Navajo Nation justice system

Peterson Zah: Native Nation Building: The Place of Education

Producer
American Indian Studies Program
Year

Dr. Peterson Zah, former Chairman and President of the Navajo Nation, discusses the importance of higher education in empowering Native nations' efforts to achieve their nation-building goals. He also discusses the Navajo Nation Permanent Trust Fund as an example of the strategic orientation that Native nations need to have if they are going to truly become self-sufficient.

People
Native Nations
Resource Type
Citation

Zah, Peterson. "Native Nation Building: The Place of Education." American Indian Studies Program, University of Arizona. Tucson, Arizona. September 23, 2013. Presentation.

Peterson Zah:

“[Navajo language]. Thank you, Manley [Begay], for the introduction and then thank you all for being here today to share some ideas, some things that we all as Native community need to think about as well as discuss among ourselves. I really appreciate the invitation to come here.

In working with Diane Humetewa, most of you know she’s a very fine lawyer. She’s the former U.S. Attorney and now has been nominated by the [Obama] Administration to become the next federal judge here in Tucson and she’s one of these scholars that we rarely have as American Indian, Native people. And I think…and I believe what Manley says that some day you’re going to hear more about her because of her commitment to...the concept of justice and she’s that good, just really an outstanding citizen.

My talk as I understand it from little brother here says talk about nation building. I think nation building is the way to go in sovereign Indian Country problem nowadays. We’ve come a long ways where we would take an issue by itself and maybe an issue with a certain group and we try to work with that specific group in trying to resolve the issue, but we have come this far where we now have to work with other entities around that group. No problem has ever been resolved satisfactorily when groups are trying to do that by themselves. You have to work with other entities. There’s just no way around the whole idea.

When I went to Arizona State University, I wanted to increase the student population because that’s what the president wanted. He says, ‘We get American Indian students and we can’t seem to go above 672 and when we do, they leave us the next year and we need to keep them there.’ That was his charge. And then I started thinking, ‘Well, he hasn’t given me any staff or any money so this means I’ve got to do this alone.’ And I knew that I can’t do something like that alone. I’ve got to involve other people, I’ve got to reach out, I’ve got to change the concept of how people recruit students.

And so I went over to the recruitment office and I says, ‘Can you guys tell me where you recruit more students for ASU [Arizona State University]?’ And then they started going to the board and they said, ‘New York City, San Francisco, Chicago, Seattle, Denver, Colorado.’ And I was sitting there and I said, ‘What about Indian reservation?’ And one guy who was the director says, ‘We don’t go Indian reservations because there’s…when we drive out there, there’s nobody around.’ And the guys says, ‘I drove across from Flagstaff, Arizona, through Hopi, all the way out to Gallup, New Mexico, and I saw two people.’ And the guy was trying to justify why they don’t go to an Indian reservation and I told him, I says, ‘You know what, they’re underneath all those bushes. You have to beat the bushes for them to get up and then when they get up, you grab them by the neck and then you drag them here to the university. And when they come, make sure that you educate all the staff people here at this university to welcome them, give them a reception, a warm welcome. You people don’t do that. You don’t do that.’ And so that’s how the recruitment got started.

And for me personally instead of trying to hit the different meetings or tribal council meeting or to the school board meeting, I go to a Yeibicheii dance, traditional Navajo dances, and I grab the microphone and while the Yeibicheiis are dancing away, I’m talking about education and trying to convince the parents that any child who’s able, capable, academically inclined, have a desire to better their lot, those individuals should be given an opportunity. And so basically that was the approach that we use to get students to come to these institution because the normal process sometimes don’t work. You have to think out of the box and maybe do strange things to get people over to where you want them to be.

And so I was so happy in 2008, a Navajo student came to me and she says, ‘Mr. Zah, I want to look at your calendar.’ Look at my calendar? I thought she was there to discuss a problem that she might have and I thought to myself, ‘Well, there’s nothing to seeing my calendar with her,’ and so I opened my calendar and then she says, ‘Mark that date!’ And I said, ‘What’s happening on that day?’ It’s like, ‘Graduation at ASU.’ And I said, ‘What do you want me to do?’ She says, ‘I don’t know, but I want you to be there, we want you to be there. We, the graduating students and faculty.’ So I marked it on my calendar and that day I went over to Grady Gammage Auditorium and I was there for the graduation and I thought that…two days before the graduation I thought she might come back in, ‘And I know she wanted me…maybe she wants me to talk,’ so I started writing my speech. And being ready so that when she comes back, I’ll say, 'Yes,' and then I’m the speaker.

She came back in and I said, ‘Well, I’ve got it all written out.’ And she says, ‘Written out what?’ And I said, ‘My talk.’ And she said, ‘No. We don’t want you to talk.’ I said, ‘What do you want me to do?’ And she says, ‘All we want you to do is sit on the stage.’ And I said, ‘What’s happening?’ She says, ‘All of the work that we have been able…’ and she was one of these students that was very active. ‘All the work that we have done recruiting, retention, increasing the graduation rate, all of that, the cumulative of all of the hard work you’re going to see in May on that date at ASU graduation.’ So I went, again I wasn’t happy with our conversation. I says, ‘What do you specifically want me to do when I’m sitting on the stage?’ And she said, ‘Smile. Smile. You’re going to be happy and you’re going to be smiling.’

And what she meant was that, 'We’re going to have over 300 American Indian students graduating and we’re going to march them in from your left, they’re going to get their diploma, because there are so many of them we’re going to have some more on your right and they’re going to get their diploma and you’ll be sitting there, these are all your students that you recruited. And out of that group we’ve got 22 doctorate, 56 master’s degree,' and many, many of those students became principals, teachers. Many of the master’s degree students were in charge of programs in Navajo.

And so when you get other people involved in the recruitment that you’re trying to do, that is something that you should look at as your goal because you can’t do it by yourself, you can’t do it alone. You’ve got to get other people involved. So basically that was something that ASU enjoyed and that was the day I decided in my own head, ‘We’ll never match that again, so I’m going to resign and retire.’ So the next year I left and I’ve been in retirement for the last…going into my fourth year. I thought I was going to stay home. I even bought a rocking chair and I wanted to just sleep, but it didn’t happen that way. There’s more work at home and if you’re not connected to any program, if you’re not a tribal employee or university employee or state employee, you can do many things because you’re free. You’re free.

And so basically, with me, since my retirement, I’ve been just working out with people in trying to improve their programs; many, many of them that need political muscle because here’s what’s happening, for those of you that are American Indian students and Navajo students, particularly. We have out on the Navajo, for example, Navajo Housing Authority, Navajo Oil & Gas, Navajo Gaming Enterprise; we have all these other divisions, there’s hundreds of them. All of the young, articulate, smart Navajo students are running those projects, rightfully so, except they’re not very well versed in their own peoples’ language, lifestyle. They have a hard time communicating sometimes with the elderly people. And they have a hard time communicating with their own tribal council members so they come looking for me to re-teach in many ways, to have them re-learn this whole idea of Navajo way. And so that’s how I’m helping some of those programs and projects. You take two entities, one is the council of 24 and let’s say Navajo Oil & Gas and then I start talking to them and say, ‘These guys are into oil and gas business. Navajo Gaming Enterprise is into gaming business. They’re also now in hospitality business, whether we like it or not. They have hotels. Do we as a traditional people know all that much about hospitality business? So how do we as American Indian people explain that to the elderly people?’ And so that has been my work and the chair back at home stays there and maybe on occasion it rocks, but I’m still out there doing things that really needed to be done.

And so for those of you that are young, I would recommend that you spend less time with this little gadget here and maybe pay more attention to what your grandma and grandpa has to say because that becomes even more important. I go to these dinners sometimes with people. I never turn down a dinner with people that I’m working with because I like to eat, just like anybody. When I sit down and eat with people, there’s all these people that comes in and they have dinners with maybe their grandchildren, their siblings, sons and daughters and when I look over to that table, the young ones are all on their cell phone and their computers and they don’t talk. They don’t talk. The Navajo is following suit. They’re exactly doing the same thing and that’s why I always tell the young people, ‘When you’re with grandma and grandpa, turn them off. It won’t hurt you.’ Turn them off because they have so much to offer that sometimes we have a hard time trying to acquire through normal ways. And that’s why you have a high-paid CEO for let’s say Navajo Gaming, Navajo Oil & Gas. The Oil & Gas CEO is an engineer. He’s only maybe one of the very few, two or three, that knows how to talk Navajo that can talk still to the council, but still has problems with trying to figure out the political ways of the Navajo people.

So when Manley says this is a class or this is a talk around nation building, we really, really need to do that because Indian tribes are nations and we’re trying to build Indian nations to be like a state, not necessarily a state, but like a state and be able to learn how to operate that government. We’ve got…we came a long ways, we’ve still got some...a ways more to go, but we’re getting there and so I always like the concept of nation building. Navajo Nation years ago has taken on that task where much, much of...some of the trust funding, just trust money that we created goes into nation-building concept, so that using the nation-building concept, those trust money goes to the chapter houses and they talk about their problems, decide how they should use those monies. So trust money is beginning to really help out the Navajo people. Manley mentioned something about the trust money, let me just tell you a little about it.

