kinship systems

Robert Innes: Elder Brother and the Law of the People: Maintaining Sovereignty Through Identity and Culture

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American Indian Studies Program
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Robert Innes, a citizen of the Cowessess First Nation in Saskatchewan, discusses how traditional Cowessess kinship systems and practices continue to structure and inform the individual and collective identities of Cowessess people today, and how those traditional systems and practices are serving as a strong source of practical sovereignty for the Cowessess First Nation. 

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Native Nations
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Innes, Robert. "Elder Brother and the Law of the People: Maintaining Sovereignty Through Identity and Culture." Vine Deloria, Jr. Distinguished Indigenous Scholars Series, American Indian Studies Program, The University of Arizona. Tucson, Arizona. February 19, 2014. Presentation.

Manley Begay:

"Years ago as a young man, I read just about every book that Vine Deloria Jr. wrote and was just fascinated by this gentleman. And the more I read, the more I gained some insight into his thoughts and ideas and concepts about Indian life and Native ways. And some were controversial, some were absolutely interesting, made me laugh, made me cry, it made me happy, made me sad. And I always thought to myself, ‘I sure want to meet this guy one of these days.’ Lo and behold, I did. I not only met him, I ended up spending time with him. He became a good friend of mine. We served on the Board of Trustees for the National Museum of the American Indian for many years and then after that we became plaintiffs along with five other folks against the Pro Football, Inc. [NFL] and we were engaged in a 17-year long legal case basically fighting stereotypical imaging of Native people in the world of sports entertainment.

And during this time I saw him as a younger person to becoming sort of this elder scholar. And he carried himself in a very modest way and it was demonstrated by his love of wearing denim jeans. You would, I don’t think I ever saw him wearing khakis or dress pants. He always wore denim jeans. And he spoke with great conviction about his ideas and thoughts and everybody listened. And he would become one of the most important authors and scholars of our time in American Indian Studies. And the Vine Deloria, Jr. Distinguished Scholar Series was created in 2008 by the American Indian Studies Program and this series assembles a series of lectures featuring writers, activists, Indigenous leaders and scholars to discuss the issues that Vine felt were so important to Indigenous Country. As such, this series is an event that speaks to the core mission of the American Indian Studies Program by spreading the voices and visions of Indigenous scholars to the greater public. We were hoping that his wife Barbara Deloria would be here. Unfortunately, Barbara will not be with us. Hopefully she’ll be here in April I think, when our third speaker is here.

So this brings me to our guest this evening. Our guest is Professor Robert Alexander Innes. He’s Assistant Professor and Graduate Chair at the University of Saskatchewan. He’s a Plains Cree member of the Cowessess First Nation and actually he’s, his second home is Tucson. He spent a lot of years here working on his doctorate and he finished his dissertation in 2007. His dissertation was titled The Importance of Kinship Ties to Members of the Cowessess First Nation and in January 2007 he was appointed as Assistant Professor in the College of Arts and Science, specifically the Department of Native Studies at the University of Saskatchewan. Before that time, he was a pre-doctoral fellow in the American Indian Studies Program at Michigan State University. He completed his M.A. [degree] at the University of Saskatchewan in 2000 and his thesis was titled The Socio Political Influence of the Second World War Saskatchewan Aboriginal Veterans 1945-1960. He earned his BA at the University of Toronto with a major in History and a double minor in Aboriginal Studies and English and a transitional year program at the University of Toronto in 1996. His research interest is around factors that lead to successful Aboriginal institutions, contemporary kinship roles and responsibilities and Indigenous masculinities. He has numerous articles published in a variety of journals and he recently published his book titled Elder Brother and the Law of the People: Contemporary Kinship and Cowessess First Nation and it’s being published by the University of Manitoba Press. And he’s also currently co-editing a book titled Indigenous Men and Masculinities, Legacies, Identities, Regeneration. Tonight Professor Innes’s talk is titled "Elder Brother and the Law of the People: Maintaining Sovereignty Through Identity and Culture." So with that, it gives me great pleasure to present to you Professor Robert Alexander Innes.

[applause]

Robert Innes:

Hello. Hello. Thank you for the prayer. That was a great way to start open prayer with that. I’d like to thank Manley Begay and John and Gavin and the American Indian Studies Program for inviting me to this very prestigious talk, this series of talks. When I was here going in the program, I was fortunate enough to be around when Vine Deloria was teaching some classes. I was unfortunate, though, because I didn’t actually get to take any classes from him. But I was lucky enough to be able to sit in on a couple of classes that one year that he taught when I was here. It was interesting because it was a course on, I don’t even know what the course was called, but I imagine it had to do with treaties, sovereignty, but it was through the Indigenous Law Program and there were three AIS [American Indian Studies] students: Ferlin Clark and Kevin Wall and...who were Ph.D. students at the time, and Ray Cardinal, who was an M.A. student. They were taking the class. So they had those three AIS students and the Indigenous Law students and I remember sitting there and first of all being kind of in awe because it’s Vine Deloria, right? But what was interesting I guess for me was to see how cutting he was to people who didn’t respond the way he thought they should respond and how funny he was in the way he cut them up. And I remember the law students, I don’t know if there’s any law students here from that program, hopefully this is all friendly here -- AIS students and faculty and stuff -- but what I found was interesting was that the AIS students, those three AIS students were the ones who were really carrying the load and later after the class one of the law students says, he was, I guess he had taken kind of a beating in that class from Vine Deloria and he says, ‘Boy, that guy is sure into context.’ And so the three AIS students turned to him, ‘Of course he’s into context.’ But I guess for the law students they weren’t used to that.

It’s an honor and a privilege to be part of this series. I like most people were heavily influenced by Vine Deloria when I first started reading and going to university and also the fact that the footprint that he left for this program in help starting this program and the legacy he’s left not only for American Indians and Indigenous people worldwide and Native studies worldwide, but for this particular program is pretty significant and to be included in the series with the illustrious speakers that have come before and that are coming this year, it’s quite an honor and also because well, this is my program. I went through here. I was down here for two years and I feel really humbled to be asked to be part of this program or this series.

