mediation

Swinomish Cooperative Land Use Program

Year

Based on a memorandum of agreement between the Tribe and Skagit County, the Swinomish Cooperative Land Use Program provides a framework for conducting permitting activities within the boundaries of the "checkerboarded" reservation and offers a forum for resolving potential conflicts. The process, which began in the mid-1980s, was the first of its kind in the United States and illustrates a promising alternative in land use conflict resolution by promoting between-government jurisdictional coordination. Since 1996, the tribal and county governments have jointly adopted a Comprehensive Land Use Plan and procedures to administer the plan, which together foster a mutually beneficial government-to-government relationship. Significantly, the model also has served to improve relationships between the Tribe and other contiguous local governments. To date, the Swinomish Indian Tribal Community has instituted more than a dozen separate agreements with federal, state, county, and municipal authorities in the areas of land use, public safety, public health, environmental protection, and utility regulation.

Resource Type
Citation

"Swinomish Cooperative Land Use Program." Honoring Nations: 2000 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2001. Report.

Permissions

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

Kake Circle Peacemaking - Overview Video

Producer
Harvard Project on American Indian Economic Development
Year

This video -- produced by the Organized Village of Kake -- depicts the restoration of traditional methods of dispute resolution the Organized Village of Kake adopted Circle Peacemaking as its tribal court in 1999. Circle Peacemaking brings together victims, wrongdoers, families, religious leaders, and social service providers in a forum that restores relationships and community harmony. With a recidivism rate of nearly zero, it is especially effective in addressing substance abuse-associated crimes.

Resource Type
Citation

The Organized Village of Kake. "Kake Circle Peacemaking." Kellogg Video Production. Kake, Alaska. 2003. Film.

This Honoring Nations "Lessons in Nation Building" video is featured on the Indigenous Governance Database with the permission of the Harvard Project on American Indian Economic Development.

[Singing]

Mike Jackson:

“Circle peacemaking is from traditional ways was called in the Tlingit language [Tlingit language], that meant that they were the 'People of the Deer.”

Kake Circle Peacemaking

[Singing]

Mike Jackson:

“Traditionally, there’s the two moieties that are part of our Tlingit heritage and it’s Eagle and the Raven moiety and under that there’s a clan system under each one. And when you look at the [Tlingit language], no one claims the Deer because the Deer Clan is a sacred clan because it means they’re the peacemakers. Okay, my name is Mike Jackson. I’m the Kake, local Kake magistrate and also Keeper of the Circle.

Our circle peacemaking we began and brought out from our traditional way of living here in Kake five years ago and it’s been five years that we’ve been having the circle peacemaking at Kake where we’re finding it really helps people in terms of remedial restorative justice where we have set up a plan for people who are referred to the circle and they’re referred either by friends, family, themselves or the court.

And the court, the way they do it is that the defendant would propose it to their attorney, the attorney would propose it to the state DA [district attorney] and the DA and the attorney would take it to the judge and come up with what’s called a Rule 11 agreement. And that they would ask the judge to defer the state case and send the case over for circle sentencing. The judge will tell the defendant to, that he’s bound and when the defendant agrees that’s what he wants to do, he’s bound by what’s called the consensus agreement where we come up with a sentence that everybody agrees on that are participants in the community circle sentencing.

So that has been going fairly well because we work with the Superior Court judge and the District Court judges that over the years have referred cases to the circle. And sometimes the DA will put out in front of the defendant if they follow everything that is in the circle sentence, after the probationary period is done that they might dismiss the case, but if the defendant does not follow through with circle sentence, then we will have another hearing to see if that’s what his intention is or if he just forgot to do something within the agreement we’ll give him another chance, but if he blows that chance then he is referred back to the District Attorney and the judge will do a sentencing on him. That has happened with two cases.

So probably out of 70 cases in adult circles, only two did not agree to follow up on the circle sentencing. But that is a real high rate of success. That’s around about 98 percent, just a roundabout figure, whereas in the state way there is a high rate of recidivism. I’m not going to put a percentage on it, but it’s pretty low compared to our rate of success.”

Justin McDonald:

“We formed this group and they’re pretty much the core group for the circle. We try to get, we have reps from the different entities in the community, from the city council, tribal government, corporation, local corporations, the school, law enforcement and then elders and just anyone who’s concerned about wellness in the community.”

Mike Jackson:

“When you look at the state archives, you don’t see any record of Kake criminal history until the state sets up a magistrate business here in the 1960s, but there’s nothing really until the ‘70s. And all felonies were dealt with, there’s some felonies that does show up, but it’s rare that you see a misdemeanor because all the problems were solved by the people themselves by talking it out and talking it out in a circle setting where you talk from the heart.

And by talking from the heart, I mean you bring up things that have happened to you similar to what was done by say a wrongdoer that was there, the state calls them offenders, and then there’s the victim. And in circle peacemaking, the victim is the most important component of the circle because they have to understand that they did not do anything to deserve what they ended up being victims of. And by victims through the circle process they come out survivors at the end of it. The important part of circles is the process. It’s not about the wrongdoer, the offender -- it’s about the process when people start talking from the heart to support the victim, but also to support the wrongdoer.”

Justin McDonald:

“We don’t just handle criminal cases either. We also handle interventions, interventions of family members, a family’s concerned about a family member and they’ll refer them to the circle. We get more so of that, that happening more so with the youth and it’s just been very, very powerful.”

Lakrista Ekis:

“It’s kind of like a big counseling group. I like it. You can talk about your problems and you don’t, they find a punishment for you that suits your crime.”

Justin McDonald:

“Whenever there’s a youth who gets in trouble, we try to, we make it a point to invite anyone directly involved with the youth, in their life -- teachers, friends, parents, grandparents, people who know them, places they hang out. Just basically it’s open to anybody.”

Mike Jackson:

“For years it has really calmed down that revolving door that I’ve almost started to see...because I’ve been the magistrate for the last 14 years now and I’ve seen kids grow up from kindergarten, Head Start, all the way to graduation and ended up in the chair there. We knew that their behavior was something that they should have been addressed.”

Lakrista Ekis:

“Life moves by so fast that we don’t really realize what’s going on around us. So I think that when you come into a circle and you sit down and you actually listen to what is really going on I think it gets pretty interesting. You get interested in it and what’s really going on, you finally get to see it.”

Justin McDonald:

“When an incident happens, the incident happens, then they go to an arraignment in the district court and right there, that’s when they have that opportunity to choose, take an alternative. Either if they want to plead not guilty and fight it then they can take it all the way to court, but if they’re obviously guilty then they can plead guilty or no contest and that’s where they have a choice is to either go to the alternative, which is the circle peacemaking or go to the regular system. So from there we try to, if they go to the regular court system, then their court hearing could be delayed a couple months and nothing happens. A lot of things can happen within two months and we feel it’s very important to act on it immediately, respond to the incident immediately. So after they have the arraignment we’ll either try to do it that night or the next day.”

Lakrista Ekis:

“If someone is having trouble, I think a lot of people actually show up for it. They really do care. I never realized how much people cared until we had a real circle and I seen all these people. I was like, ‘Whoa! These people really do care.’ So it’s pretty cool.”

[Singing]

Guidelines of Peacemaking

Mike Jackson:

“The ‘guidelines of peacemaking’ is that everyone is equal, like I come in as the magistrate, but when I sit down I’m part of the community, that’s all I am. Same way as the police, they’ll take their hat off and they’re part of the circle because every heart is at the same level. One person talks at a time, we respect each other, we do not point the blame and we take timely breaks. Everyone is inclusive, there’s a prayer at the beginning and at the end.

Now this is where spirituality comes into it. We find out a lot of people find themselves and their greater power when they go through the process of healing or counseling and it comes up to be, they come up to be a better person for it. They kind of gain their soul back because they say when you’re out of control, your spirit leaves you because it sits there waiting for you if you get too involved in say drugs and alcohol or other addictions. But everyone in the room is part of the circle. Everything that is said in the circle is confidential.”

[Singing]

The Circle Process

Mike Jackson:

Stage I: Opening

“Stage one, the opening of the circle, there’s the welcoming by the Keeper of the Circle. There’s an opening prayer that is asked for, usually elders would say that. There are circle guidelines where we explain, just like we did here, the guidelines of the circle. There’s introductions, it’s a real quick introduction of who you are sitting there and what you’ve come there for like support of the victim or the offender or just for support of the community and the circle by itself."

Stage II: Legal Facts

"Then the legal facts are said. Usually it’s the judge or police or somebody volunteers to do that. The police might be there. If they’re not, that’s all right. There’s a defense opening, which is usually, a lot of times they aren’t there, the public defender. And if there was something like a probation, there was a broken probation then there’s a probation report either by police or one of the local circle keepers. And what the legal facts are, the legal summary, what could have been sentenced if they went to court."

Stage III: Clarifying Information

“But the Stage Three, the clarifying of information is by the support groups. A lot of times they will just wait to say their part when it comes their time to speak. But the last persons to speak in every round, especially after, except for the introductions, is going to be the, the last person really to speak would be the wrongdoer."

