intergovernmental agreements

ANCSA at 50: America’s Forgotten Indigenous Rights Movement

Year

Fifty years ago, the Alaska Native Claims Settlement Act passed into law. In one historic piece of legislation, Indigenous Alaskans’ claims to the land were extinguished and a new Indigenous legal landscape was formed. In exchange, Alaska Native communities received title to 44 million acres of land and roughly $1 billion dollars. These assets were to be overseen by 12 regional corporations and more than 200 village corporations. Only Alaska Natives could become the shareholders of these corporations, which were instructed to simultaneously make a profit, oversee traditional lands, and provide social services to their shareholders.

There are no other corporations like the Alaska Native corporations, and there is no other place in Indian Country with this legal setup. Today, the complex act impacts almost every aspect of Alaska Native life, and yet there has been little reporting on its long-term impacts. Indian Country Today’s ANCSA at 50 series aims to change that.

This is the first article in this series by Indian Country Today , "ANCSA at 50".

Resource Type
Citation

Sullivan, Megan. “America’s Forgotten Indigenous Rights Movement.” Indian Country Today, 4 Jan. 2022. Retrieved from: https://indiancountrytoday.com/news/americas-forgotten-indigenous-right…

 

 

Policy Brief: Emerging Stronger than Before: Guidelines for the Federal Role in American Indian and Alaska Native Tribes’ Recovery from the COVID‐19 Pandemic

Year

The COVID‐19 pandemic has wrought havoc in Indian Country. While the American people as a whole have borne extreme pain and suffering, and the transition back to “normal” will be drawn out and difficult, the First Peoples of America arguably have suffered the most severe and most negative consequences of all. The highest rates of positive COVID‐19 cases have been found among American Indian tribes, but that is only part of the story. Even before the pandemic, the average household income for Native Americans living on Indian reservations was barely half the U.S. average. Then the pandemic effectively shut down the economies of many tribal nations.3 In the process, tribal governments’ primary sources of the funding – which are needed to fight the pandemic and to meet citizens’ needs – have been decimated. As with the rest of the U.S., emergency and interim support from the CARES Act and other federal measures have helped to dampen the social and economic harm of the COVID‐19 crisis in Indian Country. Yet this assistance has come to the country’s 574 federally recognized Indian tribes with litigation‐driven delay and counterproductive strings attached, and against a prepandemic background characterized by federal government underfunding and neglect – especially as compared to the funding provided and attention paid to state and local
governments.

The precedent in the CARES Act, acknowledgment that the federally recognized tribes carry responsibilities which mirror those of state and local governments is a breakthrough; tribes must continue to receive significant additional support along with their state and local counterparts as further pandemic relief funding is crafted by Congress. In the process, it is imperative to consider whether and how the current crisis in Native America can be turned into an opportunity for tribes to emerge from this crisis with greater cultural strength and community wellbeing, and with more robust and resilient economies and governments. Although laid through adversity, the grounds for such opportunity have been clarified by the COVID‐19 crisis. If such a hope is to be realized, both tribal governments and the federal government will have critical roles to play. As we discuss in our forthcoming series of companion policy briefs, turning crisis into opportunity will require tribes’ concerted and clear‐headed commitment to “nation building” – i.e., building and rebuilding the legal, political, and social institutions that undergird the realization of community core values and the successful pursuit of community‐determined goals. Such institutions are not alien to American Indian tribes. They governed themselves for millennia prior to colonialization. The difference today, however, is that U.S. federal governmental policies are a key determining factor in Native nations’ progress toward rebuilding their capacities to govern and govern well.

In this policy brief, we offer guidelines for federal policy reform that can fulfill the United States’ trust responsibility to tribes, adhere to the deepest principles of self‐governance upon which the country is founded, respect and build the governing capacities of tribes, and in the process, enable tribal nations to emerge from this pandemic stronger than they were before. We believe that the most‐needed federal actions are an expansion of tribal control over tribal affairs and territories and increased funding for key investments in tribal communities.

Resource Type
Citation

Henson, Eric C., Megan M. Hill, Miriam R. Jorgensen, Joseph P. Kalt. July 24, 2020. Policy Brief: Emerging Stronger than Before: Guidelines for the Federal Role in American Indian and Alaska Native Tribes’ Recovery from the COVID‐19 Pandemic. Cambridge and Tucson: Harvard Project for American Indian Economic Development and Native Nations Institute.

Policy Brief: Proposal for a Fair and Feasible Formula for the Allocation of CARES Act COVID‐19 Relief Funds to American Indian and Alaska Native Tribal Governments

Year

Title V of the CARES Act requires that the Act’s funds earmarked for tribal governments be released immediately and that they be used for actions taken to respond to the COVID‐19 pandemic. These may include costs incurred by tribal governments to respond directly to the crisis, such as medical or public health expenditures by tribal health departments. Eligible costs may also include burdens associated with what the U.S. Treasury Department calls “second‐order effects,”2 such as having to provide economic support to those suffering from employment or business interruptions due to pandemic‐driven business closures. Determining eligible costs is problematic. Title V of the CARES Act instructs that the costs to be covered are those incurred between March 1, 2020 and December 30, 2020. Not only does this create the need for some means of approximating expenditures that are not yet incurred or known, but the Act’s emphasis on the rapid release of funds to tribes also makes it imperative that a fair and feasible formula be devised to allocate the funds across 574 tribes without imposing undue delay and costs on either the federal government or the tribes.

Citation

Akee, Randall K.Q., Eric C. Henson, Miriam R. Jorgensen, Joseph P. Kalt. May 18, 2020. Policy Brief: Proposal for a Fair and Feasible Formula for the Allocation of CARES Act COVID‐19 Relief Funds to American Indian and Alaska Native Tribal Governments. Cambridge and Tucson: Harvard Project for American Indian Economic Development and Native Nations Institute.

California Fee-to-Trust Consortium

Year

The loss of traditional land is a source of longstanding trauma for Native nations. It has far reaching consequences that began at the time of dispossession and persist today. Many tribes struggle to regain territory in order to support the basic needs of their citizens – housing, economic development, and essential services such as schools and health care. Frustrated by the federal government’s handling of applications to put land into trust, a group of California tribes began working with the Bureau of Indian Affairs in 1998 to streamline the process by which tribes can secure landholdings that are protected by trust status. The California Fee-to-Trust Consortium has made it possible for the federal government to manage tribal trust applications in a timely and consistent way.

Native Nations
Resource Type
Citation

"California Fee-to-Trust Consortium." Honoring Nations: 2010 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2011. Report.

Navajo Nation's Na'Nizhoozhi Center, Inc.

Year

Responding to the distressing rates of accidents, deaths, and other alcohol-related problems in Gallup, NM, the Navajo Nation partnered with Zuni Pueblo, the City of Gallup, McKinley County, and the State of New Mexico to establish the Na’Nizhoozhi Center in 1992. The Center has been an effective force in promoting wellness and safety by providing protective custody, shelter, referral services, and culturally based in-patient and out-patient substance abuse treatment services to meet the needs of its Indian clients.

Native Nations
Resource Type
Citation

"Na'Nizhoozhi Center, Inc.". Honoring Nations: 2003 Honoree. The Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2004. Report. 

Permissions

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

The Chippewa Flowage Joint Agency Management Plan

Year

The Joint Agency Management Plan brings together three governments — the Lac Courte Oreilles Band, the State of Wisconsin, and the US Department of Agriculture Forest Service — to co-manage the Chippewa Flowage, a 15,300-acre reservoir created in 1923 that inundated a tribal village. Taking into account the cultural, aesthetic, and economic value of the Flowage, the plan provides a framework for the three parties to coordinate management activities and decisions through a consensus-based approach.