This talk I’m going to be, what I’m going to be talking about is the research that I conducted while I was a Ph.D. student here in the American Indian Studies program and what I was looking at was the importance of kinship to kin-type Cowessess members. And the reason why I was, that was an idea that I had for research was it had to do with my personal history with the reserve. I, like a lot of people with Cowessess, was an urban member and I’ll talk a little bit about that in the paper and also was up to the 19, late ‘80s, not a band member at all, not even federally recognized or as we call a 'status Indian.' And after I received my status and became a band member, I was a little bit nervous about interacting with the band. I grew up in Winnipeg, Manitoba. I grew up in Winnipeg and with a lot of Native people we were living in Winnipeg. Winnipeg has probably one of the largest Aboriginal populations in definitely in Canada maybe as well as the United States and so I wasn’t afraid about Native people. It was just when the law was changed to allow people to get reinstated and get their status back, there was a lot of tension, and what I found with Cowessess, that wasn’t the case. When I was doing my research on Aboriginal veterans, I went to Cowessess and interviewed some veterans and one of the veterans I interviewed was my grandfather’s cousin and while I was there I talked to, I was talking with his daughter who is my mom’s second cousin. And at that point my aunt had moved back to the area, didn’t move on to the reserve, but she lived in the town next to the reserve. And she had had a difficult time in the residential schools and had a difficult adulthood and as a result she was not mentally...good. She was a little bit delusional. She was known affectionately in town as 'the bag lady' because she always had the bundled buggy and the ...and heavy jacket no matter what the temperature was. But everyone liked her, she was friendly. And so I told her that that was my aunt and that we were, that we were from part of Cowessess and she knew, she didn’t know who she was by name, but I said, ‘The bag lady.’ And she’s, ‘Oh, the bag lady,’ and then she realized that that was her second cousin. So then she turned to her son and said, ‘Next time you meet her, you shake her hand because she’s your relative.’ And this was the first time I met her. It was the first time I met her. And then I realized there was something to this, about why is that she reacted that way and why was it that all the Cowessess people that I had met up to that point and since had talked about and talked to me as an urban member and talked about other urban members in a way in which defied or didn’t go fit the norm and way in which people were supposed to have interacted with new, newly regained status people. So this is why I decided I wanted to do this research.

So with that I’ll begin. I just want to say that the talk is 'sovereignty,' and although that’s not really a term we use much in Canada, that’s really associated more with Quebec and independence of Quebec so we don’t really use this. I mean, it’s used, but it’s not a lot, not a lot for Aboriginal people. People talk about self-government or self-determination, but I’m not there, I’m here, so I’m using that term here. But just so you know, that’s not really our term that we use, although some people do use it. The main argument I wanted to make here is that the way in which Cowessess people exercise their contemporary kinship is, has been a way for them to assert their sovereignty, to assert their self-governance.

Raymond DeMallie has argued that kinship studies are a significant, but often ignored area of research within American Indian studies, suggesting that AIS scholars’ aversion to kinship research has been due to the latter’s close association with anthropology. According to DeMallie, kinship studies, with their evolutionary and cultural relativist theories, abstract taxonomy, and endless charts, seem far removed from and irrelevant to AIS and to Native communities. Yet, in pointing to examples of the negative impact of kinship breakdown on the Grassy Narrow Ojibwe and the possibility for positive change with the revitalization of the Pine Ridge Lakota kinship unit, or tiyospaye, DeMallie states that kinship is ‘fundamental to every aspect of Native American Studies.’ Accordingly, he challenged AIS scholars to ‘explore the richness of the Native American social heritage and find creative ways to build on it for the future.’ For my Ph.D. research, I took up DeMallie’s challenge by examining the importance of kinship relations in the maintenance and affirmation of individual and collective identity for members of Cowessess First Nation located in southeastern Saskatchewan. How many people know where Saskatchewan is? Come on. Okay, how many people know where Montana is? Okay, look up, right up!

Specifically in my study, I examined how Cowessess band members’ continued adherence to principles of traditional law regulating kinship has undermined the imposition of Indian defined in Canada by the Indian Act. By acknowledging kinship relations to band members who either had not been federally recognized as Indians prior to 1985 -- when the Indian Act membership ‘changed’ -- or were urban members disconnected from the reserve, this acknowledgment defies the general perception that First Nations people have internalized the legal definition of 'Indian' and in the process rendered traditional kinship meaningless. It also questions the accepted idea that conflict is the only possible outcome of any relationship between old members and newly recognized Indians. The importance of kinship to Cowessess band members blurs the boundaries (as defined by the Indian Act) among status Indians, Bill C-31s -- that was the bill that changed the membership quotes -- Métis, and non-status Indians, thus highlighting the artificiality of those boundaries.

I argue in my book or in my research, well, in my book too, which was recently published -- did I tell you? No? -- I argued that the attitude of older Cowessess band members toward new members stems from kinship practices that are historically rooted in the traditional law of the people that predates the reserve era and that have persisted since at least the nineteenth century. In the pre-reserve era, Aboriginal bands in the northern plains were relatively small, kin-based communities that relied on the unity of their members for survival. Band membership was fluid flexible, and inclusive. There were a variety of ways that individuals or groups of people could become members of a band, but what was important, what was of particular importance was that these new members assumed some sort of kinship role with its associated responsibilities.

For Cowessess people, these roles were behaviors that were carefully encoded in the traditional stories of the Cree cultural hero [Cree Language], or Elder Brother. Our Elder Brother stories were the law of the people that outlined, among other things, peoples’ social interaction including the incorporation of individuals into a band. Incorporating new band members served to strengthen social, economic, and military alliances with other bands of the same cultural group. However, many bands in the northern plains were multicultural in nature, so the creation and maintenance of alliances cut across cultural and linguistic lines. Cowessess First Nation is an example of a multicultural band because its pre-reserve composition comprised of five major cultural groups: the Plains Cree, Saulteaux, Métis, Assiniboine, and English half-breeds. The total band membership of the contemporary band is just over 4,000 people, with over 80 percent living off reserve. So 80 percent of the 4,000 live off reserve. This represents the third largest of the 75 First Nations in Saskatchewan and the largest in southern Saskatchewan. Band members live throughout the province and in every province and territory in the country, and in particular in many of the urban centers -- Vancouver, Calgary, Winnipeg, Edmonton, Ottawa, Toronto. However, over 1,000 band members reside in the provincial capital of Regina, which is about an hour-and-a-half drive west of the reserve. Band members also have relocated to several foreign countries. Many of these off-reserve members are men and women and their descendants who first left the reserve in the 1950s in search of employment and education. A significant number are also what is called 'C-31s.' These are, that is women who left the reserve to find employment and/or married non-status Indians and therefore lost their status, but then regained their status with the passing of Bill C-31. So once they regained their status, their children also gained status, which is what happened to me. My mom lost her status and when she was able, when the Bill C-31 was passed, she regained her status and I gained status, although it wasn’t that easy, you had to apply for it and there was red tape.

