lineal descent

Bethany Berger: Citizenship: Culture, Language and Law

Producer
William Mitchell College of Law
Year

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

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

Native Nations
Resource Type
Citation

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

Sarah Deer:

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

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

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

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

[applause]

Bethany Berger:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Native Leaders and Scholars: The Movement Away from Blood Quantum

Producer
Native Nations Institute
Year

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

Native Nations
Citation

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

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

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

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

Robert Hershey:

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

Julia Coates:

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

Jim Gray:

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

Frank Ettawageshik:

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

Sophie Pierre: Embracing Ancestry as the Basis for Ktunaxa Citizenship

Producer
Native Nations Institute
Year

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

People
Native Nations
Resource Type
Citation

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

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

Carole Goldberg: Internal Considerations in Redefining Citizenship

Producer
Native Nations Institute
Year

Scholar Carole Goldberg discusses the internal considerations that Native nations should ponder when deciding whether and how to change their citizenship criteria.

Resource Type
Citation

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

"So what are some of the things to think about from within your own community?

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

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

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

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

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

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

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

So one of the ways you could do it is you could say, ‘Fine, everybody who’s a citizen can vote, but you must be living in the tribal community in order to have voting privileges.’ In other words, anybody is entitled to come and live there so anybody who makes that choice can be a voting member. That way you can be ensured that those who actually make the decisions are the ones who are invested in that community. Or you could simply say, ‘No absentee voting,’ meaning that you have to really care about this community in order to vote and make the journey. 'Come on voting day, but we will not let you sit in the comfort of your home in Anchorage and vote for what’s going to happen in Citizen Potawatomi.' Or what you could do is what Citizen Potawatomi and Cherokee Nation have done, both of them places with large off reservation populations, and in the case of Cherokee Nation even contested whether there is a reservation, and what they’ve said is, ‘We are going to structure our voting by districts. There will be districts within our territory and then we will construct districts outside our territory that will not have an equal voice, but they will have a voice.’ So the Cherokee Nation actually created a bunch of districts within their territory and then they said, ‘There is a separate voting district that will elect a representative for the off-reservation Cherokees.’ And that way they are not excluded, but they are not given overwhelming influence. Two other suggestions for design that can help you start to accommodate some of these considerations. One is the idea of the right of return and this idea is the idea that anyone who is a lineal descendant would have special privileges to become a citizen if they so chose. So they would have to make an active effort. They would not automatically as a lineal descendant be a citizen, but they would have to make the affirmative effort to affiliate and if they did they would be allowed to do so. It’s not that they would have to be subject to someone else’s decision about it, but they would still have to make the active choice. That way you can ensure that there is some real connection that that person has to the community.

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

What I want to emphasize is that there are a lot of choices available, in theory. That doesn’t mean that all of these choices are available just because they sound intriguing. You have the hard work, the hard work of political process and I’ve worked with communities that have tried to develop consensus on what should be the criteria for belonging. It’s not easy."

Matthew Fletcher: Defining Citizenship: Blood Quantum vs. Descendancy

Producer
William Mitchell College of Law
Year

Michigan State University Law Professor Matthew Fletcher compares and contrasts between Anishinaabe conceptions of citizenship and belonging historically and today, and proposes that conference participants consider taking some innovative approaches to redefining citizenship that address the complex cultural, legal and political landscape that Native nations face.

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

Resource Type
Citation

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

Sarah Deer:

"So this session will highlight the major issues that arise in this debate about whether to require a minimum blood quantum for tribal citizenship or base citizenship decisions on lineal descendancy and understanding that there's many other factors that a tribal nation can use to define citizens. We're going to focus on these two issues for the remainder of the morning. We have two speakers, both tribal members.

We have Matt Fletcher from the Grand Traverse Band. He's a professor of law and Director of the Indigenous Law and Policy Center at Michigan State University. He's Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He's a member of the Grand Traverse Band of Ottawa and Chippewa Indians and in 2010 he was elected to the American Law Institute.

Dr. Jill Doerfler, Associate Professor at the University of Minnesota Duluth grew up on the White Earth Reservation in Western Minnesota. She earned her B.A. in History from the University of Minnesota-Morris and her Ph.D. in American Studies from the University of Minnesota. Her areas of focus were literature, historiography and politics. She has extensive credentials that you can read in your materials, but I'll note that in 2011 Dr. Doerfler was awarded a faculty fellowship from the Institute for Advanced Study, University of Minnesota. In 2010 she won the Beatrice Medicine Award for Scholarship in Native American Studies. So please join me in welcoming our two speakers for this panel."

[applause]

Matthew Fletcher:

"Good morning everyone. [Anishinaabe language]. My name is Matthew Fletcher and I teach at Michigan State University School of Law and though 'Sparty' pays the bills, I have to say too [Anishinaabe language], which means 'Go Blue!' And I have a lot of relatives going back to the 1890s who have been going to Michigan so I have to recognize them as well. I'm going to be talking to you a little bit about some of my experiences in working in Indian Country on tribal membership issues. I will touch upon certainly questions of blood quantum and lineal descendancy, although I think it's pretty clear if you were at the morning session that Steve [Cornell] in particular really covered sort of the foundations there, and so I may jump off a little bit from what he had to say and I'll certainly jump off from what John Borrows had to say. So let's just kick in right now.

I'm a member of the Grand Traverse Band of Ottawa and Chippewa Indians, which is located in the center of the universe, Peshawbestown, Michigan, and I am also a descendant, a Potawatomi descendent and eligible for membership at three Potawatomi tribes in Michigan, which is Pokagon Potawatomi, Gun Lake, and Nottawaseppi Huron. Most of my relatives frankly are Potawatomi...Pokagon Potawatomi descendants and so I'm going to talk a little bit about one of my ancestors who's a guy named Leopold Pokagon. He's I think great...three great-grandfathers ahead of me and he is the...actually for whom the Pokagon Band of Potawatomi Indians is named in many ways though he is actually not a Potawatomi guy. The story goes is that he is from the Grand Traverse Bay area so there's double my Grand Traverse Bay lineage there to some extent. It's not totally clear if he was Ottawa or Chippewa, but let's assume he was Ottawa and he moved down state. Either as a young person, he may have been adopted as a young person, as a child or married into the family down state. He married a Potawatomi Ogama who's name was Topenabe, married his daughter and I don't remember her name. And eventually in the 1820s and 1830s, after his father-in-law passed away, he became the Ogama for what would become the Pokagon Potawatomi, the St. Joseph River Potawatomi group and negotiated treaties on behalf of the tribe. And in fact, one of the...they were the...this Potawatomi band was one of the only Potawatomi bands able to escape removal out to the west into Kansas and later on into Oklahoma. You may have heard of the Prairie Band Potawatomi and Citizen Potawatomi, they're from southwestern Michigan, northern Indiana area. The Pokagons were able to stay back and were able to avoid removal.

What's important about our story here is that as I said before, Leopold was an Ottawa guy so the real question is, if he's Ottawa, how the hell did he become the chairman of an entirely different tribe, if not just the chairman, the member of that...a member presumably of that tribe? And it really goes to the Three Fires Confederacy in the Great Lakes, especially Michigan, the Ottawas, Potawatomis and Chippewas, very close-knit communities at the same with individualized leadership structures and geographic entities. We call them 'bands' or 'tribes' or 'communities' now and in many ways they had some of the same political distinctions between them in the 18th, 19th and early 20th centuries as well. I think it's important to note that one of the reasons Leopold did not stay back at Grand Traverse Band is a very pragmatic one, it would have been -- if it were him and definitely in my own experience it is with me -- you hang around your own village and you're a young man growing up, it's very likely that you're going to have to leave. Otherwise, you'll end up marrying one of your own cousins and so that is why people move around, why there's a lot of intermarriage between the Anishinaabe communities in Michigan and elsewhere. And this is a perfectly reasonable and culturally justifiable way of measuring and determining, I guess, what we would call 'membership' or 'citizenship' now. Again, I'm going to have to use those words because I don't speak very much at all of the Anishinaabemowin and I am an English-language speaker and I've obviously been taught in the English language for my whole education including my law degree. So I just mentioned Leopold because I think it's important that how far away we've moved from what would have been very non-controversial, relatively speaking, membership or citizenship decisions made in the 19th century to where we are now. There's no way Leopold could ever become a member of his own tribe, the Pokagon band, at this time and it's a very strange, long road as to how we've gotten to that part.

I want to talk about a second story, which is a case I litigated as in-house counsel for the Grand Traverse Band, a case we'll call En re M. And M. was a young kid. He was a descendent of Thames Band Oneida. His mom was Thames Band Oneida. She claimed to be full blood. And as a tribal attorney for an American Indian tribe, we are -- and the enrollment office will tell you this, too -- we are taught that when just because a Canadian Indian says they're full blood doesn't necessarily make it so because of the Canadian Indian Act where either you're full blood or you're no blood whatsoever, at least that was the paradigm under which so many Canadian Indians were forced to live under. And so he claimed to be Thames Band Oneida, which didn't do him much good in trying to become an enrolled member of the Grand Traverse Band, but his father was one-eighth Grand Traverse Band. And if we were able to count any of his Canadian Indian blood -- at least one-eighth -- he could have gotten bumped up to a quarter and therefore be eligible for membership under our criteria at that time. And it was my job to fight this young kid's application. It was not a fun case in any way. It was quite a disturbing case frankly. Easily the hardest case I'd ever had to do. Most of my work as in-house counsel litigating cases in tribal court -- and I did enjoy litigation a great deal -- was mostly litigating against tribal members or in this case someone who wanted to be a tribal member -- a kid, basically a kid who was in high school at that time, and I had two arguments in objection to his claims. Number one, the Canadian Indian blood was indeterminate, we couldn't know for sure as a matter of law and number two, we couldn't count Canadian Indian blood anyway because it was from Canada. Both of these rules, both of my arguments, are as a matter of law, Grand Traverse Band law, were the prevailing arguments. I won. The tribe won the case. We were able to keep this young kid out, but I will tell you now that I have moved on from my job as in-house counsel that both of those arguments are horse sh**, and I think everybody in this room realizes that this kid probably was...had more blood quantum in him than the vast majority of our own tribal membership, although it's hard to say, who knows what that means.

So I bring these two questions to you, these two anecdotes or cases to you as examples of how far we have gone wrong to some extent when we talk about tribal membership criteria in American Indian tribes. You know that there are some tribes who -- and Steve again, thank you, great job putting up the PowerPoint talking about the wide variety of membership criteria -- but I think it's safe to say the two paradigms of tribal membership in the United States are blood quantum and lineal descendency. And sometimes there's a combination, but generally speaking the main criteria for tribal membership is one or the other. And as we often say in law schools, these criteria are over- and under-inclusive. Blood quantum includes people who may or may not have any connection whatsoever to the tribe and excludes people who may live from the reservation, who speak the language perhaps even as their first language. They may even dream in the language and participate in the ceremonies and participate in the cultural life of the community and the polity of the community, but for whatever reason are not tribal members. And then lineal descendency, as you all well know, may include people who have never been to the state in which the tribe is located or it may include people who just have no connection whatsoever. There are anecdotal stories in Michigan of members of the tribes who are of lineal descendency who, for example, in Upper Peninsula of Michigan, there's the Sault Ste. Marie Tribe -- which is a tribe of lineal descendency -- participated in the fishing wars of the "˜60s and "˜70s. The tribal members fought against a bunch of people trying to stop them from exercising their treaty rights and then after the treaty rights wars are over, treaty rights survived and became regulated and more predictable, the tribe suddenly was inundated by some of the same people who had fought against them demanding an application for membership and some of them were eligible for membership and so they were brought into the tribal community and recognized as treaty, card-carrying fishers. I'm not saying that's a good or a bad thing. It is obviously a bit ironic, but it gives you a sense of how some of these membership criteria can be very arbitrary. Although I won't say capricious, I won't go that far.

I've passed out a couple of law review articles and I haven't really been able to take the time to really write down all of my thoughts about tribal membership. These are very incomplete articles, but I have a couple of ideas when it comes to tribal membership, what I would like to see more tribes think about. I want to second something that Steve said, which is, 'Don't let the federal government tell you what to do.' That was part of my problem with the En re M. case. I was actually able to persuade the tribal court that if he recognized this Canadian kid that the federal government would come swoop in and take our federal recognition away from us and the reason I was able to persuade the court of that is because we had multiple letters from the 1980s from a guy named Scott Keep in the Department of Interior who said exactly that. "˜I will make sure that if you accept these other people in that Congress will strip you of your federal recognition.' So there's that, and I want to second a whole lot of what John Borrows said about recognizing that the law is in the heart of the language. That's the most important part, really the most important talk I'm sure you will hear today, but a couple of other things. And I come to you and I say these things, these recommendations with my very incomplete and superficial understanding of [Anishinaabe language], which I think is an encapsulation of the natural law of the Anishinaabeg communities. And something that I think that I would like to think more about in terms of incorporating how we take these concepts that John called vague and make them into legitimate and real legal concepts and legal structures. And I think the first place we can go is immigration law.

Immigration law in the United States is highly controversial, but the structure of the thing isn't really all that confusing. Basically, when somebody comes into your community, you take to them and maybe you stop them at the border or maybe you go up to them at some point later on at some entry level and say, "˜So, what do you plan on doing here?' and "˜How can you contribute?' and "˜What are you going to do for this community?' And so we have things like visas and green cards, people can come here and work, they can come here and go to school, many people come here and they go into the military. They don't always become citizens, they don't always have complete voting rights, but they participate in the economy and in the social structure and in the polity of the community, or in this case, of the nation. And I don't see any reason why Indian tribes can't do the same thing with people that come into their reservations, even on fee land owned by non-Indians, they can still exercise some governance authority over them. And the way to do that frankly isn't really all that difficult, much different than what some tribes are already doing.

Somebody comes into your reservation and says, "˜I want a job,' and you hire them. They probably have entered into a contractual relationship with the tribe. There's no reason that the tribe can't then say, "˜Well, now that you're here, when you're on the reservation you're subject to our laws.' It's really nothing more than what a visa is. Or when somebody comes onto the reservation who's a non-member or a non-Indian who's perhaps married or attached to our tribal members and they want to live in tribal public housing or they want to take advantage of tribal governmental services, whatever might be available, those individuals should also be aware and be considered at least 'semi-citizens' of the tribe. That doesn't mean that just because somebody works for the tribe or somebody receives governmental services or lives on trust property that they are full voting members of the tribe. Lots of tribes have differing citizenship classifications. I live off the reservation at the Grand Traverse Band, outside of the six-county service area, I'm not eligible to vote in most elections, but I'm still a citizen of the tribe. So there's no reason why these people who are not blood Indians cannot be brought into the tribal polity. And I think it's important that we consider the possibility that we broaden our scope of citizenship and membership and we can call it whatever we want. We can call them the Anishinaabeg word for 'immigrant' if we can come up with a good respectful name for that. All of these people are something...are people that we should try to bring within the grasp of the tribal community and of the tribal government and in a good way and in a way that is consistent with [Anishinaabe language].