For any tribal nations building a trust fund is really, really hard because there’s a tremendous need from the local community and from the local people in terms of satisfying some of those needs and you need resources. So you’re a little weird if you become the tribal chair or the president and say, ‘Hey, we’ve got to save some money.’ People look at you very funny and they say, ‘Save money? We got elected, we’ve got to deliver services so therefore we need more money.’ There’s that mentality. If you were elected you’d probably end up doing the same thing. So I was with this weird group that said, ‘We’ve got to save some money,’ because if you look at the Navajo revenues, we’re getting about 75 to 80 percent of our revenues comes from the coal and some day the coal is going to be gone. Some day the mineral resources are all going to be gone. Some day the timbers are going to be no longer there. It seems to me and it only makes common sense to save some of that money now to secure the future generation of the Navajo people and that’s why we created the Navajo Trust Fund.

Up to that time there were…it was kind of a bad word to use when you mentioned trust and the trust fund came about because Navajo Nation won a United States Supreme Court lawsuit in 1984 in Kerr-McGee v. the Navajo Nation and we went through a lot with that particular case. And I remember sitting in the council when we spent days about how we should handle the lawsuit. At that time the Navajo lawyers, there were no, well, very few Navajo lawyers, Navajo people who became lawyers. And one of your esteemed members of the faculty here, Judge Austin, was one of those young people. And when we were doing that, talking about how it should be handled, Navajo council was saying that, ‘We’ve got to get the best lawyer in the United States. We’re in Supreme Court. We want to appropriate a million dollars. So Mr. Zah, you go find that person and we’ll pay them a million dollars to defend us.’ That one thought, but I knew that there was two or three Navajo lawyers at the time. Claudine Bates Arthur was one of them, Louis Denetsosie was the other one, Herbert Yazzie was another one. And so we had few Navajo lawyers and we decided that maybe what we should do is call on a Navajo and that person can choose anyone he or she wants to handle the case with them in Supreme Court. And so we brought in the group and we interviewed them and I don’t know if there’s anyone here who knew Claudine Bates Arthur. Claudine Bates Arthur was a Navajo gal that was about that high. Her father was a Tachii’nii, so is this man here, my father’s a Tachii’nii, so is Manley, so that makes her my sister and I used to call her [Navajo language], my little sister. And I says, ‘Can you handle it?’ ‘Oh, my god, handle a Supreme Court case in the United States?’ and by that time she was out maybe five years, six years out of law school. She had a good friend, Elizabeth Bernstein who now lives here, east of us here in a community. She chose Elizabeth Bernstein. So the two of them, we used to fly into Phoenix and we had these mock trial. We selected judges or lawyers that knows Indian law and they acted as justices, four or five of them and they made their presentation. Then we had some more lawyers to critique them. We went over that, over and over so many times before we ever got into Supreme Court.

When we went into Supreme Court, I was there with Edward T. Begay, who was the vice president, and maybe one or two council delegates and we were sitting in the front row just like the way you’re sitting here. And when the United States Supreme Court justices came in, nine of them, they all sat, it was kind of scary, intimidated by those people that know justice, that knows the law so much to be sitting there. And Claudine and Elizabeth did a really, really good job in making their presentation. And at the end of that day we were so happy and some good question, good question, outstanding questions by the justices. And the one thing that I remember at my age you have a tendency to forget things, I don’t even know what I did yesterday, but I remember specifically one justice said to Kerr-McGee, who was extracting coal in the Farmington area that filed a suit against the Navajo Nation, one justice says to Kerr-McGee lawyer, ‘Your client, when they went out to Navajo Reservation out there, did they go out there on their own will? And then went and found the Navajo coal and then they went to the tribal council and asked for a lease? Or did the Navajo Nation seek them out in the community and then against their will brought them over to the Navajo Nation and had them work there to extract coal? What happened?’ And the answer was that ‘we went out there on our own will.’ ‘And are you being taxed wherever you are operating?’ They were asked that question. And they said, ‘Yeah, everywhere we go we’re being taxed except the Navajo,’ and that’s what this case is all about. So the justice says, ‘Then what makes you think that it’s okay with you that you’re paying taxes to all those other states in the other areas except the Navajo? You have to pay taxes too because they’re looking for revenues. Their people are hungry and their people need jobs.’ And that justice really went into the lawyer from the other side and I think that’s what the case really turned on. That was the last time Navajo Nation won a legal case in United States Supreme Court and that’s when we won over $177 million.

The question was, ‘When the $177 million that we got, what do you do with that money?’ I was the tribal chair. I was the most popular guy in Window Rock because the bank just turned over all that money and I was maybe, looked like you, nice, young, handsome. And I had that money and it was almost up to me and the council as to what we wanted to do. What would you do if you’re being put in that position? Just think about it. What would you do? Wanting advice, seeking advice. You know where I went? Not to New York City on the Wall Street, not to any of the money managers -- I went to my mother, who was a traditional Navajo person with sheep. And I was telling her what had happened, that we got a lot of money that we won and I said, ‘Mother, if you were me, what would you do with it? If you were a member of the council, what would you recommend?’ And she says a question back to me and said, ‘Can money be treated like a sheep?’ Uh, can money be sheep? And what she meant was this. She says, ‘I’ve been a sheepherder all my life and I have this size corral and 200 to 300 sheep can get in there. And when I have that many sheep, I can sell them, I can feed you kids. We can have mutton day and night if you have that many sheep, it won’t affect our herd.’ And she says, ‘Remember one time you were a freshman in college at ASU when our herd went all the way down and we only had 15.' 'That was a pathetic sight,’ she says. ‘We only had 15. And I told you kids, I gathered you kids, your sisters and your brothers, and I said, ‘you can’t have any mutton this year.’ That 15 has to grow back up. If we wait one year, that 15 is going to be 30. If we wait another year, that 30 is going to turn to 60 and then we’re going to be back at the comfortable level.’' Her question was, ‘Can you treat money the same way you treat sheep?’ And when I heard that, I says, ‘Ah ha, she’s talking about trust. She’s talking about creating trust fund.’ So you put money in the bank and the money will grow.

And I went back to Window Rock really, really happy, thinking to myself, ‘There’s the answer and I’d gotten advice from somebody and I don’t even have to pay her.’ And so that’s how the trust money came about and the trust money right now is almost two billion. It goes back and forth depending on the economy and what’s happened at Wall Street. And when we get over to two billion, they’ll probably get another A rating. So this time it’ll be Double A. So that’s where Navajo Nation is right now. The council has already decided to use interest earned to build the casinos. So using the, and not the principal, the interest earned, [Navajo language]. Each year they decided to use that. So just think about it this way, if you have almost two billion, let’s say you have two billion, if the interest rate is five percent, how much is that? If the interest rate is 10 percent of the two billion, how much is that? They’re using that money, but not spending the principal. So using the interest earned they were able to build the casino at Gallup, Fire Rock. They were able to build Farmington, New Mexico. What was the name for that? Northern Edge. Navajos, they always give their own name to these places. At Gallup, [Navajo language]. Fire Rock, [Navajo language]. There’s a fire, then you just sit around the fire. They haven’t given the Twin Arrow a name yet, it’s too new, but they used that money to build that and the one at Ship Rock and then now with the Twin Arrow so all that trust money, interest that they earned each year was used for that.

Why am I telling you this? We’re talking about nation building that you have that class here, that’s what the course is about. Navajo is the only tribe that I know where in the process of building those casinos, they didn’t have to go to the bank. They didn’t go to Wells Fargo. They used their own money to build those casinos. So during the grand opening, the first customer that came in and spent the money that went to Navajo into the tribal treasury. All these other casinos, I stayed at the one over here and I donated last night and that money goes over to Wells Fargo and it’s going to be like that for I don’t know how many years, 20 or 30 years. So the whole idea of trust, creating a trust fund, that’s what it did. That’s what it did. And you have to understand the principle, interest earned; the principle, interest earned. We can’t allow the council to spend and go after the principal, almost two billion. People always ask me, ‘[Navajo language]. Why are you so stingy with that money?’ They ask me. And here’s what I tell them. I tell them that ‘If we do a good job of handling this trust money and then we wait another 15, 17, 18 more years, it could be up to three or four billion. If we wait another 10 more years, it could be up to five billion and it’s just going to keep on growing. And if we don’t allow the council to spend that principal, you know what could happen? 20 more years the whole Navajo Nation can live off the interest that it earns each year and we don’t have to beg anybody for any money elsewhere. That’s what it means.’

But it took a lot of courage, it took a lot of spunk to do that because it was an unusual thing to do at the time, it still is an unusual thing for anybody to do. That was one of the things that we did during our administration. Karen [Francis-Begay] is here, my daughter. Her father took part working with me at the time to create the trust fund and we had that in mind. So it’s getting there. It’s getting there. But the thing about it is this. Every once in a while the council would [say], ‘Pete Zah out there?’ ‘No.’ [Navajo language] ‘Well, let’s go. We have $1.7 billion. Can you make a motion to get $500 million out of there?’ [Navajo language] So I guess by saying that, we need more people to safeguard, to safeguard that principal in the trust fund. I’m telling you only one trust fund. There’s 10 others. There’s 11 trust funds. So it was something new that was happening back then and it didn’t come from an individual with a big huge doctorate, university degree. It came from a sheepherder -- the suggestion, the idea. So you should never sell yourself short. Idea can move mountains. Idea is something that is a very, very powerful thing, particularly if you move it. It can move at its own pace and that’s why you’re going to college and the importance of going to college here really expands your mind so that you’re well versed in what’s going on in the world. And that’s something that I think all of the people that work with the students should realize and recognize that that’s the way to do it is to get that college education. So it’s important that you continue to work in those ways.