Stage IIII: Finding Common Ground

"But Stage Four is really searching for common ground where we use our talking stick and it could be anything, the talking circle, a stone, the spirituality of it like our elders have said this diamond willow that was given to us for the process, it represents our elders that have passed on, by them looking at us with the diamond eyes, and then it also represents today’s issues of what we’re sitting there talking about, but it also represents a support of the people that do get up to talk. Sometimes people get up in respect of one another, but it also talks about, and they talk about the future of things."

Stage V: Exploring Options

"So people are looking for common ground, they start speaking from the heart on what they might have experienced and how they might be able to help the victim or the wrongdoer to get past the incident."

Stage VI: Developing Consensus

"Then after it all goes around, it comes back to looking at developing a consensus where usually there’s a support group or counselor that will say, ‘Well, the offender would like to say this, that they were going to go to alcohol counseling or anger management or they’re going to write a letter of apology to the victim, their family and the community,’ and it starts the process of looking at a consensus or coming up with a circle sentence where it brings all the community’s concern, it brings and develops a remedial part of the circle where there’s a plan laid out where the offender is going to learn from it and how the healing is going to start for the victim and for the offender, their families and the community."

Stage VII: Closing of Circle

Now we go over, and it closes with a prayer and usually on all of ours that we do there are shaking of hands, a lot of times more in closely there’s hugging, there’s tears. A lot of times it gets very emotional and like the old people say, ‘Tears are starting the process of healing to get the poison out of you and it starts the healing.’ And it says, ‘Anybody can shed a tear.”

Justin McDonald:

“It’s all about the encouragement, the ongoing support, and when we know they’re doing good we get together, people bring the food and it’s a little potluck afterwards. It’s just small, just munchies and everything. That’s the only money we spent, too.”

Mike Jackson:

“We cannot afford to wait any longer to have somebody come in to cure us. We have to do that within ourselves. It would be way too more, too expensive to try to do that with today’s modern way of approaching curing people.”

Justin McDonald:

“We started out with no money at all ‘cause this really doesn’t take money, just concerned people.”

Mike Jackson:

“I would say we’ve saved the State of Alaska hundreds of thousands of dollars in the future from people sobering up; the State of Alaska and the different say non-profit organizations, health organizations. People are now doing things that are relevant in their lives. The costs, we have no budget. We run on zero, because who else is going to do it?”

Justin McDonald:

“This is a situation where we’re seeing results immediately, the next day, within the next week. It’s nothing we have to wait a few months down the road or to a year to see if we had an impact at all.”

Mike Jackson:

“A lot of times in a macho male world they say we’ve been brought up to say that it’s not good for men to cry, but we know in a circle and we tell them, ‘Once you find safety in a circle, a lot of times you talk from the heart and from the heart there’s that emotion that comes out, the expression of it and we do not try to hold those things back. We try to say that’s just part of the process of how people heal.”

[Singing]

Principles Common To All Circles

Mike Jackson:

“But the principles common to all circles is their process. The consensus approach where everyone is agreeing, even if they disagree, they’re agreeing to go along with it because it’ll benefit the whole circle but it will also benefit the whole community. There’s interest based, it’s really subject to what really happened. It’s self designed because every circle is different, we’re finding out. The flexibility of circles is one of the best parts of it because we can have that any time, anywhere, anyplace and that people are always invited, anyone that’s invited to come and that is willing to come to volunteer. The spirituality part, you noticed that we’ve had prayers in the openings and prayers at the end, to open it and start it in a good way because circles are sacred when people come together to talk about a healing process. There’s, like I said, the holistic healing. There’s a plan laid out and if it’s not followed, then there’s another circle done as a follow up circle. We just don’t give up on people. On some people we’ve had three, four circles because in a way they start changing. We meet with them over and over again and then they’ll start seeing the change and starting to get their soul back and that is really something to watch people grow.

There’s the participants, there’s anybody that’s inclusive that would like to volunteer. There’s a direct participation by everyone with an equal opportunity to talk, to give their heart, sharing their heart and their perspective and the respect of one another. The people that have come voluntarily, every time that are inclusive come back saying that it’s also good for them. The whole process is that they’re becoming better people in the community. I know it has been a calming effect on me, on my perspective of different religions and to me, I didn’t know what '12 Steps' were until people that were in the '12-Step' program started really telling me what it was about. So I’ve learned a lot about addictions from people that are right in it.

There’s the principles derived from circles, there’s the peacemaking people that go through, they learn it and as we have in our community there are the youth circles, that’s what we call youth courts. There’s the mediation, people start learning how to compromise and give and take. Then there’s consensus building in our community. People start learning how to give up oneself and say, ‘Well, I can give up that much of myself because it’s good for the victim, it’s good for the wrongdoer, it’s good for the community.’ They start learning, to me, it’s a personal observation, we start learning to be Tlingits again. Tlingit’s not just about like some elders mentioned that I read somewhere, it’s not about just language, it’s not about just dance or the oral part of it, but it’s about listening, it’s about participation, it’s about caring for the community, it’s about practicing being Tlingit, about sharing oneself for the betterment of the community and the children.”

[Singing]

Benefits of Integrating the Court System with the Community Circle

Mike Jackson:

“‘It’s important for communities to be involved in the process that directly affects the community,’ Judge Barry Stuart says. ‘It’s also essential that the community members establish a working relationship and partnership with the formal system,’ in our sense it’s Alaska court system, ‘and the circle peacemaking and acknowledge that our experiences shows that when this is done, it develops a much stronger community.’ It just helps our whole community out. There’s not so much money being spent on wrongdoers anymore. The changes from courts to community circle peacemaking is really radical. We’re not saying that one process is better than the other, but we’re knowing that when we get together and work together it becomes a better community.

The court system, community circles, who’s involved in the circles is local people, who’s involved in the court is lawyers and non-residents. Just like today, we had a hearing. The judge and the lawyers were from out of town and the local residents were sitting here listening telephonically. Who knows better what to do with local people than ourselves? The consensus agreement of the process is community versus the problem. The process in the court system is adversarial, state versus offender. It’s very different. The legal issues in the court are laws are broken. Here in our circles, relationships are broken and it’s really dramatic when you look at things like assault fourth degree, domestic violence. It affects everybody. The focus in the court is about guilt and offender. So over here in the community circles, it’s about holistic view, the needs of the victim, the community, the source of the problem, the wrongdoer, the resources for the solutions. In Kake, we’re real fortunate to have counselors and social workers to help us out to come up with resolutions and trying to make people work on their healing path.

The tools of the court system is punishment and control, but we’re finding out that it always goes and it’s always proven, assault for domestic violence, you punish the wrongdoer or offender and you put them in jail, that’s what he expects and you notice and they all kind of stick together in jail because they all know that they can blame somebody else for their wrongdoing. So it gives, it empowers them and it gives them still control in their own minds. Whereas you look over here in the community circles, it’s about healing and support. When you start supporting those wrongdoers, you’ll never see anybody change so radically because maybe it’s a first time somebody, ‘I love you, I care for you,’ rather than putting them down. Like I said, words could be clubs and maybe that’s all they’ve ever heard all their lives. Even in our small community, we’re really surprised that so few people ever heard the words, ‘We’re here just because we care about you.”

Justin McDonald:

“Then we also have follow-up circles. We check on these people: a month, three months and then six months down the road and if they, and this is just to see how they’re doing, check on them. Everyone in the circle, it’s very, it’s confidential. That’s a very important aspect of the circle also. It’s confidential, but anyone in the circle, they can talk amongst themselves about the circle hearing and they’re all the eyes and ears out there in the community. Like I was saying, we all see each other so we know what the person, the offender or the youth in question, what’s going on with them, what to watch for now. And everyone makes a commitment to check on this person, at least stop and say hi if they see them. If they see they’re feeling bummed out, they’re feeling a little bad, depressed or what have you or may be acting out, they’ll make a commitment to stop and talk to them or let the group know and we’ll call another circle, call them in and ask them, just do a follow-up.”

Mike Jackson:

“As a small individual group in Kake, we’re starting to be called all over to see if we can come and talk about what we’re doing here. To me that’s remarkable in a five-year period because all we’re doing is what’s called self-determination and practicing autonomy. Who is going to come in to change us? All our lives we’ve been up against change but who, are we going to make ourselves better? It depends upon ourselves. We cannot wait for the government or someone to come and save us. We have to do it ourselves because we would like to have our children have a better day.”

Justin McDonald:

“We’re starting to do more trainings, getting calls to come out and train. We’ve, our kids have gone to Mount Edgecumbe Boarding School, Mount Edgecumbe High School, and worked with the kids over there. We’ve gone to Ketchikan to work with their youth court over there. Our adult circle’s getting called out now to do trainings in different communities. It’s just really taking off. That’s why we talk about the spirit it has of it’s own. It’s just branching out.”

Mike Jackson:

“In other communities like Haines where they started this a year and a half ago, that it works up in an all non-native, really a non-native community, but it works there. It’s working in mid Anchorage where the juvenile homes are using it for talking circles and to start talking about juvenile probation issues. So it works anywhere.”