I think there are a couple of different reasons for that. One is very...they're both very pragmatic reasons and the reality of our modern issues arising from Indian Country governance. Number one is, the outside world perceives Indian tribes as being race-based nations. That is the absolute perception. Unless, with incredibly narrow and few exceptions, people cannot be full members or citizens of an Indian tribe unless they have a racial ancestry. And for those of you who know anything about American constitutional law or our history, that is quite a problem even in the United States. There are a whole series of constitutional amendments designed to prevent states and the federal government from doing the exact same thing that Indian tribes do as a normal matter of course. Now, we all recognize there are perfectly legitimate reasons and perfectly understandable reasons why tribes move in this direction, why tribes use ancestry, they use blood quantum, or lineal descendency to articulate and define citizenship. And I'm not saying actually that should change whatsoever, but what I am saying leads into the second major pragmatic point which is, there are people within Indian Country that the tribe cannot control. These people in some instances know that. In context like sexual predators, in the context of environmental dumpers, Indian Country is a target for people like this, people who are non-Indians who know they can get away with it because it's Indian Country and the reason they can get away with it is because the courts and the politicians in D.C. and in state legislatures believe that Indian tribes are less than when it comes to acceptable governments. And one of the main reasons they consider that and they believe that is because of this racial ancestry requirement to tribal citizenship.

Now, I recognize that there is a bit of a hole in my analysis that I'm arguing, on one hand, racial ancestry as a criterion for citizenship leads us into a bad place and limits us as Indian tribes, as tribal leaders and tribal government entities from exercising our jurisdiction. On the other hand, I'm also saying let's not do away with tribal membership criteria that is based on ancestry and so there is a distinction there, there is a problem and I can't pretend to resolve it in this moment. But I do think that a well thought out and creative immigration policy, immigration rules, finding a way to get those non-Indians, those non-members to consent to tribal government, as many as possible, is a way to legitimize tribal governments, to exclude people is actually a paradigm we should move away from. But to be more inclusive is a place we should consider going, more inclusive with practical limitations. Now I've given this talk before and one of our prior presenters, I don't know if she was listening to me, but she gave the exact response that I expected to get, which is, "˜Well, if we do that, then Indian tribes will just become German.' What she went by that -- this is Bethany Berger -- is sort of joking was that there are a lot of German people apparently who would love to be members of Indian tribes. And if you know anything about German hobbyists, you'll know exactly what I'm talking about. That doesn't...actually that's not a very good response to my comment or to my suggestion. I really think that tribes can be much more creative in how they define who is within their polity, who is within their government control.

And the last thing I want to say and this may be, depending on, because of our audience, may be the most controversial thing. I don't know that major change in creativity on the question of tribal membership and citizenship and the questions of inclusion and exclusion can be fulfilled without a major and important reconsideration of our tribal leadership structures. So many times I've read about histories of Indian tribes and especially in the Great Lakes -- because that's what I really focus on -- and also the traditional stories on the question of leadership really give me the sense that Indian leaders in the Great Lakes area, the western or the upper Great Lakes, were not elected leaders. They were appointed for a particular purpose and some leaders are really good at negotiating agreements or treaties with other leaders from other nations or even within the tribe. They have incredible skills and I've seen leaders from lots of tribes, my own tribe -- which I frequently criticize, I will tell you -- who are amazing diplomats, who speak in a way that I would never be able to do. I just don't have that skill. And then there are leaders who are incredible business people who can see through and have a vision about how to make an organization work and how and creative ways to develop an organization and to generate governmental revenue. And then there are leaders who are just amazing at taking the views of their constituents and moving forward with those views and trying to take the issues constituents bring up, it could be anything from employment to housing to anything and find a way to react to those issues and solve those issues going forward.

But too many times, I see people being elected for four years who are good at some of those issues and not so good at other of those issues and we always joked -- and believe me this is a great lawyer joke, a lawyer joke not directed at lawyers by the way. You can make those jokes as well, I'm asking for it. But we used to say at Grand Traverse Band, the only thing you needed to be to be a leader was electable, to have a big family, and sometimes that isn't really the kind of leadership you're looking for. Sometimes it is, but sometimes it isn't and I think we need to reconsider exactly what it is that tribal leaders are good at. We had this proposal at Grand Traverse Band that the tribal council shot down, not because they weren't tempted by it, but because it was too obvious what we were trying to do.

The other lawyer joke we had, and again not one directed at lawyers, but us lawyers directed at our clients basically was, every council member was one-seventh tribal chairman because we had seven council members one of whom was the chair and they all thought they were the chairman. And we always joked about that, so one day we wrote up how to reorganize the tribal government so that they actually would all be one-seventh tribal chairman. And the government is this system of departments that could actually be structured in such a way as to give each of the seven elected officials control, chairman-like responsibility over a discrete amount or a discrete listing of departments, very much like the Secretary of Interior is in charge of the whole series of agencies within what is the Department of Interior. And we thought this was a fantastic proposal, we knew exactly where people would go. One person, one of our council members, our clients was really, came from the housing department. She was elected because of issues relating to the housing department. She should be the secretary of housing and on down the line. Obviously it was shut down, it didn't go anywhere, but I think that more generally speaking a reconsideration of the rules and of the appointment of tribal leadership is also in play and also may actually be a prerequisite to serious reconsideration of tribal membership issues.

Now that I've said that, I'm going to sit down and let Jill [Doerfler] speak and I'm sure she's going to give a much more peaceful presentation. But I want to thank you all and say [Anishinaabe language] to the Anishinaabe people who are here and also to the Dakota and others who...anybody who is from this area or who has listened to me today and I thank you very, very much."

Jill Doerfler and Carole Goldberg: Key Things a Constitution Should Address: Who Are We and How Do We Know? (Q&A)

Producer
Native Nations Institute
Year

Presenters Jill Doerfler and Carole Goldberg field questions from seminar participants about the various criteria that Native Nations are using to define citizenship, and some of the implications that specific criteria present.

Resource Type
Citation

Doerfler, Jill and Carole Goldberg. "Key Things a Constitution Should Address: Who Are We and How Do We Know?" Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A Session.

Mike Burgess:

Mike Burgess from Pawnee Nation College. My question is to both either yourself Jill [Doerfler] or Dr. [Carole] Goldberg. In your research and findings, had there been any discussion on consolidation of tribal blood quantum and make it all one tribe?"

Carole Goldberg:

"By consolidation, you mean looking at people who have blood quantum from a variety of different tribes?"

Mike Burgess:

"If a member is not enough of your blood quantum, but they have more than enough to be a quarter blood, half-blood, even full-blood Indian, which is happening to a lot of our children in Oklahoma, they're full-blood Indian, but can't get on any roll."

Carole Goldberg:

"Right."

Mike Burgess:

"So if you're consolidating that and you recognize them as a member of your tribe and make them full-bloods or half-bloods, just your tribe only. Have any tribes approached that?"

Carole Goldberg:

"Not only have tribes proposed that, but I have actually seen it in some of the constitutions in California tribes where it may well be, for example, there are so many Pomo tribes in northern California. And you may not have descendance from this particular Pomo tribe, but in times past there was all kinds of intermarriage and kinship relations. And so the view of some of these tribes is as long as you're hypothetically one-fourth is from some Pomo tribe, they'll make you a member of this particular tribe so long as you don't also try to become a member of some other tribe. It's definitely being done. I wouldn't say it's widespread, but it's definitely being done."

Mike Burgess:

"Thank you."

Robert Hershey (moderator):

"It is. It is in a number of constitutions and membership ordinances that if you are a member of another tribe you cannot be a member of this particular tribe that you're trying to be included in. So that is something you'd have to look at either through your constitution or your membership ordinance and to change if that's the result you wanted. Yes, sir."

Ray Louden:

"Hi. I'm Ray Louden with Red Lake. This is for White Earth. How is the new constitution with White Earth going to affect the constitution with the Minnesota Chippewa Tribe, and then is the ultimate goal then for the White Earth Nation to be removed from...?"

Jill Doerfler:

"The White Earth Nation has tried for many, many years to engage the Minnesota Chippewa Tribe in constitutional reform at the level of the Minnesota Chippewa Tribe and those efforts have not been fruitful. As I said, we've had efforts at White Earth for 30 years and we've tried to engage the Minnesota Chippewa Tribe throughout that time. Minnesota Chippewa Tribe has always -- well, I don't...not always -- they've had for a long, long time had a standing committee on constitutional reform. No actual action has come out of that committee for many years, and so ultimately White Earth citizens felt that we need to move on our own. It's unclear what will happen with regard to the Minnesota Chippewa Tribe, whether White Earth will still participate or how the Minnesota Chippewa Tribe will react to us having our own constitution."

Robert Hershey:

"Thank you. You're Red Lake, yes? Yeah. We have time for two more questions right now, the speakers at the microphones then we'll break for lunch. I want to make an announcement about lunch in just a minute. Yes."

Stephanie Cobenais:

"My name's Stephanie Cobenais from Red Lake. What are you deciding on how...what's going to be a descendant on your referendum stuff? What is it?"

Jill Doerfler:

"We haven't identified a base roll yet, which needs to happen. We sort of worked under the presumption that we'd use our current roll, but that isn't 100 percent clear. So a descendant would be somebody descended from a roll that will need to be identified."

Robert Hershey:

"Thank you. Yes, sir."

Audience member:

"How many tribal members do you have enrolled in your tribe?"

Jill Doerfler:

"Excuse me?"

Audience member:

"How many tribal members do you have on your rolls?"

Jill Doerfler:

"We have about 20,000 citizens right now."

Audience member:

"Wow, that's quite a bit. Yeah, we have 900 enrolled tribal members in our tribe but due to our blood quantum it doesn't allow...a lot of our tribal member...a lot of family members to be enrolled. I have a granddaughter that's six tribes. She has six tribal...she's six tribes anyway right now and she couldn't get enrolled with my tribe so she went to one of the other tribes that she represents and then she got enrolled there. But it was kind of a sad deal. But I liked your presentation and I like the way that you guys dealt with the lineal part and I think we got a lot of good ideas out of that and it made me think a lot, too, about our lineal part because here in Arizona...I know tribes here in Arizona it's a lot different here. I have family members from a lot of different tribes here from Arizona that...even some of these guys like, I'm Tonto Apache, I'm related to these guys over here. I'm related to a lot of people in the San Carlos Apache Tribe. And we have other tribes too like Yavapai, other Yavapais up north. My father is a northern Yavapai and his clan still exists. It's still up there. And then I'm also half, I'm a southern Yavapai too. So there's a lot of this stuff going on here in Arizona, it's like a big melting pot. I see a lot of that, but I saw a lot of good ideas in your presentation that really stood out to me and I think we're going to probably take some of that home to our tribe and just try to present it to our people and see what they think about it. I just want to thank you for your presentation."

Jill Doerfler:

"Well, [Anishinaabe language] thank you to you. That's wonderful to hear. I didn't have time...I'll just make one brief comment. I am not a demographer, I'm more the historian/literature-type person, but the tribe did hire a demographer to do a population study and even though...sometimes it sounds like 20,000 is a lot of people, but we are going to soon be reaching a stage where we just have an aging population at White Earth. Our death rate is going to be outpacing our birth rate and we're going to be moving towards declining numbers and so that's also motivating factor. Even though it seems like we're big, we're still really feeling a lot of impacts of blood quantum."

Robert Hershey:

"Thank you. Carole."

Carole Goldberg:

"There's just one brief observation that I wanted to make. For a very good reason we don't have members of the outside press here but if they were, I think they might be very interested in the fact that the word gaming actually has not appeared in any of these presentations about enrollment because there is such a misconception out there that is driving all of this discussion and it's really not, as I think we've seen..."

Robert Hershey:

"Can you share some of the experiences in your community of what you're dealing with regarding identity, membership, citizenship? Why do we have this distinction between "˜membership' and "˜citizenship'? What does "˜membership' mean to you? What does "˜citizenship' mean to you? These are some of the questions you're going to be dealing with when you...I could call on my students. Can I call on a member of the Pascua Yaqui Nation's council to...sorry, Robert, because you brought it up at lunchtime. There's an issue within your constitution that is kind of contrary to the membership rules that you've set out. Is this something that you feel like that you're going to have to attend to? Is the Pascua Yaqui Council going to have to attend to dealing with some of the divergent issues or the irreconcilable positions within a constitution?"

Robert Valencia:

"There's two things that affect our tribe and our current constitution. One is our tribe was very instrumental in the Law and Order Act, getting that together, but our constitution still is what it is and we...that gives us a one-year limitation on the sentencing and I think it was $5,000 on fines and such, and the other is the Membership Act. Our tribe has been...was recognized in 1978, recognized again in 1994, and with this membership bill it's something that in order to do what we want to because it's in the constitution, it was in the Act, we would have to change that. So those are the two pressing issues that we have, among others."

Robert Hershey:

"Thank you very much. But the reason I asked you to speak to this was because there was a contradiction in the constitution as to what the nation wanted to do with regard to its membership. It went to Congress. Now some of you may have, not the IRA [Indian Reorganization Act] tribes here, but you may have also some other federal act that has designated you into the federal recognition and the acknowledgement process, too. So those types of things are unique where you can get congressional acts to go ahead instead of going through the whole formal process amending the constitution and the Pascua Yaqui Nation has been successful in that regard."

Robert Valencia:

"That's right. Initially the Act establishing the tribe did say that we had to have a constitution and initially it was supposed to be in 1980. We didn't have one until about 1988 and we haven't changed it or modified it since that time."

Robert Hershey:

"Thank you very much. Kevin, we've been looking for you."

Kevin Dupuis:

"I have a question for White Earth and as being a former tribal executive committee member I can understand what you're saying and as a reservation business committee member now, the question I have, if the constitution is done with White Earth, is there a point where the tribal executive committee of the Minnesota Chippewa Tribe has to approve or disapprove that constitution? And the concern I have is this -- that if an individual reservation in the consolidation of the Minnesota Chippewa Tribe writes their own constitution, do they become separated from the Minnesota Chippewa Tribe because the question I would have to that, if they have their own constitution they could not represent the membership of the Minnesota Chippewa Tribe [as] their tribal executive committee member. Because our constitution that exists now, whether it be right, wrong, indifferent, it's the only document we have, and the concern with is if it can't be followed now, how is this going to go with the constitution coming from White Earth?"