The other thing that I wanted to just tell you is that Navajo Nation is embarking on many, many major decisions right now, huge decisions. Because if you look at what’s happening to the coal industry, the whole nation is moving away from the use of coal to produce electricity. Right now, Navajo has a role in deciding something about the electricity. So this thing probably comes from Navajo. So if Navajo don’t want to get into that, we can go over to the light and turn it off. This electricity comes from Navajo coal, but EPA [U.S. Environmental Protection Agency] is really clamping down on fossil fuel, the use of fossil fuel to produce electricity and Arizona Public Service, all of the entities like them are beginning to suggest to the Navajo people that they should sell their power plant. So you have a power plant over in Page, I think four or five units there. You have a power plant over in Farmington, New Mexico, four or five units there. Those guys who own that, all of a sudden in the year 2013 became such nice guys. They want to sell it to the Navajo Nation. They’ve been mean all these hundred years, but one day somebody told them, ‘You’ve got to be nice to them,’ and so they’re saying, ‘We’re going to sell it to you for $182 million,’ or whatever it is. What do you think about it? For me, we’re going to be buying a used car. You know what I mean? A used car that has, what? 400,000 miles on it? And that’s going to cost us a lot of money. It’s up for discussion right now and you should be able to participate and all of the other things that will go with it. So here’s what I can’t really see, EPA, if you read…last night, I read another article that came out in USA Today how all of these plants are going to be shut down and new plants, they’re not going to be allowed to build new plants using fossil fuel and that means that electricity-producing firms are going to go to the natural gas. And why are we sitting in the council talking about the use of fossil fuel when EPA’s doing what they’re doing? It just doesn’t really make any sense. So you should participate in those discussions and see where you come out with your question on the proposed activities. And as a student, as a young person, I think you should try those kinds of discussions among and with your own people.

I really like what you are doing here regarding some of the classes that you are having. The students seem to be very well engaged in what goes on, they want to learn. And then for those of you that are Native American, education is so important in your life and in our lives. The Navajo people for example have come a long, long ways going all the way back 100 years ago, even 50 years, 60 years ago. In 1940, 1945 the United States discovered that there were 37,000 Navajo people that are of school age that had not enrolled in a school, that were not going to school. Imagine that: 37,000 Navajo people not in school of school age. I was one of them. I was one of them. So United States devise a program called Special Navajo Program and they put me into that institution and I became a student at Phoenix Indian School way back in 1948. And I always tell my grandchildren, ‘That program was called Special Navajo Program, so I’m special.’ And it was a program where you went to school for five years, only five years and they gave you a diploma, a certificate that shows to the market out there in the community that you’re a good worker, you’re a good carpenter, you’re a good painter, you’re a plumber. These are all the things that you’re good at and then they give you a certificate and they kick you out of the school. So I was on that program and something like the last week of school I decided, ‘I want to go to college!’ And the teachers would laugh, ‘You want to go to college? My god, you should have decided that 20 years ago.’ But I have a little fire in me and I decided as I was walking out almost practically crying that, ‘I’m going to show these guys and I’m going to invite them some day when I’m graduating from a university. To hell with them.’ And so that challenge is important because most of the teachers there, they said, ‘You can’t do it. You’ll never do it.’ When I was graduating from ASU in 1962 getting my degree in education, I sent a personal invitation to all of these teachers that were still at Indian School. None of them came. I wasn’t disappointed, but none of them came. I’m telling you that because you can’t always depend on those kinds of things. It’s what you’ve got in here. It’s what you have in here. It’s a desire that you have to do certain things.

So when I came back on the Navajo Reservation, I knew that there were some things that really needed to be done. And from DNA People’s Legal Services Program I decided that there were some people who were asking me to run for the tribal chair and there were a lot of people that said, ‘You can’t do it.’ And I said, ‘Oh, my god, that’s what they said back there.’ ‘You can’t do it because Peter MacDonald has all the power. He has all of the money,’ and they had a magazine, they had a magazine called Mother Jones Magazine. I don’t know if you remember and they had a picture of him with holding the coal saying, ‘The most powerful Indian in America,’ and so people that found out I was running they said, ‘See, you’re not going to win.’ Well, that was all I needed. That was all I needed. So when people say that, it kind of makes me angry, makes me angry and I want to prove to them that they are wrong.

The same thing as when I went to work at ASU, there was a provost -- imagine that, a provost -- he’s in second command. One day he walked into my office, I was sitting there trying to think how I should do certain things about our American Indian program and the provost sat down, he introduced himself and he says, ‘Pete, I’ve been reading all these rules, statistics, data, and you’re in charge of American Indian programs.' 'My advice to you,’ he says, ‘is that any American Indian who wants to enroll at ASU, we should just send him away. We should send him away to a school where they can last at that school and get their degree. This record shows that we’re losing them left and right and they never stay. We’ve got one of the poorest record on Native American retention so my advice to you is instead of getting some more white hair over that issue, we should just send them away. You’ll be doing them a favor.’ That was what the provost told me. True story. The exact words. So when I heard that, I was thinking to myself, ‘Well, that’s what Phoenix Indian School told me. That’s what the election process on the Navajo, some of those people told me. Now, Mr. Provost, you’re the third one.’ So I made sure in May of 2008 when all these kids were graduating, getting their degree, I invited him. I invited him and I had him sit in the front row. I wasn’t smiling like the way the student wanted me to. I was smiling at him.

So you’ve got to have that desire, you’ve got to have that fire in you. You’re the only person that knows yourself best, when to do some of these things. And so don’t ever fall for people that are trying to shortchange you because they don’t know you. You’re the only one that knows what your capabilities are. So I just wanted to leave you with that and be able to use that. I used to be a basketball coach because I played ball at Phoenix College. And one of the things that I learned from the coach was that there are some kids you have to baby, you have to baby them and say, ‘Hey, that was not right, son.’ You have to put your arm around them, you practically have to cry for them to learn. There are some other people that you have to shake, get after them. So using that psychology, different people because of our chemistry, we get motivated in different ways by different methods. You need to find your niche and what that niche is, what excites you, that’s I think very important thing to learn in life. And that I also want to leave with you and thank you for the invitation. [Navajo language]."

Manley Begay:

"Yeah, go ahead here then over there. Go ahead.”

Audience member:

“I was just wondering, today are any of the other tribes in the state trying to do the endowment approach, do you know?”

Peterson Zah:

“The reason why I’m telling you about the trust fund and endowment is that we have Indian tribes who are into casino that are beginning to make money, not a whole lot. If you’re a member of that particular tribe, then you should encourage them that while they can, while they’re making money to create endowment funds for the nation because you’d be surprised how fast that works. That’s your security. It’s like a child having a security blanket. It’s something that I think you need to encourage them. The question over here was the endowed funds over at ASU, the one that Manley was referring to, what’s happening there is this. Sandra Day O’Connor is the person that the law school was named after at ASU and she’s doing a good job working with the university in bringing in funds to the law school. What university has decided is to use my name and raise money using my name so that they can keep the Indian Law program going in perpetuity. Any money they get, they’re going to put it into trust, and then using the interest earned they’re going to go out and hire the most prominent Indian lawyer and have them teach that course one year or two years. After the two years is up, they’re going to bring in another person using that endowed money and then they’re going to have that person give them service for another year or two years. And if you have money endowed and put into trust, that thing can keep on going forever and that’s what they’re trying to do.”

Audience member:

Last year, about a year ago, the Resources and Development Committee in conjunction with the Dine College, they hosted that 'Nation Building Summit.' And I think shortly after you wrote an editorial to The Navajo Times and I think you had cautioned people about the like -- how can I phrase this -- like the council is approaching the spending of the permanent trust fund without much planning. And so if at any point it goes to referendum and the people indeed do choose to spend that money for whatever purposes, infrastructure, development or whatever, what kind of -- from your perspective -- what kind of planning do you think the students now within their education should be focusing on if that happens?”

Peterson Zah:

“There’s 110 chapters on the Navajo Nation. There’s 24 council [members]. What she’s referring to is a year ago the Navajo Nation Committee of RDC, Resource Development Committee, the Resource Development Committee decided that, ‘When we go out to these 110 chapters, they always have some needs, whether that’s employment, whether that’s materials for the chapter house, whether that’s food for the people to eat, they always have a need,’ they said. ‘But we don’t have any money,’ they said. ‘So why don’t we ask all these 110 chapters to come in and we’ll ask each one of these 110 chapters what they want.’ Christmas in the middle of the summer, so to speak, ‘and then we’ll add up that money, however many it is, we’ll add it up and then we’ll go to…’ At that time the trust money was at $1.5 billion. They said, ‘We’ll get the numbers from the 110 chapters, we’ll add it up and that’s how much money we’re going to get out.’ And it was anywhere from $75 to $150 million. That’s a lot. $75 to $150 million and all the 110 chapters were represented, RDC members were there, the council delegates of 24, some of them were there.”