Justin McDonald:

“Wanted to build this relationship again within the community, it’s all about restoring a relationship and balance within the people and the community and we’ve found that the circle is just the perfect way to do this because when you attend a circle, you’re there to support one person, but everyone in there is sharing from their heart. It’s all about compassion and encouragement and support.”

Mike Jackson:

“And to us this stick has supported a lot of people on their way to healing. It has become very shiny and kind of a sacred stick to us and it’s just the diamond willow and it might be called an ugly stick, but it sure is a beauty stick to people who have changed their lives. [Tlingit language]. Good luck.”

[Singing]

For More Information Contact

Mike A. Jackson
(907) 785-3651 or 6471

Organized Village of Kake
Post Office Box 316
Kake, Alaska 90830

Kellogg Video Productions 2003
Edited by Brian Kellogg
907 351 6439

Property of OVK

Native Nation Building TV: "Intergovernmental and Intertribal Relations"

Producer
Native Nations Institute
Year

Guests Jaime Pinkham and Sarah Hicks focus on Native nations’ efforts to enhance their relationships with other governments as a way to advance their nation-building objectives. It details how some Native nations are forging mutually beneficial intergovernmental agreements, and chronicles the many advantages to forging similar intertribal arrangements.

Citation

Native Nations Institute. "Intergovernmental and Intertribal Relations" (Episode 8). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy and the UA Channel, The University of Arizona. Tucson, Arizona. 2006. Television program. 

Mark St. Pierre: "Hello, friends. I'm your host, Mark St. Pierre and welcome to Native Nation Building. Contemporary Native Nations face many challenges including building effective governments, developing strong economies that fit their culture and circumstances, solving difficult social problems and balancing cultural integrity in change. Native Nation Building explores these often complex challenges in the ways Native Nations are working to overcome them as they seek to make community and economic development a reality. Don't miss Native Nation Building next."

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[music]

Mark St. Pierre: "Today's show explores the importance of intertribal and intergovernmental relationships and the innovative approaches that many Native Nations are taking as they forge ahead with Nation building goals. With us today to examine these relationships are Jaime Pinkham and Sarah Hicks. Sarah Hicks, a citizen of the Native village of Ouzinkie in Alaska, is a doctoral candidate at Washington University. She also directs the National Congress of American Indians Policy Research Center where she works on a joint project with the National Conference of State Legislatures. Jaime Pinkham, a citizen of the Nez Perce Tribe, is Watershed Program Manager with the Columbia River Intertribal Fish Commission and Intertribal Fisheries Organization. Welcome to both of you and thanks for being with us." 

Jaime Pinkham: "Thank you."

Sarah Hicks: "Thanks."

Mark St. Pierre: "Jaime, when we talk about intergovernmental and intertribal relationships among Native Nations, what are we really talking about?"

Jaime Pinkham: "Well, Mark, I feel we're talking about creating a platform that respects the individual autonomy of the tribes or the governmental agencies that sit at the table and it's a relationship that's built upon trust and mutual respect and provides our ability to provide collective talent and wisdom and resources to overcome conflicts or to move forward on areas of mutual concern."

Mark St. Pierre: "Would you like to respond to that?"

Sarah Hicks: "Yeah, I think we're really talking about deliberate relationships between sovereign governments who are coming to the table as equals. We're looking at relationships that are across various issue areas, we're looking at relationships that are between different levels of government, different kinds of governments and even different branches of government."

Mark St. Pierre: "Sarah, what role do these relationships play in building a Native nation?"

Sarah Hicks: "Well, these kinds of relationships really provide a way for tribal governments to extend their influence beyond their boundaries. It's really a way for tribal governments to leverage their influence, to bring their voice to the table with other governments to influence the policy making that's going on outside of their boundaries."

Mark St. Pierre: "Just as a follow up, is there a concern that tribes who work with, say, state or county agencies are surrendering some sovereignty, or how does that work out?"

Sarah Hicks: "Historically, because of the government-to-government relationship between the federal government and tribal governments, that there's been a great deal of attention to this very critical important relationship. But on the other hand, as we've seen devolution, or the federal government passing resources and authority to lower levels of government, to state government, to county government, in some cases to tribal government, that I think tribes are becoming less concerned about what they're giving up, and I think they see many more opportunities to cooperate on issues of mutual concern. So they're really looking to their neighboring governments as potential partners to accomplish some of these really important jobs that local governments perform."

Mark St. Pierre: "Jaime, you seem like you want to jump in there."

Jaime Pinkham: "I don't see it as an erosion of sovereignty when we reach to other governments, and I think we're seeing more and more -- because of the capacity that tribes are building -- is we see these other governments reaching out to us. We've built the institutional capacity on resource programs, education and health care, and the other thing is that the tribes have unique access to federal resources, for example highway trust funds, which we can help rebuild or maintain infrastructures, especially in rural communities, that county governments and local municipalities depend upon, too. So I see them reaching out to us as well."

Mark St. Pierre: "You've both seen a shift in how Native nations view these relationships and their potential benefits. Historically, what began that shift in emphasis?"

Sarah Hicks: "Well, I think much of it was devolution as I was just mentioning earlier. Really in the late 1980s, we started to see more and more federal programs, environmental programs, some human service programs, community development programs that are being moved to more local levels of government, and over time the pace of devolution has increased. So throughout the 1990s and into the 2000s, we've seen more and more resources really being directed at more local levels of government, and this just increases the incentive for tribal governments and state and county governments to look for these issues of mutual concern, to really bring to bear their limited resources on both sides to address issues that all governments care about."

Jaime Pinkham: "I also see the follow up on that is some courtroom fatigue where too often we're trying to resolve our differences in the court room and when you go to court you have one winner, one loser but when you come together in exploring these relationships you try to harmonize your efforts, and while litigation and negotiations are both difficult paths to take, the difference is the outcome and the outcome is the mutual benefits. The other thing is I've really witnessed over the past 10 to 15 years this elevation of both state and federal governments in formalizing tribal policies. It's an expression of tribal relationships, so we see the cabinet levels in the state legislatures and representatives of the governor's office now reaching out and creating new relationships with Indian tribes."

Mark St. Pierre: "In regions where tribes are really a small minority of the local or general population, have these relationships in fact increased the power of tribes in regional and local politics?"

Sarah Hicks: "I would argue yes. I think that this is a vehicle for tribes to come together on the one hand in intertribal organizations. We've seen an increased growth in regional intertribal organizations, and I would say an increased strength in those organizations as well over the past couple of years. So on the one hand, tribes being able to come together to voice their collective concerns, to share their resources that they have has definitely made a difference, but I also think that on the state and county level, neighboring governments are starting to see tribes as bigger political players. Tribes are getting on the map. They're starting to realize that there are a lot of common interests with tribal governments."

Jaime Pinkham: "And I agree. I think we're seeing many cases where local governments would like to ride upon the coattails of tribal governments because of the capacity that they have at dealing with the variety of levels of issues from very local to national in nature."

Mark St. Pierre: "Just on a personal level, on a human-to-human level, do you see these relationships strengthening communication and relationships between literal neighbors of the reservations?"

Jaime Pinkham: "I think we do, because as the tribes get more active in local politics, especially you start seeing members of the tribal communities becoming on school boards and county governments and city governments, and that helps really soothe and create and foster some positive relationships. What concerns me is we see the growth of these anti-Indian, anti-sovereignty organizations, but if we could work better and have these positive examples, we can try to teach these places where this fear exists of tribal sovereignty that really there's nothing to fear but really there's an opportunity, a partnership that can really help all communities prosper and grow."

Mark St. Pierre: "That kind of leads to a logical question I guess then. How have tribes or Native Nations avoided litigation, avoided conflict in dealing with other governments?"

Sarah Hicks: "Well, I think tribes and neighboring governments have really looked to local agreements as a way to avoid litigation. As Jaime was mentioning earlier, litigation is frequently extremely time-consuming, extremely expensive, and often results in an outcome that nobody's happy with, so to the extent that tribes and states or tribes and counties or tribes and other tribes can come to the table together to negotiate agreements that work better for everybody down on the ground, that's a win-win situation. We've seen a number of examples. If you look to motor fuel taxation and tobacco taxation, there have been some great agreements in Nevada, in Nebraska, in Oklahoma, in Arizona. There have been agreements around natural resource issues, around protection of cultural issues, around human service delivery. So I think we're seeing a proliferation of these kinds of relationships across a whole range of different topic areas."

Mark St. Pierre: "Is it in the best interest of federal, state and municipal governments to cross these traditional divides and work together with Native nations?"

Jaime Pinkham: "I believe it is. If you look out west, where that sense of individuality is treasured, but as long as we remain isolated, anonymous and faceless, we will never be able to come over some of those very difficult issues out west and a lot of those issues will deal in terms of the environment, the return of wolves or the recovery of salmon, where we see divisiveness in our communities. So the best way really is to start as local as you can. It's the politics of place in crafting those relationships very locally and using that to build up the ladder to state, federal governments. Who better to resolve local issues than those of us who live there? And to take those outcomes to where we really need action passed, and whether it's at Congress or at the state legislative level."