Resource Type
Citation

"Honoring Our Ancestors: The Chippewa Flowage Joint Agency Management Plan." Honoring Nations: 2003 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2004. Report.

Permissions

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

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."

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

Frank Ettawageshik: Exercising Sovereignty: The Little Traverse Bay Bands of Odawa Indians

Producer
Indigenous Peoples' Law and Policy Program
Year

Frank Ettawageshik, former chairman of the Little Traverse Bay Bands of Odawa Indians (LTBBO), discusses how LTBBO has systematically built its legal infrastructure in order to fully and capably exercise the nation's sovereignty and achieve its nation-building goals. He discusses some of the specific laws and codes LTBBO developed and why, and he also stresses the importance of Native nations building relationships with other governments on their own terms and in furtherance of their strategic priorities.

Resource Type
Citation

Ettawageshik, Frank. "Exercising Sovereignty: The Little Traverse Bay Bands of Odawa Indians." Indigenous Peoples' Law and Policy Program, University of Arizona. Tucson, Arizona. April 15, 2010. Presentation.

Frank Ettawageshik:

"It's really nice to be down here enjoying your nice weather and to be down here and to be working with the Native Nations Institute. I've had a lot of years, a lot of times over the years that we've been in touch with each other at different conferences and other places, but never really had a chance to be here and to work on, sort of as Ian said, reflecting and thinking about Native nation building, as we were way too busy doing it and we were working so hard on a lot of different things that it sort of boggles the mind in a way when you think about the full scope of what that means when you say 'nation building.' The first thing that a lot of tribes think about when they think of nation building is they think of economic development and they think of how does that reflect because they think you need...of course you need money for the projects and things that you do and there are some people who focus on the economic development part to a great extent. And to me, economic development is not nation building. Nation building includes a component that's economic development and you need to think of it in that way. And that's really the way that we thought about it.

As the tribal chairman, I was the one whose picture was in the paper and who got quoted all the time and things of this sort, but there was a large group of dedicated people who were of a common mind or at least common direction -- maybe not always agreeing with each other -- who worked towards trying to develop an effective tribal government and to find ways to strengthen our community. And while we were doing that, one of the important things that we think about in that process is that we had to have...we had to keep ourselves rooted in our culture. We needed to have our ceremonies. When we had a community meeting, we always made sure that we had the community eagle staff there in the carrier and we had a drum, we carried a ceremony, a pipe ceremony at the beginning of the meetings and we did things like this that would help use the best of our heritage to help strengthen what we were doing in a way that it helped bring people together of one mind and it helped add a solemn nature, a serious nature and to help use the gifts that we'd been given in our culture, traditional culture, that would help keep us focused. And we did that, that was a big part of what we would do, and of course as years went by in the development of our constitution, we made sure that we supported freedom of religion, which was that we clearly have within our tribal community we have several different methods of expressing our traditional culture with different lodges, a Bedouin lodge, a Wabeno lodge, the independent people of different sorts that are involved in the tradition, but we also have Catholics and Protestant sects of various sorts and the Native American Church, we have some Muslims, we have some atheists and as you look through this, when the government's there, the government represents all of the people. And so we have to find ways that we can honor and respect everyone at the same time, as making sure that we keep the central identity of our nation through our culture and history, keep that as part of what we were looking at.

So what I wanted to talk to you a little about today was how we went about doing that, some of the things that we think are important and ways that...things that helped me as a leader to think through these things and to keep an idea of what's important. And I'll tell you what often happened in my office. Someone would come in and they'd be running and they'd be saying, ‘Oh, my god, BLANK is happening. What are we going to do about it and how can we take care of this?' And it's just the biggest crisis in the world. Well, the way I would deal with that is I'd say, ‘Take a deep breath,' and I'd say, ‘Well, is anybody going to even care about this next week?' ‘Well, maybe next week.' 'All right, now how about if they're going to care about it in six months?' And we'd try to put it in perspective. If it's an earth-shaking thing that really is going to be big, yeah, but most of those day to day emergencies are distractions. They can get taken care of in a fairly comfortable way.

Being in the legal office, the legal office was often the center of much of this activity. As the tribal chairman at our tribe, my office was in the west wing of our tribal administration building and right next to me was the...the office just in the hallway next to me is the general counsel and the vice chair and executive assistant and other staff. But I regularly worked with the attorneys, the tribal attorneys, and I would regularly consult and talk with them, but I never forgot what one of the elders taught me and that is, ‘We don't work for the attorneys, the attorneys work for us.' And in the legal education that people get, they're going to learn a certain perspective and yet, being a member of the bar and being a member of...an officer of the court and these things, you're going to have, say of a state bar, you'll have a certain perspective on the law and there are certain things that you can ethically advise, but being a tribal leader there may be times when that line of thinking doesn't fit with the exercise of our tribal sovereignty. So I've had occasion where our tribal attorney...we were at a meeting, we were talking, the tribal attorney said, ‘Say this,' and I looked at it and thought about it for a minute and I stood up and I said exactly the opposite and then I sat down and I said, ‘Now make that work.' That's the thing that is important for tribes is to help keep that perspective, understand where the center of their reality is and for us.

There's a story that I tell about a tribe that's not in the too-distant past, had opened a casino and it was a small casino and they didn't have a vault. They had a safe that was in the back room and their one tribal police officer was there and this happened to be in a non-280 state, which is another important factor to think about. But the safe got broken into and the casino manager came in the back room and the tribal chairman was there and their one police officer who was the chief of police, he was there, and they were all looking around they were saying, ‘Ah, what are we going to do?' And the police officer said, ‘Gee, somebody better call the cops.' Where is your center of reality? Where do you think this? And in a tribe, that center is within the tribe's nationhood. That's where it needs to be. And it's in the exercise of the tribe's sovereignty. And often our own staff, sometimes their head isn't there, sometimes our own council members have a hard time with that. They'll say, ‘Gee, will they let us do that?' That's a question that I've heard often when talking about something that the Bureau wants to do or something that somebody else wants us...

And what I have focused on throughout my career and as I've come to understand -- bringing all together teachings from various elders and from other people that I've spoken with over the years and other tribal chairman that I learned from over nearly 20 years in office -- the way I've come to understand it is that you're either sovereign or you aren't. You're not three-quarters sovereign or a little bit sovereign. Somebody can't make you a little bit more sovereign or somebody can't make you a little less sovereign; you either are or you aren't. And as a nation, as a tribal nation, expressing that sovereignty and exercising that sovereignty is really what your task is and functionally every sovereign is negotiating the exercise of their sovereignty with the other sovereigns around them. The United States just signed an arms treaty with Russia. It's an exercise on the limits of their sovereignty with each other, just signed. It's got to go before legislative bodies for approval, but that's an exercise of sovereignty. About three years ago, the Sioux St. Marie Tribe of Chippewa Indians, the Bay Mills Indian Community, both on the United States side of the St. Mary's River at Sioux St. Marie, Michigan and Sioux St. Marie, Ontario, and the Batchewana First Nation and the Garden River First Nation that are on the Canadian side of that river, the four of them signed a treaty. Now, the United States does not recognize our authority to sign treaties and yet these tribes have signed a treaty called the St. Mary's River Treaty and they formed the Anishinabek Joint Commission to work on cleaning up the river that they live on that has gotten so polluted that at times they have an advisory against touching the water -- not just not drinking it and not just not swimming in it, but touching it. There were people who were getting sick just having a picnic in their yard next to the river and this was the Native people who used to swim, used to drink the water, felt that it was important to work with each other. They signed a treaty with each other to do this. It's an exercise of sovereignty; it's an exercise of how they're going to be working together on things. So I think that this whole concept of dealing with sovereignty is something that people have a hard time getting their heads around often.