Manley Begay:

“We were there, the two of us.”

Peterson Zah:

“Well, this is a Navajo trick between him and I. I was not really invited to be there, but they invited Manley to be a guest speaker the second morning, the second day. And Manley comes up to me in the morning and he says, ‘Why don’t I speak for a little while and then when all the people come back, I’ll give you the floor. I’ll yield my time over to you and then you can speak to the group.’ So I said to him, ‘Well, if that’s what you want to do, let’s do it.’ So it was a deal, Navajo trick. And so he gets up there and the chairman of the RDC gives him the mic and he was speaking away and then he says, ‘You know, we haven’t really asked a guy who created those money and save all of that much money. Nobody’s ever asked him. He’s sitting here. So I’m going to ask Mr. Zah to come up and see what he thinks. Is this the money that we could use for what is being discussed yesterday and today? So why don’t you come up and say something.’ So he stepped down, the chair then got up and she said, ‘Okay, Mr. Zah, get up and you talk. Here your brother’s given some time. Whatever amount of time he has left, you could use it.’ Well, that was all I needed. That was all I needed and I told about how the trust money was created, how the case was handled, who handled the case and then I told them about creating an escrow fund.

I says, ‘This is…this case that we won is over taxation and we’re going to tax all the companies that operate on the Navajo Nation and we want to build an escrow account so that while the case is pending in court, they could be paying. So each year the companies can pay into an escrow account the money that they’re supposed to pay for that year. And I told the companies, I brought in the companies just like you, there were a lot of people there, the president of Peabody, the president of this and the president of this, they were all there and I told them, I said, ‘You know, you guys sued me and why don’t we have an agreement? We’re in court. Why don’t we create an escrow account over at the bank and then you pay your money into that account? If you beat me, then you take all the money back. If we win, then we get all the money. That’s a fair deal. That’s America. Competition.’ [Navajo language] And so they agreed to it. And I told that story to the people and I says, ‘You know, it’s like this, we put a bucket here. It’s raining or there’s snow and the water is dripping [Navajo Language]. The water is dripping into that bucket and all during that time when it was dripping it start building up to over $270 million and then we won and we got that money. And then we ran to the bank to put it back into trust for your children [Navajo language].'

Now this council here, they want to take the money out. It’s like taking food out of your own grandchildren [Navajo language]. Now these guys have a legal problem, the council [Navajo language].’ I said, ‘Some of them were criminally charged for misusing the discretionary fund.’ [Navajo language] I said, ‘They were using discretionary funds and they ran out of that discretionary fund so they’re looking at that. That’s what they want.’ Oh, those guys started listening and I told them, I said, ‘My recommendation is that we leave this alone until they take care of their legal problem, until the court says, ‘No, they’re not guilty’ [Navajo language]. I just don’t trust them. When they get some of that money out, they’re going to go back to that discretionary fund. There’s no use in hiding. I’m an old man, I’ve got nothing to lose. I’m your cheii’.’ [Navajo language] And that’s when all hell broke loose. And so we end that…we ended that where the people went back into their respective groups because they were having a big breakout session and they all decided that, ‘No, we don’t want to spend the money. We want to save. We want to save for our children, generations of Navajo people, not now.’ [Navajo language] These guys still have legal problems that hasn’t been cleared up in court.

That’s the way you have to be. You see that thing that I was talking to you about, the little fire inside of you, the little fire inside of you. You’ve got to have a courage to do all of this. I don’t know what they think, but from that day on I was not a popular person with the council. But that’s okay, the hell with them. I helped them. I helped them, but when they decided to deliberately mislead the people and do something wrong, somebody has to speak up. So essentially, that’s my work unfortunately right now. But it’s okay because as Navajo people say, 'The elderly people have lot of wisdom, and it’s something that we use based on our experience.' And so that’s what happened in relative to your question.”

Manley Begay:

“I attended all these sessions, these breakout sessions. My brother says there’s 110 chapters, there’s 300,000 Navajos, we have 27,000 square miles of land, we have every issue under the sun: water issues, land issues, road issues, sewer issues, housing issues, elder issues, veterans issues and the list goes on. So all these breakout sessions dealt with these issues at Navajo. So what they were doing was, ‘Okay, here are our needs: elders issues, veterans issues, so forth and so on, children’s issues, education issues,’ and they tacked on dollar amounts to them. In the half a day that $1.5 billion was gone, it was gone. And they were saying the need was even greater than $1.5 billion, which is true, but if you want to secure your future as a nation, you have to save that money. You’ve got to think way ahead, not right now, but way ahead because the Navajo Nation is going to get stronger, the grandkids are going to come, the great grandkids are going to come. You’ve got to think way ahead. You can’t just spend all this money now. So when I went to these sessions, that’s what was going on. After my brother spoke, people said, ‘Wait a minute, [Navajo language], wait a minute. Let’s think about this a little bit more clearly. Let’s not just think about ourselves, let’s think about the future,’ and that’s what happened. So everything got stopped. Now we’re beginning to see the rewards of the money being set aside. Just spend the interest, don’t spend the principal because the principal was already spent, it was gone, it’s gone. Once it’s gone, it’s not going to come back. So if it’s going to be the Navajo Nation Permanent Trust Fund, let’s make it permanent, let’s not make it temporary. It doesn’t say 'Navajo Nation Temporary Fund,' it’s a permanent fund for the future. So that’s what my brother did, put that together. Another question.”

Audience member:

“Could you speak a little bit how you went about establishing the Supreme Court for Navajo Nation?”

Peterson Zah:

“Supreme Court was something that…it was considered in reaction to what was going on at the time. This is really, really crazy. There was a suit that was filed against the tribal council and one of the judges had the case and that judge ruled against the council on an issue. So the council then decided or that particular delegate then decided to share the issue with the rest of the council and the rest of the council said, ‘Well, instead of talking about all this, let’s just get rid of the crazy judge,’ and so they did. Another issue came about almost identical, a different judge handled it this time and the tribal council lost again so the council said, ‘Well, let’s get rid of that guy, too.’ And when you start getting rid of judges like that consistently, it means you’re sending a message to the world that you have inconsistent thinking, inconsistent tribal government and that they’re not stable. It needs to be stabilized. So we created a Supreme Court where we said, ‘Council has to get out of there. They should not be doing what they’re doing,’ and so we created the Supreme Court. And they were an entity unto themselves and I ended up as an individual that chose as a chairman of the tribe…that chose the Supreme Court justice and the panel of the Supreme Court. And so now it became a three-branch government. So the courts and judicial system is one, legislative, and the executive branch. So they’re deciding on many of those issues without having to fear that the council may go after them and that was the purpose of Navajo Nation Supreme Court. Supreme Court did a lot of things. They created what they call peacemaking process, peacemaker court. Peacemaker court is another concept of…another way of settling disputes and the way the Navajos were doing it, it went over wild, all over the place, even the states were calling in the Navajo Nation tribal judges to talk to the state judges about how they’re dong theirs. It went everywhere. The Navajo courts were a consistent guest at Harvard University, Yale, Stanford, all those big law schools where they conducted some of those sessions and so…then it even got recognized internationally. So under that kind of independent court/judicial system, they did a lot. And that was the purpose for creating the nation’s court, Supreme Court, and now they’re kind of like a model to all of the other Indian tribes. And you have a situation now where the Navajo judges are people, Navajo people who have law degree that are sitting there that talks Navajo. They can go back and forth on the values of those two entities. And the outside people, the outside lawyers, now they respect the decision of the Navajo court and because they decide those issues to the satisfaction of both parties.”

Manley Begay:

“One more question.”

Audience member:

“What do you see like the, for the Navajo Nation to become like economically and financially stable and zero reliance on the government, what do you see as the biggest obstacle for Navajo Nation to get there? Is it like a mindset or is it...what do you see that…what’s preventing us from getting there, I guess?”

Peterson Zah:

“Economic development is very, very [expensive]. Any kind of economic development is expensive and it’s also hard to get into that area because how the people are holding onto the land. Young people just like you, when you drive across the reservation, you’re driving, ‘Next service station 45 miles,’ and you look at your gauge, ‘Oh, my god, I’m going to run out,’ and so you have that situation now. And the reason why that is persistent is the people who have grazing rights to the land that comes up to the highway, they don’t want gas station. Somebody was telling me seven percent of the Navajo population holds grazing permit, seven percent holds the whole Navajo Nation in abeyance for the lack of economic development. They’re hostage, holding the Navajo people hostage. And that’s a major, major problem, the land issue and I think we need to correct that in some ways. I don’t really know what the answer is, but somewhere in between just getting the reservation open and then having some concept of ownership of lands in some degree and then having the land use right or land use…yeah, land use, write program at each chapter. If you belong to a chapter, you should be able to say, ‘Hey, we have this chapter house here. We should have schools here, schools for our children. We should have housing here for us to live in. We should have business development right here, service station. We should have…that’s what we should really be doing.’ But the chapters are fighting themselves because those are the grazing permittees land, grazing right land and the first thing they say is, ‘No.’ You’ve got to have a different concept.

