law is an example of the utilization of the provisions within the constitution for the passage of a law, and the implementation of it, and how it worked. And I think it's a good example of good communication and, you know, making things, doing some of that grunt work and the assertion of sovereignty."

Ian Record:

"Really what you're talking about, on one level, is education: education of internal to the government then also education of the citizenry. And I wanted to follow up on that point. You know, we've seen...NNI works with a number of Native nations on the issue of constitutional development, constitutional reform, and we often see tribes either fail during the constitutional reform process, never make reform happen, or they encounter a lot of problems after they've ratified a new constitution, or reformed one because of this issue of education. Doesn't the education challenge only begin with the new constitution? Isn't there an ongoing education process that has to take place? Because, you know, it's one thing to change a document on paper, it's another thing to change the political culture, which has been at work in the community often for 60, 70, 80 years.

Frank Ettawageshik:

"Well...there's, you know, we evolve as a society. One of the things I can think of is, when I was young, if someone was drunk, the police officer often would say, "˜Give me your keys. Get in the car.' And he'd drive them home, and leave the car sitting beside the road. And, you know, that was something that was fairly common. Today, that's far from the way things happen, you know. I mean today, we as a society, we have ceased to sort of look the other way at that issue, and have really focused on it as a negative thing within our society, and all the ramifications of driving and drinking. I have, you know, we're doing major educational campaigns on TV, we do this all across the country. And, so as a, the United States as a nation has really, the culture has changed as to how we deal with that. Well, the same thing happens when we're looking at how we deal with our institutions within our government structure, you know. The question that I have is, for people, is how often have they attended a township board meeting, or a county commission meeting, or a city commission meeting, or the state legislature, or the U.S. Congress. The average citizen, there are many, many citizens who never attend any of those meetings, ever. Live their lives and do just fine, they're fine, productive members of society and very successful and whatever, and they've never attended any of those. And yet, when we look at our tribal governments, we often, you know we get so wrapped up in our tribal governments that we start to try to make them into everything. Once again as I say, "˜Not the tribe, the government being the tribe, not the government serving the tribe.' And so citizens of our tribal nations often demand of their elected officials things that they wouldn't demand of elected officials that, from other places that they live, other communities that they interact with. And they, in so doing the, we get very little education about how to function.

What education and the way government works in our schools, usually, is all based on non-Indian governments. I was involved in a project for a textbook printed for the state of Michigan, or I was one of the people interviewed and part of the development of this for fourth grade. And this was the best textbook that we'd ever had up to this point because, and it's a major publisher and it was put together in a way that a number of schools throughout the state are using it now, it's titled "˜Michigan.' But what it did is it, Indians didn't disappear after the first paragraph, or the first chapter like we often do in books on history of the state. But we made it to about the middle of the book in the first edition. Second edition is about to come out and my understanding is we make it clear through the end of the book in this one. But people actually are going to understand when...kids will hear that we have constitutional governments. They'll hear that tribal governments exist today, instead of the question...I used to do a lot of speaking to fourth-grade classes and different places around the state of Michigan. One person said, "˜How long have you been an Indian?', question like that, and uh, 'What do Indians eat and where do you eat it?', and things of this sort. Of course they, there's certain stereotypical answers to those questions that they'd like answers to, but...it's because we need to address those issues, and so that as people become adults they understand that tribal governments are governments. We're not clubs, we're not associations, we're not part of history and long gone -- we actually exist and are around and have a major effect. We are, have far more visibility in the economic world because of the casinos and employing a lot of people these days. But far more than that, we have an effect on the way the environment, environmental issues are dealt with. We have an effect on law enforcement, we have an effect on the various social programs and things that are going on. Tribes have a major effect within their communities for both their citizens and for the non-tribal citizens as well.

And so today, things are much different than they once were, but we're still suffering from this lack of education about who we are. I once got the door-knocker award, which was literally a brass doorknocker still in its package from the Midwest Alliance of Sovereign Tribes for, we have an impact week every year in Washington D.C., and I went to that meeting and we would hold a breakfast where we'd talk and we go out on [Capitol] Hill and do meetings on the Hill, then we'd come back and we'd talk about what we'd done and, the sort of a summary of what we'd done and what things we need to do. I got the award because I'd taken a copy of the U.S. constitution. I had a lot of meetings. I was very energetic. And I took a copy of the U.S. constitution and I went in and I talked to the staff in all the offices I went to and I asked them if they'd ever read the Commerce Clause. Did they understand what, about treaties? It's sort of like 'Indian 101' in a way, the basics of Indian law relative to the constitution. And a huge number of the staff, a college-educated staff in the U.S. Congress, did not, had never read the Commerce Clause, with the idea of looking at tribal sovereignty through it. They didn't understand what it meant. They didn't, they never looked at the thing about treaties being the supreme law of the land, and understanding that meant Indian treaties. Never understood those things. And so this kind of education at that point is necessary. So what do we need in order to make our tribes work? Our own citizens are a product of this same sort of general education system that doesn't teach much about Indian law, Indian societies. And if nothing we're sort of curiosities and different things. Very little is that taught. So not only do our own citizens, as a product of this other education system, but they also need to understand their own government. They need to understand their own constitution. Nowhere are those classes taught. You know, they don't have a, you can't go and just take a class on the tribal constitution, and very few tribes have anything like this. So I've read, and I know other people who have advocated for tribal civics classes. We need to try to make sure that this is done.

One of the things that I feel that helps with this is I proposed a educational standards act for the tribe that would lay out what some basic goals were for different levels of say, elementary education, secondary, post-secondary, adult, you know, adult continuing education. What kind of things should we expect from each of these different age groups, and what...once we set some goals, then how do we achieve those goals? And one of the things that we did at Little Traverse that was done by, funded through the tribal council, but done by a number of different members of the community, is we created a video called "˜Journey to Sovereignty' that talks about the process of getting a reaffirmation bill passed and goes back into time, back into the history of why it became necessary to do it in the first place, and then how we went about doing it, and interviews with people. And it sort of told the story while the people were alive and we've got a record of it. And then we made a copy of that and mailed it to every tribal member, whether they were one month old or eighty, whatever, everybody got one. And then we continually show that at our hotel. We have the Odawa Channel at our hotel, and we show that video, a 'Four Directions' video. We have anther video on the history of the operation and some of the tribe. And we just have these showing in continuous loops so that, as a way to educate those people who are our guests who come to visit the tribe, but also for our own citizens who spend time there. And we periodically show these at other events just as a way to help people understand some of the history. Well it's things like that video, and other types that will be the tools that we need to actually get an educated citizenry about our systems.