So I ask this question: we get interns that would come to the tribe, we have a couple legal interns every year who would come to the tribe to work, and when they came I'd bring them in my office. They'd be introduced to the chairman and I'd say, ‘I've got a question for you and I want you to think about it and come back and answer me next week.' I'd say, ‘When the Supreme Court of the United States issues a ruling that limits tribal sovereignty, I want you to explain to me how that limits our sovereignty.' Of course the answer is, ‘It doesn't limit our sovereignty in any way at all.' We're either sovereign or we aren't sovereign and the Supreme Court cannot take our sovereignty away like that, but the Supreme Court can make it so that the federal government and all of the political subdivisions of it all the way down to the counties and the townships around us that they have a harder time recognizing our sovereignty and they can make it really difficult for us to exercise our sovereignty. And that is the trick, that's the key thing that we have to think about as tribes is how do we and what do we do that protects the exercise of our sovereignty and that in doing so, how does that actually build our nation?

So we thought about a lot of this and one of the things that we did is we worked on lawmaking as a big central focus. One of the first laws we passed was a legislative procedures statute. We passed that because we wanted to lay out the process under which we would develop laws and it required that we...this required a posting period so that we'd have to post them so we couldn't just move into a meeting, put something on the agenda and pass it and 20 minutes later the whole law of the land, of the nation had changed. We needed some transparency, we needed the population of our tribal nation to have access to the process and to have input and so we wanted to slow things down a little bit. So we passed a legislative procedures statute. We passed a resolutions and regulations procedures statute. We did a number of different things that would help lay out how we would function within the confines of a constitution. We had...in doing this, we also realized that it wasn't just enough for us to be exercising our sovereignty in these ways internally, but we also needed to have ways that we dealt externally with those people around us. We had to deal with counties and townships, had to deal with the local sheriffs, we had to deal with the State of Michigan, we dealt with the...our international policy dealt with all of the tribes around us as well as these other governments and we had to find ways to...in which to sort of regulate or set these things up, how we would work. From the early days, we had a constitution that had been recognized. And I guess I should digress a minute here and let you know that our tribe had not been on the list of federally recognized tribes. We spent about 120 years in a legal battle with the United States over trying to figure out our existence. We felt we existed, they weren't so sure about it, and we spent a lot of time dealing with this. And in 1994, after several legislative attempts and other type court cases and other things, Public Law 103-324 was signed by the President and that reaffirmed our tribe's federal relationship. It didn't grant recognition, which would have implied that we never had it, it didn't restore it, which would have implied that maybe we had it and they took it away, but it's a reaffirmation act. It reaffirmed that we'd always had it, which was our position and that's the way the Congress passed that law.

Two tribes, Little Traverse and the Little River Band of Ottawa Indians just about a couple... about three hours south of us down along the Lake Michigan shoreline, we were both on the same bill. And when that bill passed we had an interim constitution in place. It was not really the regular IRA boilerplate constitution, but it was a constitution that had all of the authority in a single body and that the tribal council, the tribal chairman was a member of the council. The tribal chairman voted on everything that came before the council, as well as chaired the meetings, and between meetings, the tribal chairman was the chief executive officer of the tribe and implemented all the actions of the council. As long as you had a good tribal chairman, there wasn't an issue with that, but if you were to not have that or have somebody who wanted to abuse the authority, that's a lot of authority in one place. And there were no real checks and balances. The chairman controlled the gavel during discussions and could either lengthen or shorten discussion on things, could help set the agenda and so it worked pretty well, but the possibility of problems was great.

And when the bill passed, we had the interim constitution and it called for the creation of a new constitution or for us to have a vote on a constitution. We started a committee. It took us nearly 10 years in the development of a constitution when we adopted [it] and I had printed in this little booklet form. The constitution for the tribe was adopted on February 1st, 2005. And this constitution is a separation of powers constitution: it divides the executive, legislative and judicial into separate branches and talks about how they're going to interact with each other. But right up front in the document is something that makes it, I think, is the thing that really makes it more us as our nation. And that is, it directs the government through opening directives, it says that we are to promote our Indian language and our Indian culture at every...every law we pass is supposed to do that. All the ways that we set up programs and everything, we're supposed to be looking at this, at governance through that lens and that says right in the constitution. The other thing it says is that we recognize that our right of self-governance is inherent in a sovereign people and we also recognize that there are other sovereigns and we pledge to recognize them as they recognize us. It's the essence of a state department or a secretary of state or something that is a way of acknowledging the other sovereigns around us in what we do. And the constitution goes on to spell out a lot of other things, how things work, but it's been a really solid document to help us through, help us in our growth. And my personal belief is that it's a good constitution and that it really moves the concept of nationhood ahead in a very positive way.

There's a website at [www.]ltbbodawa-nsn.gov. It's our tribal website and on there we have a thing called the Odawa Register and in that we have, each branch of government has a section and we have all of our tribal code on there. We have our constitution, we have our regulations, we have pending regulations and pending statutes. All of this stuff is posted for us and our tribal citizens and the rest of the world for that matter to look at and to give input on. And the local newspaper has discovered this site and is now readily making use of it in writing articles about the tribe, which some of the tribal citizens are a little upset about thinking, ‘This is our business, why are they writing about it?' but actually, I welcome it because I think that it...what happens to the tribe is so important to what happens to the community around us that reads this paper that it's important for them to be aware of the proceedings of our meetings; the laws that we're considering, what laws we pass and things of that sort. So that's a little about the constitution and sort of how we brought that into being and the fact that we did things within the constitution; we also lay out a territory.

And our territory, just like us, was not on the list of federally acknowledged territories. In other words, if you go...if you look up reservations, you'll find that we do have a reservation, but it's only about 500 of the acres that we own. We own around...between 700 and 800 acres of a 216,000-acre reservation. This is the tip of the lower peninsula of Michigan here, this little map and this is just on the Lake Michigan side. There's a red line right here that outlines our reservation and this is the blow-up of that. If you notice, this is just like a state map. We got a regular map printed to help show our territory and to talk about the things that were important. And we pass these out to the local police and other people, even though it's not on the list of federally recognized reservations, we have asserted that in our constitution and we assert that in our laws and we believe that eventually this will come to pass, that it will be on the list of federally recognized reservations. It came from the Treaty of 1855, this particular boundary. So we printed something that actually shows where our territory is.

Some of the laws that we've passed are important. We have a criminal code, we have an Indian child welfare code, we have a lot of the things that are the everyday sort of meat of what it takes to be the government in Indian Country, the things that we work on, but we also have a lot of other laws that we've done. One of them is we passed corporation codes for the creation of corporations under tribal law and we have our own department of commerce and within that we have the ability under our corporation codes to create tribally chartered corporations that are owned by the tribe, individual tribal members can create corporations under our law, and we can create non-profit corporations under our law and we've done all three so far. And we have a tribal corporation called Waganakising Odawa Development and I'm the president of that board. And that's a tribally owned corporation that was created under our law. We also have a couple of tribal member corporations, one of which is a dessert business, another one is an IT business. These are individual members who have gotten...have functioning businesses under the tribal law. We also have a non-profit corporation under our law that is the Northern Shores Loan Fund. It's a CDFI, community development financial institution, through a program with the Department of Treasury and it's a revolving loan fund to help people be involved in business. And these are things that we've created. It has a 501(c)3 tax exempt status from the IRS and is set up for working to help people with business plans and do things to help them get into businesses. That's one of the laws that we passed. Of course, when you're doing all of that, you need something else -- this is like a jigsaw puzzle. The next thing we needed was we needed the comprehensive commercial codes and what we needed the most was article IX, Secured Transactions. And with that, we've adopted that. We have plans in the future for others, but we needed to have that as we were getting more and more into business and we've adopted that, but then we also did some other things.