Jill Doerfler:

"Right. We're definitely in new legal territory when it comes to the White Earth constitution and the Minnesota Chippewa Tribe constitution and these are questions that we'll have to be exploring, especially this summer in consultation both with MCT staff attorneys as well as TEC members, White Earth attorneys and White Earth tribal council and exploring how can the MCT accommodate in some way. Can White Earth have its own constitution and can other MCT nations have their own constitution and still participate in the MCT in some way. Is that possible? These are sort of questions that we need to be working on answers to."

Kevin Dupuis:

"I understand it and I agree with you, just simple principle of federalism. It was discussed years ago in 2004 and I think all the way to 2006 that the tribe already has its own constitution, can we delegate that authority to the individual reservations to write their own constitution and be under the umbrella of the Minnesota Chippewa Tribe? My concern is this, if you follow a constitution that you write under White Earth and White Earth adopts that, even through the principal referendum I need to ask myself as a tribal member, because I'm not enrolled in Fond du Lac. We're all enrolled in the Minnesota Chippewa Tribe. Our enrollment papers go to the Minnesota Chippewa Tribe, not the individual reservations."

Jill Doerfler:

"Correct."

Kevin Dupuis:

"So an action like this, I'm asking at that point, you finish your constitution, it goes through a referendum vote with your people on White Earth. Is there a separation from White Earth from the Minnesota Chippewa Tribe, because I can't see White Earth representing members of the tribe anymore if they have their own constitution."

Jill Doerfler:

"It will depend on what actions MCT wants to take. If MCT does nothing, that may be your question. If MCT does nothing, does White Earth essentially then separate? I would say the answer to that is most likely yes, but I'm not an attorney and I'm not here to give legal comment on that. These are issues that we're working on exploring."

Kevin Dupuis:

"Okay. Thank you."

Robert Hershey:

"If I may add something too. It implicates some other issues as well. One of the issues is, what is the Minnesota Chippewa constitution, the nations that are involved in it, is it a Secretarial approval constitution, to do amendments?"

Jill Doerfler:

"Yeah."

Robert Hershey:

"So even though there's a referendum, it doesn't automatically result in a new constitution if the new constitution and the...then you have to call for a Secretarial election, and so then there's a whole process that has to be put to the voters. Then that's also going to go ahead and implicate. Whether or not this becomes an example to the other nations or not as to whether they want to go ahead and adopt a new form of constitution, it could be very exemplary in that regard. And there are situations where in constitutions...the Tohono O'odham Nation for one, Hopi Tribe for another, that they have separate and distinct powers that like the districts here on the O'odham Reservation have their own sense. The Hopi constitution allows for the villages to establish their own constitutions as well. So this could be a number of ways to go ahead and satisfy some of the concerns that you were raising there and at the same time allow for that kind of semi-independence or quasi-independence and it could be a united affiliation of nations with separate and distinct constitutions. It could be an example to go ahead and formulate one type of a constitution if that's the way the people go. But it still is going to require after a referendum, it still is going to require a petition to the Secretary of the Interior to go ahead and have a Secretarial election."

Jill Doerfler:

"I should maybe clarify that our referendum, the plan is to proceed with that referendum via a Secretarial election."

Robert Hershey:

"Yes, please."

Pamela Mott:

"My name is Pamela Mott and I'm from the Fort McDowell Yavapai Nation. At lunchtime we sat with Navajo and the other Yavapai tribe and to our question who we are and how do we know, it all came down to a Creation story, "˜cause we all know people sitting here where we come from, how we were taught. The time I grew up, I grew up with a bunch of elders so everybody that I came with, we know who we are and where we're from, but when federal government came and gave us those IRA constitutions that we have today, we have to start changing and identifying ourselves. And I think one of the things at our table that we kind of agree with and I brought up was that when you brought up maximizing your numbers and talking about political, it had a concern to me as a Native American woman "˜cause we're raised like family and we take care of one another. I was wondering, it's so hard for me to understand why other tribes would make one tribal member less important than another one when you said you put restrictions on somebody living off the rez versus someone living on, because a lot of times we don't have the wherewithal to have jobs for educated tribal members and they have to go somewhere else to work or they have to go out of state to work. I have to use my family as an example. I have a nephew that's a doctor in mechanical engineering. There's no job for him on my little reservation, so he has to go. What makes him less of an important tribal member than somebody back home that doesn't have an education but is there working? And I think when you guys teach, as professors when you teach this to people or other Native students that are in your classes, every tribe is different, we're all different, so some of those things I think need to be brought out because I'm a leader for my tribe and when I have to go to [Washington] D.C. and fight for Native American rights or fight for...big one is gaming and you said gaming didn't come up. It is coming up because that's what we're fighting against now but a lot of the things stem...why would you want to make one person less than another when the way we were brought up we had to take care of everybody within the community? And there were adoptions. I know Navajo had talked about some adoptions they had and it depended on your history. If you took slaves in...we weren't mean people. We took care of those people, unlike when they brought the slaves. I understood back east the slaves were more happy to live with the Indians than they were with the non-Indians because they were treated better, they were incorporated as families and that's how we're brought up. So that was one of the things I think our table agreed with, it was kind of hard for me to understand why if there were tribes out there, why would you make somebody different than another based on whether you live within the reservation, whether you don't live in the reservation, because we get a lot of feedback from the people that don't live within my community because they're educated and they tell us, "˜This is what we're doing out here. How can you incorporate with the businesses on the reservation to help us be successful?' And those are some of the things I think that was brought up at our table and I wanted to share that. So I think when you guys are teaching you need to know that. A lot of it comes from our heart and family. We're not like the regular outside non-Indians because a lot of them, they just move. It's easy for them to get up and move one state to another and not have contact with their family members. It's not like that for us. We're always contacting somebody. My sister...I may not...she lives on the same reservation and she lives a hop, skip and a jump from me, but I call her every day or I go see her every other day or something and my children live...I have a son in Oklahoma and he calls me every single day just to let me know how he's doing, how we're talking. So a lot of times you guys don't incorporate that in your teaching, and I think...coming from us now maybe you guys need to start doing that or understanding the tribes."

Carole Goldberg:

"Thank you very much. Actually, I live in Los Angeles. My husband's tribe is in North Dakota, so I'm actually very familiar with the situation of living far away from one's home community. There are places where issues arise involving resource extraction. So there are places where there is a lot of potential money to be made by things like strip mining or various other forms of resource extraction. It has in some places created some tensions, not that people don't care about folks who live far away, not that people don't want to take care of them or stay in touch with them, but just plain old worries that the temptation to do things in the territory might be too great if you don't live there and so that's the source of the tensions that I was referring to over what do you do about folks who live in a place and want to make sure that it's not ruined by various forms of environmental strains and people who live far away and may not experience that. And that...but the variation is tremendous and there are places where that is not an issue and where there are not concerns about treating folks differently. What I was trying to do was give you some sense of the tremendous variety of issues that exist out there and only you can know whether those matter to your own community."

Robert Hershey:

"I'm going to add one thing here, too, just before and this was brought up at our lunch table with my students and they're very passionate about this as well. And if I may just digress just briefly into a little history lesson. Back in Jamestown Colonies with...we hear about Pocahontas, but we don't hear much about her father, which is Powhatan, who was the leader of a number of tidewater tribes in that region. During the treaty ceremonies that would go back and forth whether or not the attempted colonists would be allowed to stay there, there was a ceremony where the English wanted to put a crown on his head and they wanted him just to bend down a little bit so they could put the crown on his head. So the English were taking that as that he was declaring fealty to the crown of England. Now he wasn't thinking that. He was thinking that he was extending his empire. And what I heard from the woman that just spoke, and I thank you for those comments very, very much, is that those educated, those people that are off the reservation, they're contributing and they're bringing things back to your community. So it's very, very interesting how you can extend your empire out there and it doesn't just have to be that people living within a particular area, that's determinative, but it's about those relationships and those contributions that can be far and wide. So that was just something, so I appreciate those comments of what you said. Thank you. Sorry for the history lesson, it's just law professors."

Steve Cornell:

"Steve Cornell from the University of Arizona. For Carole Goldberg, Carole I was just wondering if you had any experience with tribes that are dealing with citizens who live outside U.S. borders with nations that were split by the border. Obviously it's a huge issue right here in southern Arizona with the Tohono O'odham people. There are Yaqui people south in Mexico, but it's also an issue for Mohawks, for some of the Blackfeet Confederacy and others, and have you seen any constitutions that directly try to address the citizenship of people who through no fault of their own are living on the other side of the U.S. border?"

Carole Goldberg:

"I actually have, because one of the communities that I've worked with is the Houlton Band of Maliseet Indians in northeastern Maine and a number of the people from the Houlton community, the Maliseet people are actually living in Canada and it is interesting to note that over time the international border has had the impact on communities or it can have the impact of creating a sense of division that would not have existed had that international border not been introduced. And this is a topic that required a lot of internal dialogue within this community. Are they really a part of us? Even though the kinship relations were pretty obvious, the language, the cultural tradition were common but there was this bit of unease about whether...first of all whether there was something that would be viewed wrong by outsiders of including these "˜foreigners,' I use that in quotes, as part of our tribe and there was also again this sense that there had been some separation over the years. And there was at the end of the day I think more receptivity to saying, "˜These are part of our families, these are part of our culture and community and we shouldn't arbitrarily say that they're outside because they're in another country'. But it was a very hard discussion."

Carole Goldberg: Designing Tribal Citizenship

Producer
Native Nations Institute
Year

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

Resource Type
Citation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jill Doerfler: Constitutional Reform at the White Earth Nation

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, Anishinaabe scholar Jill Doerfler discusses the White Earth Nation's current constitutional reform effort, and specifically the extensive debate that White Earth constitutional delegates engaged in regarding changing the criteria for White Earth citizenship. She also stresses the importance of Native nations understanding their traditional governance systems and also documenting the origin stories of their current constitutions prior to engaging in reform so that they can deliberate constitutional change with the appropriate context in mind.

Native Nations
Resource Type
Citation

Doerfler, Jill. "Constitutional Reform at the White Earth Nation." "Leading Native Nations" interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. April 2013. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host, Ian Record. On today's program we are honored to have with us Jill Doerfler. Jill grew up at White Earth and is a descendant of the White Earth Nation. She's been involved with White Earth's efforts for constitutional reform and served as a member of the constitutional proposal team. She also serves as Assistant Professor of American Indian Studies at the University of Minnesota in Duluth. Jill, welcome, and good to have you with us today."

Jill Doerfler:

"Thank you so much. It's a pleasure to be here."

Ian Record:

"So I've shared a few highlights of your personal biography, but why don't you just start by telling us a little bit more about yourself. What did I leave out?"

Jill Doerfler:

"Sure. Well, as you mentioned I grew up at White Earth and then I did my undergraduate work at the Morris Campus of the University of Minnesota and then on for a Ph.D. in American Studies at the University of Minnesota-Twin Cities campus. And then had two years outside of Minnesota, one at Michigan State and one at the University of Illinois. Then I came back to Duluth for American Indian Studies, which has been really a great place for me to work."

Ian Record:

"And you're also a published author."

Jill Doerfler:

"I am. Thank you. I have had a couple of books come out recently, one co-authored with Gerald Vizenor called The White Earth Nation: Ratification of a Native Democratic Constitution, which we'll be talking more extensively about as we move on today, but Gerald was the lead writer during the constitutional proposal process and so we collaborated on a book. David Wilkins wrote an introduction for us. Gerald wrote a chapter and the constitution itself is in there and then I write newspaper articles for our tribe and so some of my newspaper articles examining the constitution and explaining different chapters are in the book. So that was exciting. And then just recently in February I had another book come out that's co-edited called Centering Anishinaabeg Studies: Understanding the World Through Stories. And so in that book, I collaborated with Heidi Stark and Niigaan Sinclair and we have 21 chapters. It's a much lengthier book than the first and it's a wide range of scholars working in Anishinaabeg studies and using story as a kind of framework to look at law, to look at environmental studies, language, education, so a wide range of disciplines and kind of centering around story as a framework. And my chapter, in that I examine Ignatia Broker's Night Flying Woman which is a White Earth author's text about basically it's very instructive about how to act as a Ojibwe or an Anishinaabe person, and I examine how that text might apply to constitutional reform."

Ian Record:

"That's great. I'll have to check it out. So we are here today to talk about constitutional reform, and I'm curious to learn about how you personally came to be involved in the recent constitutional reform effort at White Earth."

Jill Doerfler:

"Yeah. So I was just a Ph.D. student working on my dissertation, which was on Anishinaabeg identity and citizenship focused on White Earth starting around the turn of the 20th century and moving forward. And I was just wrapping up the dissertation in 2007 when Erna Vizenor, our chairwoman, gave her State of the Nation address stating that we were ready to move forward with a new effort for constitutional reform. There had been other efforts at White Earth previously, but she announced that and so I was very excited to think about how my research could come into play in a very sort of real concrete way. So I called up the office and asked how I could get involved and we started out using newspaper articles as the first way, using some of my dissertation research and rewriting it into newspaper articles to share with people the history of tribal citizenship and Anishinaabeg identity. And then as the reform process moved forward, I continued to give presentations on my research to the constitutional delegates and so I became involved in that way."

Ian Record:

"So in 2009, those delegates ratified a new constitution for the nation. What prompted...you mentioned that White Earth had looked at constitutional reform in the past and had never sort of gone through the whole process and this time they did. What prompted them to go down the reform road?"

Jill Doerfler:

"Well, I think there's a wide range of factors. Currently, White Earth is under the Minnesota Chippewa Tribe constitution, which hasn't been functioning very well for us and there are no separation of powers, for example, in that constitution and the provision for citizenship hasn't been working well for us and there are several things, the Secretary of the Interior I think is mentioned maybe 13 times, and so that constitution just basically hadn't been functioning. And so there had been a few other efforts for reform starting actually in the "˜70s and then a strong effort in the late "˜90s and then Chairwoman Vizenor had ran in part on the fact that she would engage in constitutional reform. It's something that the people at White Earth have wanted for some time. They feel that a new constitution could provide some checks and balances. We have had some issues with corruption and fraud at White Earth in the past that were really problematic and if we don't have a new constitution in place, we don't have a way to prevent that from happening again."

Ian Record:

"So can you briefly describe the process that your nation devised to develop a new constitution, because I can tell you from my own experience that there's a lot of nations talking about the need for constitutional change, but of that number, there's a minority among them that actually make it through to the ratification of a new constitution. So in that respect, process is absolutely critical, so can you share a little bit about the process that your nation took?"