So how does our system work? This is a long answer to your question, and I'm eventually getting back to your question here, that we need to have a mechanism for having an educated citizenry so that when we make changes in our governments, they understand what they're doing, they understand, you know, what this is likely to be. Once we made changes, as we implement them, they'll understand what those are. So we need education. It's like bringing in the consultants and helping educate the people who are about to serve under the new constitution. That seminar, that one-day training we had really helped move us through the transition. Now there will be, you know, we since have had others where we've brought people back in and looked at it again. And I'm sure that there will be continual training as we look at the documents and try to help them, and then look at our laws and see what laws we need to pass. We've had similar training when it came to dealing with the issues of Violence Against Women [Act, VAWA], and the personal protection orders and safety, issues of...we needed a victims rights act, we needed a, to strengthen a bunch of different laws. And we had a training where we brought in and talked about what we needed to do to work on this. We've had other trainings when it came to the implementation of, for instance the Adam Walsh Act, which by the way I just heard just recently that there are only three governmental entities that are compliant with the act, and it's overdue: one state and two tribes that have become compliant in the implementations of this federal law in the protection of children. But we're continually trying to do this through education. But as a basic form of this, we need to have this civics education. Each tribal nation needs to have a nation-specific course in how this is taught. We need to have general ones that help educate larger groups of people. We need to make sure like...I think there ought to be one of these in every law school. Every law school ought to have a class on dealing with sovereignty issues and dealing with tribes. Because many of those attorneys are going to end up serving before a tribal court somewhere, having to actually not just be a member of the power of Michigan, in the state of Michigan or in another state, but they're going to have to become members of the bar of different tribes in order to serve before those courts. And they need to understand what that means. So, you know, there's a need for an educated citizenry as a whole, and I think that this kind of training and education needs to not just be at the tribal level for our citizens, but also needs to be in the general public education as well."

Ian Record:

"If you could summarize for us, perhaps the three or four highlights of your new constitution -- the one adopted in 2005 -- in terms of perhaps what are the most important components within the constitution that advance your Nation's nationhood?"

Frank Ettawageshik:

"Well, it would be easy to say, the separation of powers, the branches of governments and things, but I actually think that there are other components that are important here. The first one is a declaration of rights. It's like a bill of rights, but it's actually incorporated into the constitution. That is an important part of this constitution. A second part of the constitution I think that's important is the assertion of the inherent rights, and the fact that we acknowledge that others may have inherent rights, other peoples may have inherent rights. And this document lays out a process, which eventually could result in like a state department, or diplomatic relations with other nations, other nations being other tribal nations, or foreign nations to the United States, or, for instance, relations with the United States itself. You know, they all want to see, check with us to make sure that we're recognized. And when is the last time a tribe asked the federal government to apply for recognition before it's government? And I think that the reciprocal is equally true, and I think that that's something that we should do. We need to realize that that's a two-way street; it isn't just the one-way street. There are tribal organizations who the only way that you can be a member of those organizations is if you're a federally recognized tribe. Well, if you, if you're looking at that, you're basically, the organization is giving up to the federal government the right to decide which among the tribes are going to be able to be members of this tribal organization. As opposed to making that decision asserting their sovereignty and making that decision their own government.

Now it's real easy to say this from a, just a, it's a simple assertion, it's a simple bunch of words. It's a lot of work to actually have to figure out who you're going to have, what other governments you're going to have relations with, and not, and what the criteria is for doing that, and how you choose when you're not choosing just federally recognized tribes. You know, a state-recognized tribe may, and we've had state recognized tribes come to Little Traverse and ask for diplomatic relations, asked us to recognize them. We've had non-recognized, either by federal or state, tribal governments come to us and ask us for acknowledgement. And we have yet to actually work through the mechanisms of that, but one of the important things in this constitution is it lays out the groundwork. It lays out that the basic part of that we will recognize other governments who acknowledge us. And so, I think that's one of the most important parts of this. Because the document, the document itself lays out how we're going to relate to other governments. And I think that's critical. And so those are, those are some of the really important points I see is that there's that, the bill of rights, and then of course the delegation of authority, which in our case is to separation of power branches, different branches. But you could have a constitution that did these previous things, and then set up a different system. This works for us, it doesn't necessarily, wouldn't necessarily work for every tribe. And there may be others that are at different places in their development, different places in their history, that they feel that a different form of government would work. This isn't the only one that works, but this, the document itself, that assertion of inherent sovereignty and the ability to acknowledge other governments, and interact with them, is a fundamental part.

Now the most important part I think in the end of the constitution, that is there, is the statement, the flat assertion of the importance for, that the government is charged with protecting our heritage, our history, and our language -- that these are things that...it's a lens through which we have to look at the rest of the actions and the rest of the constitution. It isn't something that is merely an afterthought or, if you have time do this, or maybe you can do this you know if you get around to it. It's...this is the basic charge to the government so that we have to look at a, when we create a new department, is it furthering these ends? And that's something that, because it's there in the document, it's a tool that our citizenry can measure the effectiveness of their elected leadership as to whether they're doing what they wanted them to do or not."

Ian Record:

"This gets, this is a good segue into another question I wanted to ask, and your statement that you just made merges rather well with the statement I want to share with you that was voiced by a fellow tribal leader who's nation had recently developed a new constitution. He said and I quote, "˜The new constitution is our long-term strategic plan.' So how do you see that statement?"

Frank Ettawageshik:

"Well I think that it, I would look at it that the new constitution, I mean this constitution for us is like the, vision statement and the mission statement. It isn't necessarily the plan. It lays out the fundamentals through which you then would develop your plan. And so to, I would sort of carry that a little further in that, that it clearly sets out, you know, the vision for what the tribe should be, and what the tribe is, and what the people want the tribe to be. And that's the important, an important step. And then, you know, the mission, and it's sort of how you're going to do it is laid there. But the actual specific objectives, you know we were fairly careful to not put specific like objectives and things of that sort into it because those may change over time. We wanted something that would last, not something that every twenty years you'd have to get a new constitution."

Ian Record:

"I wanted to follow up also on this point of culture. Essentially this is, as the culture, the history, the language, the heritage of your people being the lens through which your government would be organized in through, in the lens through which it would decide key matters, and who would decide those key matters. How does you nation's constitution express your people's culture, identity, and goals?"

Frank Ettawageshik:

"Well, it expresses it through a preamble. And I don't have the words memorized, but it lays out the, who we are, it makes a statement of who we are, it makes a statement of what we, what we wish things to be, you know, to perpetuate our culture. And, so we have that section in the preamble, but then it also, there are directives to the government. And not just the preamble that sort of lays out the general tone for the document, but then there's the, this directives to the government and each, that the government's directed to do these things and to perpetuate the language and to protect the youth and protect our elders and to further the safety and to protect the right to work of our members and things of those sort. So we have these things that are built right in, and there's directives to the government. And those things are...we're directed to protect our heritage and culture. And so instead of...heritage and culture and spirituality blend and, but to the extent that we also have freedom of religion within the document so that it's not just, we're not, we promote our heritage and culture, but we tolerate and we're directed that if we have people who are choosing other paths, that we, that they're acknowledged, and their right to do that is acknowledged within our document as well.