So for Cowessess then, people started to leave Cowessess by the 1950s. Men, so there were, there have been many, multiple generations of people through Cowessess who have never lost their status, but who had never lived on the reserve. These are, so there were people who lost their status, there was also multiple generations who had become disconnected from the reserve who were also impacted by the way their interaction with the reserve. My study describes how kinship for contemporary Cowessess band members -- in spite of the historical, scholarly, and legal classifications of Aboriginal people created and imposed by outsiders -- persists to define community identity and interaction based on principles outlined in the Elder Brother stories. Classifying Aboriginal people has had a profound impact on the ways that non-Aboriginal people view Aboriginal people and on how some Aboriginal people view themselves. Cowessess members’ interpretations become of great significance in order to understand how contemporary First Nations put into practice their beliefs about kinship roles and responsibilities and demonstrate that these practices and beliefs are rooted in historical cultural values.

The legal systems of pre-contact Aboriginal people, as James Zion points out, were based upon the idea of maintaining harmony in the family, the camp and the community. The failure to follow prescribed regulations could --according to what happens to Elder Brother in the stories -- result in severe negative consequences. Conversely, adhering to the positive behaviors that Elder Brother displays was seen as the ideal that all should strive to attain. An understanding of the stories facilitates an understanding of the incorporation of members into Cowessess band in the pre- and post-reserve period. The stories are also helpful in gaining insight into contemporary peoples’ ability to maintain certain aspects of their kinship roles and responsibilities. Now I’m not going to talk about the way in which Cowessess people incorporated people into their band in the pre- and post-reserve period. However, I will just note that incorporating people into bands was important for maintaining, as I said, creating and maintaining alliances with people, economic and military alliances, and this didn’t matter what culture group a person was from or even what racial group. In the early 1900s, there is evidence that at least seven white children were adopted into the,  people went from Cowessess to Winnipeg, which is about a three-hour drive or so, four-hour drive, east, and adopted seven white children. This would have been the early 1900s. So this is after post-reserve period. So not only were they incorporating people into their reserve pre-reserve, but also post-reserve.

Traditionally, stories acted to impart the philosophical ideals upon which Aboriginal societies should function. As Robert Williams notes, ‘The stories socialize children and reminded adults of their roles and place within the universe, Indians have long practiced the belief that stories have the power to sustain the many important connections of tribal life.’ The telling of stories, such as those of Elder Brother, was a means by which to convey Aboriginal philosophical meanings to the people. Elder Brother was a paradox. He could be very generous and kind, yet he also could be selfish and cruel. In the stories when he is kind, he is usually met with success; when he is cruel, he often meets a disastrous and sometimes funny, sometimes humorous end. His adventures and misadventures acted to guide the peoples’ social interaction, and because of this he is highly regarded. As Basil Johnston states about the esteem the Ojibwe have of Nanabush, ‘For his attributes, strong and weak, the Anishinaabeg came to love and understand Nanabush. They saw in him themselves. In his conduct were reflected the characters of men and women, young and old. From Nanabush, although he was a paradox, physical and spiritual being, doing good and unable to attain it, the Anishinaabeg learned.’ Niigaan James Sinclair further states, ‘Now as before, stories reflect the experiences, thoughts and knowledge important to the Anishinaabeg and collectively map the creative and critical relationships and maintain relations with each other and the world around us and when shared, cause us to reflect, to learn, to grow as families, communities and a people. Stories also indicate where we are in the universe, how we got there is not a simple one-dimensional act, but a complex historical, social and political process embedded in the containments of our collective presence, knowledge and peoplehood.’ Elder Brother stories conveyed Cowessess traditional law to the people and thus functioned as a legal institution. While this institution was unlike those in other parts of the world, it functioned in the same way. As Zion and Robert Yazzie explain, ‘When a legal institution articulates a norm or validates a custom, that is ‘law.’’ The Elder Brother stories explained the rules and expectations for normative behavior. These ideals were enshrined in the peoples’ notion of themselves, with each retelling of Elder Brother stories and with each act that could be attributed to those stories.

A number of legal scholars have linked the traditional narratives of Aboriginal peoples, whether stories, songs or prayers, to their traditional legal systems. For example, Williams points out that ‘stories are told in tribal life to educate and direct the young, to maintain the cohesiveness of the group, and to pass on traditional knowledge about the Creator, the seasons, the earth, plants, life, death, and every other subject that is important to the perpetuation of the tribe.’ John Borrows states that the traditional tribal customary principles are ‘enunciated in the rich stories, ceremonies, and traditions within First Nations. Stories express the law in Aboriginal communities, since they represent the accumulated wisdom and experience of First Nations conflict resolution.’ Donald Auger asserts that ‘the knowledge gained by individuals from storytelling was that of relationships and the importance of maintaining balance and harmony.’ Elder Brother stories reflect the moral normative behaviors that Cowessess band members were expected to follow. Through these stories, as Johnston notes, their sense of justice and fairness was promoted. While I was doing my research, in looking at Elder Brother stories, I was fortunate to stumble across a collection of stories by Alanson Skinner. Alanson Skinner was an anthropologist and in the early 1900s he travelled to Southern Manitoba and Southern Saskatchewan and he made a stop at Cowessess and collected a number of Elder Brother stories. What becomes evident in the stories that I saw from those stories that he collected was that there were these, this is where I found that the embedded codes or laws within for the people.