I like my dad, my dad who used to be at Low Mountain Chapter and this is kind of funny. My dad had a good sense of humor. He was trained as a Navajo Nation Code Talker and one day he went home, we were with him and he says, ‘I came home because I want to be with you guys and I’ve got two weeks off because after I get back to San Diego, we’re sailing to Japan. We’re ready to go to battle,’ he said. ‘And I won’t be seeing you guys for a long time.’ [Navajo language]. So he went back. Two weeks later he was back and I said, ‘Hey, what happened? I thought you were going to be gone for a year.’ And he says, ‘No, don’t you know that the war is over in Japan?’ he says. ‘The Japanese people found out I was coming so they surrendered.’ He always had a real good sense of humor, the stories about him that I’m going to tell you.

Well, he belonged to that chapter and he was a chapter officer at one time at Low Mountain and Low Mountain had no chapter, Low Mountain had no houses, Low Mountain had no roads. We had nothing. And when people in the community would say, ‘We’ve got to have a place to build our chapter house,’ all these land permittees said, ‘No. [Navajo language]. No. No. No. Keep it out of there.’ [Navajo language]. Well, my dad had a grazing permit and so he says to these people that were planning a chapter house, he said, ‘You could come over to our land where we have a permit, grazing permit,’ and he says, ‘I’ll give you that land free,’ he says. ‘And when we have a chapter house, then I want to have a road that also goes through my land, highway all the way to the other highway, connected, all on my land,’ he says. And he told the chapter people, ‘When it snows and rains, we all end up in the mud. So when that day comes, I want only my family to use that road,’ he said. ‘All you other guys, you get your truck in the mud and you stay there,’ he said. He says, ‘That’s what you’re doing. That’s what you’re doing. That’s what you’re asking for.’ So they built a chapter house on his land where he’s holding the grazing permit and they put a road through where it was his grazing right land. And sometimes you have to say that to people. Some of those people didn’t think it was funny, but he thought it was funny that people were doing that. And so that’s how those things got…we need more people that are willing and in the best interest of the community, in the best interest of nation building, who think that way. He said, ‘I’m not sacrificing a land, that’s a poor use of word, sacrificing. I’m not sacrificing.’ And then the committee member says, ‘Well, the Navajo Nation has an account for anybody who gives up the land to pay for the use of that land.’ He didn’t want any money. He says, ‘You know, the real Navajo story is, you don’t sell your mother. You don’t sell your mother for money because that land is part of the Mother Earth. It’s for people’s use. It’s for [Navajo language],’ he says. ‘And I’m not going to get paid and I’m not going to demand money to sell my mother to somebody. Use it.’ He says, ‘I’m getting old anyway.’ And so we need more people who think that way, who are dedicated 100 percent to the community and to their people.” 

NNI Indigenous Leadership Fellow: John Petoskey (Part 1)

Producer
Native Nations Institute
Year

In the first of two interviews conducted in conjunction with his tenure as NNI Indigenous Leadership Fellow, John Petoskey, citizen and long-time General Counsel of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses how GTB has worked and continues to work to build and maintain a strong, independent system of justice that is viewed as legitimate by GTB citizens. He also discusses GTB's integration of peacemaking and peacemaker courts into its justice systems as a culturally appropriate way of resolving disputes and bringing healing to the community. 

People
Resource Type
Citation

Petoskey, John. "NNI Indigenous Leadership Fellow: John Petoskey (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 1, 2013. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host, Ian Record. On today's program, we are honored to have with us John Petoskey. John is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and has spent much of the past 30 years serving as his nation's general counsel. As general counsel, he participates in all federal, state and tribal litigation and administrative hearings where his nation is a plaintiff or defendant. In addition, John wrote the majority of Grand Traverse Band's statutes, published as the Grand Traverse Band Code. He also currently serves as partner with Fredericks, Peebles and Morgan LLP and is spending this week at the University of Arizona serving as Indigenous Leadership Fellow with the University's Native Nations Institute for Leadership, Management and Policy. John, welcome, and good to have you with us today."

John Petoskey:

"Thank you."

Ian Record:

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

John Petoskey:

"Well, I have been with the Grand Traverse Band for, as you said, a long time. Prior to that I did work for Legal Services...Indian Legal Services in Michigan and importantly, I worked on one of the leading cases on off-reservation treaty fishing and on-reservation treaty fishing that was called U.S. v. Michigan, which followed the same genesis of the United States v. Washington. And when I originally got out of law school in 1979, I was lucky to participate in the trial portion of that case as a first-year law student that had not yet gone to a federal district court opinion. So that was very gratifying and enlightening to me to see how the United States' trust responsibility is implemented for tribes. At the same time, I'm a product of my history in Michigan. My father is from Little Traverse Bay Band[s of Odawa Indians]; my mother is from Grand Traverse Bay Band. And through circumstances of history, the Ottawa tribes of the Lower Peninsula of Michigan were not federally recognized under the 1855 treaty, which was a misinterpretation where the Secretary of Interior took federal recognition away in 1871. As a consequence of that act, the state of Indian tribes in Michigan, the Ottawa tribes were desolate, and U.S. v. Michigan was the first spark of hope, if you will, by reversing that decline that the tribes had been in for so long.

After U.S. v. Michigan, I went to work at Indian Pueblo Legal Services in Northern New Mexico and I worked for, in one capacity or the other, for most of the pueblos as a legal services attorney representing poor Indians in the tribal justice systems of the Pueblos and in state and federal court. Those were largely jurisdictional cases at that time in the early "˜80s. There was a lot of assertion of state authority and state court jurisdiction for on-reservation activities. So I litigated a lot of cross motions for summary judgment of no subject matter jurisdiction and I also got to participate in some unique Pueblo-initiated procedures to resolve justice questions that the Pueblos had on their reservations, which were unique because the Pueblos have a unique system of justice that is still largely indigenously driven, if you will, from their historical experience.

After Indian Pueblo Legal Services, I went to Alaska Legal Services, which does have a totally different legal history under the Alaska Native Claims Settlement Act of 1971. I was in a place called Nome, Alaska and I went out to villages in an area that was probably 500 miles in diameter surrounding Nome and provided legal services to remote isolated villages. And there you could see the coalescence of all federal Indian policy in a community of 150 people where you would have a traditional government and Indian Reorganization Act government and a local government and an Alaska Native Claims Settlement Act corporation board. So you'd have four layers of government for people, for a total population of 150 people. It was designed for failure, which that's a separate question, but those are items that are left out.

After Alaska Legal Services I went to work for National Indian Youth Council, where I worked on voting rights cases in the southwest turning at-large voting structures into single member districts, largely in New Mexico, in Cibola County and McKinley County. Then I also worked on First Amendment cases in which tribes were alleging that they had a right under the First Amendment to access to federal public domain law that was under the control of the federal government, but for historical reasons the tribes had ceremonial relationships with the land and their ceremonial relationships with the land were being impaired by the Federal Public Land Policies that prohibited their access in some cases or in other cases prohibited their access on an exclusive basis for some of their ceremonies that they needed to conduct."

Ian Record:

"We here at NNI know quite a bit about the Grand Traverse Band. A number of our staff have worked with the Band over the years. You and some of my colleagues for instance go way back to the late "˜80s, early "˜90s and the Band has also received three awards from our partner organization the Harvard Project on American Indian Economic Development and its Honoring Nations Award Program, but share with our audience a bit more about your nation, just who is the Grand Traverse Band of Ottawa and Chippewa Indians?"

John Petoskey:

"The Grand Traverse Band of Ottawa and Chippewa Indians are Indians that lived in and around the Grand Traverse Bay of Northern Michigan. Michigan is shaped like a hand. If you're from Michigan, people always say to each other, "˜Where are you from?' and they'll hold up a hand and they'll say, "˜Well, I'm from Lansing, I'm from Detroit or I'm from Gaylord.' In this case, using the hand as the analogy, Grand Traverse Band is located on the little finger. That's where the peninsula is. The historical area was a reservation that was created in 1855. Just immediately north to us is the Little Traverse Bay Band, which is located in Petoskey, Michigan. South to us is the Little River Band, which is located in and around Manistee, which is right there.

The Grand Traverse Band achieved federal recognition under the Administrative Procedures Process in 1980. It was the first tribe to go through the federal acknowledgement process under the then-developing federal regulations that go all the way back to the Policy Review Commission back to the "˜70s. When it achieved federal recognition, it had to engage in building all of the governance institutions that were necessary to establish a tribal government. Incident to that, I had met Steve Cornell when I had worked at National Indian Youth Council because he was a personal friend of Gerald Wilkinson and Vine Deloria and Dr. Cornell or Steve Cornell used to come and visit with Gerald Wilkinson and I met him initially in that time period that I was working at National Indian Youth Council.

And then after I started working as general counsel for the tribe in the "˜80s, we were engaged in the process of building these governmental institutions as a new federally recognized tribe and we had to look around for models of how to establish our tribal organization, how to establish our tribal constitution and go forward from there. And so we'd have constitutional committees drafting the constitution and we also were engaged in a fight at that time with James Watt, who was the Assistant Secretary of the Interior. And the position under the Reagan administration was that federal acknowledgement was limited to a discrete number of people on the original petition that was submitted, and our argument was that federal acknowledgement covered everybody that was eligible as a descendent from Grand Traverse Band from the last annuity treaty payment that took place in 1910. And obviously, our category that we said were eligible was much larger than the category that the feds wanted to recognize.