Jill Doerfler:

"Sure. It was definitely a grassroots kind of process and we weren't as organized to have a full plan laid out with timelines and deadlines when we started. Mostly, Chairwoman Vizenor just wanted to start by holding a constitutional convention and see how things went. So in preparation for that, I was writing newspaper articles and then we had a process for constitutional delegates. It was advertised mostly in the tribal newspaper and then people could apply to be constitutional delegates and then Chairwoman Vizenor also sent word out to our community councils and asked those community councils to each send two delegates. And everybody who applied to be a delegate was accepted so it was really inclusive that way. At the first convention, we discussed a wide range of issues and Chairwoman Vizenor ended it by asking the delegates if they wanted to carry this process forward and they did and so we did. So it was really...even though she was in some ways leading the process, she was really letting the delegates make the decisions as far as what they wanted."

Ian Record:

"So your process went through to its fruition, but I would imagine along the way there were several issues or obstacles that emerged. Can you talk about some of those challenges and how you worked to overcome them?"

Jill Doerfler:

"Sure. I think one of the biggest challenges was keeping everyone engaged and keeping the attention of the people and of the delegates, 'cause it was a couple of years in the process. So we started with that first convention in 2007 and then wrapped up in April of '09, so it was that lengthy process. We didn't have a large amount of funding or anything like that. We didn't have a person in charge of doing all the organizing. There were myself and Joe LeGarde and a couple of other people helping get things done, but we didn't have a dedicated person, which I think would have been advantageous to have somebody really coordinating the effort who was in charge. And so we were kind of splitting the duties and kind of each contributing what we could. So that was a little bit of a challenge, but I think the delegates who really believed in the process stuck through with us because they cared so much about the issue they were willing to take the few bumps in the road and to keep moving forward knowing that the results would be worth it."

Ian Record:

"So you sort of touched on this issue of citizen education and engagement, and you mentioned you did a number of newspaper articles which I've had a chance to read, and I think unfortunately we don't see that level of education in many other tribes that are engaging reform so I was wondering if you could talk a little bit more about the efforts that you and the delegates undertook to really I think first and foremost get the citizens to understand why this should matter to them and then get them sort of moving in and engaged in the actual deliberations around what do we need to change in our current constitution or do we need to in fact develop an entirely new one."

Jill Doerfler:

"Yeah, well, I think the delegates are the ones who really did a lot of the work going out. We would talk about issues at the conventions and we would always say, "˜Okay, go back to your families, go back to your community, whether you're on community council or whether it's informally at other gatherings, talk about these issues,' and then I would write the newspaper articles also to kind of keep things at the forefront and hopefully keep people thinking about it and talking about it whether it's over a coffee break at lunch or whether it's at a powwow or like I said, another formal meeting. So we really asked the delegates to kind of go out and keep those conversations going and then to come back and share with us what they had learned and what people were telling them."

Ian Record:

"So it wasn't just about what you were hearing in the actual meetings but it was what you were hearing second hand from people who were coming back with essentially field reporting on what they're hearing sort of on a one-on-one personal basis."

Jill Doerfler:

"Definitely, definitely, and I definitely also received quite a few emails. As technology improves and with my newspaper writing, definitely a lot of people emailed me to tell me their thoughts and ideas and so we took all of that into consideration."

Ian Record:

"How important is that to make sure that the education and engagement of citizens around everything from what a constitution is to what we're thinking about in a new constitution, how important is that to be ongoing versus intermittent? We've seen other tribes stumble where really the only time they're really educating and engaging is when they have a physical meeting and whoever shows up, you show up and you get the information you need and you maybe give the feedback you want to give, but everyone else is sort of left out in the cold."

Jill Doerfler:

"Yeah, I think it really has helped the process that we've tried to stay as engaged as possible throughout, because it gives people more of a commitment and they feel like they're more part of the process, they are more part of the process which is what we want. We don't want a document that just comes out of a few opinions. We need to have everyone's input, because a document like a constitution is a big compromise ultimately. We took in lots of ideas and I'm sure no one person got exactly everything they wanted in that document and so that's another part of the process is sharing the deliberations, sharing the different ideas, and then the outcome so that people can see that there's such a range of ideas that we compromised on certain aspects to try to do our best with what would be the best choices."

Ian Record:

"So you mentioned at the outset that Chairwoman Vizenor was sort of the spearhead for this effort. She made it part of her State of the Nation address and took a lead role sort of at the outset, but then from what I'm hearing, she sort of took a step back after that and played more of a supportive role. And we've seen that as critical in other places as well, where it's good that the leaders are supportive of the effort but not dominating the effort. Is that sort of how it unfolded there and how important was that in the overall success?"

Jill Doerfler:

"Yeah, absolutely. I think it helped take...politics is never going to be out of anything, it's definitely not going to be out of a constitutional process, but I think it helped remove that Erma was not a delegate, she did not vote on the document, she helped facilitate the meetings, she helped with the agenda, but she was not making any of the choices. When delegates had to vote for something, she helped make the motions and helped the process, but she didn't have a vote in the issue, and so it helped give voice to the people and helped the people realize that it's up to them, they're the ones in control and they have the power to make the choices and it's not going to be a process where tribal government just hands us a document and says, "˜This is what tribal leadership wants.' Instead, it's more coming from what the people want."

Ian Record:

"So you did a presentation earlier this week at the Native Nations Institute's constitutions seminar on this topic and one of the things you cited as a key to success in terms of getting the citizens engaged and keeping them engaged was the use of small-group discussions, sort of breakout groups. Can you talk a little bit about what led the nation to use that as an approach and just how critical it was?"

Jill Doerfler:

"Yeah. Boy, I'm not exactly sure how we came to the decision to do that now that I think of it, but in preparation for the first convention we talked about...I was talking with Chairwoman Vizenor and Joe LeGarde and others about how the convention might run and topics and I think it probably was maybe Joe LeGarde that said we should do the small-group breakout. We started out with 40 delegates, which is a large group to try to have a conversation with and then all of the conventions were open and public, so at all conventions there were also other people who attended who were not delegates, and so what we did then is we would have a presentation on a topic or introduce a topic and then give the delegates time to consider certain questions within their small groups. And I think that gave each individual, whether they were a delegate or not a delegate, time to discuss and time to discuss with delegates what was best and it helped people get a more personal viewpoint and also not to feel intimidated to talk in front of a group of 40 delegates plus other attendees. That can be intimidating for some people and as far as time constraints go it was also useful that way. People could say more and then report back as a group and also kind of start the compromise process within the groups hopefully hearing a diversity of ideas in the group, presenting back maybe one or two ideas, and then hearing from others. And so I think overall it helped people feel like they were heard."

Ian Record:

"That's great. So you mentioned that this process lasted over two years. You had four constitutional conventions sort of spaced out during that time and obviously from what you're saying a lot of work in between, ongoing work. Was there...at any point in the process were you at all concerned that or did you doubt that a new constitution would actually take shape and be ratified by the constitutional delegates?"

Jill Doerfler:

"Well, let's see. I don't think...there was going to be no guarantee at the end what the outcome was because we started out with a very loose process with delegates asking them if they even wanted to continue with the process. And there was probably not the clearest of roles from the outset, and it wasn't until Chairwoman Vizenor selected the constitutional proposal team to start the writing of the document...and I think we were very fortunate to have Gerald Vizenor be a constitutional delegate, and as some of the viewers probably know, Gerald Vizenor is a really accomplished scholar from White Earth -- having written I think at this point well over 40 books, everything from poetry to novels to short stories to theory to history -- and so that was lucky for us. We didn't engage a lot of legal consultation, we didn't have somebody sitting by the wayside doing that, and so we had our processes and I had detailed notes and we kind of used that to start the writing. So I think until we started writing the document, it was a little unclear how long the process was going to be and who was going to be in charge of the writing. And I think it actually helped that we didn't have that team designated from the outset, that we were kind of in a looser process because then it wasn't...nobody identified us early on and said, "˜I want to make sure I say this to Gerald or this to Jill because they're going to be part of writing it.' Instead it was...kept it more open and kept the power also more dispersed."

Ian Record:

"So you briefly referenced the role of lawyers in reform process, and I think you may be an exception to the rule at White Earth in that you're not a lawyer and Gerald's not a lawyer and you wrote the constitution. We've seen other instances where the lawyers get involved, even before the writing of the constitution they're heavily involved in the process. Was that ever at sort of the forefront of minds, "˜Let's keep the legal aspects to the side, the legal folks to the side because we want this to be an expression of the people's will and not the expression of any particular lawyer's will?'"

Jill Doerfler:

"Absolutely. I think it's really difficult to find sort of objective legal advice. Everybody has their opinions, even staff attorneys at White Earth have their interests, and so we really wanted it to be a document that people can read and understand. Sometimes...from a legal perspective, sometimes lawyers write in a certain way that's difficult to understand and so we definitely wanted it to come from the people and we did not really utilize lawyers, which some lawyers have critiqued since then. Sometimes I get a raised eyebrow from lawyers that we didn't really engage that in the process."

Ian Record:

"Time will tell I guess if it's going to be an issue."

Jill Doerfler:

"Right, right. We'll see how well that works out in the end."

Ian Record:

"So what would you say ultimately -- now that the process is done -- what would you say ultimately were the keys to the success of the nation in actually seeing this process through?"

Jill Doerfler:

"I think definitely we had a very open, inclusive process. As I mentioned, we had delegates -- who everyone who applied was accepted -- and then all of the constitutional conventions were announced in the newspaper, it was open, anyone could come who wanted to come. No one was ever asked to leave or turned away and so it was very...it was as transparent as we could be and I think that was really critical. We never had a closed door meeting. Never had a closed door meeting with lawyers, we never had a closed door meeting with delegates. Everything was open and so that was definitely one of the keys to our process. Maybe I'll also say that persistence was part of the key as well, because it did take a couple of years and in a way that seems like a long time for me, 'cause that's the timeline I was involved, but some of our constitutional delegates had been involved in different efforts for reform over the past 30 years and so some of them definitely get a lot of credit for seeing the different processes through. And I would say that none of those previous efforts were failed efforts which could be looked at as well. We tried in the late "˜90s, there was a draft constitution at that time, but no action was ever taken on it. True, but I think nonetheless that process still helped us build up to what we did in 2007 and the experience that those people had, they brought that to the table with them when they came in 2007 with those other efforts so that was really advantageous for us."

Ian Record:

"And perhaps some informed perspectives on what didn't work and what to avoid and that sort of thing."

Jill Doerfler:

"Absolutely, yes."

Ian Record:

"So I want to turn to the subject of citizenship, which is as you know one of the most controversial issues facing all Native nations -- who's going to be a part of us and how do we define the criteria that determines that? Citizenship was at the core of your nation's constitutional deliberations, and I'm curious before we get into sort of the mechanics of how you came to arrive at your new definition of citizenship or perhaps a returning to an old definition of citizenship, can you talk a bit about how the White Earth Anishinaabe defined citizenship traditionally and what criteria they used prior to colonization?"

Jill Doerfler:

"Sure. It varied over time, so there isn't just one answer to how things worked, but there's big changes over time. Anishinaabeg people have had contact with non-Indians for hundreds of years by this point and there have been changes, migrations and where my research really starts is starting in the early 20th century, right after the turn of the century. And in my research, I wanted to look at how Anishinaabeg people thinking about their identity, sort of pre-IRA, pre-organized government, and what I came to look at was a series of records that were based actually on land transactions at White Earth. In the 19-teens, allotment happened at White Earth as it did in many nations. And what happened at White Earth is there's legislation that says, "˜Mixed-blood people can sell their land, full-blood people cannot.' Land at White Earth is really gorgeous and spectacular. It was both good timber land and good farm land, lakes country. Lots of non-Indians said, "˜Hey, we'd like that land, we can either make a living there or make money there.' And after allotment happens at White Earth, then we get that legislation about mixed blood and full blood and then land transactions take place at an extraordinary rate. White Earth is often pointed to nationally as a case study because of how quickly land changed hands. And White Earth people complained that there was illegal activities, that people were being lied to or people who couldn't read were asked to sign papers that they were told was for their bill at the store and it was for a lease or it was for the sale. So lots of White Earth people complained and ultimately the federal government did a couple of investigations and one was conducted by Ransom Powell, who was a relatively well-known attorney in Minnesota because he represented some lumber company interests and he was selected to do the process at White Earth. There's a clear political choice there on the part of the U.S. government in choosing him, but he and his team went around and interviewed Anishinaabeg people asking them, "˜Is so and so mixed blood or a full blood?' and those records are extraordinarily rich with responses by people at White Earth saying, [a] "˜I have no idea what you're talking about when you say mixed blood and full blood. We don't define people like that.' 'I can't remember' was a big one. And then Powell and his associates would then also ask questions like about phenotype. "˜Well, did such and such have dark skin' and Anishinaabeg people would say, "˜I don't know, I don't remember,' or some people would say, "˜I don't know, they weren't really light but they weren't really dark, they were kind of medium,' and so Anishinaabeg people found all these inventive ways to kind of get around these definitions that the U.S. government was trying to push, which were these sort of fixed biological, unchanging definitions and for Anishinaabeg people identity wasn't something that was fixed. Identity was something that people created themselves through their actions, how they lived their lives, what choices they made and so they conveyed that time and again in the interviews. And so part of what I shared was some of my research on that, that identity was fluid and people were empowered to create their own identity, which I think is really interesting for us to think about today, that many of us have been really familiar with blood quantum and thinking of identity as this thing that is unchanging that you're born with versus a 100 years ago, Anishinaabeg people saying, "˜Well, you make yourself a full blood or you make your own identity.'"

Ian Record:

"So you brought up a good segue to the next question, which is about blood quantum, because in 1963 White Earth, the sole definition for...sole criterion for citizenship at White Earth became blood quantum. And I'm curious -- how did that come to pass? And it doesn't sound to me like the White Earth people certainly prior to that and I would imagine in 1963 probably didn't fully embrace that change, did they?"

Jill Doerfler:

"Right. Blood quantum I always think is used to disenfranchise people at White Earth in two ways and first it starts with those land transactions. Ultimately, what that investigation found is that about 90 percent of people at White Earth were mixed blood, i.e. 90 percent of those land transactions are legally valid and there's no legal recourse. And so people at White Earth were familiar with how the federal government could use identity to disenfranchise them, in that case to take land basically illegally. And so White Earth becomes part of the Minnesota Chippewa Tribe, which forms in 1936 with the IRA kind of style government and originally there isn't real firm criteria for citizenship. People basically apply to become citizens based on their parents and they're approved. There is no blood quantum requirement initially. And the Secretary of the Interior starts writing to the tribal executive committee, which is the governing body of the Minnesota Chippewa Tribe, saying, "˜You really need to think about your citizenship requirements and you really need to think about using either blood quantum or residency or some combination of these things.' And many members of the tribal executive committee including people from White Earth said, "˜No, we don't want to do that. That's going to become a problem for our children or our grandchildren and we need to think about future generations.' And so they passed several resolutions on citizenship that were lineal descent and sent them to the Secretary of the Interior who has, there's an approval clause in the constitution that the Secretary has to approve. The Secretary rejected all of those resolutions time and again and so over about a 20-year period, this would kind of ebb and flow. It would kind of come up and they would pass a resolution and the Secretary would reject it and then time would pass and the Secretary would say, Well, you really need to decide this.' And they would do the same thing and the Secretary would write back saying, "˜For all intents and purposes, this is the same legislation that you sent me last time. I rejected it last time, I'm going to reject it now.' And then finally we move into the later "˜50s and into the early "˜60s and this is termination time as people familiar with American Indian history are familiar. And basically there were some letters sent that weren't too veiled threats regarding termination saying, "˜If the Minnesota Chippewa Tribe doesn't decide this very soon it'll be made a matter of Congress and Congress will decide.' And so ultimately the tribe agrees to one-quarter Minnesota Chippewa Tribe as the sole requirement for citizenship. It gets voted on by the leaders in '61 and it goes into effect in '63 as a constitutional amendment."