So the government has to work on -- like the video that I described earlier -- it helps to protect our, get people understanding what different people in our tribe have done. I mentioned earlier that educational standards act, to me that's an essential part of meeting the constitutional responsibility of protecting our heritage because we want people to know what that is. I ask this question, 'How many of a tribe's citizens can name five chiefs from the 1800s and tell you a little about their lives, what they did? Now how many can name five presidents and tell you a little bit about those presidents?' So, the answer is many more to the second and very few to the first usually. Occasionally there are exceptions, but this is something that we need to try to fix. We need to have people understand who we are because, when I mentioned earlier there's a, we need to have a strong sense of place. And that sense of place is, it's multi-dimensional when you think about a sense of place. A sense of place isn't just the rocks and the trees and the streams and the things, you know. It isn't just that physical place, it isn't your home, or your town. But your sense of place is also your understanding of where you fit into your society. How you fit into your culture. How you fit into the history. And how you fit into your society, and where you fit in your language, where you fit in your, in, how you fit between the past and the future. You know? That interaction between them, that sense of place, that strong, assured sense of place is an attribute of a healthy individual. And as you have healthy individuals, you then have a healthy society. And so we need to try to help do things that foster that strong sense of place. And I believe that this constitution for Little Traverse helps to lay that out. We made every effort we could to make sure that those things would be part of that so that the government would actually; we could measure the success of a government.

When you do, when you work on documents like this, when you work on things like this, you have to prepare for when you're not going to be there. So, you know, you help pass laws so that, if need be, when you're no longer in the, an elected official, you can sue the government if you wanted. You need to make sure that there's, that there's, you know, the ability to do that. You need to make sure that you have the ability to initiative if a government becomes unresponsive and needs to be moved. You need to make sure that you have these things. So you have to build in all these safeguards to make things work well. And so, part of good governance is planning for your own obsolescence."

Ian Record:

"We've heard one leader describe that as, 'Mmy job is to make myself dispensable.'"

Frank Ettawageshik:

"Yeah. I think that's a good way to put it. I like that."

Ian Record:

"I wanted to...you mentioned this early on in the discussion about this interim constitution that you had prior to the passage of the public law that reaffirmed your status in the, at least in the minds of the federal government, as a sovereign nation. And then the new constitution and the difference, inherent between those in terms of dispute resolution, in terms of a, your tribe's, your nation's justice system."

Frank Ettawageshik:

"Right."

Ian Record:

"Can you do a quick compare and contrast between the strength and independence of your court system of your dispute resolution within your nation, within the interim system, versus your current system."

Frank Ettawageshik:

"Well, the first constitution, which was actually was a document that involved, and it initially, in its very early incarnations had some of the very typical language where every action within it required approval from the Bureau [of Indian Affairs], okay. You know, so that was a pretty typical of some of the early ones. And so by the time that we actually had it in place so that we were using it at the time of the passage of the reaffirmation act, so it became our interim document, we'd removed all those sections about approval of the Bureau on our legislation. But some constitutions, every single law, every single action that's passed by the council, had to go to the Bureau for approval. They'd have to analyze it, look at it, and when it came back signed from the Bureau then they'd, then they'd become law. Well, you know, that, we didn't have that. But we did have this thing that, with the judiciary, we passed a law that would create a court under the old constitution. And consequently we hired the judge. And the judge worked under contract through this, the law that we passed and, had we chosen, had we disliked the judge we could have fired the judge. And, or dislike a decision that the judge made we could have. The fact that we didn't meant that we respected the fact that we needed an independent court, and we needed to stay out of the court's affairs. But, you know, had things, you know, we certainly had the ability to do that under that old constitution. And that, you know, that isn't a really strong, it doesn't give...

If you're signing a contract with a company that you want to do business with, and the contract requires that you go to tribal court, and you -- because you want to assert sovereignty -- and there's no guarantee that the court will look like the current court. There's no guarantee what the court will look like at the time that the dispute would be taken to them. Or you could change the appearance and the operation of the court during a dispute, during the resolution of a dispute, it makes it a lot less comfortable for someone to acknowledge the sovereignty of your court, and to want to come to your court. And so they're going to demand that you have a waver of immunity, and that you take everything to federal or state courts because they don't have confidence in the tribal system. Your own citizenry have less confidence in the court itself when the court changes or is subject to change that quickly. So under the old system I, it was fairly weak. And it was judicial reform, I think is critical for government development, and probably is the fundamental reason why many constitutions are looked at in the first place. Even if nothing else is changed in them. To have an independent court is a move in the right direction.

Well, under the new constitution the judges are appointed, they're nominated by the executive, and then the nominee goes to the tribal council who holds hearings and talks to the people and asks them in-depth questions like, you know, what do they believe about different issues of constitutional law and, you know, what are they, you know, they ask them the same kind of tough questions that they get asked at any, you know, cause they realize that they're, if they approve the judge the judge is going to be there for a while and, and will have an effect, those rulings will have an effect on the tribal law.

And so as a chief executive, I have nominated, my nominees sometimes were approved, and my nominees were sometimes rejected, and I'd have to go back to the drawing board, come up with someone else. But once the judges were appointed under the new constitution, once they're appointed, there's a trial judge, an associate trial judge, and then three appellate justices. So the judiciary is five appointees. The judiciary itself, after they're appointed, are the only members who can remove a judge. Now, petitions can be brought from other places, I mean the citizens can bring a petition, the council can petition, the executive can petition for removal of a judge. But once a complaint's made, the other members of the judiciary meet to decide if the complaint has merits, and they've had to develop their rules on how they deal with all of this, but they're the ones who remove a judge. So the judiciary polices itself.

Now they also have terms so that an executive can choose to not re-nominate somebody as their term ends. And even if they were re-nominated, if the, if people brought pressure to bear on the council to say we don't like this person, we don't think he should approve this nomination, they can do that. So that's the mechanism for getting rid of a judge and for dealing with the...dealing with the court. All of those are important parts of the process to, for people to have faith that the court will actually do what you think it's going to do. And our court actually developed to the point where we, we had a youth drug court that was part of the court system. And the process that we did through that was so well accepted that we had local state judges who were assigning people to this from their own jurisdictions, as opposed to just our own. And they would be, attend these programs. And so there's those kind of issues. Because of the strength we've had in terms of developing the judiciary, and because of the strength of the constitution and the things that we've put together, we have cross-deputization agreements with two counties.

Our reservation is, resides, is part of two of the counties in the state of Michigan, and we have cross-deputization agreements with both of those sheriffs. So not only have our officers been sworn in by those sheriffs as deputies, but the sheriff and his deputies came to our courtroom. And when we first did this, I administered an oath to them to uphold our tribal constitution, and our tribal laws. And we had a detailed agreement on how we would exercise that, you know. They couldn't just come in on their own. They would come in, there's a protocol for how they come in when they need to, or when we back each other up. And so we developed seamless law enforcement that was to the betterment of health and public safety for not only our citizens, but for the non-tribal citizens who are a part of the whole region in which we live."