There was one story for example that he recorded had to do with Elder Brother being adopted into a family of wolves and although with the stories that were collected from Cowessess it’s unclear whether the wolves were already related to him or not, but what does become interesting, what does become apparent was that Elder Brother was adopted into this family and when it got time for him to leave, the father wolf said, ‘Okay, why don’t you take my son with you. You can adopt my son.’ So he took his son as his nephew and they went on the journey which is what the Elder Brother does, he journeys around a lot. And he told his nephew, ‘Make sure you don’t go by the water.’ But he did. He ended up being captured and killed by the Great Lynx, water lynx. And what we see is Elder Brother in the story rescuing his nephew and the way in which he rescues his nephew combines ingenuity, responsibility to family and these are kind of the way in which these values were passed on were through these stories and how Elder Brother would act. This is one of those stories where Elder Brother did what was good. He doesn’t always do what’s good. There’s a lot of stories he doesn’t do what’s good, but in this story he did good. He was able to rescue his nephew, bring him back to life and then move on their way, which leads to another story about a big flood. But what was important is that story outlines a number of the prescribed behaviors required in the maintenance of respectful kinship relations with Cowessess people. It shows Elder Brother demonstrating positive qualities to which people should aspire. The story highlights the value of inclusion by certain facts. Although Elder Brother was not related to wolves, although that might be disputed, he was adopted into the pack and considered a relative. The younger wolves were expected to address and treat him as an older relative and he assumed the roles and responsibility expected of a relative. In the same way he was adopted by the wolves, Elder Brother is permitted to adopt a younger wolf that Elder Brother calls nephew. However, it is when Elder Brother and the young wolf were on their travels that the kinship roles and responsibilities become more explicit. Elder Brother is responsible for the well being of the young wolf. When the young wolf goes to the water, against the instruction of Elder Brother, the listener learns that there are negative consequences for not heeding the words of elders. In searching for and rescuing his nephew, Elder Brother fulfills his responsibility not only to the young wolf but also to his other relatives, the old wolf. By entering the White Lynx village, Elder Brother exhibits characteristics like bravery, daring and ingenuity, which are all important for young males to internalize. These qualities were central tenets towards societies whose primary duty was to protect and provide for the people. In this story, Elder Brother exhibits positive characteristics with a positive outcome.

Now when I was reading these stories and I was at the same time I was conducting a literature review and I was thinking, ‘Wait a second, there’s something not right here. There’s something not right in the literature.’ The literature, the history and ethnography of Aboriginal people in Saskatchewan were all tribally based. There’s always a Plains Cree histories, Saulteaux histories, there were Assiniboine ethnographies and histories, but that didn’t reflect the experiences that I had and didn’t to me reflect the realities of Cowessess. The experiences of Cowessess First Nation members do not reflect scholars’ interpretation of Saskatchewan Aboriginal people. Scholars have emphasized tribal histories that highlight intertribal contact and relations, but nonetheless maintained distinct tribal boundaries. Tribal history approach masks the importance of kinship in band formation and maintenance. This approach is useful for understanding general historical trends of specific cultural and linguistic groups and provides the context for multi-cultural and mixed bands. However, it does not quite acknowledge that most Aboriginal groups on the northern plains of Saskatchewan were multi-cultural in composition. Why were they multi-cultural and why have scholars failed to convey their multi-culturalism was one of the things I was really thinking about when I was approaching my research.

Multi-culturalism for First Nations, for Aboriginal groups on the northern plains was important for survival, was important for military survival and economic survival. The customary kinship practices of the Cowessess people and other groups were spelled out in the Elder Brother stories. However, many scholars have not recognized or understood or simply ignored the law of the people. Without this fundamental understanding of Aboriginal cultures, many scholars have had to resort to extrapolating relations at the band level to relations at a tribal level, thereby distorting a view of Aboriginal societies. The tribal history approach ignores the importance that kinship played in band formation and maintenance. Extrapolating band-level relations from those at the tribal level has presented a confounded view of Aboriginal societies.

As a doctoral student, Neal McCloud, a member of James Smith First Nation, which is just located a couple hours north of Saskatoon, Saskatchewan. He wanted to write a history of the Plains Cree. James Smith is a Plains Cree reserve. He soon relates however that his project would not be as straightforward as he first thought. ‘I had always assumed that my reserve, James Smith, was part of the Plains Cree Nation because that’s how my family identified. However, as I began to talk to various old people from reserve, I became very aware of the contingency of the label 'Plains Cree.' I became aware of the ambiguous genealogies that permeated my family tree as well as the narrative ironies that emerge when one tried to create a national discourse. In addition to the discovery of my own family tree, I became increasingly aware that the situation on James Smith was widespread and the assertion of a pure essentialized Cree identity or even a Plains Cree identity was extremely misleading and limiting.’ McCloud began to realize that the people of his reserve, like many in Saskatchewan, were of mixed ancestry. He found that ‘the reserve system solidified, localized and de-simplified the linguistic diversity and therefore the cultural diversity, which once existed in Western Canada.’ McCloud discovered that members of James Smith were descendents of Plains Cree, Saulteaux, Métis, and Dene people. The tribal specific approach fails to explain the existence of multi-cultural bands such as Cowessess and James Smith in the pre-treaty period. Contrary to tribal view, most Aboriginal bands on the northern plains in Saskatchewan were kin based and multi-cultural. Plains Cree, Saulteaux, Assiniboine and Métis individuals shared similar cultural kinship practices that allowed them to integrate into other bands.

Now to be clear, mutli-cultural bands like Cowessess did not form singular hybridized cultures, but rather were able to maintain multiple cultures. That is, this is not to suggest however that cultural sharing did not occur, but that there were significant numbers of various cultures within bands that allowed these individuals to be incorporated into the band without having their culture, without having to acculturate into one specific cultural group. So when Alanson Skinner published some of his findings, he talked about clans. He talked about clan systems with the Saulteaux. Now I should mention, the Saulteaux are what we call 'Saulteaux' are Plains Ojibwe. Those are Anishinaabe people. So he was talking about the clans of the Saulteaux people. And so on Cowessess, he found that there were two clans, the Eagle clan and the Blue Jay clan. Now what was interesting is that there were no clans for Cree people. Cree people didn’t have clans. So the only clans that were on Cowessess in the early 1900s were these two clans for Saulteaux people. So 30 years after settling on reserves, Saulteaux members of Cowessess were still known to belong to their clan. So they had lived on the reserve together for over 30 years but still had maintained their clans. Skinner also collected, these stories that he collected, another thing was interesting. He collected these stories, these Elder Brother stories, and he published them in 1913. But what he did when he published them, the title of the article that he published it under were Plains Cree Stories. He published them as Plains Cree Stories with a footnote saying that these stories were the same with the Plains Cree and the Saulteaux people and the Saulteaux people instead didn’t use the term [Ojibwe language], they used the Nanabush. So we see how the essentializing of their cultures are beginning with what Skinner, but other factors are at play here as well.