Ian Record:

"So it sounds like this was at the beginning...it sounds like this was a main topic of conversation from the get-go when the new effort began."

Jill Doerfler:

"Yes, absolutely it was. People have felt the impact of blood quantum now. I myself am one of those people. As you mentioned, I'm a White Earth descendant, meaning my mother is a tribal citizen and I'm not and the reason is because of blood quantum. And so many, many families have been impacted, literally divided by blood quantum which is what leaders were talking about in the "˜30s and "˜40s and the record on their statements is very rich, very impassioned speeches about the importance of family and how this will affect the future. In a lot of ways, it was a delayed form of termination. The tribe in some ways was up against these threats of immediate termination, but blood quantum itself is designed to slowly make the population smaller and eventually designed to eliminate tribes. And the Secretary of the Interior was very, relatively frank about that in some of his communications to the tribe saying, "˜Every person that you add to the roll diminishes the share that each person has,' and so trying to use resources to try to get people to tighten up citizenship requirements, trying to limit population numbers. And so to some extent, it's working. And the tribe actually did a demographic study recently showing population and the demographer found that using trends over the last 100 years, if we kind of average things out, we anticipate that by about 2040, we'll just have an aging population, there won't really be anyone eligible for citizenship, and by about 2080, 2090, we anticipate that there may be few or no citizens meaning that as the U.S. government has hoped, the nation will cease to exist. If there are no citizens, there are no treaty obligations, no tribal government, and it's over."

Ian Record:

"So you said the resolutions were from about the 1930s and the 1950s from White Earth about this issue and they were all rebuffed?"

Jill Doerfler:

"Yep. Yeah, "˜30s, "˜40s and then they tried some other tactics sort of in the "˜50s because what was happening was some people were like being rejected from healthcare, other BIA [Bureau of Indian Affairs] programs and the Minnesota Chippewa Tribe and White Earth as a part of that would write to the Secretary of the Interior or to the agent and say, "˜These people are our citizens and they don't have one-quarter blood quantum as the Bureau sometimes wants, but they're still our citizens and they still are entitled to these services.' And there was a big fight and as I said, the record is really rich, and I would imagine that the same is true for other tribes, and I would really encourage other tribes to take a look at their histories and kind of examine what was going on. If the tribe has blood quantum, how did that come to be, what was going on before that? Because I think for lots of people at White Earth, you know, we've had blood quantum since '63. A lot of people have grown up with that and not known anything different, and we need to look back at what our ancestors were saying, what people were doing historically, and think about, 'How can that guide us today? Can some of their wisdom still apply today?'"

Ian Record:

"I saw you when I was doing my presentation yesterday, I was making that exact point. You were nodding your head 'cause I was basically saying that it's absolutely vital for tribes when they begin the constitutional deliberation process that they need to first understand where they came from, where their constitution comes from, what's the oral history, what's the archival history, what's the documentation around what your own people were thinking back when these things were created and did they have any say in how these things were created? Or did they try to voice their opinion on how these things were created and were ignored, were refused, etc.?"

Jill Doerfler:

"Absolutely. I think that's very key. I think people sometimes assume that whatever document we have now or whatever document their tribe has been operating under was somehow sanctioned by elders or was the result of a lot of deliberation and thought and that's not necessarily the case. Sometimes these constitutions were passed with very little participation, sometimes the Secretary of the Interior or other bureaucrats from the BIA were heavily involved in writing these constitutions and it's important to look at that history. Before you're ready to move forward you have to think about the past, because really the way that we construct the past and what happened helps us understand our present and that's what helps us envision our future as well."

Ian Record:

"Isn't it really...at a fundamental level isn't it really an issue of ownership, that there are a lot of people in the community that -- because they don't know that back history, they don't know the origin story, if you will, of their current constitution and system of government -- that there is a sense that we do own this, that this is ours, that this is somehow our creation when in most instances, I won't say all, but in most instances, that's absolutely not the case."

Jill Doerfler:

"Yes, exactly. Yeah. There can be a loyalty to that document that maybe people would have a different opinion on if they had a little bit more historic information."

Ian Record:

"So I want to kind of dive now into how you guys deliberated citizenship, this issue of citizenship in the recent reform process. At the outset you developed some questions to help guide constitutional delegates in terms of evaluating the different options for redefining tribal citizenship. Can you talk about what those questions were and why you chose them?"

Jill Doerfler:

"Sure. It was actually a little bit more towards the end of the process. So we had had several deliberations on citizenship. I had given some presentations also on the history of blood quantum, which is important. It's important for tribes to know their own history, but then blood quantum as a concept has its own history. So we discussed those things, and then because of previous reform efforts at White Earth, there was a constitution created that had a list of citizenship options and so we utilized those during the current process. And so I asked delegates to take a look at those options and start going through them and based on the previous conventions I created a set of questions that wanted to ask which of these options best enacts our Anishinaabe values and beliefs because delegates had said time and again, "˜What we want is a constitution that's ours, that reflects our Anishinaabe culture and our values and how can we put that in the constitution? And so that was kind of an easy mark to say, "˜Then that's a question we want to ask as we look at our citizenship options.' One delegate had talked about how citizenship really is part of the question, who are we and who are we in our hearts,' which I thought was good so we utilized that. We also utilized a question relating to which of the citizenship options will be best for White Earth in the future, so not only looking at our current situation, not only thinking about ourselves or delegates thinking about themselves, but thinking about future generations as our ancestors had encouraged us to do then if we used that to look at the different options."

Ian Record:

"So tell me about one option which you've termed the "band-aid" option or maybe you didn't come up with it, but it's what you shared as the band-aid option. What did it propose and why was it ultimately discarded?"

Jill Doerfler:

"Sure. So we basically had several options that we were looking at. One was lineal descent, three were a variety of blood calculations of different types that were...some were relatively complex, and then delegates, White Earth delegates came up with another option during one of the conventions. One of the small groups said, "˜We have another option which is to make everyone who's currently enrolled, whoever is on the rolls right now, we'll make them a full blood. We'll make them four-fourths.' And ultimately that became termed the 'band-aid' approach. I think one of the delegates said that, that wasn't my term, but delegates considered that option a little bit and it was called the band-aid approach I think because it just put a temporary fix on the problem. What it would do would make it so that everyone who's a citizen now would guarantee that their grandchildren are enrolled no matter who they've had...who their children had children with, etc., that their grandchildren would be enrolled. But it doesn't guarantee anything beyond that. So we're looking into the future, but we're only looking into the future a little bit and there were probably definitely delegates with great-grandchildren who are part of the process who could already see that that probably wasn't forward looking enough. And delegates talked about the fact that this will fix the problem now, but what it will ultimately do is pass the exact same problem on to either our children or onto our grandchildren or some future generations, and so I think delegates ultimately felt like they came to be part of the process to make the hard choices. This isn't going to be an easy choice regarding citizenship, but they wanted to make it in a way that was more forward looking than just two generations in the future."

Ian Record:

"I think on Capitol Hill they call that the 'kicking the can down the road' approach."

Jill Doerfler:

"I think they do."

Ian Record:

"So what decision -- and I think you referenced this already -- but can you talk about the decision that the delegates finally arrived at regarding citizenship, and how did they arrive at that decision?"

Jill Doerfler:

"Sure. Ultimately lineal descent was selected as the option. We deliberated it, delegates deliberated it several times, I had given several presentations as I said evaluating options and sharing information and finally we were discussing different options for citizenship and finally one delegate just made a motion and said, "˜We would like to stop discussing options that deal with blood quantum.' It passed and therefore the only one option that doesn't deal with any type of blood quantum, that was lineal descent and then we moved forward from there. And I think it was probably a culmination of things. In some ways I think delegates who probably decided from the outside that they were in favor of lineal descent were maybe weary of talking about it because we had spent a lot of time on it and so I think for some of them they were like, "˜We are ready to make this decision' and I think for other people it was a little bit of a push that they needed to be like, "˜Okay, we're just going to...we're going to have to just make a choice here. We're never going to get a unanimous decision. There's going to be some people who are going to vote for and some people who are going to vote against and we have to accept that process and move forward.'"

Ian Record:

"So how do you...it seems to me that you're pretty certain that this will strengthen, this new criteria will strengthen the nation moving forward. Can you discuss in what ways?"

Jill Doerfler:

"Sure. Well, I think ultimately it is an enactment of our Anishinaabe values. It really places family and relationships at the center of the nation which is historically appropriate, which is things that we know that our ancestors wanted, and so that's advantageous 'cause it's putting those values into action. If we say family and love and respect is at the heart of the nation, how can we do that? Well, using lineal descent, using family then is one way to do that. It also strengthens the nation from the perspective that potentially we have the option to exist in perpetuity. We don't have a graph with a line that shows when the population will end like we do with blood quantum. We have the idea that as long as families are passing on their values and traditions and political loyalties exist, people will choose to become citizens of the nation and that leaves that option open. A strong citizen base I think is critical for any nation. It gives them a diversity of resources regarding people, what citizens can contribute to the nation, which is something we also talked about at White Earth quite a bit. Sometimes there's a perception that citizens will just drain resources and people will just want to become citizens in order to get certain benefits. We also talked about the fact that becoming a citizen is a responsibility and that when you make that choice to become a citizen, A, you're in some ways acknowledging the jurisdiction of the White Earth Nation, B, you're submitting yourself to those laws and codes and you have obligations to carry out. You're not necessarily going to get anything. We don't have per capita payments at White Earth. I don't see that happening in the future, and I think we want to think of citizens as assets and think about how can more citizens provide more resources. How can having somebody who's a citizen who has expertise in environmental like change, climate change be an advantage? How can we bring more people in and be more inclusive and what could that mean both for the nation politically and economically as well?"

Ian Record:

"So it's interesting you mention this issue of obligations. We talk with a lot of nations about that issue, that somewhere it was lost in the colonization process the obligations of citizenship, that a lot of folks in Native communities, because of the legacies of colonialism, view their relationship with the government as 'what do I get out of it?', not so much what the government and the nation should be expecting of them and what they should be obligated to do. Can you be a little bit more specific on what sort of obligations I guess are expected of citizens under the new constitution and system of government?"

Jill Doerfler:

"Sure. And I'll also say that I think in some ways, because of colonialism, that the relationship with tribal government and the relationship with federal government has sometimes been a little bit confused and I think there is this obligation and what the federal government owes especially via treaty obligations to tribal nations and tribal citizens. But tribal governments don't necessarily owe tribal citizens anything. They may choose to provide services, again enacting our values or choosing to do certain things, but that's not an entitlement necessarily that somebody has. So part of being a citizen is contributing and everyone...as Anishinaabe people we always say, "˜Everyone has a gift,' and the range and diversity of gifts is important to us. We don't want everyone to have the same gift. We want a diversity of people which also relates to increased population. But everyone will contribute in their own way. They will contribute maybe working in tribal government, maybe working for a certain program or service. They may contribute by raising healthy children, they may contribute by helping other family members, they may contribute in a wide range of ways, but focusing on that instead of focusing on what a single person might get."

Ian Record:

"I want to move now onto the other aspects of the new constitution, and I'll ask you in a second for your thoughts on what you think stands ou,t but I'm curious, there's one change that I forgot to write on the list of questions and that is, you're no longer the White Earth Band of Ojibwe, you're now the White Earth Nation. Why was that change made?"

Jill Doerfler:

"Well, we use that sometimes now anyway and we do feel it's a little bit more appropriate for us. It's a little bit stronger assertion of our sovereignty. That's been a preferential name that we've used internally for a while and so this was an opportunity to make that change officially in the constitution."

Ian Record:

"So what other things stand out in terms of the new constitution? Can you give us a brief overview of some of the concrete, fundamental differences between the new constitution and how you govern yourselves under the old arrangement?"

Jill Doerfler:

"Absolutely. I think the separation of powers is one of the biggest things. When Chairwoman Vizenor first announced the fact that she wanted to start constitutional reform, she mentioned two things: citizenship and separation of powers. Currently, there is no separation of powers and the court system is basically established via statute not in the constitution, which gives it a little bit more precarious of a position. And so the new constitution, the ratified constitution of the White Earth Nation, separates out a president, a legislative council, and the judiciary, and each has separate roles and responsibilities. Also the legislative council is not enumerated in a fixed way, because we know that White Earth population will change over time and we don't want to lock ourselves in to having three representatives or three districts or five districts and so that is left open, that will change over time. One part that is fixed is off-reservation representation -- which is something that doesn't exist now -- in a very concrete way. Right now, everyone votes for the chairperson and the secretary-treasurer. They're elected, as we say, at-large. But there are three districts on the reservation right now. So the constitution has sort of open number of districts on the reservation and then two representatives for off-reservation but within Minnesota. And so that's a guarantee that off-reservation [citizens] will have at least two representatives, which is important because we have a large portion of the population, White Earth citizens living off the reservation, so that was a major change. And as I said, having the judiciary separate and established within the constitution, that's really critical because things like the new Tribal Law and Order Act and the Violence Against Women Act, which is hopefully going to allow Native nations to extend their jurisdictional reach a little bit, part of that is having that separate judiciary helps guarantee for everyone that there will be some independence there. I think most of us in Indian Country are in favor of increased jurisdiction, but increased jurisdiction without a separation of powers can be a little bit scary and so that's also..."

Ian Record:

"It essentially raises the stakes and if you maintain a politicized court system, it's just going to make things even worse potentially."

Jill Doerfler:

"Correct. I'll also say a couple of other things about the new constitution. Currently at White Earth, we have community councils, which are operating in a relatively informal basis. They're not written into any governing document, but in the new constitution we have community councils established, we have an elders council and a youth council, and they all have real important roles within the community for people to gather to talk about political issues to also engage in cultural activities, to keep language and cultural practices ongoing and it allows people ways to engage the elected leadership and allows elected leadership maybe to choose to come to a youth council meeting or to come to an elders council meeting when they have a problem. And so that was really important to delegates, and I'm really proud that we have those different councils established and set within the constitution itself."