NNI Indigenous Leadership Fellow: Rae Nell Vaughn (Part 2)

Producer
Native Nations Institute
Year

Rae Nell Vaughn, former Chief Justice of the Mississippi Choctaw Supreme Court, shares how her nation methodically re-integrated Choctaw core values into its administration of justice, and how Mississippi Choctaw's creation of a fair and efficient justice system is paying social, cultural, political and economic dividends. 

Resource Type
Citation

Vaughn, Rae Nell. "NNI Indigenous Leadership Fellow (Part 2)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 22, 2009. Interview.

Ian Record:

"So the term 'Choctaw self-determination' is the motto of pretty much everything that the Mississippi Choctaws do. And I was curious to learn from you: how exactly does the tribal justice system, the court system that you were for a long time a part of, a reflection of that motto 'Choctaw self determination'?"

Rae Nell Vaughn:

"Self-determination, in and of itself, has been key for Mississippi Choctaw. It's been the driving force of who the tribe has ultimately become, this very progressive tribe providing so many different services and outlets for the people, but it's so much more than that. It comes down to the very individual Choctaw member as to how you guide the people individually towards their destiny of being a successful people. There have been a number of areas in which self-determination has been very evident, one being the court system in and of itself. Within the court system, there could have always been the easier way of just allowing the tribe to go with state rule actually and just using the state system. What's the point of setting up your own court system? But just the mere exercise of sovereignty and having the ability to create your own laws and to develop your own court system is the very essence of self-determination and within that allowing your tribal members themselves serving in different capacities as a judge, as a bailiff, as a law enforcement officer, even as an attorney again only further defines for tribes and this tribe in particular self-determination. It's the mere exercise and expression of it."

Ian Record:

"So back in 1997, the court system underwent a significant revamping and strengthening, and it came at a critical juncture where Mississippi Choctaw had grown tremendously since the "˜60s and early "˜70s, particularly with their economic development initiatives and had come to this point where it said, "˜If we want to continue growing, we've got to do this.' Can you talk a little bit about that, and are you of the opinion that Choctaw could not have become what it has today if it were not for this strong and independent court system?"

Rae Nell Vaughn:

"I think that the continuing development and evolution of the court system was key to every aspect of the tribe in regards to its development. The tribe in its forward thinking knew that with the growth of the population, which was very dramatic, it jumped significantly after 1994 once the gaming doors opened of our casinos and then we began generating more revenue and our population, the membership increased dramatically. Currently, we're at close to 10,000 members versus back in the early 19th century when we were less than 1,000, so it's been a very significant jump. And with the increase of population obviously comes with it social issues, social ills, offenses committed against property and people, civil matters, civil issues as the tribe in its economic growth begins venturing further into business, and those issues of litigation with those businesses ultimately will land within the well of this court. So because of that, it was key for -- and I believe was the government's vision -- to strengthen and provide to the court system the ability to execute justice properly and at a much higher standard. And again, the tribe could have just said, "˜Let's just follow the state motto. Let's just hire state judges and let's just go from there,' but they didn't. They knew again -- going back to self-determination -- how key it was to have tribal members sitting on that bench. Granted, the bench itself was very diverse. You had non-Indians, you had non-tribal members, and then of course tribal members sitting on this very large diverse bench, and the ability to have that exchange for those who weren't members of the tribe to teach them Choctaw customary law, culture, and of the people and of the community and the area, and how important and significant it is to just maintain that body of knowledge and it continues today, which I'm very grateful for."

Ian Record:

"So with respect to this, 1997 -- that seemed to be the watershed year in which the tribe made a very calculated decision to say, "˜In order to manage this growth, in order to continue to grow, we have to expand the powers, the jurisdiction and the authority of our court system, equip it with what it needs to be able to carry out justice,' as you say. So there's an expansion in terms of the types of cases it takes on, in terms of the kinds of skill sets that it's bringing into the court system, etcetera, but also during that time there was a concerted effort underway to more fully incorporate Choctaw values as you mentioned into the court system. Can you talk a little bit more about that and specifically discuss this project that you were involved with, which was documenting those core values in the form of oral histories provided by your elders? Maybe talk a little bit about how they've worked to inform the incorporation of those values into the court system."

Rae Nell Vaughn:

"I believe that it was a lot of hands of fate that guided me into where I ultimately ended up serving as a judge, which I was very honored and humbled by being asked to do this. I worked in various areas within tribal government of the 23 years that I worked. I worked in the health area, in education and in the cultural center area, and all of these experiences, I believe, prepared me for that. So having said that, giving you that backdrop, once I got into the position as judge and ultimately serving as the principal judicial officer for the system, there were different projects that I felt would help us retain a lot of what we and who we are as tribal people in regards to what this thing was called, 'customary law.' Well, what is it? For the common person on the street looking at the general provisions of the codes, it's there, but what is it/. It wasn't tangible; it was an abstract thought, customary law. So how do we make that more concrete? And so with that I began looking at different models. Well, what's out there in Indian Country? What information has been generated and collected for the respective tribes? And I saw different models and I thought, "˜We can do this. We can do this here at Choctaw.'

And so we initiated what we call the Indigenous Law Project and this project basically...the original objectives of this project was to gather as much information from our elders concerning customary law, issues such as probate, disciplining of children, the structure of our society and how important -- being a matrilineal society -- those duties and responsibilities of individual members of the family and how important those things played in the role of the family, but not only the family, the community and the tribe as well. Now we weren't as fortunate as a number of the tribes west of the Mississippi to have been able to maintain and continue practices of traditional ceremonies and clan systems and things of that sort. However, there were few aspects that we continued to carry on that we needed to document. Now it goes against what normal translation would be in the sense of oral history, passing it down orally from one generation to another. Unfortunately, society has given us other opportunities with technology, unfortunately and fortunately, because the unfortunate thing is that we're not practicing this oral history, we're not sitting down and talking as a family. We're too busy texting one another half of the time. And so it seemed to me that the best thing to do is put the technology...benefit from this technology and use it. And so we initiated a number of interviews for, I believe, about three summers of just collecting interviews. And what I got away from the information or the exchange was how willing the elders were wanting to sit down and talk. Of course it was warming them up, putting them in front of a camera and the mic and all of this and of course we'd ham them up a little bit. "˜Well, you're going to be on TV,' and all of that. "˜You're the next movie star.' And so once they warmed up and you began asking questions, all of the outside distractions faded away and they went right into it and to be able to go back and pull all those memories and all of what they have been taught, that sense of pride of, "˜I'm proud of who I am and this is who...this is what I was taught and I'm so glad I'm able to teach you.' Now I did get my hand slapped at one point because I was asking my auntie, my great aunt, a question and she said, "˜You should know this.' I got put in my place real quick. "˜You should know this,' and as I sat there and I thought, of course I sat up a little straighter after she did that, but after I thought about it, I said, "˜Yeah, I do.' I had to go back and think because we weren't having that sit-down and we weren't having those opportunities without all the other distractions going on, of just sitting down and talking. And that's what we don't do anymore.