There is anecdotal evidence to suggest that there was some culture sharing between Plains Cree and Saulteaux band members. One elder once told me that the old people like my grandfather spoke what she called a 'half-breed Cree.' Now when she said half-breed Cree, I was thinking she meant Michif, which is the Métis language, a mixture of French and Cree or English and Cree so there’s a Michif language. But that is not what she meant. She said it wasn’t, that wasn’t what they spoke. They spoke a Cree/Saulteaux language. So there was a mixture of Cree and Saulteaux. Their languages would start to become mixed. So I asked her if she could understand that language and she said 'no,' she couldn’t understand that language because for her she was Assiniboine and that wasn’t her language. And so she was still identifying as an Assiniboine woman who spoke or at least could understand Assiniboine, but could not understand half-breed Cree, as she called it.

Individuals from various cultures were able to coexist in the same band because they shared similar cultural attributes. A central cultural trait was the way in which kinship was practiced. They all followed the same kind of kinship rules. They all followed the same kinship rules. It didn’t matter if they were Assiniboine or Cree or Saulteaux or Métis and what’s important is that the Cree and Saulteaux are very similar linguistically and culturally they’re very similar. Assiniboine, they’re Siouxs, those are Sioux people, very different language, but they also follow the same kinship practices and so did the Métis. And the Métis are very important when considering the fact that they are supposed to be and they usually are described as being both culturally and significantly racially distinct from First Nations people. But if they were that distinct racially and culturally distinct, why was it there are so many Métis people in the bands pre-reserve? And I do talk a little bit about that, well, talk a lot about that in my dissertation.

In 1985, when Bill C-31 amended the Indian Act and altered band membership codes, many First Nation people voiced their displeasure. The new membership codes allowed those who had lost their status and their children to regain their status. The majority of them were women but there was also a mechanism in place for men to voluntarily give up their status and usually they had to meet certain criteria to enfranchise, what’s called enfranchise. But the majority of people who had lost their status was women when they married non-Indians. As reported in the media, these tensions, and there was tension between, there was lots of tension between those who had status and those who didn’t. As reported in the media, these tensions were due to competition over resources and issues of authenticity and governance that were probably too complex to capture the mainstream, the attention of most Canadians. Bill C-31 and the complex set of policies and legislation implemented by the Canadian government to define federal Indian status and band membership engendered issues of authenticity, government funding for First Nations and influenced individual and collective responses to the new members. The legal debate couched in terms such as tradition, culture, self-government and colonial oppression made it clear that many First Nation people had either internalized the imposed definition of 'Indian,' had employed these definitions for their own benefit or had political reasons for supporting the continued if temporary use of the definitions.

Cowessess First Nation’s political leaders were not a part of this national debate over Bill C-31. In the interviews I conducted with Cowessess people showed that in contrast to positions of most First Nations leaders, Cowessess band members had a relatively high tolerance for members who had regained their status through Bill C-31. These feelings are consistent with the cultural values expressed by band members, which placed importance on maintaining family ties and which are consistent with the values of kinship found in the law of the people. Many responded, mentioned that they felt that it was wrong that First Nations women had lost their status when they married non-Indian people and believed that women were entitled to being reinstated. Others stated that Bill C-31 didn’t go far enough because there are still many relatives who are not eligible to be reinstated. This is not to say that all were in agreement with Bill C-31. However, the overwhelming majority of people I interviewed formally and talked to informally felt that Bill C-31 was a positive for the band.

In fact, this one quote, this one interviewee that I had summed it up best and here’s a quote: ‘It never really made much of a difference, Bill C-31. Other reserves were different than Cowessess in their treatment to Bill C-31 where most of their members, the other reserve band members, stay on reserve and for them bringing in people who were Bill C-31s created a bit of jealousy. So many other bands made a rule that Bill C-31s weren’t band members. Cowessess did not do that, probably because we are more open than that in that most of our people live off reserve. Our people have been marrying other people for a long time, white people included, for generations by now. In that sense it -- including Bill C-31 band members -- is nothing new to us. We are a small reserve. They’re all Indians. On our reserve, 80 percent of our people leave and marry other people so in that sense when Bill C-31 came along, you had two extremes where one was very strict about who were Indians, the other extreme maybe people wouldn’t want to be inclusive of the members they bring in. So Cowessess would be more on the other extreme of being more accepting. There are some Cowessess people who have a hard view, but the majority don’t.’ So this explanation acknowledged their historical marriage practices of Cowessess people how that acted to incorporate people into the band and it also recognized the fact that Cowessess people understand that marriage practice, this kind of marriage practice was a cultural trait. Though there were some who viewed Bill C-31 as having negative impact, most saw it as having a positive, as a positive for the band. Many were, they were happy that their relatives were able to regain their status. Many respondents however also stated that Bill C-31 didn’t go far enough. Nonetheless, in the interviews it became clear that unlike other bands Bill C-31 members were welcome in the band.

In 1992, another event happened that demonstrates the way in which Cowessess people viewed kinship and the impact it has on their social and political situation. In 1992, Canada and the province of Saskatchewan signed an agreement with 22 Saskatchewan First Nations. This was the Treaty Land Entitlement Framework Agreement. Now this framework agreement, what it was, it provided the mechanism by which First Nations would be able to gain the land that they were entitled to through treaty, but had not up to that point. Cowessess made a claim to be a part of that group, but their claim had not been validated. To have a claim validated, a First Nation had to demonstrate that the original band census that was used to survey the reserve was incorrect. The stumbling block for Cowesses was that the federal government had insisted that the band members, the original band members census for Cowessess had been 470, which was 130 more than the reserve was surveyed for. However, Cowessess had argued in fact it was much greater than that. One of the stipulations to get the TLE [Treaty Land Entitlement] claim validated was that an individual’s name had to appear on a band’s annuity pay list in two consecutive years to be counted towards the claim. Cowessess couldn’t prove that. Cowessess negotiators had noticed that there were many people who had accepted annuities one year, but who then never again appeared on the pay list. Cowessess argued that these people did not appear the second time because they had died. Indian Affairs argued that the people might have gone to other bands, taken Métis scrip or left Canada entirely to join relatives on American reservations in Montana or North Dakota. Cowessess researchers determined that the people in question did not appear on any other band list in Canada or United States nor in the scrip records. They also found no trace of them in the records of the Hudson Bay Company, which would have been an important source of income. Cowessess then argued that these people be included in the claim by linking their disappearance from historical records to Edgar Dewdney’s 1880s starvation policy. What’s that you say? I’ll tell you.