We did...it's my belief that we're the first tribe in the country to have a notary public law. Now you don't need notary publics very often, most people go through their lives and need one...maybe once or twice, tribal government maybe needs it a little more often, a few times a month, where you have something...but people think that it's not something that's really...that is every day for people. But if every time you notarize a tribal document you go and do it under the authority of the state that you're within, through a state-licensed notary, somehow that detracts from the assertion of nationhood and the exercise of sovereignty. And so when you have a right to govern yourself, you also have a responsibility to govern yourself and responsibilities are not always easily met. Sometimes they're difficult. And it took several years to develop this notary public law and it got passed. I had a six-month time period within which to implement the law. So we called up an insurance company and said, ‘We're going to need to get insurance,' the surety bonds for notaries. And they said, ‘No problem, we do that all the time.' And I said, ‘Well, it's the tribe calling.' And they said, ‘Oh, no problem. We can do that.' So we didn't worry about that. Then we started trying to get someone to print our stamps and the embossers for us for doing notary. Well, we went to several companies and once they found out it was the tribe doing it, they couldn't do it. And we went...I spent about two or three months looking for companies. And finally we found one who we talked into doing it and they said, ‘Now how many tribes are there?' We said, ‘There's over 500.' He said, ‘You know, maybe we could do this.' And this was one of the smaller companies that does this and I think they're thinking there's a lot of business out there. And so we got that agreed.

So then we went to get the insurance for the people who'd applied, the surety bonds, and even the large Indian companies couldn't do it because all the product that they had was for state-authorized surety bonds for state-authorized notaries. And we spent months trying to figure this out. And finally we...one of our tribal members is married to a woman who's an insurance agent who specializes in hard-to-insure things and she...took her about 17 hours to come up with somebody who thought they could do it. Ironically, it's a company called First American, it's in Boston and it's not Indian, but they have an Indian in headdress as their logo, but this company had...some of the executives had just been to a seminar somewhere and at that seminar they had talked about tribal sovereignty and they got real interested in that. And then a phone call came and gave them an opportunity to work on it. They were real excited about it. And so we worked out over about another two months, worked out all the forms and all the things that were necessary to create this product. And we now have tribal notaries. We have 10 notaries, I believe, at the tribe. And while we were doing this, we didn't just sneak this in under the radar, we had meetings at the governor's office and with the governor and her deputy legal advisor who is the liaison to Indian Country, we told them what we were doing and said, ‘This is what we're doing, it's what we're working on and we're going to have this in place in a few months.' So we didn't just sort of try to blindside anybody with it and we now have this law. How often is it used? I don't know how often it's used, but I can tell you that this kind of work is not the big, sexy exercising tribal sovereignty kind of things where you're going to the Supreme Court and winning a big case or you're off doing the fishing rights or hunting rights or some big thing with this. This is one of those little grunt-level things that happens that just...it's a part of the everyday exercise of sovereignty that's important in nationhood.

Some of the other things that we have, I have some copies of regulations. These regulations have the force of law under our law and these regulations were promulgated by our natural resource commission and they are hunting and fishing regulations in response to a consent decree that we have in a lawsuit U.S. vs. Michigan hunting and fishing rights case that has been an ongoing case for years. The Great Lakes portion had been settled and there's a limited time consent decree. The first one was 15 years, the next one is 20, in how we exercise our rights. In court, we won the fact that the right existed on the Great Lakes. Then there's a...court has continuing jurisdiction through consent decrees on how we're going to exercise those rights. On the inland portion, that hadn't gone to trial and it started to heat up just a little just a few years ago and we decided that...we were on our way to court, we were doing depositions and everything, but we decided for one last round of negotiations to see if we could settle it. Lo and behold, we actually settled it. In the discussions for this major case, it was one of the major rights cases across the country, we anted up in the discussions by agreeing to not put gill nets in inland lakes and streams and we agreed to not commercialize our inland harvest. We weren't going to shoot deer for sale on the market. The state anted up with a stipulation. They agreed to stipulate that our right existed forever and be a permanent consent decree. So we put that stuff on the table and then we started to talk and we talked for a long time. There was 30, 40 of us in a room at a time and the tribes and plus the...we have a very unique animal in this case that's called litigating amicae. They haven't joined the case, but they have this special status and it's the Michigan United Conservation Clubs and Upper Peninsula White Tails and the various sport groups around the state that had an interest in this, and they had this special status in this case. Well, they had representatives in the room as well and we, at any one time during the long negotiation we had, there were times when one or another party was the one that left the room all red faced and in a huff over something and eventually we just kept talking and we gradually worked it through to where in the end, there were certain things that we had given up. Both the state and the tribe had given things up, but we also each won way more than we would have won if this had gone to court. And the problem with court is you have absolutely no idea how it's going to come out. You make your best case, you do your best shot and you don't know for sure what the judge is going to say or what a jury's going to say, and plus you don't know how it's going to go on appeal because almost every one of these cases that goes to court ends up running up to the Supreme Court and frankly, tribes have not actually had a real good experience in the Supreme Court lately.

So those are some of the things that we worked on. We worked on these regulations, we did all this, we passed laws and we worked on the implementation and enforcement of those laws. Another law we passed was a law against patenting, patents. Let's just say this right, I got my tongue tied here. But against patenting genetic material. Now, why would we do that? Because we heard all these...the various stories that have occurred around with Indigenous people and their genes, personally their own genes as well as the genes from our traditional foods. The wild rice case up in Minnesota was one that just really raised our concern because there had been strains domesticated and were being grown in paddies and those genes were drifting off into the wild and when people were selling wild rice somebody was, they started to want a cut of that sale from the wild rice because it had those genes in it from the patented versions. We felt that this was a danger to our traditional foods and so what we did is we passed this law. Now our jurisdiction is fairly small. In many ways in the grand scheme of things it's more of a show of intent and an exercise of sovereignty than it actually has effect because very few people are going to be patenting genetic material, but it also prohibits our government from cooperating in any venture where there will be a patent issued from our territory and our jurisdiction. So those are...that's another way that we went about working on things with our laws.

One of the more interesting laws that we passed -- this came from one of our council members Fred Harrington who...this was very good and it's called the Application of Foreign Law. Now if you've looked at Indian law and you've looked at various issues and you look at how there's a chart that's published by the Department of Justice that has which law and which person and which jurisdiction and all of these things and it's a great big chart on whose, which law applies to whom and what part of Indian Country and who's got...I mean it's really complicated. And there are clearly times when within our own jurisdiction, for us, there are people who aren't under our jurisdiction and yet we have to deal with them. And we've actually been working on a cross-deputization agreement with the local county, but we wanted our officers to be working under our law not just working with the county law or county authority. And so we passed this law that said, 'Anybody who's physically within our jurisdiction who isn't subject to our law has to follow state and federal law, and therefore our officers can enforce that law following our own law. It's a subtle point, but I think it's really important and that is an example of the kind of things that our government has put forth. We're a...I think about the kind of issues as we work toward things and we're taught to consider the consequences of our actions through a time period long enough to encompass seven generations. Now that's something that...I first started talking with people from the office of the governor and they were talking about things and they talked about a long-term plan that was seven years. And I said, ‘Well, you know, we've got something to tell you. Our long-term plan is generational, multi-generational and we're to think about that and to have that long view.' Well, the other part of that is that each one of us is someone's seventh generation. What did they do that got us, for instance, us in this room? What did they do that got us here? What things...where did they move, what did they study, what kind of things...where's our propensity for understanding things, for higher education, what are the things that got us to this room and what are we doing that seven generations from now will be echoing down through the generations for people at that point? So we're sort of in the middle of this continuum.