As a consequence, we were engaged in litigation with the federal government over the terms of our recognition, which impaired the development of some of our governance institutions, particularly our constitution, which the Interior did not ratify until after that litigation was resolved in 1986 and then the constitution was ratified in 1988, I believe. But at that time, once the constitution was ratified, we really had to come up with the procedures, if you will, for our justice institutions, for our legislative process and for our executive process. And doing research of what models to follow, I came across the Harvard Project on Economic Development and at that time, this was before the internet was widely available, we had to send away for these series of memorandums that students had written on a number of different aspects of Indian economic development and Indian governance issues. And so I basically sent away for all the memorandums and went through the memorandums and cut and paste what I thought was the best in those memorandums for GTB's situation and then went through the process of having the executive-legislature enact those provisions for Grand Traverse Band. Incident to that, I then reinitiated my friendship with Steve Cornell and Steve came up to Grand Traverse Band on two different occasions to visit and to present information and points of views on how he developed tribal institutions. Also, Vine Deloria came up a couple times because I had met and known him at National Indian Youth Council and gave brief talks to our tribal council on the historical relationship of tribal governance and the Department of the Interior and the United States. And Vine had at that time and always did have a very focused analysis of how tribal governments had been overpowered by the federal government. And so in all senses of the word, he was an advocate for strong tribal governance and he promoted that when he was speaking with our tribal council and providing advice on which way to go. So that's, in a quick thumbnail I think that's what the relationship was."

Ian Record:

"Following up on this issue of constitutional development, you said that you were one of the people charged with going out and learning what other tribes had been doing to develop governments that made sense for them and that you sort of worked to integrate the best of what you had learned from others. Was there at some point in the process a customization of some of those governing institutions to the particular circumstances, cultural values of Grand Traverse in trying to make it their own?"

John Petoskey:

"Well, yes. The process of writing a constitution is not...doesn't rise to the level of the Federalist Papers, where you have advocates writing arguments for and against different propositions that are in the constitution. In the Indian community, what that comes down to, if you will, the "Federalist Paper" analogy is a group of people sitting around working their way through the constitution occasion after occasion after occasion after occasion and bringing out their own personal experience from the community as to what will work and what will not work, and so that's what the Grand Traverse Band community did."

Ian Record:

"And how has the...in your estimation how has the constitution worked in the 25 years it's been in place? Do you feel like it's beginning to gain...it has gained widespread cultural and community acceptance?"

John Petoskey:

"Yes. The one unique aspect of our constitution that is different from other constitutions is most entities elect a tripartite system of governance where they have executive, legislature and judiciary. At the time, when we were developing our constitution, the concept of consensus through council discussion was the primary value that people brought to the table of communication of trading off what would work and what would not work. The concept of separating the executive and legislature was not high on anybody's list, and so the GTB constitution has a combined executive-legislative function, so the council meets as a group and acts by motion, ordinance or resolution and it's the majority vote of the seven on the council. There are itemized activities that the executive power has -- and the vice chair and the treasurer and secretary -- but that is still in the context of the council acting as the executive-legislative combined branch of government. So we don't have, if you will, effectively, three coordinate branches of government. We have two branches of government, the executive-legislature as one and the judiciary as the other."

Ian Record:

"Let's talk about the judiciary. I plan to cover a number of topics with you today, but first and foremost is the issue of the judiciary or justice systems comprehensively and I'd like to start big picture, and based on your vast experience in this area, what role do you feel justice systems play in a tribe's ability to exercise its sovereignty effectively, to achieve its priorities, to create a healthier more culturally vibrant community?"

John Petoskey:

"Oh, that's kind of an open-ended question. I would like to just go directly to Grand Traverse Band. In our constitution we have the judiciary as an independent branch of government with independent authority and it's recognized in the constitution to have that. The judiciary serves the function as a check on the executive and legislative actions and it also provides a forum for dispute resolution between the community and community members over behavior that is not acceptable or behavior that comes to the court to resolve disputes between two individuals.

For example, I'm thinking of family law matters, dissolution of marriages or abuse and neglect on children or cases like that, so you need a third party to resolve disputes where the question of who is right and who is wrong is an open question subject to the advocacy of the parties. I don't see the judiciary in a larger, big-picture sense that you outlined. I see it in a little-picture sense of resolving disputes and if an individual, a tribal member, has a dispute with the tribal council over the enactment of legislation or the administration of that legislation by the delegated entities that the council has set up, then that tribal council member under our system, if our constitution has the right to go into tribal court because our constitution waives the immunity of the executive and the legislature and to assert that the application of that rule to that particular person is wrong for whatever reason.

And the Section 10 of our constitution incorporates almost word for word the Indian Civil Rights Act, which is almost...with notable exception leaves out certain elements from the Bill of Rights. The Indian Civil Rights Act is modeled on the Bill of Rights and those are the, if you will, the constitutional values that the federal system has, that the state system has, and by force of this overpowering values of constitutional law from our coordinate sovereign governments, the federal government and the state government, most tribal members are familiar with the U.S. federal constitutional rights and state constitutional rights; therefore, if they have a complaint with the United...with the tribe, they frame their complaint in that context and what is not unique about our constitution, but other constitutions, also have this, is that the constitution recognizes that there's an automatic waiver for that type of cause of action by a tribal member to sue the executive and legislature alleging a violation of Chapter 10 of our constitution, which effectively is the Indian Civil Rights Act. And our constitutional members have done that a number of times.

And then we also have disputes between...we have had disputes between the executive and the judicial...the executive and legislative branch and the judicial branch and the constitution does provide a methodology for the resolution of those disputes. We have had judicial removals and it's a process of the executive-legislature filing a claim in the judiciary unit, a panel of judicial appointees are appointed to determine whether or not a judge should be removed for cause, that are established in the constitution. So when you say big picture, it's too big for me to grasp because everything that I...for myself at least, I'm not a big-picture person and look at concrete problems and how to solve concrete problems, and those concrete problems I guess do have big picture implications, but it's solving the concrete problems that I focus on at least."

Ian Record:

"Well, and that's one of the reasons we thought of you as a good pick to be one of our fellows is that in our vast experience working with tribes on the ground in tribal communities is the fact that nation building is not a top-down proposition. It really starts at the grassroots and it works from the bottom up with the problems that every day...that come up every day that tribal members face. For instance, seeking redress against the government when they feel that they've been wronged. You mentioned that Grand Traverse Band's justice system is strong and independent and NNI and Harvard Project have done a lot of research in this area and it's been pretty conclusive in terms of finding that having a strong and independent justice system is really vital to a nation's efforts to achieve its goals. And I'm curious to get your take on that finding based upon your own experience and obviously the strength and independence of the justice system was not an accident. This was a purposeful process that the tribe has engaged in over a very long period of time to build that strength, to build that independence, and I guess my question to you would be how do you see that research finding in the context of what Grand Traverse has done?"

John Petoskey:

"In the context of...well, I would support it first of all. Having a strong and independent justice system is very important. And I think Grand Traverse Band has been lucky in some of the initial judges that it had that were tribal members that served for a long time on the judicial system and the fact that they were tribal citizens gave greater legitimacy for their decisions and for the conflicts that were resolved by judicial action. When we have had problems with the Grand Traverse Band is when we have...our constitution was written in the early "˜80s and actually implemented in 1988 and the provision that we have for judicial appointments does have a proviso of appointing attorneys who are non-members, and so on occasion we have had to appoint non-member attorneys to act as tribal judges. And the argument there is, "˜Well, an attorney has training in procedural due process, dispute resolution, the framing of legal arguments for the resolution of complex disputes and is familiar with the substantive law that comes forward that regulates human relationships and governmental relationships and so therefore the attorney, even though not a member, would bring value in that position as a tribal judge,' and that argument I accept.

Nevertheless, the proviso in my experience has been that when a non-Indian, non-citizen of the tribe is appointed, there are problems that inevitably arise because the legitimacy of that judicial officer is questioned by the community. I would propose a thought experiment that people would see this analogy or this problem in another manner. For example, I don't think any tribal constitution provides a provision in which you can elect to their tribal council non-members so long as they're attorneys or that they're engineers or something else, and that's just unheard of. And so the executive and legislative branch that are made up of members has greater legitimacy for implementing a decision even if the decision is wrong because it's coming from that citizen group in that community. Conversely, when a judge who is not a member is trying to implement a decision, even if that decision is right, it has less legitimacy.

So the cautionary tale that I would have on building strong judicial departments is that you keep in mind, and I know this is somewhat of a touchy subject, but you keep in mind that those should be citizen members that are filling those positions and it lends greater legitimacy to the resolution of the problems, and maybe this is a problem just uniquely to some tribes that have that provision in their constitution for the appointment of non-Indians, but if you look at the Indian law world, all of the Indian law professors -- you could tick them off on your hand that are the big stars -- also serve on tribal courts. And so they're not bringing their membership as a member of a tribe, they're coming to serve on those courts as people that are profoundly sympathetic to Indians and profoundly conversant with the principles of federal Indian law and the principles of substantive law, but nevertheless, they are bringing the same baggage of their cultural tradition to an Indian forum for resolving disputes involving principally Indians. There's variations on that too because some of those...some people argue that tribal courts are courts of general jurisdiction so they can resolve disputes involving Indians and non-Indians and I accept that, but what I'm saying is that a citizen/member of the tribe lends greater legitimacy to the resolution of the dispute."