In the 1880s, the Canadian government under the orders of Dewdney who was at that time the Lieutenant Governor of Northwest Territories, implemented a starvation policy in order to persuade 3,000 to 5,000 Indians, First Nations people to leave the Cyprus Hills region of Saskatchewan, which is in southwestern Saskatchewan. He considers his policy a success. ‘I look upon the removal of some 3,000 Indians from Cyprus Hills and scattering them through the country as a solution to one of our main difficulties as it was found impossible at times to have such control as was desirable over such a large number of worthless and lazy Indians, the concourse of malcontents and reckless Indians from all the bands in the territories. Indians already on the reserves will now be more settled as no place of rendezvous will be found where food can be had without a return of work being extracted.’ Terrence Pelchat, the Treaty Land Entitlement Manager for Cowessess during the time of the negotiations, linked Cowessess's position regarding the pay list to Dewdney’s policies. ‘Cowessess claimed that these persons died on the prairies during the year between treaty payments. It was the federal government policy at that time to withhold food and rations to certain Indians and Cowessess's claim was that Indians starved on the Plains because of it. We argued that the federal government should not benefit in that case because it was their policy, their own policy that killed them and they can’t benefit now by not paying Cowessess land benefits because Cowessess members were dead and couldn’t show up for the pay list counts.’ The federal government has never acknowledged a starvation policy or its devastating affects on Cowessess people. The government was reluctant for a discussion of this issue to enter into the public realm so Indian Affairs decided not to challenge Cowessess on the issue. They agreed to include these people on Cowessess though each name had to be reviewed individually and verified to see if they could be included.

So what happened with Cowessess is that they got up, when they got up to about 810 names, or sorry, they got up to about 700 names. They got up to about 700 names and Cowessess said, ‘How many more names do you have?’ They said about 300. The negotiators said they couldn’t go that high. They cannot, every name that they presented was getting verified, was getting included, but they knew, the negotiators knew they couldn’t go that high so they decided that what they could do is, they can reach a negotiated number. Now the down side was that they didn’t get the claim that they should have got but they may never have gotten that claim because the federal government wouldn’t have paid the money or at least that’s what the negotiator, the federal negotiator said. So they ended up with a number of 810 negotiated. So the only band in Saskatchewan with a title claim that doesn’t have a hard number with their figure, but they have a negotiated number 810. But what that says, although they know they have a good 190 more names. So they went from 470 to 800, but they know they had 1,000. Those people that were not included were all people that died as a fact, they claim that died of starvation due to the starvation policy and that was from one band. That was from one band. So the importance of the TLE to Cowessess then in terms of asserting their culture identity is summed up by this, to the question, do you think there was any kind of connection between the TLE and the importance of family?

This participant responded by saying that TLE, sort of tying TLE to treaty rights, maintenance of family and the social dislocation of band members. This is his answer. ‘Yeah, you look at what we didn’t have. We were entitled to this [certain amount of land] and we didn’t get it. What did we miss because of the result of that? We have 3,080,’ at this time, ‘We have 3,000 people. 80 percent of them live off reserve. Well, could it be because we didn’t have half our land? Could it be that the half that we didn’t get, we lost a quarter?’ They lost another quarter, so they didn’t get a whole bunch of land through TLE, but they also lost a quarter of their land was alienated illegally through fraud. So they lost another part of their land. ‘Could it be we lost a quarter of it through government fraud? What happens when people leave? They no longer have the support of the community. They have to take their children somewhere else and they raise their family without the support of back home, without the support of the reserve. If you don’t have the reserve to live on, where are you? Where are you going to go? I guess that is why Cowessess has such a big membership leap. That’s why so many people left the reserve by the 1950s. That’s why we have so many people who have left. So to me, that is what TLE means. When you look at it from a treaty rights point of view and it wasn’t until we got $46 million, it was only then that I realized how valuable our treaty right was and that TLE is a treaty right and that treaty right was supposed to somehow guarantee the security of Cowessess people and if we never got that, then that’s what happened. Our people lost security. So that’s what happens to Indians when they don’t have their land. Indians lost their status of the reserve. Indians without land are nothing. So that is what TLE is. It represents what happened historically. It answers why there are so many off the reserve. It answers why the social conditions are the way they are. It also offers some kind of hope for the future now that we can reconnect with the land. We know what the land represents to us, how we can use that to our benefit. I think we have a hell of a future. Maybe I won’t see it, but I know my family will. So TLE in terms of land, I think we just don’t know how important it is to us. To me, that’s what I think. I think that the treaty right to land can be fulfilled. I think what would happen if all of our treaty rights were fulfilled. We don’t know what we have until we see it’s gone. When we get $46 million, you know what you were missing before and you know what the treaty right was that you were fighting for. Nobody knew that I don’t think. We had our past leaders, they understood the importance. If they didn’t fight for it, we would have,  what would we have?’ So the TLE for this band member represents hope, but it also represents the fulfillment of treaty. It represents the connection to family. It also represented, he also mentioned that it also represents the sacrifice of the ancestors. Their ancestors provided a legacy. Even though they were not originally not counted as being a part of the band, they were part of the band and the $47 million, that’s how much Cowessess received in their claim. As a result of the TLE was the legacy of those band members who starved to death on the plains as a result of the Canadian government.