We talk in Indian Country a lot about balance. And we have balance in the medicine wheel and the four directions and we try to make sure that we maintain ourselves in balance, balance and harmony. And we try to make sure that a substantial amount of what we do restores harmony, restores that balance. Well, we're also in balance between the past and the future and we need to keep a balance there. If we just look...I was out at Sabino Canyon here last...just last weekend and I got to looking at the mountains and it was just...oh, they were incredible and I tripped on a stone in the path. You've got to be looking ahead of you, but at the same time you've got to be looking up. If you just look ahead of you, you miss everything, all you see is a path. And so we have to be careful how we do these things in terms of how we balance our vision. If we just look to the past and all of our answers and our salvation's in our past, we miss what's happening right in front of us as the world's unfolding and if we just look at what's unfolding without any comprehension of where we've been, we also miss the richness of our own sense of place within that past and future, within the four directions, within our, the growth in our communities and all of those things. So it's very important to have this vision and what I look at is in a vision is that what...the vision for tribes is to be a healthy community with healthy individuals and have healthy institutions and to be at peace and to be at harmony and that's the goal, that's the center, that's where we try to go to and that all of these documents, all of these things I've talked about, the regulations, the constitution, the maps and all these things, these are all tools to help us achieve that, but by themselves they don't achieve it. We have to balance ourselves between these different things that have a tendency to pull us and distract us in different ways.

I've had sort of a general talk here about things and I had one other document I didn't hold up and that's a U.S. Constitution. As a tribal chairman, I virtually always carried one of these because too few people who are in Congress and in other places in government, they've never read it looking at it through, ‘What does this mean to an Indian? What does it mean to the Indian nations?' The Commerce Clause, Article VIII, things that are really fairly, that are fundamental to the U.S. federal Indian law and how it relates to tribes and that relationship. Very few people actually understand that, even ones who you would think would need to. So I carried one of these, I carried our tribal constitution, I carried maps with me, all of these are things that help outwardly show people what it is. When I handed somebody one of these, what did it say to them? It says we're a constitutional government, and that means a lot in terms of people understanding things. So I'll be glad to take questions and discussion here and I'll do my best at what I can answer."

Audience member:

"Do you have any provisions under your corporate codes that allow you to take trust, to take land into trust under a corporate status for the tribe?"

Frank Ettawageshik:

"No, not specifically. We talk about taking land into trust through the constitution and that...we don't take it into trust, but we put land in trust. But we have never...we don't have something that allows the tribe to hold things in trust and that's something that we don't have in there. There's been a lot of talk about land and land reform in Indian Country. The fact...one of our big problems in growth is the lack of inter-generational transfer of wealth, which most often is done through property in non-Indian society and that's something that is a big problem in Indian Country. We're missing that step because we don't have a private sector economy for the most part in Indian Country, but there's a lot of talk about how we might look at that and change that. I talked a lot with a number of individuals over the years and the Indian Land Tenure Foundation has done some work in this regard. I know there's a lot of people thinking about it. Maybe that's something that the folks in this room might work on some day and help us resolve."

Audience Member:

"If you're a federally recognized reservation, are you subject to the Major Crimes Act?"

Frank Ettawageshik:

"Well, our 216,000 acres is not acknowledged as a reservation, but our trust land, which is the smaller ones, are acknowledged as that. So we are subject to the Major Crimes Act when it comes to that, when it comes to the casino, the tribal administration building, tribal housing, the various parcels. We're buying our reservation back one little piece at a time as we work on things, but we are subject to Major Crimes and so...but we have something unique also in our district in that the U.S. Attorney has developed a misdemeanor docket for non-Indian offenders on trust land and this is throughout the whole western district of Michigan, which includes a lot of tribes and our casinos and so we...someone commits a crime that wouldn't have risen to the level of federal prosecution, but it's clearly a crime, urinating in the parking lot for instance at the casino, which is something that people bring up, but all kinds of different things that fall into this. We now have a way to write them a ticket that they can pay a fine through this, as opposed to having to go and appear in federal court for these, if they choose. If they want to fight it, they've got to drive three-and-a-half hours to the closest federal court and go to court. So we have...this is sort of a...not every area has this and our U.S. attorney who is one of the ones that was fired, by the way, of that group that was fired, Margaret Chiara, she really worked hard to put this together. Other questions?"

Audience member:

"You talked about when you tried to develop the notary public and you talked to the governor and they seemed to be pretty receptive to that, but can you talk about some of the strategies you and your government went into when you came up against factions or individuals in state or local government that seemed to be opposed to y'all expanding sovereignty or exercising that sovereignty?"

Frank Ettawageshik:

"We've done some real interesting intergovernmental relations over the years in Michigan, one of which is under the previous governor. This current governor is nearing the end; she's in her last year of two four-year terms. And actually -- Jennifer Granholm's the governor -- she's on that short list of people that is being looked at as a potential Supreme Court Justice, but she's...yeah, which reminds me. I've got a letter here from the Native American Bar Association that was written to the President, this is a copy of it, informing him about the lack of Native people in the federal court system as court clerks in the Supreme Court or as Supreme Court justices and it's very well written and hopefully it will be well received, but I thought it would be good since I was coming here today to pass that out. But some of the things we did is we passed a tribal-state accord with the governor. All the tribes in the state signed this along with the governor and it acknowledged the sovereignty of the tribes pledged to work together and pledged to create a tribal-state forum, which was a monthly staff level phone call at which things could be worked out so that any issue...It's basically a safety valve in case there are any issues.

So anyway, that's the first thing that we did. And then, through those monthly calls, we were able to head off a lot of issues like the ones you're talking about. Probably one of the big issues was that we had game wardens in the state who really didn't like the fact that Indians had ‘special' rights. And so any time they could, they would push the envelope. Well, we'd reached an agreement with the governor's office and through the director for the [Michigan] Department of Natural Resources that, while we were working on the U.S. v. Michigan case, it was a government-to-government issue and they weren't going to pop individuals who were hunting with proper licenses from the tribes. So I got a call. A 14-year-old hunting deer for the first time with his dad got his first deer and the game warden took the deer, took his rifle and they were all upset. Well, I had a phone number. I called it and it was the phone number of the liaison to Indian Country that was through the Department of Natural Resources. He was on his deer blind in his mom's back 40 up in the Upper Peninsula and I called him. I said, ‘Jim, this is what just happened. We've got a problem.' Jim said, ‘Okay, just a sec.' And he got off the phone and he made a couple phone calls and he called me back and said, ‘Don't worry, it's all taken care of.' The guy got his deer back; he got his rifle back. It took a couple days, but they had gutted the deer and they kept it refrigerated, they'd done all the things that they needed to, but we were able to deal with things like that and we built these safety valves in.