Ian Record:

"To me what you're really talking about are what I see as two challenges. One is there needs to be a thoughtful, strategic discussion about. 'What should the qualifications of judges be?' So for instance, obviously should they have passed the bar in the state in which the tribe resides? That's often a criteria. I think what the Navajo example and a growing number of other tribal examples teach us is that tribes really placing an emphasis on their judges having understanding of that tribe's common cultural law and being in a position to apply that. And from what you're saying that non-Indian outsiders are just not equipped with that because they haven't grown up in that environment."

John Petoskey:

"Yes. In fact there should be, and I think Navajo does this and I confess my ignorance in this, but there should be a Navajo bar exam and tribes should implement their own bar exams for the practice within their own courts. Certainly all tribes now implement admission to their bar for their court but really all that is...and I'm not saying this in a negative or pejorative sense, but all that is is motioning yourself in for admission, paying the admission fee and being admitted to the bar of that particular tribe. But, if a tribe were to develop a bar exam and it's not...doesn't necessarily have to be on the substantive elements of what constitutes a tort crime, but it would have to be on something, in the case of Grand Traverse Band, it would have to be on the substantive elements of what is the fundamental value of Algonquians or Ottawas on how you lead a good life and what is the balance in life and the aim of life that you're supposed to be doing. And there is a set of concepts interrelated that are from the tradition of Ottawas and Ojibwes that define what is a good life and what is a bad life. And being sensitive to that in the position of judging disputes in which people are arguing over and sometimes explicitly, sometimes implicitly over those received values, is important to resolving issues that come before the court."

Ian Record:

"I want to turn back to Grand Traverse Band and the strength and independence that you and others have worked so hard to instill within that justice system that you currently operate. What do you feel -- based on the Grand Traverse experience -- that tribal justice systems need to have in place in order to be strong and independent?"

John Petoskey:

"I know the appropriate answer would probably be an institutional structure that non-Indians are familiar with, but the realistic answer, if you...is you need people that are really bright and focused and from that tradition and that are committed to that tradition. They are people that are...that grew up in the tradition, that bring the intelligence of the tradition to the position and that are committed to that tradition, that is an answer that is sort of off-center, but you need an Indian jurisprudence of values that reflect the community that you're from and the way that those values evolve are from growing up in that community, and that's an ongoing constant process. There's no one set of values that control the evolution of the community. In my own life for example and my wife's life, our parents had a totally different experience from what it was to be Indian in the...they were both born in 1915 and grew up in a period from 1915, died in the "˜80s, their life experience was fundamentally different and their grandparents or their parent's life experience was fundamentally different and they were born in the 1870s and you stretch back. This may be a little far afield, but if you stretch back to my grandparents, who were in the 1870s, and you stretch to my children now who were born in the 1990s, you have 120 years of change that is constantly taking place, but all of them have the same common denominator of coming from the same group of people and going through that change together."

Ian Record:

"So basically what you're saying is that the folks that lead that justice system, if you will, need to be culturally grounded, right?"

John Petoskey:

"Yes."

Ian Record:

"They need to have roots in the community that are not sort of put down overnight, but come from long, sustained involvement in the community, whether it's residence or participation in cultural ceremonies, etc. But just to sort of throw out a scenario to you, so presume for a second that you have all that on the judicial side of the equation and then there's somebody, in your case the executive-legislative side of governance equation that doesn't...is not acting from those values, if you will, and places perhaps unhealthy pressure on the judiciary to act in a certain way, to sort of test that strength and independence of the judicial system. What sort of mechanisms are in place to -- at Grand Traverse -- to ensure the insulation of the judiciary from that sort of unhealthy interference and ensure that it can in fact enact the cultural values, it can actually judge cases based on their merits and mete out justice in a fair and a consistent fashion?"

John Petoskey:

"Well, this is not something that is in place in terms of institutions, but on the executive-legislature side, there are seven councilors and the councilors don't always agree with each other, but they're all from the community and they all have...they all bring their common experience from the community to their positions on the council and they disagree amongst themselves and they recognize that some of those disagreements have to be resolved by the judiciary. And if Councilor A has a position against Councilor B and Councilor A is going to try to influence the judiciary to impermissibly or in some manner that is not straightforward in the procedural process, then Councilor B is going to object to that and Councilor B is going to then use Councilor B's authority within the context of the executive-legislative branch to bring that objection forward. And so it is a self-policing method of checks and balances, of different policy positions on the combined executive-legislative council. And so in that sense, even though the value is consensus of trying to get to a consensus and once the council does arrive at a consensus, it generally goes forward from that position. Arriving at that consensus involves very heated arguments between the individual councilors as to what is the appropriate course of action and if that heated argument or those differences manifest themselves in a dispute in the judiciary then Councilor A's attempt to determine the outcome in the judiciary is going to violate the rights of Councilor B and Councilor B is not going to acquiesce to that and is going to take action against A in the context of the executive-legislative process. That's realistically the way that works. I don't know if you formalize that process in some other method."

Ian Record:

"I guess what about for instance if it's not...if it doesn't involve a difference of opinion with two council members, but say, for instance, I'm a citizen and I feel that for whatever reason that the case before the court needs to be decided in my favor and I call up one of these councilors and say, "˜You need to do what I ask and I voted for you,' kind of thing and this may not be something you're familiar with because it doesn't sound like this is a common occurrence at Grand Traverse. Unfortunately this is a common occurrence in a lot of other tribes that we've worked with. I guess is it sort of values and sort of community norms that prevents a lot of that from taking place or is there something formal within the constitutional framework that Grand Traverse has developed that prevents that sort of thing?"

John Petoskey:

"Within the constitutional framework the judiciary is independent. That's a categorical statement. The hypothetical that you posited has occurred and I am familiar with cases in which tribal members have called up councilors and say, "˜I don't agree with this court's decision because it's wrong,' and the councilors have come back to the council and said, "˜Judge is wrong in this basis, what should we do?' and other councilors say, "˜Well, it's a independent judiciary,' and you get back into the methodology that I was talking about earlier where A and B are arguing over the proper policy. We're lucky in one sense that one of our councilors is a former chief judge on our court and chief judge on other courts in Michigan. So that particular councilor is...has been in the shoes of a judiciary and has been involved in inter-branch fights between the judiciary and the executive-legislature. But we have not had extreme cases at Grand Traverse Band. I can...I don't want to...there have been cases in Michigan in which one where the executive branch and the judicial branch got into such an extreme dispute that the judicial branch ordered the arrest and incarceration of the executive branch, and typically it's the other way around. All of the hypotheticals that you've been positing involve the executive pressuring the judiciary, but in this particular case it was the judiciary that ordered the arrest of the executive over an election dispute where the holdover council was not vacating office and the executive branch was actually arrested and then the petition for habeas corpus was filed in federal district court to release the executive branch, that the judicial order was invalid. So it goes both ways I'm saying."

Ian Record:

"It sounds like at Grand Traverse there's a controlling dynamic within the executive-legislative function where if there is an individual council member who's being pressured by a constituent to interfere in the judicial function that the other council members remind that individual on the council of their role, what their role is and what their role is not. Speaking more broadly, what do you feel is the role of elected leadership in supporting the strength and independence and supporting the growth of justice systems, because for instance at Grand Traverse, your justice system has grown by leaps and bounds over the past 20 years and won an award from Honoring Nations for the incredible work it's been doing and not just building a strong and independent court system, but also making sure that that system is culturally appropriate and reflecting and enacting the values of the people. What do you feel the role of leaders are in supporting the justice function?"

John Petoskey:

"At Grand Traverse Band or in general?"

Ian Record:

"Just in general I think."

John Petoskey:

"Well, my response would be if you look at other systems -- the federal system, the state system -- there have always been disputes over the scope of judicial power in the...in federal court, in federal jurisdiction, what is the appropriate scope of federal jurisdictional power and what is the scope of its ability to resolve disputes. Justice Breyer makes a big point of this if you look at the election dispute between Bush v. Gore, it was a decision that was by the Supreme Court that was widely recognized as invalid in terms of its substantive analysis of the law, but nevertheless the whole country said, once the decision came out, "˜Well, game over,' because there's a strong judicial system and once the decision was rendered, good, bad or indifferent, that's it. Everybody folded their respective tents and went home and George Bush became president when he probably should not have been president on the substantive law basis, but a wrong decision on the merits is still a final decision and the parties respect that. And so you would hope that tribal court systems would evolve to that level of behavior where people would see that finality even for a bad decision. Of course Bush probably didn't think it was a bad decision, but they would evolve to that level of behavior that even for a bad decision, it's the final decision and you go forward. Nobody brought out the Army or guns or anything to enforce Bush v. Gore. The only thing that was done was Scalia saying, "˜Well, this case shouldn't be cited for any other precedent, just for the unique circumstances in George Bush as president.'