Sarah Hicks: "I guess I just wanted to make a related point, which is that I think not only are we seeing these relationships grow in all different kinds of topic areas and really in all different places across the country, but I think we're also seeing relationships that are being built across different branches of government. So increasingly, we're seeing relationships not only with the executive branch but with the legislative branch or in some cases they're relationships with the judiciary, with training of judges around some particularly important issues to tribal communities. So I think the trend is just growing and I think increasingly we're seeing that we have so many common issues where all neighboring governments are concerned about finite resources, about protecting our environment, about serving our citizens, making sure they have the essential governmental services they need. So I think increasingly we're just seeing more opportunities for governments to come together to solve these issues at the local level."

Mark St. Pierre: "Has this caused a shift in how these governments view Native Nations they work with? In other words, the State of Washington for instance, has it created a shift positive or negative in how they view the tribes in Washington?"

Jaime Pinkham: "Well, I can't speak for Washington, but in Idaho when I was on Tribal Council with Nez Perce, we did sense a shift, but unfortunately the shift was going two directions. One is where we were working collectively with a local county government and a city government to provide services to the reservation, but by us being there having access to economic development funds we were able to improve the infrastructure of the City of Lewiston. On the other hand, we saw these other governments riding on this wave of concern about what sovereignty will do to a community, and so we were faced with an alliance of 22 entities from school districts to city governments to county governments who feared tribal sovereignty and what it could do, the concerns about regulation and courts and they feared this word called 'sovereignty.' Sovereignty is something that really is an expression of the health of a community. So we worked hard to try to overcome the misconception that some of these communities had and the way to do it is to try to show the positive relationships we had with other neighboring communities."

Mark St. Pierre: "In South Dakota, I think there's a tremendous fear that in negotiating with the state, for instance, about anything, you're in a sense violating your treaty, because your treaty is between the tribe and the federal government. Do you want to respond to that concern 'cause it's a powerful concern."

Sarah Hicks: "Well, and I think part of this comes from a sense or a fear that many of these protections can be eroded, that the resources, the federal trust responsibility to American Indian tribal governments can be eroded. And so out of the fear to sort of protect what we have, there's been in some cases a real resistance to developing these kinds of relationships. But I think that nationally, we've started to move in a bit of a different direction. We've started to hear in national forums, tribal leaders articulating, 'We need to make sure that the federal trust responsibility is protected. We need assurances from the federal government that increasingly tribal self determination and tribal self-governance efforts, that increasingly, intergovernmental relationships aren't in anyway affecting the federal trust responsibility.' So I think on the one hand, tribes are concerned about that and I think they are looking to ensure that those protections are in place, but on the other hand, because of again the many, many common concerns and because of the increasing resources and opportunities for collaboration at the local level, I think we're seeing tribes move in that direction."

Jaime Pinkham: "And no doubt, I sense there still is some concern in Indian Country, because you have the federal government and then tribal government, state governments and the lower governments, and there's the concern that if we work with governments below us from the states down to city governments, that it's an erosion of our treaty rights and an erosion of our sovereignty. But the thing to keep in mind is we have the sovereign choice to work with those governments only if we choose."

Sarah Hicks: "Right. And I think we are. I think Jaime's right. We're talking about deliberate relationships between sovereign governments. It's governments coming together at the same table as equals to determine the type of relationship they want to have and what that relationship will encompass. So with tribes at the driver seat, I think this is really just underscoring that this really is about tribes as governments, tribes behaving as governments."

Mark St. Pierre: "I certainly think that sends a powerful idea to those tribes that are very nervous about these kinds of things, to hear that there are tribal groups working on positive relationships with local governments. Let's turn to a totally different thing here and look at intertribal relationships. Why are a growing number of Native Nations developing relationships and ties with other tribes in their region or nationally?"

Jaime Pinkham: "I think it's built on longstanding alliances and relationships that we've always had. In the Columbia River it was the salmon that always brought us together. The Columbia River Inter-Tribal Fish Commission, we're focused around the salmon, so we've always had the traditional alliances. The other thing, too, is recognizing the diversity of the landscape of Indian Country with our forms of government, our languages and our economies, it's important that we begin to share our talent and also to share knowledge and wisdom. When you look at parts of the U.S. where maybe we don't have the economic strength or we don't have the political strength and we're going to rely upon our neighboring tribes, and so I think these alliances are pretty fundamental to helping to elevate the tribal voice in places like Washington, D.C."

Sarah Hicks: "Part of it's strength in numbers, the sheer fact that tribes can come together, that we do have consensus on a great many issues and that we have a stronger voice if we work together. I also think that Jaime's right, a lot of this is really just formalizing relationships that have always been there."

Mark St. Pierre: "The tribes that work together, is it important that they kind of have their own internal tribal ducks in a row, that they have an effective government?"

Jaime Pinkham: "Yeah. Again, getting back to all politics is local, yeah, you have to be well-grounded and have strong, stable political leadership and use that as the basis and build up from there."

Sarah Hicks: "There's no doubt that it's important to have a message straight from the top that says, 'These relationships are important, that we're going to do what we can to work collaboratively on issues that we can.' This isn't to say that neighboring governments can always find common ground and can always agree on solutions to joint problems, but it is to say that it's important to have a message from the leadership that articulates very clearly the intention of cooperative relationships. On the other hand, I also think it's really important that the technical folks, that the staff, that the program directors are also on board for this. In some sense, you need the message from the top, the general policy that says, 'We're going to work together.' But on the other hand, it's the technical staff, it's those folks that are actually doing the work who really have to take to heart what it means to work collaboratively, to look for those opportunities to invite the other governments to the table."

Mark St. Pierre: "This question's for Jaime. In your capacity with the Nez Perce Tribe, you've been involved in a number of intergovernmental relationships. How did that process start? Tell us how that began and what it led to."

Jaime Pinkham: "Well, let me use an example, it's a recent example. We were involved in one of the largest water adjudications in the nation, the Snake River Basin, the Snake River Basin Adjudication, and actually we had two tracks going. We had the litigation track in court, but through the McCarran Amendment we're stuck in state court. And that's not the most comfortable place for a tribe to have their issues resolved. The other option we took was to try to find a negotiated settlement and both processes were going on track. And so the Tribe decided that we needed to keep both options open and we aggressively pursued a negotiated settlement working with the State of Idaho as well as representatives of the federal government. And believe me, it took us almost eight years to get this thing through and it took a lot of hard work. And like I said earlier, both paths are difficult but the only difference is the outcome. So we were able to resolve our differences and we had to be prepared to give a little and to gain a little bit. But in the end we avoided court, we avoided a court that may have ruled against our sovereignty, a court that could have ruled against some of our treaty-reserved rights. We preserved that. Those are the core values of our community and through negotiation we were able to preserve them."

Mark St. Pierre: "For those of us that aren't familiar with the actual issue, give us a framework for what brought the conflict to be."

Jaime Pinkham: "Actually, it started when the state went after securing their reserved water rights out of the Snake River Basin and they filed claims with the federal government. Well, the tribe couldn't stand back. We had to submit our claims and our claims were based on really two fundamental principles. One is in-stream flow to protect fisheries and the second one was the consumptive uses on reservation, whether it be for residential or industrial uses. And so we went through a long process to establish our tribal water rights claims."

Mark St. Pierre: "You now work for the Columbia River Intertribal fish Commission and I understand that's an award-winning intertribal organization. How has that commission empowered its member tribes, the Nez Perce, Umatilla, Warm Springs and Yakama?"

Jaime Pinkham: "Actually, I see it the other way -- that they've empowered us as a real function of tribal government. We provide technical expertise, legal expertise and assistance in intergovernmental affairs, but really when you look, the real strength of our organization rests in the tribes and the capacity they've built on the fisheries front in the four tribes in the Pacific Northwest that have treaty rights on the Columbia River. So really they empower us and we act and respond to whatever directions that they want us to go to. It's a wonderful organization and I would say that we're on the cutting edge of salmon recovery in very contentious times, the fate of the salmon and subsequent fate of the four lower Snake River dams. It is a difficult issue to be dealing with, but fortunately we have four strong tribal governments that have empowered us to act on their behalf."

Mark St. Pierre: "I guess one of the things that I'm looking at, the salmon recovery, is something that has broad economic implications for the region doesn't it?"

Jaime Pinkham: "Oh, it does. The irony is that when the settlers first came out west they had the timber, the agriculture, and the salmon economies, so salmon helped get a foothold. But today you hear them speak only passionately about protecting the timber economy or the agriculture economy and we need to once again elevate the significance that the salmon economy played, not just for Indian people but for the region. And a strong salmon economy also means a strong, healthy environment."

Mark St. Pierre: "Sarah, in your work with the National Congress of American Indians, you've been exposed to many mechanisms available to develop these types of partnerships. Can you talk about how that came about and what some of those methods are?"