There's a liaison to Indian Country in every single department in the state. The list is published, these phone numbers are available to people on the state website. If you go to Michigan.gov and you go to the governments, there's a bunch of different things there, but go to governments and on the state government page there's a link to tribal governments. And as the page opens up, there's a link to all the tribal websites and all of the agreements that we have done with the state are on there, which includes the Tribal-State Accord, a water accord on how we're going to mete [out] unshared water resources, an economic development accord and addendum to the initial economic development accord that was done the next year. Each of these are the results of a summit meeting with the governor that happens annually where we all get together. And as usual in summit meetings, we don't actually do the work at the summit meeting. It's done all year and the summit meeting is, we're all together, the chairman and the governor sign the document and there's photographers and we share pens and all this stuff. It's a photo op and it ices the cake, but the cake's already baked, is basically what we're talking about here. But all of these agreements are there including the most recent one, which is an accord on climate change issues that we signed nearly a year ago now. And this one, they create meetings like with the...the water accord created a meeting that happens twice a year with the tribal...at the staff level between the tribe and the state on how to deal with shared water issues. And we are meeting at the end of this month with the Michigan Economic Development Corporation, as furtherance of the economic development accord that we passed. We've had the director come to speak to the United Tribes of Michigan meetings. We have a variety of things where we're working together and we've just tried to establish how do we do this. And what happens when we have people that don't agree, we try to make a political climate in which it is more difficult to disagree than it is to sit back because they're there still...but they're not the ones that are leading the discussion. And we also do our very best to convert them to the fact that...I say to, and unfortunately, I don't know if anybody here's from Ohio, but I pick on Ohio quite a bit. I say, ‘Poor, Ohio. Every time they have to do anything environmentally and stuff, they've got to go to the EPA all by themselves.' Michigan has 12 federally recognized tribes, so 13 of us go to EPA together to work on the issues. And the tribes have access to resources that the state doesn't and vice versa. Together we can really get a lot of stuff done.

And so actually, this idea has not only taken root within the people that we deal with in our communities, but they actually come to us now. We had a local governmental entity come to us and inquire about us putting a piece of land in trust because they wanted to do something with the land that they couldn't do under their law, but they thought maybe we could. We couldn't do it either, but nevertheless it was such an amazing turn about that I was blown over by that. But those are some interesting things in the working relationship with other governments around us. Other questions?"

Raymond Austin:

"Could you talk a little bit about you as a customary law, customs, traditions and tribal government operations not necessarily in court decision making, but the overall structure of the government itself? That's one. And two, can you say something about attorneys working with Indian tribes? What are their responsibilities, duties and all that to not only the tribal council, but the chairman, the president or whoever and what their roles would be? Sometimes you have general counsels that are overbearing, they come up with policies or they draft laws on their own and then they give it to the tribal council. The tribal council merely rubber-stamps those things, that type of thing. How should attorneys work with tribes in your view?"

Frank Ettawageshik:

"Well, let me answer that last, second question first in that I reiterate what I said initially, is that the attorneys work for us, we don't work for them. And that's a difficult thing for some people to think through, but the other one is that we have to when we're passing laws and you're thinking about sovereignty, the attorneys may be the drafters, but they're not the ones...they make the draft or they find the words to make happen what their bosses, the legislators have said. ‘We want it to say this.' They might not be able to find the right words to say it, but then the attorney's job is to help draft it so it says that. And as you said, there are...we worry about activist judges. Well, there are activist attorneys as well who really work hard at trying to get certain points of view across and at times there are a number of things that you get a tribal council of lay people who sort of get awed by the attorney and say, ‘Well, the attorney said this. It must be true.' Well, attorneys are trained to argue either for or against a particular point and they may or may not believe that point, but the job is to do the best you can with what you've got to win the case whether you agree with it or not. I used to be a debater in high school and we debated on the affirmative for the first half of the year and then we'd switch and we'd be the negative and we'd switch that in the middle of the year because we'd heard all the good arguments from the other side and now we could argue that side pretty well. I learned that.

That's the problem we have a lot of places is we don't, people aren't...what they really don't understand, and this is the thing I think that happens a lot for the tribes is that the elected officials and perhaps the citizenry don't have a really good understanding of how their government works. And one of the projects I've been working on here is developing a good strong outline for civics education for tribes, sort of a subheading of ‘How to Get the Most out of Your Elected Officials,' some way to help people understand what the roles are so that they know better what their powers are and how they can be expected to act. And I think that in the absence of people knowing that, it leaves room for attorneys to actually take those actions as you described and I've seen it happen some places. I've had...I don't, as you might hear or suspect, I really have not had that problem because I wouldn't tolerate it. I knew what we needed, I knew what I would want and I would argue quite strongly for it without letting someone just write something that we rubber stamped. I was sort of dealing with the second question first, but I've forgotten the first one."

Raymond Austin:

"Culture in governance?"

Frank Ettawageshik:

"Oh okay, yes. To me, one of the ways that I deal with culture and how it relates to governance is I've worn a ribbon shirt almost every day of my adult life. I've worn a ribbon shirt when I was the only one and out of a thousand people in the room that was wearing a ribbon shirt. When I mow my lawn, I wear an old ribbon shirt because I've got to wear them out. And the thing is that I've always tried to make sure that I let people know that I was Native and that I was proud of it and that this was an important part of the things that we did. When we meet with the governor, the State of Michigan does not allow prayers before their meetings, but every single meeting that they have with Indian people starts with a prayer. They concede to us to do an opening prayer and we do that because we feel that that's an important part of us all being in the room, we need to come together as a mind. We feed people. This is part of our culture. You get a bunch of us together, we always eat. Well, we make sure that if the state or the other agencies, these people love to come visit us and have the meeting because we feed them. When we go to there, they're so embarrassed that they'll personally go out and buy some donuts and coffee just so they'll have something because the state will not spring for any of those, any refreshments or anything at their meetings. And so we make sure that they understand these elements of our culture and understand these elements of protocol.

I think it's important to sort of let people understand that we try not to make rash decisions, we try not to jump into things real quickly, and it's impolite actually to do so. It sort of implies that we're not actually giving careful consideration to the thoughts of the other side. So sometimes it takes a longer time in dealing with us and we've done some trying to understand that culture, understand how we bring that into our governance. I mentioned that we start our meetings, our community meetings with the drum, with songs, with the eagle staff being brought in, with our tribal flags, with the pipe ceremony and that this is something that we do in those big community meetings. But we also, when I was the chairman, I carried my personal bundle with me into the room even though I didn't open it in the council meeting [on] a regular basis, but I had it with me because to me it was sort of something that helped root me where we were.

We have an opening at the meetings for a smudge. We try to do everything that we can in our, within our community to...let's look at this way: in the architecture of our tribal administration building, we incorporated our culture. And in doing so, what it is, you walk in...even though the driveway comes in from the south and at most big buildings you'd turn the building so that it would face the driveway, we faced the building east because that for us is the direction we need to face with the building. And, there's a big octagon center that's got a big vaulted ceiling in it. And in the center of that is a circular area that has a fire pit in the center that's right on the earth. The architect said, ‘Oh, we'll just build some concrete, we'll fill it with sand.' We said, ‘No, we won't. We're going to have undisturbed earth right there where we can build a fire and that's going to be the center of this building.' And there are no offices in this big center building. It's open. We have a kitchen, we have a receptionist and we have a little meeting room and bathrooms and other facilities and things, but this is a commons area in which we meet, it's the center of the people, it's ceremonial and then off the north facet we have a two-story office building in which there are our tribal police, our environmental services laboratory and offices, the computer lab and the education department, the archives and records and the accounting department and the tribal administrator. All these are in this north wing. In the south wing is the tribal, first of all, the tribal council and tribal court chambers, we share it. And then all the court offices and the probation officer and all that are in that south wing. The west wing of the building built on the west facet of this octagon is on the south side of the building are all the executive offices for our government. The north side are all the legislative offices. And this building, as you walk in it, it's an education in the way our government functions and it's an education in our traditions in that around that fire pit we have tile in the floor that are the four colors for the four directions.