Traditional stories help us to understand how Aboriginal people view and practice their kinship relations. This is perceived by many as being what differentiates them from mainstream Canadians. It is of little wonder then that DeMallie has implored Native Studies scholars to be creative in their approach to recognize and gain a better understanding of the importance of Native kinship patterns. Kinship patterns do not exist in a vacuum. They interact with the social environment that surrounds the people who exercise them. Like other cultural aspects of the band, kinship practices of Cowessess have changed considerably since members have settled on the reserve. Some of these changes were forcibly imposed on them while others were adapted by members to meet the challenges of the new era. What may be surprising to many is the degree to which contemporary kinship practices, whether customary or new adaptations, still observe the principles found within the law of the people. Elder Brother stories help to explain Cowessess kinship practice of the pre- and early reserve period when people were easily incorporated to the band including the adoption of white people, as I mentioned earlier. The Canadian government’s assimilations policies however sought to undermine the law of the people including the regulation guiding kinship practices. These attempts were in many respects successful, yet for many Cowessess people, the notion of kinship -- as epitomized in Elder Brother’s behavior -- continue to obtain demonstrating the ideals of the traditional law of the people remain implicitly central to principles guiding band member’s social interaction. The extent to which current Cowessess members tell the stories or even know the story is not certain. What is apparent however is that the values encoded in those stories have persisted. These valued didn’t just come from anywhere, they came from these stories and from pre-reserve and early reserve periods to the present. Unfortunately, scholars have not taken Elder Brother stories into account when describing historical northern plains Aboriginal societies, even though many Cowessess members may not have heard any of the Elder Brother stories,

So in conclusion, the way in which Cowessess people have interacted and continue to interact and practice their cultural kinship has allowed them to make certain arguments that, political arguments like with the Treaty Land Entitlement, like the way in which they have incorporated Bill C-31 members, that have, and we don’t know to what extent the other bands could have benefited by using this approach, but what we do know is that by incorporating their kinship practices that they have been able to maintain over the years has helped them in putting forth political argument that will in the end strengthen their sovereignty and provide for a better future for them. Thank you.

[applause]

Manley Begay:

Thank you, Rob. Like I said, listening to Rob makes me think of north of the 49th parallel, it’s just so close and there are a lot of interactions between First Nation peoples up in Canada as well as those down south. For instance, my people, I’m Navajo and we have relatives all the way up into the northern part of Canada, the Dene people. We’re very close relatives. We speak the same language. And so as Rob was talking about his First Nation I was thinking about, it’s really a story of love because of interrelationships and intermarriages that went on and about the federal government’s meddling in the affairs of Native people leading to some misconstrued policies that really screwed things up. It’s about some sense of regaining strength, losing strength and regaining strength once again and providing a sense of hope for what could be the future. So these are sort of things that came out at me and ultimately, I was thinking about love again because of the interrelationships that went on and how do you move a society forward. So those are things that I sort of thought of as Rob was talking. A couple questions, by the way we have food next door in 332. So if you go out the door here, just turn right and just follow the arrows and there’s food and refreshments there as well. Rob might want to field some questions. No questions? Okay, let’s go eat. Questions please.

Robert Innes:

It’s good for me.

Nance Parezo:

I’ll ask him something.

Robert Innes:

Sure.

Nancy Parezo:

Somebody did listen. We all listened. Rob, there’s a lot of groups like I was thinking of St. Regis with the Iroquoian groups. Do you think if people started redoing the histories on a lot of the groups that are going back you’d find the same type of things going on that you’re finding up here? It’s kind of a unit-of-analysis question back to your dissertation days. And how can we think, if we’re doing more history, how can we keep it being so isolationist like it was in Skinner’s day? These are little, these are communities that are like floating in time and space and that was never reality. So what do you think we can do?

Robert Innes:

Well, I think that, yes, I think that for most communities, I don’t know about all communities but I always think that generally speaking that most communities you would see that there are, the makeup of communities are much more complex than we think. I would think so and that most communities had mechanism to incorporate people without making them give up or inculturate, assimilate into the group that they’re, but it all depends though, there are, in Saskatchewan there were the young dogs who were Cree-Assiniboine, sorry, yeah, they’re Cree-Assiniboine that did develop a hybridized Cree-Assiniboine culture. So it does happen that the people do come together and create a new culture or if individuals go into a group, they may assimilate, but it depends on how many people are going into the group. So for Cowessess, there were significant numbers of each of these groups that they were able to maintain their culture or distinct culture, distinct identities.

Nancy Parezo:

I was thinking like the...too who are going both through time with alliances with the Crow sometime and then Blackfeet and that’s just,

Robert Innes:

And we don’t know, even on Cowessess with Saulteaux and Cree, because they were already fairly close culturally and linguistically and they were starting to become hybridized with the language, but the Assiniboine weren’t. So that was kind of interesting. It might have something to do with the degree of difference of the culture that people are interacting with.

Manley Begay:

More questions?

Audience member:

It’s really interesting to think about populations being these very dynamic things and how, and I know nothing about Canadian politics, but in the U.S. the policies have all been created around the homogeneity and stagnant nature of the populations so that now what you start to see as people do move off their reservations and live and love and marry in urban settings and more and more children are not full blood one tribe, you see tribes now trying to address do they have to lower their quantum. It’s almost like it’s inevitable with the structure that’s in place that the federal government can make it so that there is no one who is American Indian anymore.

Robert Innes:

Well, that’s where it becomes I think falling into the categories that are being placed out by the colonizer. So what I see with Cowessess is that there were, to be a Cowessess band member you could have been part Assiniboine, part Cree. My mom, my grandmother was Métis, my grandfather spoke a Cree-Saulteaux language, but still we’re Cowessess people. But most people would identify as Cree or they would identify as Saulteaux so they essentialize their identity. And when I ask people, ‘What kind of reserve is this? What’s this reserve? Would you say it’s Cree or Saulteaux or what, ’ Some would say Cree, some would say, but a lot of people said mixed. But when we take on the definition that you have to be three quarters or whatever Cheyenne to be a part of this band or this tribe, well, chances are there was never any, it’s been a long time since there was a full-blooded Cheyenne. Not to say they weren’t full-blooded Indians, but I would guess that prior to the reservation, settling on the reservation that they were culturally mixed. But because we accepted and we have to accept or we don’t, but people have, this definition that well you have to be three quarters Cheyenne, now, and the clock starts fresh from Dawes Act on, I guess. So yeah, I think that’s how we, by following that way then that’s when you can tell that the kinship practices are being undermined.

Manley Begay:

Any other questions?

Audience member:

Do you speak your language?

Robert Innes:

No, I don’t. No. The language on our reserve is, there’s only a few speakers left. There’s only a few speakers left. Part of that I think, it was interesting because I was talking to, they’re teaching it in the schools, teaching Cree in the schools, which is interesting because she was from another part of the province which is a predominately Cree community, very little intermarriage with other groups. She was saying that the language that she hears people talk, they have this ‘shhhh’ sound she says and she was attributing it to Michif because she’s saying that’s Michif, but I’m thinking, ‘No, that’s not Michif. I think that’s Ojibwe. That’s Anishinaabe and that’s the way they speak.’ So that’s part of the, I think that’s where that comes from, but yeah, the language is almost gone with the fluent speakers, although they’re introducing it in the schools.