Ian Record:

"That's fascinating. One tribe I worked with for quite a long time, they, in a draft constitution, which has not yet been ratified, they actually gave constitutional authority to their elders council and their youth council to review legislation before it could be voted on which I thought was really cool."

Jill Doerfler:

"Wow!"

Ian Record:

"I'm really looking forward to that getting ratification at some point. So we talked about what's actually in the new document, some of the things you referenced. That's ultimately just a piece of paper. That leads me to the question: what's the new governance reality that that document seeks to create? How does it seek to improve the effectiveness of White Earth governance and make it more culturally appropriate, etc.?"

Jill Doerfler:

"Yeah, I think also trust is a big issue with government at White Earth and other nations as well. White Earth, as I said briefly, has had some issues with fraud and corruption in the past and that has really tainted peoples' view and their trust and their view of the tribal government as legitimate. And so we hope that the new governing document with the separation of powers, with the ways in which elections are structured, will help improve peoples' pride in the government, potentially their political loyalty, that would be improved."

Ian Record:

"If you were to explain to somebody that knows nothing about your tribe and knows nothing about the reform effort, what aspects of the new constitution and the new governance system are most culturally distinct to White Earth, what would you tell them?"

Jill Doerfler:

"I would say that our preamble is actually potentially most distinct. Preamble, as some people know, is a place in the constitution where there is sometimes a little bit more freedom rather than the articles and exact procedures that are laid out. But I think the preamble is really nicely written, acknowledges our broad range of relationships and cultural values historically and contemporary, and so I think that does a nice job. I do think that we have some processes for basically ethics, impeachment, citizens are allowed to petition. I think that kind of citizen involvement is very culturally appropriate and something that people will welcome having in the new constitution in a way that citizens haven't been able to be as engaged with the current governance structure. And I think historically, Anishinaabeg people and White Earth people had a lot more opportunity to engage leaders, to be a little bit more involved in the process than is currently available, so I think the new constitution also does that. And I think the balance of checks in power and balance of power is also culturally appropriate. Historically, Anishinaabeg people didn't have one or two leaders who were making all the decisions for the tribe. That power was disbursed, there were lots of lengthy council meetings where people could get out and participate, and so we see some of those things integrated in the new constitution as well."

Ian Record:

"So what cultural values would you say does the new constitution seek to protect, advance, to live, and what future do you feel it's designed to help create within the nation?"

Jill Doerfler:

"Sure. I think that one of the things that we talked about a little bit during the process was cultural values and core values. At ones point delegates were asked to identify some of their core values and write belief statements, and ultimately they came very close to intentionally or not intentionally mirroring our teachings, which are sometimes called the seven grandfather teachings, which is basically love, respect, honesty, humility, wisdom -- these types of really basic core values that transcend time, that transcend place that we can all be engaging in today. Sometimes culture for American Indians gets fixed a little bit historically in the past and fixed into certain actions, but if we think of love and respect as part of our cultural values then that opens us up to enacting them today."

Ian Record:

"So final wrap-up question. You guys have gone through the whole process. You're awaiting a secretarial election, is that correct?"

Jill Doerfler:

"Right."

Ian Record:

"But in terms of the actual process and the crafting of a new foundational governing document, you've gone through that process. What do you feel other nations can learn from the White Earth experience? What sort of lessons do you feel that you've learned that might be transferrable to the challenges that other tribes are facing?"

Jill Doerfler:

"Right. So I do hesitate to say we're through the process, 'cause we're gearing up for a really...hopefully what will be a really big citizen engagement and education effort, because things have been sitting at White Earth a little while. Delegates ratified the document in 2009, it's now 2013, and so we do need to work this summer and into the fall to reinvigorate and to educate about the document to make sure any questions that people have are answered. But as far as the writing process and the process that went into getting the document that we have now, I think that transparency was key. I think we did a relatively good job with that. I think since we've finished, social media has really taken off and I would say if we were doing...the nation who's doing it now I would say need more presence on the web. We primarily used newspaper articles which was great, but things on the web can happen a little bit more in real time and I think that would be something that tribes could utilize. I think the fact that we were inclusive as far as delegates went is also good. It also provided some trust I think to people who were maybe skeptical of the process. We can say that everyone who wanted to be included was included but there was that application process and there was a deadline and that was it. There were later some people who wanted to become delegates after the process started and we were unable to do that because we had to stick with our original plan. But I think that that was good as well. I think if we would have added new delegates later we would have almost had to start over and re-educate, so I think it was good that we had that open process, but then once the delegates were selected we stuck with it and we didn't make changes. So I think it's easy to say, "˜Oh, yes, we'll add you,' because there were definitely great people who came along that would have been great additions. Instead we said, "˜Please continue to come to the conventions and you can still share your thoughts and ideas and talk with the delegates and be involved that way.'"

Ian Record:

"Well, we really appreciate you taking some time out of your busy schedule to share your thoughts and experience and wisdom with us, and I'm very eager to see how things unfold there. I definitely think that other nations that are talking about reform, embarking on reform, struggling with reform can certainly learn a lot from the White Earth experience."

Jill Doerfler:

"Thank you. It's been a pleasure to be here and I'm definitely looking forward to our referendum, which will hopefully happen soon."

Ian Record:

"Well, thank you, Jill. That's all the time we have on today's program of Leading Native Nations. To learn more about Leading Native Nations and the Native Nations Institute's website, please visit nni.arizona.edu. Thank you for joining us. Copyright 2013, Arizona Board of Regents."

Erma Vizenor: Engaging the Nation's Citizens and Effecting Change: The White Earth Nation Story

Producer
Native Nations Institute
Year

White Earth Nation Chairwoman Erma Vizenor discusses some of the historical factors that eventually compelled her and her nation to undertake constitutional reform, and the issues her nation has encountered as they work to ratify a new constitution and governance system.

People
Native Nations
Resource Type
Citation

Vizenor, Erma. "Engaging the Nation's Citizens: The White Earth Nation Story." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 25, 2010. Presentation.

"Good morning. At home we say, '[Anishinaabe language].' Good morning. I want to thank everyone for being here, and to come to such a beautiful place. I came in late last night, so all I saw as the cab was driving me in was this huge place with all kinds of lights. And I was so anxious to see it this morning and it's gorgeous. Your home, your beautiful home, yes. I'm just sorry I can't stay very long today, but I want to thank my dear friend Manley Begay for inviting me to this seminar. He contacted me at least two-and-a-half, three months ago, and of course I checked off the date and made sure that I had this time open. So Manley and I, way, way back we started our doctoral program together at Harvard. This is kind of funny because this is how things happen but we were just overwhelmed with everything and we were also changing Harvard at the same time, because I know that we worked hard to get the Harvard [University] Native American Program as it is today. So we were overwhelmed with all of our doctoral studies and Manley and I said, we were sitting there and he said, ‘Yeah, we're going to go home in three years. We're going to go back where we belong.' Well, Manley stayed on at Harvard for 12 or 13 years doing good work at the Kennedy School of Government. I went home after three years and I got into a reform movement to oust corruption in my tribe and I did that for five years. All good work, necessary work. We didn't leave as we should. The day that I...or a week after the indictments came against three council members for bid rigging, election fraud, embezzlement theft, all kinds of crimes, a week after that I received a letter from Harvard. The letter said, ‘You come back and finish your dissertation or else by the end of...by the spring of 2006 we're going to drop you.' So I jumped on the plane and went back to Harvard and worked very hard, had to do everything over again, and I didn't write a masterpiece but I finished my dissertation and graduated that spring.

We as Indian people, I just want to say and commend all of you because most of us have to run twice as hard, work twice as hard, run twice as fast to keep up and that's the way it is. I don't think anything comes easy for us. I want to say that I am...say a little bit about the White Earth tribe. We are called; the federal government calls us the White Earth Band of Ojibwe Indians. I have gotten, I have worked hard to get our people -- although when we sign our documents with the federal government I have to use that name -- but amongst ourselves we call ourselves a nation because that's what we are. We always have to remember that we are what we call ourselves. I say to our people back home, ‘A band? My goodness, we're a nation of many bands and we think about a band -- loose, disorganized, small. We're more than that, we're a nation.' And so the White Earth Nation is located in northern Minnesota. We're one of 11 tribes, seven Ojibwe tribes and four Dakota Sioux tribes in the southern half of the state. White Earth is the largest tribe. We have 20,000 members and we're part of the Minnesota Chippewa Tribe, which is White Earth, Leech Lake, Fond du Lac -- and I know Chairwoman Diver was here yesterday -- Grand Portage, Bois Forte and Mille Lacs. We comprise the Minnesota Chippewa Tribe, which is an IRA [Indian Reorganization Act] structure created in 1936. The Red Lake Nation is not a part of the Minnesota Chippewa Tribe. The Red Lake Nation is Ojibwe -- and we have a good relationship with Red Lake -- but Red Lake is unique. It's a closed reservation because they didn't participate in the Allotment Act, the Dawes Act. They kept all their land in common and didn't allow...didn't participate so the land was not allotted and consequently lost. Wise chiefs in those days.

That did not happen to White Earth. White Earth was allotted all out and White Earth...and Red Lake by the way was the federal government's solution to the Indian problem in Minnesota and created these two large reservations to move all the Indians in Minnesota to the Ojibwe Indians, Chippewa Indians to these two reservations. Relocate the Indians again and get them all together where we can oversee and control them, but that didn't work because our Indian people did not leave their homelands and so we still have our reservations up of Fond du Lac and Mille Lacs and Leech Lake and Bois Forte. People went home again, even if some of them did come to White Earth. So that didn't work, but White Earth is the largest tribe because many of the different Ojibwe people came to White Earth. And the land was allotted out at White Earth and consequently because of that allotment process the land was lost, it was swindled, it was theft, it was lumber companies and farmers and people who were homesteading. So our land was lost. We had...our reservation was established in 1867 and comprised approximately 850,000 acres of land. By the 1900s, we had 50,000 acres of land left. The rest was lost. So land acquisition is a huge priority, large priority for us. Today, when the federal government organized the Minnesota Chippewa Tribe, the six reservations together, it put all of our land in common. We have approximately 60,000 acres of land at White Earth out of the 850,000 acres. That's in tribal trust land and it's under the ownership of the Minnesota Chippewa Tribe in common. I worked hard to get that back and some of the tribal leaders want to be paid out within the Minnesota Chippewa Tribe and I tell them, ‘I don't see your tribe in our treaty.' But that's the federal government creating these problems for us as Indian people.

The governance of the Minnesota Chippewa Tribe is an IRA constitution adopted in 1936 and is a very...since 1987...Vernon Bellecourt was a White Earth secretary/treasurer and was a very progressive man. He initiated a resolution that the Minnesota Chippewa Tribe conduct a constitutional convention. I admire Vernon because he was a visionary person. And in 1987, the Minnesota Chippewa Tribe passed that resolution but it never to this day has not held a constitutional convention. Well, we have an IRA constitution and it's very, very difficult for our people -- how many of us read our state constitutions or our United States Constitution and figure out what our rights...how many of us do that? We know it is taught in our schools, but our constitutions are not taught. And so when I came back from Harvard after I finished my classes, we had corruption in our tribe at White Earth, huge corruption. Our elections were fraudulent, we had bid rigging, and so I worked with elders on a grassroots reform movement and I spent the entire summer of 1991 in jail because we had all of this corruption. By 1995, and with the help of the late Senator Paul Wellstone, an investigation was done and indictments were issued and consequently a federal court trial. This grassroots movement really involved a lot of people at home and got them engaged.

When I was at Harvard, I studied the...Manley and I and Colleen Larimore, we did a paper together on community organizing. And so I learned some good skills there and so we engaged, I engaged the community, the reservation, which is a large area. It's a square that's 36 miles on each side and a lot of our people live in Minneapolis/St. Paul and they came up to help. So we had this huge momentum and change had to come and the people were, the people were empowered to make that change. We had to have open meetings every night, every night we had open meetings and it was spiritual because we had our spiritual people there and we always gathered around to pray first and we always said that we need the Creator to help us.

So in 1996 I was appointed the secretary/treasurer, which is the second role in government and I was elected to that position and re-elected in 1998. I lost my election in 2002. I lost it. But I ran on the platform of constitutional reform. Other tribal leaders run on it but don't do anything about it. But I did. I put together a committee and in 1997, '99 the committee drafted a constitution, I took it out to the reservation, to the Minneapolis area, and very few people showed up. It was a very, very difficult constitution to understand because it was...it talked about grand councils and it talked about language that we had never experienced before. And so when I lost the election in 2002, the constitution went off the radar screen, many things went off, went to the bottom of the drawer. I ran for election for the tribal chair in 2004 in the primary and I won the primary, beat the incumbent and constitutional reform was back on the radar screen again. And so we have, I facilitated, I organized and I facilitated all of the constitutional convention process from delegates, kept the entire process totally transparent and we drafted a constitution and we ratified it by the delegates about a year ago.

And then because...I say we're part of the Minnesota Chippewa Tribe with this IRA constitution, I've gone to the...now I'm at the Minnesota Chippewa Tribe level and I'm getting stalled. Some tribes don't want to change, and I think it's because of the colonization and the institutional oppression that people haven't come out of yet. I really do. Don't see the need to change, don't see the need to. There are some issues that are huge. The blood quantum issue is a huge issue, very controversial. Well, that's one of the most controversial ones is the blood quantum and in our new constitution we...our delegates voted on lineal descent. We are terminating ourselves, people, if we cooperate with the federal government on one-fourth blood quantum. We just need to do the math and pretty soon within...we think of seven generations, by seven generations most of us will be gone. That's a controversial issue and even our tribal members in our constitutional conventions get to the point where they say...they get into ethnic cleansing. We have African...our tribal members have married to African-Americans and look like African-Americans and they don't want them there because they're black. I say, ‘My goodness, ethnic cleansing? I can't believe that.' But that's where we're at sometimes. I want to just...I know I don't have a lot of time, but I want to just stop right now and turn it over. Thank you very much.

John "Rocky" Barrett: A Sovereignty "Audit": A History of Citizen Potawatomi Nation Governance

Producer
Native Nations Institute
Year

Citizen Potawatomi Nation Chairman John "Rocky" Barrett shares the history of the Citizen Potawatomi Nation and discusses its 40-year effort to strengthen its governance system in order to achieve its goals.

Native Nations
Resource Type
Citation

Barrett, John "Rocky." "A Sovereignty 'Audit': A History of Citizen Potawatomi Nation Governance." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 11, 2012. Presentation.