And so I say all that to say this: we got a wealth of just raw information, just conversations, and then...so what do we do with this? We begin extracting values out of each of these interviews and we're able to construct this circular...and we put it in a...we intentionally put it in a circular model because it's never ending. Our core values are never ending. And we developed about 12 core values and I can't think of each of them right now, but I do have that information, but it all centered around the family. It all centered around the family and one of the other objectives that I had...I had another project within the cultural center was, "˜Well, okay what do you do with information? How do you get this information across to the audience, the target audience you're shooting for here?' And so I looked at this project two-fold. One for the practitioner, the attorney that's coming into the court who may be arguing a child custody case and not understanding the matrilineal society rules as it were. And so there's a document that he can cite as he argues in court. Of course obviously -- if all things are equal with both parties -- society dictates...the tribe dictates traditionally that children would go into the custody of the mother. Discipline would continue with both sides, but the mother's brother, the uncle of the children also stepped in and took a role as well, whether it be a division... dissolving of a marriage or just within disciplining children. And so having that documented in a court opinion is very significant because it lays out for you customary law and it's there in black and white.

But the other objective, again two-fold, is how you use this information and we're always looking at... again, and it just... everything interweaves with one another, self-determination, and it's getting this information to the younger generation. "˜Well, how do we do that? How do you use this tool and where do you use it?' The most ideal place to use it was within the school system and we're fortunate enough to have a tribal school system. And so the next phase of this project was to develop a curriculum to incorporate this information into the school system starting at the very earliest level of elementary school, because you're in elementary school pledging allegiance to the flag -- to the [United States of America] flag. You're learning about presidents, you're learning about government, you're learning as you move along civics and your duty and responsibilities as a citizen of the United States of America, but what about your duties as a tribal member, talking about the importance of voting, the responsibilities of a leader, as chief, your council? Do you know exactly how many members are on your council? Do you know exactly how many and why there are three council members in one community versus only one in another? These are the things that need to go hand in hand with the instruction of state government, of local government and how state, federal and tribal all interplay with one another, and we don't have that, unfortunately, across the boards, across Indian Country really, you really don't have that. So my intention was using Indigenous law, this project, to relay what customary law is, but also incorporating information about government, tribal government, the judiciary. Because if you look at tribal government, Choctaw tribal government, we are so different from the U.S. government because we're a two-branch government. And, well, why is that? And then it goes into the IRA [Indian Reorganization Act] constitution, it just...it just dominoes in information. And that's what's key. And so that was one of the projects that I initiated there as well.

Another project I initiated, again, and it interweaves with self-determination is the internship program, which was very important for us because we were looking at...with every tribe you want to have as many tribal members in professional positions as possible. We're a membership of almost 10,000 and there's only so many Choctaws and not everybody wants to be a doctor, not everybody wants to be an attorney, not everybody wants to be an accountant, but you also needed to provide a place for career exploration to say, "˜Well, maybe I might not want to be a judge, but I might want to be a probation officer or I may want to be a paralegal or I may want to be an attorney or I may want to be a judge or I may want to be a court administrator,' but giving them that opportunity. So I set up this project during the summer and it was a three-tier project. It started with your...the high school students, your juniors and seniors. We partnered with Boys and Girls Club. They have a leadership component to it called 'Keystone Club' and we opened it up to those individuals if they were interested and then of course to just the general population of that age group if they were interested to come in.

And we also had the second tier, which were college students who may be interested, and of course opening it also up to law students just to have an opportunity to see Indian law in action at the local level. It was a 13-week project. I partnered with a program called Youth Opportunity Projects with the tribe, which helped us with funding because money's always an issue and kids need money for the summer. So that was an incentive. We also partnered with a number of universities, Millsaps College, Southern [University], Mississippi State [University], Bellhaven [University] for those students, Memphis State University. For those students who were coming in at the college level, I didn't want them to waste this experience, and if there was an opportunity to utilize the internship program for them as well to gain benefit, I welcomed that. But also it provided us this window of opportunity to educate even the colleges as well, and so it's been a really great thing to see this thing progress. We've hit some dips here and there. Again, not everybody is wanting to go into the legal field, but we've had a number...we had a really large number.

Two years ago, we had maybe about four individuals going through. And then the year that the Edgar Ray Killen case was ongoing -- that was that summer of the 40th anniversary I believe, if I'm not mistaken, of the slaying of the three civil rights workers. That was just so important and a part of their internship program was to go and sit in that hearing and listen to testimony and to see...to look across the well of this courtroom and to see a diverse jury sitting there of African-Americans, of just the members of the community, which you would never have seen 40 years ago, obviously not. And to listen to testimony and to hear what had happened during that time, for them it's just...it's history, but it's something that people of my generation...I was born in 1964 and the things that I experienced growing up in the South during that time, not knowing how much of an impact it was going to have on me later once I understood, "˜I'm being denied service.' And so I want the young people to understand how difficult it was for the tribe to move forward, to get to where they are. They had so many different obstacles. And again, all these projects -- the Indigenous Law Project, the internship program, teen court -- all of these different projects have recurring themes of, 'Remember where you've been, how important your role as a tribal member is to our society.'"

Ian Record:

"You mentioned teen court, which is what I was going to ask you about next, as well as some of the other initiatives that grew out of the 1997 reform and particular initiatives that incorporated consciously the Choctaw values that you've discussed. So tell us a little bit about teen court and specifically, why was it developed, how does the process work, perhaps how does it engage those young people and work to teach them the value of their role in moving the nation forward?"

Rae Nell Vaughn:

"It's very interesting how teen court developed because we were in pretty much temporary housing and we were very limited in regards to detention space and we were seeing more and more of our young people getting into trouble at various degrees of severity and some of them very minimal, but still required some type of sentencing of sorts. And we weren't making an impact simply because our young people have been desensitized. "˜So I'm going to go to jail, so what? I'll go do my time, I come out.' And then secondly, because we weren't able to house them on site, on the reservation, we were having to use outside facilities that made it even almost more enticing. "˜Hey, I got to go to Scott County and be with the really tough people,' and that type of mentality. And so we were struggling, we were struggling. And within the youth code, it said that using detention was the very last alternative, but that's all we were using and we needed to find some mechanisms of using other alternatives to help deter juvenile delinquency.

And we were looking at other models. I'm real big about "˜look at a model.' There's no sense in reinventing the wheel. If something is working somewhere else, let's pull it in and let's pull pieces out to see if we can 'Choctaw-ize' it as it were and make it our own. So we investigated a number of models of teen court, a diversion program, which gives the youth court the opportunity to of course allow the juvenile delinquent a sentencing, but it's more so by his peers. The way the process starts out is the juvenile delinquent is brought before the court, goes through adjudication. If the court finds the delinquent...the juvenile delinquent of the offense, then if the judge feels that this is an issue that can be handled in teen court, then the case is then transferred into teen court. Teen court is more of a sentencing court of the teen's peers. Also we have members of our teen community who come in and serve in different capacities, as prosecutor, as defense counsel, bailiff, members of the jury panel, but the only adult that's in there is the judge himself or herself -- I've served as a teen court judge -- and the diversion coordinator. Those are the only adults that are involved, as well as the party's parents who are coming in. And so they go through this process, the go through the hearing, the case is presented to the judge again, but the jury ultimately decides.