Sarah Hicks: "Sure. First, I think just the National Congress of American Indians is an interesting model. Our organization was founded in 1944, actually in response to attempts by the federal government to terminate American Indian tribes. So the very impetus for our organization was that tribes needed to gather together collectively to advocate against the federal policy toward termination. So the whole purpose of our organization was to bring tribes together and to represent their interests to the federal government. So that's just one model of intertribal organizations. But then I think what you're speaking more directly to is a project that the National Congress of American Indians has had with the National Conference of State Legislatures, a national organization that serves the legislators of every state in the United States so actually they serve a little over 7,000 state legislators. And in this work that NCAI has done with NCSL, we've been funded by the W.K. Kellogg Foundation for about six years now to start to provide some targeted technical assistance to states and tribes who are interested in finding new ways to work together. So some of the models that we've looked at and shared broadly include the establishment of Indian Affairs commissions, so these are usually executive-branch offices within the state government that try to coordinate the affairs of the executive branch in relationship to tribes. Then, of course, there are a number of legislative committees. I believe there are 14 states that have 17 different legislative committees that deal specifically with tribal issues. Some deal broadly with state tribal relationships where as others deal with particular issues around the relationships so perhaps repatriation, perhaps gaming, things like that. But there certainly are quite a number of models out there where states and tribes are finding new ways to work together developing new mechanisms and developing new agreements that will sort of chart the circumstances under which these relationships should continue."

Mark St. Pierre: "What I understand, it seems to me from what you're saying that the general climate is improving for the positive. Would that be your..."

Sarah Hicks: "I think so. If you look at some of the work that NCAI has done over the past year, we've been working up in Alaska with the previous administration there to sign a government-to-government agreement with the tribes in Alaska. That was the Millennium Agreement. We've seen similar types of agreements in a variety of other states. We've seen an increased number of Native legislators. I think that's a big sign that Native people think it's worth investing in the state system. We've seen increased number of bills that address tribal issues in state legislatures. So I think across the board we're seeing various indicators that tribes are moving in this direction. And again, not that this is a panacea. We don't think this is the be-all-and-end-all, that this is the solution for everything. Certainly tribal governments and neighboring governments will have very different views on some things in large part because of tribal cultures and tribal values may differ substantially from other governments. But on the other hand, it makes a lot of sense to look at issues that we can agree on and I think we are definitely moving in that direction."

Mark St. Pierre: "Let's turn now to some success stories. I know both of you have tremendous involvement in a wide range of these kinds of relationship building and conflict resolution. Give us some ideas of some of the successes in the country that are based on this new energy."

Jaime Pinkham: "Some of the things that we've worked on back home in Nez Perce country and looking at issues that were once conflict that had now come into a cooperative relationship, and one was when we were looking at protecting our traditional foods and medicines and the federal government had a plan to spray herbicides and it was to take out noxious weeds. And then we protested that so in turn the federal government and the state worked with us to develop a new method of controlling noxious weeds that would safeguard our traditional foods and medicines. So we started a bio-control center, so I think that was one where we took conflict and turned it into something that was positive and actually is providing resources, non-pesticide options to control noxious weeds in the Pacific Northwest."

Mark St. Pierre: "Sarah?"

Sarah Hicks: "I guess there are a couple that I can think of. One is that in 1998, the Rhode Island Department of Transportation signed an agreement with the Narragansett Tribe that would actually allow for tribal members to be hired by the state department of transportation to monitor some of the progress that was being made on developing highways, to be there when human remains or cultural artifacts were found so that there would be tribal members on site to try to make sure that those things were protected and they were addressed in a way that was appropriate to the tribe. So there are some examples like that. There are examples around federal subsidies to tribes to deal with foster care and adoption. Right now the federal funding flow is only to states, but we've seen some progress such that there are 71 tribal state agreements in 13 different states that allow these federal funds that are so urgently needed to deal with child welfare issues in tribal communities, to allow these funds to flow through the state to the tribes and in many cases there are other administrative funds and there are training funds that go with these so we are seeing I think...Jaime's pointing out some examples, and I'm talking about a couple others, and we're seeing that really this isn't relegated to just one domain, that we're actually seeing these kinds of efforts in a variety of different topic areas."

Mark St. Pierre: "I know in the fishing industry in the northwest that there have been arguments about water flow in terms of the revitalization of salmon in those rivers and they've required very complicated agreements. Can you tell us a bit about some of those?"

Jaime Pinkham: "Well, yeah, some of them are complex agreements where we have to work with a variety of people. If you look at the river system, it's a river of life. Not just human life, but an economic life, and a wonderful example is where the Confederate Tribes of the Umatilla Indian Reservation have reached beyond...we can talk about [intergovernmental] relationships and intertribal relationships, but also there's the importance of creating private sector relationships, and the Umatilla Tribe has a wonderful example of that where they were concerned that the irrigators were pulling water out of the life-giving river as they were trying to return salmon to the Umatilla River. So they worked with the local irrigators to do a water exchange to keep water within the river system. So they took what were traditional adversaries and now they've become allies in salmon recovery. So we see those kinds of agreements at play. And I'm hoping we'll see more and more of those. The salmon issue is not going to be resolved overnight and you've got so many players in the game from utilities to irrigation to recreation interests and the long-seated tribal interest that is there, and we need to continue to reach out and build more of these relationships. And you see the tribes who are taking the lead on running fish hatcheries and working with federal government on land restoration to kind of restore the habitat that is important to these species, so the relationships are really building out in the northwest."

Mark St. Pierre: "We want to give a heartfelt thanks to Sarah Hicks and Jaime Pinkham for appearing on today's edition of Native Nation Building, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Native Nation building and the issues discussed here today, please visit the Native Nations Institute's website at www.nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."

Milton Bluehouse, Jr.: Introduction to Managing Environmental Conflict

Producer
Native Nations Institute
Year

U.S. Institute for Environmental Conflict Resolution Program Manager Milton Bluehouse, Jr. discusses the challenges to environmental conflict resolution specifically and dispute resolution generally, and offers some proven strategies for Native nations and other governments to overcome conflicts and forge mutually beneficial solutions.

Resource Type
Citation

Bluehouse, Jr., Milton. "An Introduction to Environmental Conflict Resolution." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 21, 2012. Presentation.

"My name is J.R. Bluehouse. I'm from a small town called Ganado, Arizona. I'm the only one in my family that doesn't wear cowboy boots. That being said, my family's pretty traditional. We haul water every weekend for the cattle. [I] went to a Catholic boarding school, served a little bit of time in the Marine Corps, which was pretty easy after Catholic school, and then -- let's see here -- went to law school. [I] worked for the Navajo Washington office, the Navajo President's office, the Navajo Council as political affairs and legislative advisor for awhile. And after law school I kind of figured out there's a better way to do this rather than litigation. And when I went through mediation training it was like three weeks. After the end of three weeks I thought to myself, 'Man, this is what I've been looking for and I spent a whole lot of money and three years of my life in law school trying to find this.' Kind of crazy.

What I want you to do right now is flip over that paper real quick and look at the picture. Okay, flip it back over now. What did you guys see? [A head.] What kind of head? [A duck.] A duck? Who saw a rabbit? You guys saw rabbits? Who saw ducks? Conflict is like that. You see ducks or you see rabbits, right? Flip it back over again and see if you guys can see the rabbit or the duck. Oh, yeah, right. Well, that's sort of the thing about conflict. We have all these different perspectives about conflict. It might be about environmental standards. It might be about a mining situation near your land or it might be rules or regulations that are promulgated that you need comment on. And I guarantee you almost every time your community, federal agencies, professionals, lawyers, scientists are all going to have different perspectives on that conflict. I call that the paradigm shift -- you have this idea of what you think you see, but then you go through this transformation of seeing it differently or thinking about it differently.

That being said, I also want to tag on this other interesting thing. I learned this from a buy named Brian Vallo up in Pueblo of Acoma, a really wonderful friend. He told me one day, he's like, "˜The environment is not quantifiable in terms of parts per billion or standards that determine what is clean or what is safe. It's about the environment as a cultural or religious resource.' And so when you look at the environment in those terms, you kind of have that bird/duck or the duck/rabbit kind of paradigm shift too, because then you see the water not necessarily clean because the EPA [Environmenta; Protection Agency] standards say they're clean or the tribal standards say that they're clean. It's clean because we use those things for baptisms, for healing ceremonies, for ingestion with other herbs and things like that, and chants that empower or make the ceremony effective. So when we look at the environment in those terms, we're going to have a whole different type of view on things.

What I want to talk about today is the introduction to managing environmental conflict. What is environmental conflict? It's basically...or conflict resolution...basically, conflict resolution or alternative dispute resolution with an environmental focus. So what we look at it as is really all of these different views on an environmental issue or environmental matter. But what we try to do here is look at it in a way where we have workable solutions, where we try to find alternatives to the challenge we face, and that means we've got to communicate, we've got to look at things differently, we've got to take a different perspective on how we handle conflict. We'll get into a little bit more about conflict. The other question then is why do we use environmental conflict resolution? Litigation is pretty expensive; lawyers that are here know that. When you're going through discovery, when you're going through attorney's fees, when you've got phone calls and you've got meetings and you've got airplane rides, those costs can get astronomical really fast. But then the other thing though is that you probably have an ongoing relationship. Unfortunately, we have a ball-and-chain relationship sometimes with the federal government. It's not going to go away anytime soon. Unless of course the apes overtake the world and we find ourselves looking at a crushed Statue of Liberty -- Planet of the Apes, by the way -- meaning that the world's got to drastically change if that relationship is going to change, but it's not going to happen. At least I hope not. The thing is that a federal relationship will be a part of our lives, our children's lives, our grandparent's lives, our great-great grandchildren's lives; it's going to be there. So the emphasis there is really what I'm getting at is presuming your relationship, finding ways to improve the relationship, finding ways to have this relationship become workable on issues that are of mutual interest.