We've had meetings in there where we had a gathering of the eagle staffs from throughout the Great Lakes Basin and there were 17 staffs and 21 pipe bundles that were all in there in that circle as part of the ceremony. We've had the Attorney General of the United States come in and we had a meeting where we hosted him in Indian Country in Michigan. We've had the Governor's Interstate Indian Conference with all the different state governors and their staff of places where they have tribes in their states, they have this organization that they meet, they came and met. We've had the Kiwanis and the Rotary that come and meet from the community in this place, but this building itself lets them understand elements of our culture. Every time they see it, we get a chance to explain it and every time a staff member walks from one wing to the other, they come to the heart of the community on their way through. Other thoughts?"

Stephen Cornell:

"I was just wondering how these assertions of nationhood and of sovereignty have been received at the sort of level of local publics. You're in an area of the country where there at times have been a great deal of tension between local constituencies and you've mentioned the state, but I was wondering what have these, how have these been received by local people, including the people, you're in an area of mixed population. I'm just wondering what impact this has had in your relations?"

Frank Ettawageshik:

"Well, we're in an area where there -- within my lifetime -- there were signs ‘No Indians' in some of the bars and there were places that we really couldn't go. Nobody would have thought that they were being discriminatory, but we certainly have lived within this knowing that there were things that they couldn't do. Early in my tenure, an Indian student came to the school in Petoskey drunk and they pulled all the Indian kids out of class and breathalyzed all of them. So a couple of people and I went into the school to the superintendent and said, ‘Listen, either you and us are going to get to know each other really well as we go to the Supreme Court and we sue you and seize all of your assets or you're never going to do this again,' and they've never done it again. They straightened out and they realized they shouldn't. So we managed to go through that, but we have had those certain kinds of tension.

One of the initial parts of tension in this is I got...early on in our, after the reaffirmation bill was signed in 1994, I'd say about '95, maybe '96 or so, I got a letter from a local prosecutor who said, ‘Dear Frank, this is to inform you that your police officers are impersonating police officers. It's illegal for them to be on the road with lights and with emblems on their car. It's illegal for them to...' Most importantly, he said, ‘It was illegal for them to have the chip in the radio that allowed them to pick up police frequencies.' And so he said, ‘You have 10 days to deliver those to me.' So I wrote him back a letter, ‘Dear Bob, you know where those cars are and you're welcome to come get those chips anytime you want, just be prepared for a visit from the U.S. Attorney as soon as you're done.' And so he called the U.S. Attorney and within several months actually, he had signed off on a limited deputization with our officers, but before long we actually had a full cross-deputization [agreement] where the sheriff and the deputies from two different counties had came before me in our tribal courtroom and took an oath to uphold the tribal constitution and all of our laws, and our officers were sworn in as deputies with the county so that we had seamless law enforcement. So that's one way that things have happened.

We gave people the map and we've showed them the constitution and a lot of them didn't realize that we were a constitutional government. And there are tensions, but we've also done some tremendous things. One of the things that we did that...we are either the only tribe or one of just two or three that got the ‘The Great Read,' ‘The Big Read.' There's a program through the Humanities Councils and the Arts, I forget. It's through the...it was some agency through the National Endowment for the Arts on 'The Big Read' and we got a grant for it. Some of the other recipients were like Maryland Public Radio got one of the grants and things like that. Well, our tribe got one and we worked with the Great Lakes, the Little Traverse Symphony, we worked with the library in town, the college and various other people and we put together this thing where we all read To Kill A Mockingbird. And we had programs throughout every place and the tribe was the lead agency on this working with the others in terms of comparing what our situation was with the situation in To Kill A Mockingbird and the story from that. And these are the kind of things that we've done with the other agencies in town to help people understand where we're at; it helps to get rid of a lot of the tension. And those are things that we've done both in big and small ways that have tried to deal with that tension. It still exists and we have individuals who would be a great detriment to us if they were the one in charge, but nevertheless this thing works quite well. I think my time has arisen; actually the timekeeper has risen from his seat. And so with that I want to thank you all for the opportunity to speak with you today."

Honoring Nations: Ken James: The Flandreau Police Department (2005)

Producer
Harvard Project on American Indian Economic Development
Year

Former Flandreau Police Chief Ken James present an overview of the Flandreau Police Department to the Honoring Nations Board of Governors in conjunction with the 2005 Honoring Nations Awards.

People
Resource Type
Citation

James, Ken. "The Flandreau Police Deparment," Honoring Nations Awards event. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Tulsa, Oklahoma. November 1, 2005. Presentation.

Ken James:

"My heart is leaping with joy, with passion that we have an opportunity to come here today to showcase our presentation on our unique city-tribal police partnership that we have in Flandreau, South Dakota. And I want to offer my gratitude and appreciation to the board for allowing us... because what would happen is if we just kept our program to our self, we're not really helping other agencies and other communities across our great nation. And so what we have up here is, I want to show you our logo and what it has there is our police logo, which is our patch. What it does is it identifies our, pretty much our mission statement and how we operate as a police department. That was put together when we first initiated our program by a seventh grader. We wanted the community to take ownership of our department by having the public get involved and a seventh grader drew that and put that together. What it consists of is the...it shows the farm and agricultural community which Flandreau is in Moody County and it also shows on the bottom the river which is called the Big Sioux River which runs right through the Flandreau Santee Sioux tribal reservation and the city of Flandreau and then we also of course have our logo of the Flandreau Santee Sioux Tribe. And I'm going to go on and talk a little bit about our history, our jurisdiction and our sustainability as far as our joint police partnership.

As far as I know, we're the only city-tribal police partnership in the United States. That doesn't mean that there are contractual agreements between city and tribes or county and tribes, and so I believe that what we have today, what we're going to present about and talk about and hopefully after the program today, if any of the people in the audience want informational sharing on our program look forward to seeing our representatives that are here or myself. Thank you very much for that. The history of us is that we began in 2000 as a police department. The city and the tribe approached one another and asked about the possibility of putting together a joint police department and what happened... it wasn't nothing unique at first because in the city of Flandreau and the Flandreau Santee Sioux Tribe, because of previous joint ventures, they didn't see us as something special at first, and so what they done was they got together and they put together what was called a Public Safety Commission, a nine-member commission. And at that time what they done was the commission members was made up of both tribal members and city representatives. And what they did was they did a feasibility study and they also did some research looking into if it would even be possible. And then in August they got with both the city and tribal councils and they made the recommendation that, they said this will work, this program will work and so they put it together. They put the Public Safety Commission together and then they made the recommendations and then they put together what was called the Joint Powers Agreement. What that was is they put the city language, the city attorney got together with the tribal attorney and they came up with what was called the Joint Powers Agreement. And for those of you who want a copy of that, you just get hold of us, we have it on our email and we'll be glad to send that to you.

So what happened then was when we began in January of 2001 as a police department, we had to put together a standard operating procedures manual. And in that we also had to work on our cross-deputization agreements and that meant that our police department was cross-deputizing with the tribe, through the tribal courts, and we were also cross-deputized through the state. So in Flandreau, if I could step away from the podium for a moment, on some city streets in Flandreau or in some tribal jurisdictions in Flandreau, it depends if you're standing on this side of the street you're on tribal land, if you're over here on this side of the street you're on city or state jurisdiction. So it's a very complex issue but through our training our officers go through we've been able to figure that all out. And then of course we also put together our Mutual Aid Agreements with our law enforcement program. And then in September of 2003 the final piece of that cross-deputization agreements was that the tribe went one step further and they allowed the Moody County Sheriff's Department to be a part of that agreement process and what they've done was the tribe has what's called fee land, which the state has jurisdiction on, and so what happens is the Moody County Sheriff's Department patrols that.