And it was very amazing to watch the process when we set up a mock hearing or it was even the actual hearing, the actual first hearing. We'd gone and done some training with them and gave them the tools of what they needed and then we had an actual case. Well, they came back with a very severe sentencing. I can't recall exactly what the offense was, maybe breaking and entering or something of that sort, but they were given multiple hours of community service, they were going to write this letter of apology, they wanted them to stand at the corner of an intersection and say, "˜This is my offense,' and everything. And so we had to kind of reel them back in and say, "˜Let's really think about this.' And so when we initiated it in early 2000, it was very slow going because it's like, "˜Oh, what is this? Do I want to be a part of this? Is this geeky or what?' But as it moved along, people got more involved in it and we had more young women who were involved in it and we were really pushing hard to recruit young men, and eventually it's grown now. I went to their banquet last month and they have a total of 80 active members of teen court.

One of the other components within the sentencing of the juvenile delinquent is that he or she is to also serve three terms within a setting so if during a semester that there's three cases, that individual has to come after he's completed what he has to do for his sentencing, he's got to get in there and serve as a juror too, which was initially done by design to get him on the right track, him or her, on the right track basically and get them involved in that process because I want young people to see the other side of the bench. I don't want them to be only...their only point of reference is standing in front of the bench. I want them to know what happens behind the bench and so again, giving them that opportunity. Do some of them take it, they do and then they just kind of...either they embrace it or they don't, just like with anything else. But it was always good to see when you had success stories in that regard, because we know nationally that normally children who enter into the youth court arena eventually move into the adult criminal court setting, and you try really hard to get them out of that track of sorts. And so that was an alternative that we looked at, "˜Well, what else can we do?' Because obviously traditional form of court was not working, the adversarial form of court was not working. They were getting desensitized. It wasn't having an impact. So what do we do? And that's one of the things under my leadership I continuously looked at, "˜What are other alternatives that we can look at to help curb a lot of the offenses that are going on within Indian Country to create healthy communities locally at Choctaw and across Indian Country and so several different programs began cropping up. One of them was Healing To Wellness which..."

Ian Record:

"I was just going to ask you about that."

Rae Nell Vaughn:

"Yeah, which was just phenomenal for me because we have such a high rate of offenses that were committed under the influence of alcohol. So what do we do? All we were doing basically was having this revolving door of people just coming through, domestic violence cases, public drunk, DUIs, so many different things happening and we recognized it was revolving around alcohol abuse. And so what do we do? So we looked at this model, we applied for an implementation...planning grant and we went to a series of trainings and found that this model meshed with the core values of this tribe and we eventually were able to receive a grant to start us off for three years. That grant has no longer, now has ended and we're no longer under that funding source. However, we presented to the tribe once our three years was up, "˜This program has ended and we really want to continue it.' And that's one of the issues that tribes face all the time is sustainability. And so how do we sustain this?

Well, we were able to present to the tribe how successful it was and that we were able to hit all the benchmarks that we had proposed in the grant. And a lot of...because it's a multi-disciplinary approach where an individual may be a first offender of DUI or alcohol-related crime and the judge feels that this may be a case that's prime for Healing to Wellness and then we'll transfer that case over into that program. It's a year-long process, which means the individual has the opportunity to opt in or opt out with it if the judge wants to transfer this over because they may say, "˜Forget it, I know I'm not going to be able to do this, let me pay the fine, let me do my jail time and let me move on.' But then you have those people who are really ready for change or who may be at the crossroads of their life and say, "˜I do need help and I do want to change.'

And so the individual then enrolls into this program and they have a multi-disciplinary team that works with them on a weekly basis and they go through the rigors of the program itself. Yes, they're required to meet with their probation officer, they meet with a behavioral health person, the judge is also involved, the Healing to Wellness judge is also involved in this. So you've got about maybe six to seven people that come together once a week, they review cases and then they have all the individuals, it's a group effort where they all come in and they go over what was the expectation for the week, what they were supposed to do, did they accomplish those things and then if they didn't, there are penalties and you're not able to phase -- it's a four-phase project -- you're not able to phase out so it just takes longer for you to move through the program.

And at the end of it, I've gone to a number of graduations. It's always been very emotional for these people because they see where they were going and they now know and have the keys basically because for them if they were...if this was a really big issue for them, dealing with alcoholism that it was going to be a day-to-day process. And so having those relationships developed with people in behavioral health was going to be more key for them, but we also recognize that we would have to cut the tether and that they themselves were going to have to make good choices. And so it was really...it was a really good exercise for them and for us as professionals within this area and also as community members to see this happen, because you want success, you want them to be successful and you want them to have the success not only for themselves, but for their family as well, because you know that there's a lot of them that come from very dysfunctional homes and they're the primary person who's bringing the income in and how important it is too, if not for yourself for your family, as well."

Ian Record:

"So these sorts of initiatives, the Healing to Wellness court, the teen court -- those are directly geared towards restoring health within the community and then there's the challenge of handling all of your relationships with outsiders that particularly grow out of economic development and all the commerce that involves outside entities, whether they're vendors, whether they're employees who are non-tribal who live off the reservation, whatever it might be. So when you guys really moved forward full bore with your economic development you had to be ready. And so you've put in several rules, policies, institutions within the court system, within tribal government to ensure that your justice is prepared for that challenge to meet the growth, the challenge of managing that growth. And I wanted to have you talk about a few of those and first off are a couple of things internal to the court system itself and that is the qualifications of judges. Can you talk about the qualifications that are mandated in the Choctaw tribal code for judges, how they're selected, approved, removed, and what sort of requirements do they need to be able to sit on the bench?"

Rae Nell Vaughn:

"Well, the process itself, this...the judgeships are appointed positions. They are nominated by the leadership, by the chief, presented to the tribal council, the council then confirms them, but you have a list of qualifications that helps you filter through those individuals who may be interested or who you feel that might be qualified and able to sit on the bench. There's an age requirement, 35. So that tells you I'm over 35. You have to have a minimum of two years of college, a tribal member, which is key. One of the other requirements that -- because we had to have on the bench law-trained judges -- was that the chief has the ability to waive the membership. And so that's how we were able to have non-tribal members sit as well as non-Indians sit so that we could be able to provide, again to be able to handle the types of cases, the complex cases that would be coming in in regards to commercial law and civil jurisdictional issues on this bench. And so we were able to strengthen our civil division to be able to handle the types of cases that we anticipated coming before this court.