"[Potawatomi language]. It's nice to see all of you emerging tribal leaders. That's wonderful. I like to think of myself as emerging, hopefully on a constant basis. I was first elected to office in 1971 as a 26-year-old whatever I was at the time. I was selected as vice chairman. I was named to finish a term and then I was...the two year terms back then. Then I was elected about seven months later for a two-year term as vice chairman. Vice chairman of what was hard to say at that time. My uncle was the chairman. My mother and her eight brothers and sisters were agency kids. We grew up...they grew up on the BIA [Bureau of Indian Affairs] Agency. My grandfather was the BIA marshal then or the tribal...or the BIA police. And so that area...I am one of the eighth generation of my family consecutively to be chairman of the tribe. Back in those days when that vacancy came up, it came up because my uncle had been named chairman because...he was the vice chairman and the chairman had gotten removed from office for carrying around the tribal checkbook in his hip pocket and writing checks to the grocery store for groceries. And we only $550 in the bank and he used about $100 of it to pay his grocery bill and the feds got him. So he was removed from office and my uncle was made chairman, which created a vacancy in the vice chairman spot and so I was named to it.

And we went over to the BIA Superintendent's office. Now you've got to understand my uncle grew up on the Agency and the BIA in 1971 was the law. And he didn't believe you could have an official meeting of the tribal government without the Agency superintendent in the room and that the minutes of our meetings were not official unless they were filed with the BIA. So we went over to see the Agency superintendent and he was going to tell the superintendent that we were going...the tribe was going to appoint me as vice chairman. Now why, I don't know. But we go in and the Agency superintendent starts trying to talk him out of it and he finishes up by saying, ‘Now the last thing I want to do is hurt you guys.' And so as we're going out the door, my uncle turns to me and says, ‘That means it's still on the list,' to hurt us.

So I got the drift about then and, but...became the vice chairman and served two terms then I became director of the inter-tribal group. The State of Oklahoma forced all of the tribes -- the federal government forced all the tribes in the ‘70s to create inter-tribal corporations that were chartered C corporations or non-profit corporations in the State of Oklahoma. The federal government would not give money to an Indian tribe back in the start of the old [President] Lyndon Johnson program days. So you had to be given to a corporate entity that was in the state. And the state even tried to take 10 percent off the top of every federal dollar that came to Oklahoma as a condition. The issue back then was whether or not tribes were responsible enough to manage the money and everyone...I was the youngest person on the business committee. I was the only high school graduate; I was one of the three out of five who could read. All of the people on the business committee were smart but they were not educated people, but they had all grown up...of course, I'm not smart enough to know how to operate this damn thing. There we go. I did a good job of that, didn't I? Side to side or up and down? Ah, okay, that was the problem I went... I killed it. No? Ah.

But the Citizen Potawatomi Nation back then was the Citizen Band of Potawatomi Indians of Oklahoma, was the name of our tribe. The 'Band' was something the BIA stuck on us in 1867, actually 1861 when we separated from the Prairie Band when we were all one tribe. We tried to get Band out of our name for almost 75-80 years after that and finally were successful. We still can't get the BIA to stop calling us that even 20 years later. But we're the Citizen Potawatomi Nation; implication being that 'Band' is not a full-blown tribe.

But what's described as this audit of sovereignty -- we weren't that smart. We didn't just all of a sudden one day decide, ‘Oh, we're going to audit our sovereignty. Where are we sovereign? And where are we not sovereign? And here's what we're going to do about it.' We weren't that smart. We really didn't know what sovereignty meant. Remember, everyone on the committee, and this includes me, we were all children of the ‘50s and the ‘60s. Primarily, except me, were children of the ‘40s and ‘50s. You've got to remember what was going on about then. 1959, Senator Arthur Vivian Watkins of Utah chaired the Interior Committee of the Senate...Interior Committee on Indian Affairs and helped shepherd through House and Senate Concurrent Resolution 108 was provided for termination of tribes. The Secretary of Agriculture, who was also from Utah at the time, in the interest of doing something good for Indians, were tremendous proponents of termination and got it done. The McCarthy hearings were on about then and anybody who held things in communal ownership was probably a communist and that included Indian tribes. Yeah. And if you were an Indian leader and you didn't like the way the federal government treated you, it wasn't that you were saying that you didn't love the government, it's when you discovered that your government didn't love you is when all of a sudden things got rough.

And this was a tough period of time and everyone on the business committee, all five of us, were all a product of when self-governance and self-determination, that was the language of termination. Self-determination and self-governance meant termination. That's what they said they were going to do. And in those days you had to prove that you were going to be too broke and too incompetent to run your own affairs to keep from being terminated. If you had a business and you had money and you were conducting your affairs in some semblance of order, then you were eligible for termination and we were on the list. Why? I don't know because we had neither pot nor window. And it was...it was absurd that all the Potawatomis got thrown in there together 'cause we were down to $550 in the bank and two-and-a-half acres of land held in common, in trust, and about 6,000 in individual allotments. We were down to nothing and they were going to terminate us. And my uncle, listening to the Choctaw chief at that time who -- remember, the Choctaw, Chickasaw, Cherokee, Creek, Seminole chiefs were appointed by the president until some 20 years after that. They were not elected. So the Choctaw chief was a big proponent of termination. He believed that was the right thing to do. My uncle didn't think that we should be terminated but didn't even really know what we were being terminated from 'cause we didn't own the building where we met. It was a trailer that the [Army] Corp of Engineers had abandoned on a piece of land that the BIA had and they were letting us use it. We were pathetic, pitiful people.

And so when they started these hearings on Indian stuff and the outcome of it was Senate Resolution 108 and the Flathead, Klamath, Menominee, Potawatomi, Turtle Mountain Chippewa and all the tribes in the State of California, New York, Florida and Texas were to be terminated. Now 108 didn't terminate them, but it authorized the termination and then the BIA started working up the list. When I said earlier that the BIA superintendent said, ‘The last thing in the world we want to do is hurt you, but it's still on the list.' So, that was the mindset of our business committee and when I took office of our tribal government. Senator Watkins had the support of Senator Robert S. Kerr, the owner of Kerr-McGee Oil Company, to date the richest man who's ever served in the United States Senate and was the most powerful man in the U.S. Senate and coined the phrase what we call a Kerrism and that's still in use in Oklahoma is that, ‘If I ain't in on it, I'm ‘agin it.' And that's how he got in the uranium business. All that saved us was we sued the government in 1948 under the Indian Claims Commission Act and that lawsuit settlement was pending and tied up in the courts and if it hadn't been for that they would have terminated us 'cause you can't terminate someone who's in court suing the government cause it looks like you're trying to get rid of them to get rid of the lawsuit and that's all that saved us.

Very quickly, we came from Newfoundland down the Saint Lawrence River 1100, 1200 mini-Ice Age, ended up in Michigan, split from the other...the Ojibwa, Odawa, Ottawa people. We were all one tribe called Anishinaabe, we came into Michigan and settled. In the war with the Iroquois over the beaver trade they drove us all the way around the lake until the French armed us and then we drove them back to the east coast. We were in refuge in Wisconsin from the Iroquois attacks when the French, John Nicolet showed up with some priests and we helped unify the Tribes of Wisconsin against the Iroquois invasion and that group was able to drive them back once armed with the French connection. The French connection through a series of alliances, primarily inter-marriages and the inter-married French and Potawatomi became the Mission Potawatomi who became the Citizen Potawatomi.

But this area was an area that we controlled quite a large area, though it didn't show up on the slide, but it was a very large area around the bottom of Lake Michigan and then because we sided with the French against the British, with the British against the colonies, we ended up under the Indian Termination or the Indian Relocation rather, Andrew Jackson's Indian Removal Act and we got marched to the Osage River Reservation in a march of death along this route and the ones that didn't die on the walk, another fourth of them died that winter. My family survived it on both sides and in 1861 after the Copperhead [U.S.] President Franklin Pierce allowed settlers to come into Kansas on top of the reservations anyway without a treaty. We were on the Kansas/Missouri border. We were part of the Underground Railroad to help hide runaway slaves and transport them up north. And so we were part of the depredations of the Civil War from Missouri, a slave state, into Kansas.

And so we ended up getting out of there, separated from the Prairie Potawatomi in 1861, sold the reservation to the Atchison-Topeka and the Santa Fe Railroad in 1867, took the cash and bought this reservation for gold south of the Canadian River from the Seminole Reservation line to what's called the Indian Meridian that divides the state in half between the North and South Canadian rivers, became our reservation that we purchased. And we took United States citizenship as a body in 1867 in order to protect the ownership of that property as a deed. We were denied access to the courts in removal from Indiana. We had lawyers hired and people trying to stop the removal from Indiana and we were part of the group that was...the ruling was that because we were not United States citizens we could not plead our case in the United States courts. And hence the name Citizen Potawatomi was to defend the purchase of this property.

We came to a place called Sacred Heart. We had the Catholic Church with us and helped them form the first Catholic university and school, settled in Sacred Heart. We had a division over the Ku Klux Klan. We had a Protestant and Catholic business committee. Of course the Klan was as strong in Oklahoma and Indiana as it was in Mississippi and Alabama and it caused a great deal of trouble. The Shawnee Agency government in Shawnee where the Indian Agency was basically after the tribe was able to heal the split, we didn't have a headquarters after we left Sacred Heart. The trailer that you see on the bottom was a...belonged to the Corp of Engineers and it set on a surplus piece of property. I want to get a little larger version of that picture because it's so much fun. Car and Driver Magazine certified the three worst cars in U.S. history were the Ford Pinto, the AMC Gremlin and the Opel Cadet, and all three of them are parked right there. First thing we did was out of the 550 bucks, we spent $100 of it on that air conditioner 'cause it was too hot to sit in this trailer. The guy who got removed for writing those checks got drunk with his brothers and came to whoop us all at the first meeting and the chairman...I mean the guy who was supposed to succeed, because I got appointed he showed up, is how I got appointed. But he showed up to become the first choice appointee and he kicked a hole in the back of it right here 'cause this was the only door to get away from the impending fist fight. But it was mostly conversation, nothing happened. But that was us in '73 on a gravel road. That was all we had.

In 1982, I had left the inter-tribal group and left tribal office and gone back to the oil field and in 1982 my grandmother whose father and grandfather and great grandfather and great-great grandfather had been chairman and my mother's father and my grandfather also on his side had been and my grandmother called me up and told me that I needed to come back and I said, ‘I've already done my piece, grandma. You've got 26 other first cousins. Why don't you get them to do it?' And I got that silent thing and she scared me to death with that so I went back out there in '82, in 1982 because I'd had the previous history in office and as running the inter-tribal group. Became the tribal administrator in '82. I served until I ran for chairman in 1985.

But in 1984 there was a set of tribal statutes that were being promulgated by a now famous Indian lawyer named Browning Pipestem, the late Browning Pipestem. Browning Pipestem and William Rice, Bill Rice, made a presentation to us. Now I was the tribal administrator. The chairman at the time had a reading disorder so the way that business went of our tribe was he would go out in the hall and his wife would read it to him and he would come back in and reconvene the meeting and we would handle that piece of business. This meeting started about 5:30. It was about 1:00 am when Browning Pipestem and William Rice finally got the opportunity to speak. Browning Pipestem was married to a Citizen Potawatomi. He was Otoe Missouri and he started the meeting off, 'cause he'd been cooling his heals out in the hallway for about five or six hours, by saying, ‘I own more land than the Potawatomi tribe. I have more trust land than you do. My children have more trust land than you do. The area over which you govern, my family owns more than you do.' Well, it was kind of an odd thing to say, but I knew Browning was...he was a riveting speaker, and I knew he was going somewhere with this and he said, ‘You guys are known up north as the shee shee Bannock,' the duck people, because we were so good with canoes. Supposedly Potawatomis invented steam bending the keel of a canoe to avoid knocking a hole in the bough on rocks on rivers. ‘You guys are called the duck people by the other tribes 'cause you got around in so much active in trade and so much commerce and you got around so well on the water.' And he said, ‘Well, here's what sovereignty is. If it walks like a duck and it talks like a duck, it's a duck most likely, and sovereignty is the exercise of sovereignty. It's not something that you get, something that you buy or something that someone gives you. It's like your skin. You had it, you are a sovereign, the United States signed treaties with you, 43 of them, all of them broken, the most of any tribe in the United States, the most treaties of any tribe. And they don't sign treaties with individuals and they don't sign treaties with oil field roughnecks. They sign treaties with other governments. You are a sovereign government with the United States and sovereign means the divine right of kings.' Well, he lost us there and he went on to say that...explaining that ‘unless you take on the vestiges of a sovereign government and exercise the authorities of a sovereign and recognize where you can exercise your sovereignty and where you cannot and what it is, then you're not. But if you do, you are.'

Well, for me the lights went on about then because the Thomas-Rogers Act constitutions in the State of Oklahoma, all the tribes in Oklahoma adopted the Oklahoma Indian Welfare Act Constitution and it basically...that was back in the days when it was the fad, we all had to be corporations. I'm the chairman of the tribe and we have a vice chairman and a secretary/treasurer and we have members of the business committee, like a board of directors of a corporation. And somehow they thought that our way...best way to govern is that we would all get together in this thing called the general council that would be the supreme governing body of the tribe and that we all got together and everyone had an equal voice, the 18-year-old had an equal voice with the 65-year-old and everyone would get together and democratically design the best thing for the tribe, which is utter nonsense. Absolutely utter nonsense. We never governed that way in our history. If you got up in my day as a young person and had something to say in council, your grandpa would and could and should grab hold of your pants and jerk you back down and apologize for the fact that you spoke at all without asking the permission of your elders.

Of course our government, because it was a meeting...now we didn't have anything, we were broke. We didn't have any land, didn't have money, we didn't have anything but we could meet in the one general council that we had annually on the hottest day of the year and the last Saturday in June at our annual general council that convened about 1:00 and we'd keep going ‘til about 7:00 when the low blood sugar kicked in and it would come to blows. And as a result of that, we couldn't get a 50-person quorum. We had an 11,000-member tribe. We couldn't get 50 people to come to council. We used to have to get in our cars and delay the start of the meeting to go around and force your cousins to get in the car so we could get a quorum so we could convene the general council meeting. No one wanted to come and I don't blame them. I didn't want to go either. If I hadn't been in office, I wouldn't have gone. It wasn't government. It turned into a bad family reunion. That's all it turned into. And so the...what happened out of that, calling that government, was the more acrimonious the meeting became, the less people wanted to come, and the less like government it was. And it wasn't a government. We weren't governing, we weren't sovereign, we weren't anything.