Audience member:

How are they reintroducing it then, because if there’s only several or a few fluent speakers, then how is it, ?

Robert Innes:

What they’re introducing is Cree. They’re not introducing the language that my grandfather spoke or they’re not introducing Assiniboine or even Saulteaux. They’re introducing Cree. So this is part of the essentializing of the identity because they see themselves as Cree or Saulteaux, but they’re not going to be introducing this mixed language.

Audience member:

So what’s your thought process on the other nations now that are starting to lose their languages?

Robert Innes:

Well, that’s, one of the things you hear a lot is that if you don’t have your language, you’re no longer Indian. How can you be Indian if you don’t understand the language, you don’t understand the concepts that are in the language? And I don’t quite agree with that, I can’t. But I see the importance of the language and the importance of reclaiming the language. However, I think what happens is that people -- when they think of culture and think about Indian culture --they think of the more public displays of culture, the language, traditional ceremonies, powwows. They think of those public displays, but they very seldom think of the everyday things that you do that comes from your culture and that really defines you as who you are, and that to me is how you interact with your relatives and who you consider to be a relative. So when there’s someone sick at the hospital and 40 people show up and they’re told, ‘Well, this is only for immediate family,’ and you say, ‘Well, this is only like a third of us.’ And Native people are like, ‘What’s wrong with this,’ because everyone’s thinking, ‘This is the way everyone is.’ But reality, no, no one’s, not everyone’s like that. And so although I think that language is important and those other public displays of culture are important in defining and asserting and creating and maintaining culture, but they’re also the more difficult. It’s a lot more difficult. A friend of mine, he wanted to learn how to speak Ojibwe and he’s done a pretty good job in doing it, too, as an adult and we were living in Toronto at the time. He went to an Ojibwe language class. There were 35 people there. There were about 10 or 11 white people, the rest were Ojibwe. About three weeks later, four weeks later, there was still the 10 or 11 white people there, but only one Ojibwe because it’s not easy. It’s not easy. But maintaining your kinship is much easier. I’m not saying that you should do one over the other. If you can do both, you should do both, but I think to acknowledge the importance that kinship plays and how it is culturally rooted is I think important.

Manley Begay:

Clearly culture is very complex, culture is ever evolving, culture is not static, and I think Rob has given us a lot to think about. So with that we’ll conclude, but let’s give him another round of applause.

Robert Innes:

Thank you.

[applause]

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

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

Ian Record:

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

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

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

Ian Record:

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

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

Ian Record:

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

David Wilkins:

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

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

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

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

Ian Record:

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

David Wilkins:

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

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

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

Ian Record:

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

David Wilkins:

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

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

Ian Record:

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

David Wilkins:

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

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

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

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

Ian Record:

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

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

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

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

Ian Record:

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

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

Ian Record:

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

David Wilkins:

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

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

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

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

Ian Record:

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

Authenticity: Ethnic Indians, non-Indians and Reservation Indians

Year

Authenticity is a puzzling feature of contemporary Indian life. Growing up on an Indian reservation, I rarely encountered challenges to one’s identity as an Indian person. People within the reservation community knew most of the families. If they didn’t know the family connections of a specific person they could learn with a few inquiries to elders or their own family members.

One grows up on a reservation community where there is an old and somewhat fixed family and kinship structure. There is very little doubt about who belongs and who does not, at least from a lineal descendent point of view. Tribal membership, because of blood quantum and other rules, may be more complicated and legalistic. A person whose family has lived within a tribal reservation community for as long as people can remember and who are legally tribal members usually do not encounter challenges to tribal identity from tribal community members...

Resource Type
Citation

Champagne, Duane. "Authenticity: Ethnic Indians, non-Indians and Reservation Indians." Indian Country Today Media Network. January 6, 2014. Opinion. (https://ictnews.org/archive/authenticity-ethnic-indians-non-indians-and-reservation-indians, accessed March 7, 2023)

Indigenous Nations Have the Right to Choose: Renewal or Contract

Year

When making significant change Indigenous nations make choices about whether to build on traditions or to adopt new forms of government, economy, culture or community. Many changes are external and often forced upon contemporary Indigenous Peoples. Adapting to competitive markets, or new bureaucratic programs, or changes in policy and administration of nation states are matters that are outside an Indigenous nation’s control. Changes that are not generated within Indian nations often do not have community or tribal government consent, and therefore are taken in compliance only...

Native Nations
Resource Type
Citation

Champagne, Duane. "Indigenous Nations Have the Right to Choose: Renewal or Contract." Indian Country Today. November 3, 2013. Opinion. (https://ictnews.org/archive/indigenous-nations-have-the-right-to-choose-renewal-or-contract, accessed July 25, 2023)

Tribal Governments: What Price 'Democracy'?

Year

A puzzling aspect of the term tribe is its lack of a clear definition. Even the Department of the Interior, the last word on federal recognition, doesn’t have one. Most tribal communities do have an expression in their own language of what their community means to them and to their people. Take Lakota Oyate, which is often translated as nation. But appearances can be deceiving. In Western parlance, a nation is a group of individual citizens who share a common political government...

Resource Type
Citation

Champagne, Duane. "Tribal Governments: What Price 'Democracy'?" Indian Country Today. June 19, 2012. (https://indiancountrymedianetwork.com/news/tribal-governments-what-price-democracy/, accessed June 19, 2012)

Why Treaties Matter: Video Gallery

Producer
Minnesota Indian Affairs Council
Year

This video gallery serves as a companion piece to "Why Treaties Matter - Self Government in the Dakota and Ojibwe Nations," a travelling exhibit on treaties between Dakota and Ojibwe people and the U.S. It features testimonies from Native nation leaders and citizens about many of the exhibit's main themes, notably that tribal governments exercise indigenous sovereignty today, and that indigenous sovereignty was not given in treaties, but retained in treaties.

Citation

Minnesota Indian Affairs Council. "Why Treaties Matter: Video Gallery." A Companion to Why Treaties Matter - Self Government in the Dakota and Ojibwe Nations, an exhibit of the Minnesota Indian Affairs Council. 2013. Videos. (https://treatiesmatter.org/exhibit/videos/, accessed February 23, 2023)