One good example is, and I won't name the case, but there's a sacred site and unfortunately the sacred site is contaminated with chromium-6. Chromium-6 causes a lot of bad things in your body like cancer, other sicknesses. Both the tribe and multiple federal agencies have an interest in cleaning that up and it's not going to go away. It's going to be there for decades, hundreds of years perhaps. And so one thing that we try to focus on is the preservation of relationship, the improvement of relationships so that one, the tribes protect those sacred things that are there, and two, federal agencies understand how to protect those sacred things that are there but also clean up the contamination. And this is going to go on for years and years and years. If you have a bad relationship, most likely federal agencies that are the contractors and they start destroying sacred sites because you're not communicating efficiently or effectively with federal agencies -- so maintaining a relationship is a really big important part of it.

You guys are all in tribal government. You know how projects can take forever? Well, when you have conflict, put like forever to the tenth power. It'll go on and on and on. It'll strain your relationships both within your staff, within your office, with your family perhaps. Somebody said earlier that panic attacks are a big part of, sometimes, your jobs. I have panic attacks all the time sometimes. So there's also this and [the] judge was saying something about healing. There's also this element of healing to what we do and conflict is totally apathetical to a lot of those things.

Goals of ECR [environmental conflict resolution]; here's what we're kind of looking at. We're trying to minimize conflict. We want to minimize poorly informed decisions. We want to try to avoid appeals and litigation. We try to try to avoid damage to relationships and even lost opportunities. In this particular case we were in recently, if we maintained the conflict and if we kept going forward with the conflict, then we would have lost opportunity and the mutual interest in a tribal liaison being hired for this project. The tribal liaison would coordinate communication across federal agencies, across the multiple tribal -- there's about six or seven tribes involved here -- and each of them have an environmental department of about maybe 14 to 15 staff. So a lot of communication, technical issues and complexity involved, and a tribal liaison would be I think really helpful in organizing how the tribes and federal agencies communicate both within themselves but also with each other. And so that was one thing that we discovered was an opportunity. If we stayed in conflict, we probably wouldn't have had that. The other thing is we try to maximize comprehensive solutions, shared solutions. There's a lot of mutual interests out there. In this particular case, the mutual interest was -- among other things -- protection of sacred sites, cultural significant items and not getting anybody sick. Nobody wants to get anybody sick unless you're like Satan or something. The other thing is that you want to make sure that it's cost effective, you're not spending a lot of money and you want to look for opportunities for improvement. You want to create solutions where possible.

How is ECR used? This is a really great spectrum here. Basically there's three areas: upstream, middle stream and downstream. Upstream, you really want to start doing the planning; you want to do any consultation. That's where I like to be, upstream. Have those relationships with the federal government been upstream? Probably not, huh? How many of you guys have been surprised with the sudden phone call to say, "˜Hey, there's a meeting in three days,' from a federal agent? Sometimes that happens and it's frustrating. But if you have enough upstream time and if you're up there far enough, you can start planning, making phone calls, developing your relationships, figuring out what and who needs to be at the table. Sometimes we're downstream; we're in the implementation phase. Policies and plans and regulations are being developed and you get this interesting email or letter saying, "˜Look, check out the code of federal regulations, there's an opportunity for you to comment on.' That's kind of an example of that. Downstream is where you've got litigation. Perhaps everybody is kind of...did you see that Macklin fight this weekend on St. Patty's Day with Martinez? It was a great boxing...I'm a big boxing fan. These guys beat each other up and they were going at it forever. And finally one of them, you could tell ran out of steam, it was about a minute and 20 seconds into the 11th round and this guy got pounded. I look at being downstream and sometimes we get into these situations where it's the 11th round, we're almost to the 12th round, everybody's tired of the conflict and it's time to start looking at new ways in developing these relationships. So that's when we're downstream, we're talking about mediation perhaps, pretty extensive stuff. Somebody remind me when we get done that I need to revisit the duck/rabbit paradigm in relation to this information and how we view conflict resolution in our communities from a traditional perspective. So somebody remind me about that and I'll come back to it.

When is ECR best? Well, when no single party has the answer. You look at tribal conflict -- sometimes we don't have the technical expertise in place, we don't got the hydrologists, we don't got the attorney, we don't got maybe even mediators or facilitators, but the other side has all of these things and all of these resources to help you understand the issue a little better. So perhaps mediation is the bringing together of the resources and people you need to figure out how to address environmental conflict or environmental issues in your community. The other thing is that you want to create a balance of power among stakeholders. Traditionally where have we been? I look at news every other night, like on CNN, and you get these really cool statistics out there about who's going to vote or whose health is impacted or whose not being employed. We usually see percentages for the Hispanic population, the percentages for the African-American population, the percentages for the Asian population, but I never ever see percentages for Native Americans in any of these graphs they put up there. And sometimes when we look at this power balance, I think about that sometimes in relation to federal agencies and the consultation process or the meeting process. Oftentimes we don't have the information we need and that information we need creates this power imbalance because we don't know what those impacts might be without the hydrologists, the lawyers, the specialists and things like that. What we try to do in mediation, facilitation or moderation is identify what those resources are out there and try to identify who can help us so that we can begin to balance out these power imbalances. But then there's this other thing called historical trauma. Judge probably knows about this. How the historical trauma of conflict from the mid-19th century all the way up 'til the mid-20th century has impacted our communities. Sometimes we don't want to talk during meetings. Sometimes we want to be quiet during meetings, especially when we see suits. I get freaked out when I see suits. The first thing I think about is FBI [Federal Bureau of Investigation], not that I robbed any banks or anything. But those are some things we've got to think about in how to use ECR.

We talked about saving the relationship. Yeah, it's good to also look at dueling experts. How many of you guys have seen dueling experts? Pretty fun to watch. I've seen hydrologists from different parties basically duke it out over how many acre feet of water is being used. Well, if there's a common ground we can find or some sort of mutual interest we can find to basically say, 'Yeah, well, there is an impact on the groundwater source,' then we have some mutual interest here, we can begin working on something here. Everybody kind of wants to get along, work together. That's when it works. When is it less likely to work? Timing's not right, the parties are not ready to sit down, issues aren't really defined yet, we don't know what we're dealing with yet. Sacred site is really highly polarizing out there. We've got the San Francisco Peaks up there, 23 tribes view the mountain as very sacred. Then you've got the federal agency; I think it's the USGS [U.S. Geological Survey] on one side. No, the USDA [U.S. Department of Agriculture] and the Park Service on one side and you've got this corporation out there and everyone's really polarized. They're not going to come together on these issues because you don't, from tribal perspectives, negotiate the sacred. So sometimes you're not ready for ECR. But that being said, don't discount it or don't put it off to the side. It might work.

Back to the duck/rabbit paradigm. How do you guys feel about conflict? How does it make you feel? I'll tell you how it makes me feel. It makes me feel like Bernie Madoff on crack. It's not good. You don't feel like a good person. You feel like you're trying to protect your interests, not going to jail or whatever. You feel the physical sense of being tense in the stomach perhaps. Do you guys feel that? All right. Okay. And it's interesting because I think conflict really kind of...there's been studies on how it impacts the brain and I'm not a doctor or whatever. I flunked high school math. But basically how I understand it is that when we're in conflict, the cerebral, the rational part of our brain, the blood in that area actually begins to focus more into the primary cortex of the brain -- the reptilian brain is what people call it -- sort of the very first parts of our evolution as a species. And it regulates physical things like breathing, blood pressure, how much chemicals is pumping into your blood, whether you need to run or fight, things like that. That's what conflict does to us. And so when we're thinking about really technical issues or legal issues or issues of policy and we're in conflict and that requires the front part of our brain, it's going to be a challenge. That's just an example of what happens in conflict. But there's ways we can manage it well, there's ways that we can begin to deconstruct that initial response to conflict by becoming aware and conscious about our responses personally but also the things we need to protect and you begin to de-escalate it in a sense using enough communication techniques. We'll get to a little bit of that later. Managed poorly, going to law, going to get a lawsuit, you're probably going to spend a lot of time. We covered a lot of this earlier. It's going to destroy relationships.

Sources of conflict: I want to talk a little bit about some of the places where I've seen conflict and you've probably seen it too. Political realities, trends happen. And this is a non-partisan observation. What happened when the Republicans changed office and the Democrats picked up the White House? Or what happens when a Democratic president changes office and we have a presidential, Republican president in office? Those political trends will sometimes affect how domestic policy is developed, how budget realities are impacted. So that can create conflict from, for example, an administration that might be very forthcoming and might actually be advocating for increased budgets to one where fiscal conservativism is driving the day and where there's a sense of increased scrutiny on the development of different types of policies. You can see that kind of fluctuation go up and down, left and right from every four years if you have those changes. Not only nationally, but within your tribes as well you can see that happen.