What happened was in July 19th of 2003 during our annual Flandreau Santee Sioux Tribe Powwow, everything came together in unison and it took an emergency to see everything come together. What happened was we had a fatality accident that happened where several occupants were thrown from the vehicle and we had one 14 year old that had died from the accident. The multiple agency's response to that was primarily we put safety first. We didn't...we weren't bothered, we weren't hindered by jurisdictional issues and the rescue, the fire and rescue responded and so what happened was through that everything was handled accordingly, it went by the book and what happened was out of that, out of that tragedy we got together with the city...tribal prosecutor, the Moody County state's attorney, the local sheriff and myself and we came up with what we call a zero-tolerance policy on underage drinking. We realized the impact that that accident had and we realized with the problems associated with underage drinking in our community, we came up with a zero-tolerance policy. And last we also...we ended up...because the Flandreau community's so small, because of the tragedy it impacted the community. It had a very adverse affect on the community. So what we done was we put together a healing walk and what we did with that was we got together with multi agencies and we put together a march, a walk in memory of the accident and it was also to kind of bring healing to the community.

Our jurisdiction, this is very pivotal here because as you can see up on top it shows our citizens come first as far as our organizational structure and our span of control. The citizens come first. And then it breaks down into our city council, then over it has our tribal council and then if you look down it has our city liaison and our tribal liaison. The city liaison and the tribal liaison, they both serve on the Public Safety Commission and they're kind of...they go back and report the monthly meeting that we have to the respective entities and then of course we have our nine-member Public Safety Commission that breaks down to the Chief of Police, the Sergeant, our police officers, and then of course our citizens again.

Our sustainability and our promising practices of our department: in the past five years we have emerged as a growing respectable police agency in South Dakota, and how we done that was by applying our standard operating procedures. Some of our procedures are nationally accredited policies and procedures that I had adopted from my previous employment. We also applied our community principles into our standard operating procedures and that's pretty much our philosophy and how we approach law enforcement. Then we also, we have our joint law enforcement training. Through training with osmosis, some of our non-Indian officers, I think they receive the best training in the world as far as cultural competency. They understand that they work with the tribe, that we have tribal members and so I think they get the best training as far as cultural sensitivity from our department as to going to maybe a one-week course. We have had, again we've had five years of continued law enforcement operation. We share our joint partnership as a model with other agencies. I think that's pivotal for us here today is that we have stepped forward, we have stepped out of the box and we have moved forward. Just recently we...last month we put on what was called the Great Plains Summit on Meth. In our community, we do have problems just like other jurisdictions and other communities, but we did something about it. We didn't sit on the sidelines and wait for something to happen. We took control and through that it's inspired and it has motivated other tribal communities to go back and start their own task force. Then last, our sovereignty, we have our sovereignty, which is understanding the unique relationship with the tribe, then we have our safety by promoting safety, developing that safety network in our community. And then I think what's equally important is the synergy that goes into that. There's a saying that says, 'A single twig breaks but a bundle of twigs is strong,' and that's the unification of our services as a police department in Flandreau. And then of course our sustainability, staying on task, staying on top of our programs, looking for innovative ways of moving forward into the future. I think that's one of our promising practices is having a visionary response of going forward rather than backwards. And then last is that equals our success as a police department. Thank you very much."

Heather Kendall-Miller:

"Chief Ken James, I'd like to ask you a question and you've given us a good view of the sustainability practices of your police department but I wanted to ask a little bit further, pry a little bit more. What you've accomplished is incredible, but I'm wondering whether or not the program itself would continue at the level of sustainability were it not for you. You seem to be a very dynamic police chief, and obviously you've been part of the success of this whole program. Is there a mentoring aspect of this program that you are cultivating in the event, for instance, you're not there? Second of all, and you touched upon this a little bit, I think what's also phenomenal about this program is that obviously on some levels you've dealt with racism within the community. The community has come together on this and jointly agreed to go forward. Is there still a level of tension related to racism within your community that the police department continues to attempt to address?"

Ken James:

"First, to answer her first question, I'm very privileged and very blessed to the Chief of Police for the city of Flandreau and the Flandreau Santee Sioux Tribe. I see myself only as a buffer. I'm the one that polishes and shines. That's what I do best is I polish and shine. It's people in our audience that has attended, come a long way from South Dakota to make this police department a reality. It's coming together and having the integration of the community that first and foremost, they're the ones that seen the vision of this wanting to take shape and take place and I think hiring me as the chief, I came in and I've done what I can. But I'm hoping today that...I'm here to also...I have the capacity to acquire and to learn and I want to learn from the audience and I want to learn hopefully from the governing board here that perhaps, maybe there's things that we can do better as far as our visionary response. So I think that's one of the key things to our success as far as our sustainability is working together in unison. We have community leadership meetings and then what happens is that the city and the tribal council, the city council, the tribal council, what they do is they sit down and they meet and they go over to review the past year's events and the progress and things that have been made as far as our police department. So I think what's very important and I want to emphasize is that communication is, I think it's very imperative. I think that's probably the most, the key that lies behind the measurable success of our agency. And I understand, I read a lot and I do want to emphasize also that I do know that what we've been able to do in Flandreau, I know there's been other communities that have done likewise and I just read an article in the Lakota Journal, where the city of Bismarck is now looking at ways of strengthening and bringing some sort of resolve to maybe their community tension and things that are going on in Bismarck, and I know Mr. Dave Gipp there has been instrumental in working with that, the City of Bismarck. I know he's been doing that for a long time.

The second part is dealing with racism. As you know, as being a chief of police and being in law enforcement for 20 plus years, I have realized that I don't take things personal when things are said or directed at me as the chief or...and this is dealing with racism and I have learned to be very thick-skinned and what we have been able to do when we deal with some of the tension and anxieties that go on in the community, more so when we're dealing with events that are tragic in nature, sometimes we have to go around some of those things and sometimes we don't just put a band-aid approach to it, but we have to go right directly through it sometimes, right through the barriers and through those elements. I'm very fortunate to have a community that understands that we're coming together as a police department and as a community as a whole in Flandreau. One of the most important things about the sustainability is that if we don't have safety in our communities, everything kind of dwindles and economic development will dwindle and people wouldn't want to come to the Premiere Royal River Casino in Flandreau because it would be unsafe to come for a form of recreation and entertainment."

Michael Lipsky:

"Chief, congratulations on your achievements. Our program is concerned with the governance of the nations and so we're particularly interested in the relationship between your work and the tribal council. And I don't have a clear picture yet of how the council came to the opinion that it should move in the direction that it has. I wonder if you could explain that to us a little bit more."

Ken James:

"What happened, the history as far as law enforcement was that the tribe had a tribal officer at one time in the history of their law enforcement. Then they switched gears and they went over to the BIA and then in the past, back in the '80s they went back and they contracted with the Moody County Sheriff's Department and that was all the way up until the year, around 2000 when the city mayor and the city council met with the tribal council and decided that they were going to look at having their own law enforcement. And at that time because of the previous joint ventures as far as water development and some of the other programs that the city had joined forces with the tribe, it was a perfect glove that fit and so they said, 'We're going to dare to try something different,' and that's the key is you're facilitating positive change. It's going on yesterday and it's going on today."