So first thing that came to us is, ‘We've got to change this Thomas-Rogers Act thing.' The supreme governing body of the tribe can't be a meeting, and we could call special meetings of general council with a petition and 25 people could call a petition and you could get another meeting and get 50 people there and 26 of them could change everything that the previous one did. So one family could all get together and we could back and forth have these special general councils and we could reverse this and change this and chaos, utter chaos. So we decided to redefine what the general council was, if that was to be the supreme governing body of the tribe, it had to be the electorate, it had to be the people who were eligible to vote, the adults of the tribe. And so that was the first thing we decided to do, but that evening it ended about 2:00 and we all went home.

But the next few days we started talking about, ‘What does a tribal government do? What are we supposed to be doing here? We're getting a few bucks from the government here and there to try to keep the lights on.' We had $75 a month coming in of revenue and it kept the lights on but, ‘What are we?' So we got it down to three things: the land, the law and citizenship. What land do we govern? What's a law? So it was about three years and I got elected chairman in 1985. I came back in '82, I ran for chairman in '85 and have been in office since then. We've amended our constitution five times since then. One really major one and we have been to the United States Supreme Court three times, to the 10th Circuit Court of Appeals seven times. We have been in litigation every year since 1985. We're still in litigation. I'm a lawyer's dream -- not one penny in tribute and millions for defense. That's not my saying.

When we talk about the land, how much land do we govern? Now we had that two-and-a-half acres of land that was held in common, we had about 60 acres that was in fee that was old school land and then we had about 6,000 acres of land that was held in trust that had a whole variety of heirs, very few people living on it. And you could fly over the countryside of Oklahoma on our reservation and here'd be a whole bunch of land that was all in cultivation, people making hay and raising cattle and then there's be an 80-acre piece right in the middle of it that was overgrown with blackjack trees and weeds and trash and no fences and crummy looking un-utilized piece of property and that was a Potawatomi allotment. That's how you could tell because with so many heirs no one actually owned it, no one actually used it. It was in the fourth generation of ownership of a family that was split up to where it wasn't happening. Plus the fact the government at that time, there was a big move that tribes that were allotted tribes that didn't live on Indian Reorganization Act reservations like most of you guys weren't really tribes and really didn't have a definable jurisdiction. That was before the federal definition of Indian Country.

How much land do we govern, what are our boundaries, what authority do we have over our land, can we buy more and will it become subject to the authority of our government and what's the difference between allotted land and tribal trust land? We didn't know that. We didn't know. We didn't know that allotted land was subject to the authority of the tribal government even though the only thing we had were resolutions. We didn't have statutes, we didn't have a code, we didn't have a court, we didn't have police, we didn't have the vestiges of the government, but we had resolutions. That's how we decided what to do and we could do a resolution that would have an impact on tribal trust land if you could survive the political outfall. We didn't know that. We didn't know that our boundaries where we could take land and buy the residual interests in the allotted lands was the original jurisdictional boundary of the reservation, the 900 million acres that we lost. What authority did we have over the land? We didn't know we had authority over anything. Remember, we thought we had to have permission from the Agency to meet. So it was the discovery and the inquiries that we began about what our land base was, what our boundaries were, where could we buy land and get it put into trust; we were told by the Agency superintendent that no individual could put land into trust. And the reason was that you had to be incompetent for them to put individual land into trust. And if you were smart enough to ask to get your land put into trust, you weren't incompetent. Catch 22.

The law. We didn't know we could pass a law. We were passing resolutions; we didn't know they were laws. We have a resolution, ‘We're going to meet next Friday and have a pie supper.' We didn't know that was the law. We didn't know a tribal resolution was law. When we enrolled someone, we didn't know we were behaving lawfully. We knew we had to follow the constitution. We thought the constitution was the only law we had and if it wasn't in there it didn't exist. If it wasn't in the book, in the constitution book, it didn't exist. How we enforced law. We didn't have police. The BIA had police but we didn't have police. We didn't know you could have police. We didn't have a judge for sure. The CFR courts hadn't even been invented.

In CFR, the Court of Federal Regulations, that didn't really start happening until about 1981, '80, in Oklahoma. Can we make white people obey our laws? Can white people come onto our land and shoot game? Can white people lay a pipeline right across our land and not tell us or get permission? Can they run cattle on these allotments which they were doing. Can they produce oil off of those allotments and not pay us? All of those things, we didn't know how to do that. Does the BIA, whose law...do we have any impact on the BIA, do they have to do what we say? Does the State of Oklahoma? And if we have laws is there a Bill of Rights? Can we pass a law that says that my political opponent needs to be put in jail for being a fool and is there an appeal? And worse yet, the big scary one, the word, the 800-pound gorilla in the room, the one word nobody wanted to use was can we levy taxes? Whoo hoo hoo. Taxes.

Citizenship. We knew we could amend our constitution because they told us that the only way we were going to get this payment from the 1948 Indian Claims Commission, the 80 percent of the settlement that had been tied up since 1948, in 1969 is we had to have a tribal roll and the BIA told us that the only way you could be on the tribal roll was to prove that you were 1/8th or more Citizen Potawatomi. Now the blood degrees of the Citizen Potawatomi were derivatives of one guy from the government in a log cabin in Sugar Creek, Kansas in 1861 who was told to do a census of the Potawatomi, the Prairie Potawatomi and the Citizen Potawatomi. And he told everyone that they had to appear. And as they came in the door, he assigned a blood degree based on what color their skin was in his opinion and full brothers and sisters got different blood degrees, children got more blood degree than their parents 'cause they'd been outside that summer and those were the blood degrees of the Citizen Potawatomi. There was a full-time, five-person staff at the central office of the BIA in Washington, DC, who did nothing more than Citizen Potawatomi blood-degree appeals, about 3,000 of the blood-degree appeals when I first took office. When I became chairman, it had grown to 4,000 or 5,000 and I was in the room when a guy named Joe Delaware said, ‘I have a solution to the Potawatomi blood degree problem. We'll resolve all this. The first mention in any document, church, federal government, anywhere, anyhow that mentions this Indian with a non-Potawatomi language name, he's a half.' Well, they were dunking Potawatomis and giving them Christian names in 1702, full-blooded ones. If you were dealing with the white man, you used your white name and if you were dealing with the Indians you used your Indian name, like everybody else was doing. And so it was an absurd solution. I told him, I said, ‘That's nuts. That's just crazy. You're going to get another 5,000 blood-degree appeals over this.' He said, ‘Well, that's the way it's going to be.' Well, that was the impetus for our coming back and establishing, ‘What are the conditions of citizenship?' And we stopped called our folks members like a club. They're citizens. And it finally dawned on us that being a Citizen Potawatomi Indian is not racial. It's legal and political. If they...according to the United States government, if a federally recognized Indian tribe issues you a certificate of citizenship based on rules they make, you are an American Indian, you are a member of that tribe. And you're not part one, not a leg or an ear or your nose but not the rest. You're not part Citizen Potawatomi, you're all Citizen Potawatomi. The business of blood degree was invented so that at some point that the government established tribes would breed themselves out of existence and the government wouldn't be obligated to honor their treaties anymore. That's the whole idea. That's the whole idea of blood degree and we're playing into it all over this country, now over divvying up the gaming money. But I'm not going to get into that. But the business of blood degree, the 10 largest tribes in the United States, nine of them enrolled by descendency and that includes us. We changed it from blood degree to descendency, which was the only reasonable way to do it because we had no way to tell because of this guy in the log cabin in Sugar Creek was what we had. And then we had permutations of that over the next eight generations that became even more absurd and Potawatomis had a propensity...we're only 40 families and all 31,000 of us had a tendency to marry each other. So when one Potawatomi would marry another Potawatomi, I'm not saying brothers and sisters or first cousins but when they'd marry another Potawatomi then you got into who was what and it was... And this business of the certified degree of Indian blood was ruled to be unlawful, to discriminate against American Indians in the provision of federal services based on CDIB. It's supposed to be based on tribal membership, not the BIA issuing you a certified degree of Indian blood card. A full-blooded Indian who is a member of eight different tribes, whose family comes from eight different tribes, not any white blood, would not be eligible to be enrolled in many tribes. They had absolutely no European blood, would not be eligible simply because he was enrolled in multiple tribes.

The other thing about citizenship is ‘where do we vote?' The only way you could vote in an election at Citizen Potawatomi was to show up at that stupid meeting, violent meeting, and the guys that were in office would say, ‘Okay, everybody that's for me stand up.' Well, nobody could count that was on the other side so everybody would kind of creep up a little bit so you could count. Well, they counted you 'cause you creeped up a little bit so you voted against yourself. So the incumbent would say, ‘Okay, everybody that's for this guy stand up. I won.' Well, that's not how to elect people. That's not right. Two-thirds of our population lives outside of Oklahoma, one-third of it lives in Oklahoma. Those people are as entitled to vote as anybody in the tribe, so the extension of the right to vote and how we vote and whom we vote [for] and what the qualifications of those people and the residency requirements of those, that was an issue of citizenship that we needed to determine.

So we went through a series of constitutional amendments. We redefined the general council as everyone in the tribe over 18, is the general council and that is the electorate, that's who decides all issues subject to referendum vote. Everyone in the tribe can vote by absentee ballot if they register to vote in an election. We established tribal courts that are independently elected just like the chairman and vice chairman and the members of the tribal legis...and secretary treasurer and the members of the tribal legislature and that the tribal courts have authority over all issues relating to law enforcement. We adopted a set of tribal statutes and we used the ability under the Indian Reorganization Act that we recede the authorities of the IRA in our new constitution to have a tribal corporation in addition to the tribal government, two separate entities. An incorporated entity and the sovereign entity is the Citizen Potawatomi Nation government. Next amendment was to change the name to the Citizen Potawatomi Nation from the Citizen Band Potawatomi. ‘Cause back then when you had Citizen Band, people would say, ‘What's your handle good buddy? 10-4. What's your 20?' Remember all that stuff that went on back in the day with the Citizen Band radios? Or what instrument do you play in the Citizen Band? That was the other one I used to get all the time. We changed our name and we went to descendency citizenship and we enrolled everyone that needed to be enrolled if they were descendents of the original families, 41 families that made up the tribe in 1861.

I issued an executive order that we would hold council meetings in every area, city or metropolitan area with more than 2,000 members of the tribe. And so we began a series of meetings in 1986 in Houston, Dallas, Washington, D.C., Kansas City or Topeka area, Kansas City/Topeka area, Portland, Oregon, alternating with the Seattle/Tacoma, northern California -- the prune-pricker Potawatomis. We met in Sacramento, in southern California -- the oil field Potawatomis. We met in Los Angeles or somewhere, Bakersfield or somewhere down there. And we met in Phoenix, Arizona, for the rich Potawatomis. But we started having these meetings and we started going to hotel rooms and ballrooms like this one and buying a meal ‘cause we had a little money coming in from bingo and selling cigarettes and we started having these meetings and we found out something, that if you have a meeting and you feed Potawatomis, they won't fight with you. So as soon as I started serving food at the general council back home, never another cross word, never had another fight, never any issues of that.

But the revision of 2007...in 1985 was the big one. I almost...I'm out of time. We separated the branches of government with a true separation. There is an executive branch, a legislative branch and a judicial branch. We now have 16 members of the tribal legislature, eight from Oklahoma and eight from outside of Oklahoma. While it's a one-third/two-thirds population, the way we balanced that is that of the eight from Oklahoma three, the chairman, vice chairman and secretary/treasurer, are elected by everyone in the whole United States. So there is a nod or an impetus or balance given to the population outside. The fact that our jurisdiction, that the area over which we govern, our revenue, is all based in Oklahoma on the reservation is recognized by the fact you have to be from Oklahoma to be chairman or vice chairman or secretary/treasurer. Legislative districts. The whole United States is represented. We eliminated the grievance committee. The grievance committee existed because we didn't have a tribal court and the grievance committee created grievances. We had staggered terms of four office...for four-year terms of office, staggered terms of office. The old two-year terms of office where we turned over the majority of the government every 24 months, crazy. The legislature has total appropriation control of the money. But the legislature can't even answer the phone. It speaks and acts by resolution and ordinance only. They can't run the government ‘cause they can't even answer the phone. The legislature speaks and acts by resolution or ordinance. They appropriate the monies for a specific purpose, but the executive branch spends it and runs the tribe. I have a veto, I have 10 votes out of 16 not counting mine so 10 votes out of 15. And the BIA no longer has to approve our constitutional changes. Each of our constitutional changes took the BIA over four years to consider.

So that's where we are, that's the old bingo hall, that's Firelight Grand Casino. It's $120 million operation, we're doing $150 million addition to it now. Everywhere in our tribe we have these symbols of corn plants. Don't eat the seed corn. We do not make per capita distributions. We fund 2,000 college scholarships a semester, we provide free prescriptions to everyone in the tribe over 62 wherever they live, we do home loans for people, we do all of those things based on need, not actual checks. We believe we're like a family. No one comes homes, sits down at the table, brings the kids and wife and sits there and says, ‘Okay, I'm going to divvy up the paycheck.' They don't do that. They pay the bills first, they address the needs of the family first, and then if there's discretionary income they decide whether to save it, invest it or spend it and that's the way we do ours. But we consider the money from gaming to be found money; it's seed corn.

We bought this bank on a gravel parking lot. It was a prefabricated structure and it was failing. We bought it from the FDIC, the first tribe in the United States to buy an operating national bank. It took the government six months to decide whether to let the bank fail and break all of the depositors or let us put a million dollars in it and save it. They finally decided to do that and now First National Bank is the largest tribally owned bank in the country. We have seven banks, seven branches and it's $250 million back from the original $14 million. If you're going into the bank business, be a little more financial healthy than we were ‘cause if the tribal chairman has to go repo boats and cars at night, that's an ugly business. That's no fun. We had a repo guy named One Punch Willie and boy, he was a tough...he could steal a car in 30 seconds and I went with Willie out...Willie Highshaw, went out on the lake with Willie Highshaw, a great guy. We went out and repoed cars at night when people wouldn't pay us.

These are our businesses. We have a $50 million-a-year grocery business; we have a wholesale grocery business. We have Redi-Mix Concrete. We have a number of enterprises of 2,040 employees. These are our government services. We operate the largest rural water district in the area. We are retrofitting all of our facilities to geothermal, ground source heat pumped geothermal with our own business.

This is my advice: press on. Three steps, two steps back is still one step forward so just stay at it. I've been at it a really long time. I love what I do. I'd do it if they didn't pay me. The first 11 years, by the way, they didn't pay me. But plan. And once you get plans, decide. Even if you decide wrong, it sets in motion the mechanics to get something done. But indecision just locks you up. Fix your constitution. Don't try to patch around it. We did it for years. Fix the constitution. If you have problems with not getting process at your tribe and it's because of the structure or because of something that is happening with the government that isn't fair or right or honest, fix the constitution. If you're not in the constitution-fixing business, you're not in economic development, you're not in self-governance, you're not a sovereign. Thank you."