Cultural values and differences -- sometimes we have conflict on those things. I think we pretty much know what that means when we work with non-tribal people but also with other tribal people, too. I spent two-and-a-half years in New Mexico as a tribal liaison and I had a really steep learning curve working with my Pueblo brothers and sisters on what is important, how to engage into a governmental process, what the cultural and governmental protocols are, but eventually you get the hang of it and you begin to operate a little bit more smoothly than you started at first. There's also operational preferences or organizational cultures. Who's heard of Indian time? That's sort of the cultural observation sometimes of how one group of people view time and another group of people view time. So those are things that can create conflict sometimes. Organizational constraints, decision-making processes. Sometimes we have federal agencies come in and say, 'I need a decision by 30 days from now.' Probably not going to happen. If they spent some time working with tribal governments, they'd realize that there's a lot of deliberation that might occur, there's council meetings that might need to be had, there's sub-committee meetings that might need to vet that process. So 30 days is probably not going to be feasible, so that creates stress. Resources: we talked a little bit about the imbalance in resources, the need for resources, technical expertise.

Relationship problems, baggage from the past. Man, that Long Walk always comes up when you talk about elderly Navajo people and I really feel bad for the BIA [Bureau of Indian Affairs] land specialist that comes out to the chapter house in Navajo and talk about land reformation or land regulation changes because these older guys will go right back to 1934 and talk about Commissioner [John] Collier and the livestock reduction problem. So that's baggage from the past and this guy gets beat up every time. I admire him. He's pretty brave to come out every time. I'd bring popcorn next time or something.

Personalities. You have really tough personalities out there. Who's been in a meeting with a Type A personality? Very directive. They call that like the boarding schoolmarm. I went to boarding school so I know. They tell you to do things; they tell you you've got to do it by that time. In that video we watched with the Canadian leader and his problems with the Premiere. The Premiere would say, "˜No, you've got to return the boat.' And then this guy, this tribal leader, has this paradigm shift and says, "˜No, we're not. We're going to create our own force.' So those things can happen. Communication problems. We'll talk a little bit more about communication in a bit. But there's unique things culturally in communication as tribal people. If I don't know you, man, I'm not going to look you in the eye. I'm going to be looking someplace else. Sometimes just the way we communicate with one another is a lot different than we do with non-tribal people and vice versa. So you can get miscommunication in those situations.

Data challenges. Too much. Who's heard of this term: consultation fatigue. You guys heard that yet? Who's been bombarded, who's fatigued from consultation. Your hands. Anybody? Okay, we're half an hour; we're good. Too little. We've been there right? We went from having too little information to drinking from the fire hose of information. So it's like bombardment and it's still kind of working itself out in several agencies. Differing interpretations on information might be a big part of it. So you put all of these things together and you see that in our intergovernmental relations or intertribal relations or even our community relations, there's just conflict that can occur at any one place and time. When you look at it from the environmental perspective, it can get pretty, pretty complex. How do you guys respond to conflicts? We talked a little bit about that, the physical aspect of how we respond to it. Well, there's a little bit more, too. Sometimes we want to be collaborative in our responses to conflict. We want to try to work together; we want to try to find those mutual interests. Other times we want to be compromising and say, "˜Well, maybe I'll meet you there, but first I need to have guarantees for this.' You know what I'm saying? Very positional in its approach. There's another one, competing or directing. 'I'm in control. I'm the boss here. Welcome to the Republic of J.R. There's nothing you can do here that won't happen without my approval.'

Avoiding. This is the best one because that's me. If there's conflict, I'm like out the back door and let my relatives fight. Then there's accommodating. Sometimes you are not avoiding it, but you're in the process but you're going to get steamrolled. You know what I'm saying? You're just not comfortable with conflict and you agree to everything and sometimes what you agree to might be to the detriment of your community or your relations or your resources, even your governmental structure. It may be even sovereignty. And in those situations, I'm thinking about this really great experience where I observed...I used to work for the Navajo Nation Public Safety Committee as a legislative advisor, and the tribe and local county sheriff's department were entering into a power-sharing agreement, cross deputization and things like that. It was like, wow, a non-tribal county sheriff can come on to tribal land and basically do a search without a court-ordered warrant, they can do all of these different things and based on what they find they can introduce that evidence or whatever it is into a county court? Those are certain things that happened and during that negotiation process you can sometimes see these dynamics of people avoiding or perhaps accommodating too much. So there's things that we have to pay attention to in how we respond to conflict.

Collaborative approach. You want to be open-minded, be other-person centered. You want to think about responsibility with respect to mindfulness in a lot of these meetings and you want to seek to understand before being understood. So we're really kind of taking a paradigm shift to how we're dealing with conflict and how we're understanding the issues that conflict. It's sort of becoming a Jedi Knight or something, I don't know what it is, Obi Wan Kenobi. But you have to like step back and become conscious or aware of all of these dynamics that are occurring in conflict or in meetings and try to figure out what is the best solution here? What are the opportunities I can pursue here? What are technical needs that I have but that I don't have but I need? These are things in terms of looking at it from the collaborative approach.

Problem solving and negotiating. Creating a climate of openness looking at interest-based methods. So when we're talking about interest-based methods, we're looking at the interests of all parties involved. So for example on that clean-up and the sacred site scenario I provided earlier, there was a lot of, I guess, positions that were being taken. One of the positions was, "˜Well, you didn't show up to one of my tribal meetings and I'm really offended about that.' It doesn't bode well on your sincerity to work with our tribes. The position was pretty much stated that, "˜I don't want to work with you, you're not sincere.' On the other side there was a position saying, "˜Well, I'm kind of freaked out to come to your tribal community because I don't know if I'm going to get grilled or not and I just don't even want to make the effort.' But once we figured out, "˜Well, why are we at the table here and what are we working towards and what's your interest in this process?' One of them said, "˜Well, I want to make sure that those sacred sites are protected.' Another one says, "˜Well, I work closely with the hospital and I want to make sure that that chemical or those contaminants don't reach the river or get into the drinking water. I want to keep kids out of there so we need a fence around it.' And then another side says, "˜Well, that's our interest, too. We want to make sure people are protected. We want to make sure the water is cleaned up.' You begin to find these common, mutual interests in situations. So that's kind of going through the interest-based methods, getting past those positions and into the understanding and interest. Understanding your interests is really important. Options and alternatives, take time to step back from a meeting a consultation -- whatever it is -- and kind of map out what you think are the issues here. Meet with your staff, talk with them and figure out what's going on in the situation, really kind of get a good map as to what you need, what the interests are, what's being impacted. I've seen tribal leaders go into meetings just flying blind and it's kind of scary, because on the one hand you want to be very respectful as a technical adviser or legislative adviser, but at the other end of it you're also wanting to say, "˜Well, I think that there's opportunities here, too.' So there's a lot of preparation that goes into this becoming more open minded or taking the collaborative approach.

Gradually build consensus on what you have in common. I've got a great example of that one. So I worked for the New Mexico Environment Department and I thought to myself, 'Man, intertribal governmental liaison, Department of Justice liaison, boy, made it. I'm going to be working on some really great exotic environmental conflicts and there's going to be toxic stuff everywhere and the tribes are not going to...I'm going to go in there and save the day as a tribal intergovernmental relations specialist.' So I picked up the paper one day and it was from the...newspaper. It said, "˜New Mexico Environment Department bans Pueblo bread.' And I thought, 'What?' And the article went down and down and down and it basically kind of painted the picture that the New Mexico Environment Department was anti-Indian and the bread was sort of the touchstone for that anti-Indianness. So I picked up the phone and started calling around and stuff and I found out that we had these environmental health inspectors who were part of the Environmental Health Division within the Environment Department that were out there just issuing notices of violations left and right because these breads weren't prepared in approved sources. Approved sources are community kitchens that had the stamp of approval from either the state or the USDA and these were being baked in homes. And I was like, "˜Gosh, man, how do we figure this out?' Well, we had to make a bunch of calls and do a bunch of meetings and pull together IHS [Indian Health Service] and tribal people and tribal leadership. And we could literally see that one, we need to find consensus on this issue, we need to find collaborative approaches to this issue because it's just not good.