Another thing that the court did or the council did as well, which was earlier on in the mid to late "˜80s, was incorporate a canon of ethics. Initially that was set up primarily for the judges. And again, I think at that time it was more of setting the code up, "˜So let's get some models,' and so there never really was any deviation from the ABA's [American Bar Association's] canons of ethics. So they're pretty straightforward and mirror exactly what ABA states as well. Back in, I believe it was early 2000 or the late "˜90s, because the...no, it was the early-2000s era, because our system was growing, our staff was growing from a staff of prior to reorganization of maybe five to six people to now a staff of 32 people -- 12 members on the bench and support staff -- we felt that it was very important for them to also understand what it was to serve as a judicial officer and that they too needed canons of ethics to follow as well, although those should be inherent as just being people of the court and understanding why we're there, but we felt that they too were a part of this larger system of justice and needed to also have these canons as well. And we also shared with them, "˜It's not to hinder you. It's to also protect you because you will have other forces coming at you,' and so, "˜No, I can't. That violates my canons of ethics.' There you go, it's a shield. And so we incorporated and put that through the process of review with the Judicial Affairs Committee, which is the legislative oversight of the system and eventually brought it before the full council for approval and it was approved. There continues to be challenges because of where we sit within the organization of government, serving as a statutory court. Well, then you also are bound by your administrative personnel policies and that lack of understanding. Well, there are these things called canons of ethics and it's like this, what do we do with it kind of thing. We haven't really had any violations of canons of ethics on the judicial side of it, so we have not ever initiated any kind of mechanisms of removal, but the code is clear. If there are clear violations of the canons of ethics, that is grounds for removal and there is a process within the code, but beyond the language within the code, there isn't actually step-by-step processes, which was, as you know, there's a long laundry list of things to do and you just can't get to all of them. And so that was one of the other things that needed to be looked at. Well, you have this body of law, but there are no processes to...once the mechanism is triggered, what do you do? And so that was one of the other areas that needed to be worked on and hopefully they will at some point get back to that."

Ian Record:

"So there's this issue of the court ensuring its own integrity, essentially building those shields against either corruptive behavior, self-interested behavior -- whatever it might be -- and then there's this issue of, "˜Well, how do we help to neutralize any political impulses that may come from outside forces to actually interfere in the court's jurisprudence?' And so, specifically, there's a couple things that have been put in place to help mitigate against those impulses specific to the council and any behavior they may exhibit. So there's a couple things that you guys have put in place. Can you talk about those things? How has Choctaw worked to try to control any sort of political interference from the outside?"

Rae Nell Vaughn:

"Well, even you as a judicial officer get inundated with a lot of ex parte[communications]. As I shared with you earlier in our conversation, as a judge you don't have the ability to just blend into the general populace; you can't. You've got people you see at the grocery store, at the post office, down the street at the gas station while you're pumping gas for your car and then someone will come up and say, "˜Hey, this is what's going on. Can you help me?' Or you have families that are in crisis and the only thing as a judge you can say is, "˜I can't help you, you need to get an attorney, you need to get advice from an attorney.' And that's one level, but then there's the other level of when you have tribal council crossing the line and wanting to apply pressure at making changes of decisions or in regards to possibly constituents in incarceration and things of that sort.

And I want to believe that council members are coming with good intentions. It may be the man who is the only person that works in this family of five and he's gotten picked up and he's got to serve 30 days in jail, which means the possibility of his...of losing his job is great, which means there will be no income coming in and so you have the councilman that is saying, "˜Can you reconsider, can you make this change?' And so I want to...all of these issues put it in the light of they're really looking at the best interest of the constituent. That may not be so, I also recognize that as well, and the code is clear in regards to tribal council members. They're not allowed to come into court and practice as an advocate. They cannot come and represent a tribal member within court. Just the mere presence -- and that was hard for them to understand -- because just the fact that you're sitting in the well of that court can be perceived as applying pressure on a judge because the judge is not naí¯ve; he knows why you're there. You don't come to court every day to sit and watch tribal court in action simply because you don't have anything to do. And so just the appearance of it really would...the messages are sent. And so having that in place, as well as not allowing council members to sign bond or post bond and bail for individuals in incarceration was also another body of law that they put into place. That was really hard for them to understand, that you can't...you're just not allowed to..."˜I can't accept your money,' you're just not allowed to do that. And what it also provided was this means of insulating the two bodies, the judicial body and the legislative body, from that appearance of impropriety. It's a hard call because you're shifting, your code and your law is shifting in such a way that you have all these very specific things and it's like, "˜Why can't I do this? I'm trying to help the people.' And the unfortunate thing is that you may be doing a disservice for them by not allowing them to pay the price, the consequences of their actions because it's obviously detrimental, possibly if this is a habitual person who are not making change. They need to go through the process; maybe we get them into Healing to Wellness.

There are just...you've got to allow the process to take place, you can't interfere with process because that's the entire premise of this sovereignty, is allowing process to take place to allow us to interpret law and to perform and to render decisions. And if you're not happy, another thing that we also put into place was strengthening the supreme court, because initially it was set up as a court of appeals with the lower court judges serving as the reviewers of the case minus the division that the case came out of and it didn't quite work well. And so because of all this growth and the economic development, the population and everything, the idea was, "˜There needs to be a higher tier of court totally separate from the lower court.' Has it worked? It has worked. Has it had problems? Yes, it has had problems because we're still trying to figure out the role of the chief justice because even internally that role of the chief justice, which I struggled with every day, was the fact that I served as the principal judicial officer. I had two roles: I was the judicial officer, the chief justice for the supreme court, but I also was the court administrator over all of this system. And so you had issues of conflict at times whereas, okay, there's a complaint coming in from a judge on a particular case; procedurally, as their supervisor, administratively, I would receive these complaints. And so we had to look at another means of getting this information around so that someone else can be a reviewer, but then as a supervisor how can I get in there and evaluate performance if...you might have a judge that just sits there and sleeps through the entire session and then just drops the hammer and says, "˜Guilty!' And so how do you do that? And it was a constant struggle. We looked at a number of models, and the unfortunate thing is we weren't ever able to execute a way that I could administer fairly without that appearance of becoming involved in cases that had the potential of moving into the supreme court and that continues to be a struggle because you certainly -- and again, I'm real bad about talking out of both sides of the mouth -- you certainly don't want to have a rule for everything. You've got to be able to use some judicial discretion in judgment."

Ian Record:

"So there's this challenge internally of building a strong and independent court system, demonstrating it in practice, and then there's the further challenge of having to serve as an advocate for that system and go out and actually educate not only your own community but outsiders to say, "˜Hey, you need to take us seriously. We're a strong and independent court system. We can provide fair and effective justice to not only our own members, but outsiders as well.' You and your colleagues within the court system have made a concerted effort over the years to advocate for the court system, to build those relationships with outside entities, intergovernmental relationships that have really served the tribe and the court system very well. Can you talk about some of those?"