On one hand you take a really strong positional position and say, "˜No, nope, no, no, no Pueblo bread, no mutton stew, no tamales, no nothing.' Then you're cutting off income for families that need to buy shoes for kids, backpacks for school, gas money to take grandma to the hospital, things like that. But then on the other end of it, too, is that there's a real concern out there with salmonella poisoning and things like that. So we got together, we were like, 'What can we live with, what can we not live with?' And people were like, 'No jarred stuff, no pickled stuff, no jam stuff,' because apparently there's like the scale of danger. Can you imagine that, the scale of danger in food? Wow. I was like, cool. So on the one end really dangerous stuff and then on the other end not dangerous stuff like based goods, cookies, breads. Everybody's like, "˜Well, why are we cracking down on them if they're not dangerous?' And people were like, "˜Yeah, you've got a point there. So what can we develop here, what do you need?' And they said, "˜Well, food-grade plastic bags, no Walmart bags.' You know, when I go to Walmart, I'm buying like ant killer and all these different chemicals that I'm carrying back home and stuff. I get home and put the bag underneath the kitchen sink and then somebody would say, "˜Hey, do you want to take some tamales home? All right, man, let me get my bag.' You put them in there, guess what you're eating, probably something that leaked out of chemicals or something. So we were like, 'Okay, we need food-grade bags, clear plastic bags. What else do you need?' And they were like, "˜Well, we need to have accountability measures,' the New Mexico Environment Department said. So we said, "˜What does that mean?' "˜We just want to know if somebody gets sick that they know how to call into the tribal office.' And we're like, "˜Okay. It's probably going to be the tribal health, CHRs, community health representatives. It's probably going to be those guys they'll call.' And, "˜We need somebody at IHS, too, from Environmental Health to figure out what was the source of contamination and maybe even provide food preparation classes and stuff.' It's just... it was these things.

And then on the other end they were like, "˜Well, I don't know if we want to do that.' And that's when I said, "˜It could be a marketing opportunity. You put your name on your bread and bam you know what, you're known for that bread "˜cause it's really great or you're known for the bread "˜cause it maybe sucked,' I don't know. It works both ways. And then we thought about it and we thought about it a little bit more and we're like, "˜We need to get tourism department in here and get their crack team of marketing and business development managers in here to figure out if they can provide training to these people who are making this wonderful, delicious bread and really great food.' So we were able to do these things. If we take the positional approach and conflict is driving our conversations, we wouldn't have had those things. We'd have been way far apart, but it's a process. That took me about eight months. It wasn't a derailed train with a bunch of bad stuff in it contaminating everything. It was the breakfast burrito; it was the Pueblo bread. It was fun. I had a great time, learned a lot.

Essential communication skills, active listening. I do this all the time. Especially when my dad is talking, "˜I already got the answer figured out, man. Yeah, I know that one.' Do you guys do that sometimes? Lawyers are good at that, man, I'm telling you. I was going to say something about like how I advised a federal official to say they're sorry for missing the meeting and the general counsel next to him about had a heart attack. He was like, "˜No, no, we're not going to do that, that's admission of liability of something.' I'm like, "˜No, it just means you're sorry for missing a meeting.' There are certain things about active listening, understanding what the conflict is and communicating in ways that acknowledge some things that might not have been pleasant in the past. And if you're listening effectively, then you can begin to see sincerity, you can identify issues, and you can identify who you need at the table.

Productive responses. 'Are you crazy?' Is that a productive response? Probably not. You want to figure out things instead of like saying, "˜Are you crazy?' You could probably say, you know, "˜I think that's really interesting, but I don't understand exactly what it is that you're saying. Can you say it again so I get it or that I understand it a little bit better?' There are things you can do in communications that drive the conflict down. Non-verbal communication. Yeah, that's a big one. Tapping on the table means probably speed up or hurry up or you're boring me to death. So there's things you've got to pay attention to. And as you're in these meetings you can take these cues on people, check in with them and say, "˜Hey, I noticed that perhaps you have a question on this issue. Do you have anything to say?' Somebody will say, "˜Yeah, I've been thinking about this, whatever.' Or you could say, "˜Is it cold in here? Do you need to turn the heat up or anything like that or whatever?' Just check in with them. That facilitates the conversation process, the gaining information process.

Effective questions. Okay, there's basically one rule here that I apply. No staccato questions or machine gun questions. Who's been in the military here? Anybody? Yeah. Who's shot a machine gun? Yeah, how's it sound? Pop, pop, pop, pop, pop, pop, pop. Well, if you can imagine questions like that. 'So who's supposed to be on this project? Where were they at? Do they have contact information? Nobody called me. Who was supposed to call me?' You could talk about technical questions. 'So how many parts per billion in the water right now? Uh huh. So who's the agency that should be taking care of this? I see.' You can really kind of shoot them down with questions and as a listener you're really trying to figure out, 'Well, where do I start in answering these questions?' What I'll usually do is take notes and I'll say, 'You know, several of your questions were regarding his particular thing. If it's okay, I'd like to start there and then we'll go on to the other questions.' So in case you encounter those kind of things, there's things you can do to kind of figure what kind of questions or type information you need to provide. But try to avoid those. Do one question at a time as the conversation develops in these meetings, which might be conflict driven or not, it depends. It could be one of the consultation efforts that several federal agencies are developing now.

The ECR process. Whether or not you're going to use conflict resolution in either environmental issues or employment issues or intergovernmental relation issues or whatever, you've got to make an assessment. You need to figure out, is this right, are the parties ready to sit down, do we understand the causes of conflict? Really we're taking that step to understand what's going on here, making the assessment to figure out do we need a third-party mediator, do we have the proper authorities here. I've seen a waste transfer station attendant, tribal waste transfer station attendant in meetings with the Secretary of the Environment talking about off-reservation dumping and on-reservation enforcement and they didn't have the authority to talk about these things. They had the authority to take all the information down as possible and go back. You need the assessment to figure out what's going on.

Pitfalls of doing the analysis: if you don't do it, you're wasting your time. You might bring all the people together; they don't want to work together. You might be wasting a lot of time and money. You might have the omission of a key participant. In that last example, the tribal leader. Why don't we do these things often, these assessments? Sometimes you've just got to get in there and do them. The issue is so important it's driving you; it's got to be done. Think about that. The other thing is third-party facilitators, do we need them? When there's a history of distrust they might be helpful. When you have multiple parties that have multiple interests, they might be helpful to help clarify the situation. There might be concerns about confidentiality that might be involved that otherwise might be not available in lawsuits or in litigation or in rule promulgation or comments. So you can take the time out and caucus on these things to figure out, "˜Well, do we tell confidential information or not or do we keep it to ourselves?' And do you have the capacity for facilitation or mediation? Choose an appropriate neutral. Who does the work? Do they need to be in the location area, do they have to have specific information about that conflict? Choose candidates to interview. Figure them out. It's sort of like matchmaking, dating. You've got to figure out is it a good match. Managing the process. This is a really great thing; it's in your book. This is my wheel of project management, wheel of conflict management. You plan, you propose, you implement and you review. In the planning phase, there's a lot of things you've got to do. Figure out what the issues are, introduce people, figure out what the ground rules are, decide if you need a facilitator. The purpose. You want to figure out what are we meeting for, do we need to break this into tasks. The implementation phase we have three things. To implement the action, review the performance and complete the work. That could take years sometimes in some of these projects we get involved in. The other thing is you want to publish the results as the tribe directs sometimes. Sometimes you don't want all this information out there. The other thing is you want to celebrate your accomplishments. At the end of today, hopefully you guys all stand up and give yourselves a round of applause because you guys are really doing some amazing stuff here over the last two days. I'd have probably fell asleep a long time ago. Move on. Disband, restructure, review. We've talked about that. Common missteps.

Last thing. Lack of travel cost -- these things are challenges to conflict resolution -- lack of staff expertise, lack of party capacity. So all of these things, those little numbers right behind them, that's from a survey we took both of tribal and non-tribal participants in conflict resolution. So the biggest one was cost for travel, the next one was perception of time and resource, intensive nature of conflict resolution, lack of staff expertise. So you can get all the way down to the bottom where lack of access to qualified mediators. I have this program where I'm trying to recruit mediators and Native American mediators are like very rare. We have about 35 across the nation out of 567 recognized tribes, out of a population of, how many Native Americans are there now, 3.8 million, 4 million. Thirty-five, and so we're always on the lookout for mediators. And then who was supposed to remind me about something? Remember that.

So all of this information is taken from a Western perspective on conflict resolution. Don't forget that in your communities you probably have cultural-, religious-based ways of resolving conflict. Don't forget those ways. If you don't have the program, maybe it's something to look at to develop, because something magical happens when you look at figuring out conflict resolution from the traditional and cultural perspective. You're healing your communities from a process that hasn't been really beneficial where you have defendants and prosecution, where you have win or lose situations. But then you begin to delve into the creation story, you begin to delve into what conflict is from the cultural perspective, you're also strengthening your understanding of your community and your culture. It's just a really interesting kind of a resolution or a revolution or a paradigm shift that occurs with this work when you look at it from the traditional indigenous cultural perspective."

A Way Out of Conflict

Producer
Nakwatsvewat Institute, Inc.
Year

"A Way Out of Conflict" is a short documentary film that provides an overview of how traditional dispute resolution approaches and strategies operate in Hopi communities today. It examines how the Hopi villages retain and exercise authority over the adjudication of certain types of disputes and offenses, and how they do so in a way that works to restore harmony to all parties involved.

Native Nations
Resource Type
Citation

Nakwatsvewat Institute, Inc. "A Way Out of Conflict." 2007. Documentary. (https://www.youtube.com/watch?v=WUSnyvAdwyA, accessed February 27, 2023)