Rae Nell Vaughn:

"Yes, that's always a challenge when you're having to lobby for the court. It's a juggling act because again, it's that relationship and you're presenting to your council who approves your budget of the activities of the court, the increases of the docket and, "˜Well, why do you need this much money? All you're doing is sitting there and providing justice.' Well, it's so much more than that with operations and looking at other alternatives and means to provide wellness to the community. Going to the area of education, that is what is key because people don't understand the system and it's a very...it's not a difficult system, but it is a tedious system because you have to go just...my question always is, "˜What happens when the paper hits the window of the court? Where does it go because that is not only paper, that's a party, that is a person, that is an issue that is happening out in the community. What happens to it? Where does it go?' And it goes through so many different steps and council members, the legislative body, just really doesn't understand why it takes..."˜Why does it take so long? Why does it take so long to get the case before the judge?' And so it's educating them. We initiated a symposium back in 2001 and we had tried to do this on an annual basis for our practitioners, but also for the general public to understand Choctaw justice, the judicial system and the legal community itself and to help them navigate through it and to also bring to them very specific issues such as issues of gaming, the latest cases that are coming before the Supreme Court, where they are and the impacts they may have on us individually as tribes. We also looked at a topic of economic development and the importance of having our practitioners prepared for maybe minimal cases in the sense of you may have a salesman coming through the tribe selling his wares and for whatever reason it doesn't work out and it ends up landing in court, all this commercial information. And then also, whenever we had new laws that were put into place, this was the forum to get that information out and also for them to have their bar meeting. No, it's not a very large bar, but we also wanted to keep in touch with them to let them know what was happening because as an attorney you're going through the daily rigors of it and it's pretty...it's the same stuff over and over basically of what they're dealing with and so it's just preparing them for whatever may pop up and then when you least expect it, it happens, a membership issue, possibly a challenge -- things of that sort. And we also provide for the council an opportunity to have a summit to sit down and talk with them during the session of things that they may want to...and this is more in closed doors so that...I've always believed if we've got issues that we have to deal with that, let's deal with it here at home because we certainly don't need it out in the public. One, there in the community because then it questions the trust of the system, but two, out in greater society because then it really may reflect a negative connotation of this thing called 'justice' on the reservation. And so if there are issues or problems, let's hammer it out here, let me know what may be an issue or problem and also we can also reciprocate with that and share with you what some of the challenges that we may be facing. For example, as we talked earlier, this issue of ex parte [communications] or trying to get to the judge to make changes and how important our integrity as a court system needs to remain intact. And so we were fortunate to be able to have those communications, but even more so that we were able to reach out beyond our own jurisdiction to the jurisdiction of the state and that was one of the very key things that happened during my tenure with this court was the ability to open that door with the Supreme Court for the State of Mississippi.

I had this visit where Chief Justice Jim Smith and his associate Jim Waller, Jr. came down and they wanted to have a conversation. And we sat down and we talked and I shared with them what our system was all about and we...and that's what initially began the conversation and then he invited me to come in and talk with a group of municipal judges at their annual association and then we invited him to our symposium to serve as our guest speaker. We also invited the state attorney general to come in and serve as a speaker and so we've been able to have that give and take and I've always believed...it's like, "˜Well, why didn't it happen earlier? Why didn't it happen way before my time?' But I truly believe it's time and place that really plays a key role and we were both open to having this dialogue. What else has spun from that, on the federal side we're able to have...because of relationship building more so with the leadership and at the federal level we have the ability -- which we may have already talked about earlier -- having a U.S. District attorney come to the tribe and office with us one day a week to handle cases that may be going through the federal system, which is unheard of. You don't have that across Indian Country if...I'm sure it's very few, if any, that have that ability to have a U.S. District attorney come in on the reservation and sit. We also have a U.S. probation officer that comes in as well. And again, that was developing relationships, [intergovernmental] relationships."

Ian Record:

"And don't those have really powerful benefits in terms of understanding because you have these outside entities that for many tribes have long interfered with tribal justice systems and now they're -- instead of being adversary or a constant source of irritation or interference -- they're now potentially an ally, or at least saying, "˜We recognize your authority, we recognize your competence,' etc.?"

Rae Nell Vaughn:

"Exactly and I believe that is, that's the clear message that it sends and that we are all partners now in this. And also we've experienced the same type of relationship building with the county system as well. We had two tribal members who had an issue in county court and the judge picks up the phone, and it was an issue he felt that could be handled in our peacemaking court and he says, "˜You know, I think that you could better deal with this than I can,' and he transferred a case out of county court to tribal court. And I don't...it never...for some people they just never really wrapped their mind around that, and I'm like, "˜Can you believe that even happened?' That was just something that was just really, to me it was historic, it was something you just don't...you wouldn't even think it could happen and it happened. But again, it goes back to that...the thinking that this is a stable system, this is a court system of integrity. You will receive fairness in this system. Some people may not agree with the system all the time, but they know they got a fair shot in there. And so if anything that's the clear message."

Ian Record:

"I want to wrap up with a quote from former Chief Phillip Martin and he made this statement a few years back. He was delivering, I believe, delivering a talk at Harvard and he was asked by a student, "˜Are you at all concerned that all the economic growth you've experienced has had a negative impact on your culture?' And he said -- he thought for a second -- then he said, "˜I don't know. It used to be everyone was leaving and now they're coming home.' And really what he was talking about was through this economic growth we've had an opportunity to create stability and to bring opportunities to our people. Can you comment on his statement and perhaps address specifically the role of the justice system in creating that environment of stability and opportunity?"

Rae Nell Vaughn:

"With the dramatic growth, you have your members coming back in, but how does this relate to the system, to the justice system? Twenty years ago, you would never have...I would never have had the opportunity to come as a tribal member and sit in a position of authority to assist our people in regards to justice. It may not have ever happened. I completed my college education. I could have easily left, but I chose not to; I chose to stay and become a servant of the tribe and to provide that service to them. And had the landscape not been such where I could have had that opportunity, it wouldn't have happened. Where would we have been had things not taken place, we probably would not have moved mountains as we have now. And so it just sounds so much like Chief Phillip Martin. "˜Yeah, they're coming back, they're not leaving anymore.' And if anything it strengthens who we are as a people. And we have so many talented people and now there's an opportunity to show that talent, for them to step up and take on these roles of leadership in different capacities. Not just the ultimate leadership but leadership within your community, leadership within the work that you're doing, leadership even within the State of Mississippi coming in as an entrepreneur, bringing employment and economic diversity to not only the tribe and the state. So yeah, they're not leaving, they're coming back and there's something to come back to and that's home."

Ian Record:

"Well, great Rae Nell. I really thank you for your time. It's been quite an education. That's it for today's program of Leading Native Nations. To learn more about Leading Native Nations, please visit nni.arizona.edu. Until next time, I'm Ian Record. Thank you for joining us. Copyright 2009 Arizona Board of Regents."