And the other cases, Justice Stephens and the other Justices, Stephens in particular, forcefully argued that it was a sad day for the judiciary, but they were arguing on the merits of what the decision was. Nobody was saying, "˜Well, are people going to abide by this? Are they going to follow this decision?' and ultimately that didn't even come up. The values were so engrained that everybody just followed that decision, but that was a hard-fought value because you go back to Brown v. Board of Education. When that came out, you had George Wallace standing at the entrance of a public university screaming, "˜Segregation now! Segregation forever!' saying, "˜I will not move and allow black people into this university,' and tremendous fights, killings, murders, just tremendous pain and suffering for the implementation of the Civil Rights decisions. So when you look at Indian Country, Indian Country is not something that is any different because we're all humans trying to resolve complex disputes and we're using different methodologies to resolve those disputes."

Ian Record:

"And I think it would be important for folks to keep in mind that while a lot of these justice systems are working...tribal justice systems are working to integrate, enact longstanding cultural values, the systems themselves are relatively new in many cases in that these were justice systems that were established in the "˜50s, "˜60s, "˜70s, "˜80s many of them, and it takes a long time in many of those communities for those systems to gain the legitimacy that you're talking about. Your colleague Frank Pommersheim, I had opportunity to interview him and he made the exact same point that the true test of a strong independent judiciary is, 'Do people respect the decision even though they disagree with it, particularly elected leadership?'"

John Petoskey:

"Yes."

Ian Record:

"That's the true test. They may not like the decision, they may not like the outcome but they're not going to blow the place up over the fact that they disagree with it."

John Petoskey:

"Right. That is a good test. And that...and nobody arrives at that without some pain and suffering, and that's why I brought out Brown v. Board of Education. Here you had the Supreme Court saying, "˜Segregation in education is constitutionally impermissible,' and you certainly had southern states saying, "˜It is not and we're not going to allow the decision to be implemented. Impeach Earl Warren.'"

Ian Record:

"So one of the things that in terms of how Native nations and governments and the other branches or functions of government can support tribal judiciaries...one of the things you and I were talking about yesterday was this issue of funding and what we've often heard tribal judges lament about is the fact that, "˜In our tribe the elected leadership treat us like we're just another department when really we serve a fundamental function of any society, which is to resolve disputes, which is to in many instances serve as a check on the abuse of power, the abuse of authority by the other functions of government. How important is it for leaders of nations...of tribal nations to have that mindset that the judicial system is more than just another department of government and fund it accordingly and really place an emphasis on putting the judicial system sort of at the top when it comes to allocating budgetary resources for instance?"

John Petoskey:

"Well, obviously my point is that judicial systems should be funded and the de-funding of judicial systems for political purposes should be categorically impermissible, because today's decision may be something that you support but tomorrow's decision may be something that you oppose and so the funding of judicial decisions based upon past precedent of the courts or decisions that they made shouldn't be in the equation of how you fund the judicial system. The conversation that we had was that I haven't seen any information on the relationship of how you...what the ratio is of the federal government's funding of its judicial system over its total budget, and I'm sure it could be easy to figure out, but I just haven't seen that in print someplace. At Grand Traverse Band, we have a revenue allocation ordinance and we did set up a system of funding the judicial system by a percentage of our income, our net income that we receive from various enterprises, largely gaming. At the time that we passed the RAO [revenue allocation ordinance] it was, I forget the exact number, but it was something like four percent or seven percent is going to go to the judicial system. And just through circumstances of gaming, like a lot of tribes over the last 20 years, the net income of gaming has risen dramatically like a jet taking off into the stratosphere. Those are numbers out there that everybody is family with. So we had this RAO number of four to seven percent that the judicial system received as a direct level of funding that was not to be...it was enacted by the statute and so once our enterprises took off, the amount of money that the judicial system was receiving was extraordinary. It got very high very quickly and because our enterprises were successful."

Ian Record:

"But I would imagine that as your enterprise got successful you're engaged in more commercial dealings, there's more disputes, there's the case load of the court system grows."

John Petoskey:

"Yes, yes, there is that argument, but my point is I haven't seen any good research on how you arrive at the appropriate level of funding for a judicial system. You do have the method of GPRA, of performance-based funding for projected future funding on outcomes with present resources and that's how you do programmatic funding for activities and then you have federal funding where federal priorities come into smaller communities and those are competitive grants that we look at and then you have what are called the self-governance BIA [Bureau of Indian Affairs], AFA, annual funding agreements through self-governance taking over certain sections of what is known as the 'green book,' which is the budget book of the Department of Interior for funding and they have a number of formulas that are in that book based on the appropriate level of funding for different activities that the BIA is engaged in in administering an Indian reservation and just in a thumbnail in self governance is a tribe has shown that it can administer those programs just as well as the BIA through no audit exceptions, therefore they get control of that line item in the green book to administer the program or to reallocate to any other function. My point that I was getting to is that I don't see the formula for tribal court funding. Clearly funding should not be a political animal in terms of past decisions or future decisions, but there should be some formula methodology to determine what the appropriate level of funding is."

Ian Record:

"So Grand Traverse, by all accounts, has operated this strong and independent court system for quite a while that it consistently and fairly dispenses justice. What sort of messages do you feel that that sends to outsiders that interact with Grand Traverse in terms of how it does business, how it governs? Do you feel that there's been a positive ripple effect of the way that Grand Traverse dispenses justice that supersedes the reservation boundaries?"

John Petoskey:

"Well, yes. These sound like leading softball questions, but yes. Some of the things that we do at Grand Traverse is what other tribes do and some tribes do it much better than we do. I haven't looked at their site recently, but I know Ho Chunk had a very good site on their judicial opinions and we try to model our site on our judicial opinions. We set up all of our opinions into VersusLaw and into WesLaw and so they're categorized into the WesKey number system. They're available... we try to make them available... before the internet came online we did create a... all of our opinions available in the local law libraries when everybody was using hard copies to do research. We made arrangements with the county law libraries that they would have copies of our code, that they would have copies of all of our opinions that were issued. And then several years ago, it hasn't been updated, but Matthew Fletcher, who a lot of people know in the Indian law world, is a member of Grand Traverse Band and used to work at Grand Traverse Band as an attorney, assistant general counsel for about four years, and after he left he wrote a restatement of Grand Traverse Band's common law based upon all of the opinions published up until that point. And so we direct people to that on a regular basis to tell them, "˜This is the restatement of the common law as of X date. It hasn't been updated, but these are the opinions on a chronological basis that you can find that are available.' Our statutes are published online. We do have a qualified, when I say qualified, it's not as detailed as the Administrative Procedures Act, but we do have a process of legislative enactment in which we publish proposed bills for comment by our tribal members and before enactment and comments come in and the tribal council reacts to those comments either accepting or rejecting, and making appropriate decisions based on the comments and some bills as a result of that comment process have taken a long time to get through to enactment because some of the issues are extremely contentious internally with the tribe over the appropriate standard that the bill is implementing on the standard of behavior.

So I think the common denominator of what I just said is transparency throughout the whole process. Transparency throughout the judicial process in terms of the court publishing its opinions, making them widely available to individuals, the transparency of legislative acts being widely apparent to individuals. Grand Traverse Band is now going for its executive-legislative function to publish their proceedings online so that people who are tribal members...and this is an open question on whether non-members would be able to access it, but clearly tribal members would be able to, citizen members would be able to access council meetings to review what took place in the meeting and the process and procedures that were utilized in the meetings. There's discussions right now of doing the same thing for court proceedings that... of tribal court TV, if you will, to make transparency as the same value. So I think the value of transparency is something that is accepted by the majority of the participants in the political process and that has enormous benefits in a cultural norm of checks and balances, if you will, because everybody knows that everything is subject to review and all arguments are...can be developed after the fact, too, because you can look at something or you can be involved in this conversation that we're having right now, it's being recorded and later on I may be sitting at home thinking, "˜God, I should have said that or I should have said this,' and other people will have that same reaction."

Ian Record:

"Doesn't it all boil down to, when it comes down to transparency and the different ways that Grand Traverse is seeking to achieve that, is people who interface with the government, whether it's citizens of the Band or outsiders who may be dealing with the tribe commercially or may live within the community on allotment land or whatever it might be, that they understand not only the decisions that have been made, they're aware of the decisions that are being contemplated, but most importantly they're...they understand the rationale underlying the decision-making process. What is the common law that's driving this or what are the values that's driving this? Is that really at the crux of the whole thing?"

John Petoskey:

"The crux of the whole thing is not to have an indeterminate process; it's to have a determinate process that participants can enter the process at various points and figure out what happened, why it happened, what the future decision is going to be, what the arguments for and against it can be and an indeterminate process, what I see is a situation where the participants and the people who have to suffer the consequences of the decision don't know why something happened or what's going to happen in the future because there's no agreed upon procedure statutorily or there's no agreed upon cultural norm of transparency. And so it makes for an indeterminate future and an indeterminate past because the rationale for some of the decisions in the past were arbitrary, and these are words that are used in administrative law, but are arbitrary and capricious and they're not subject to analysis because they're indeterminate. And so I think the value that Grand Traverse Band is trying to achieve is a process of determinate decision making in its executive-legislative and judicial process, where participants in the process and the people who are subject to the process either as citizens or non-citizens can understand what occurred, why it occurred, and what will occur in the future."

Ian Record:

"So I wanted to wrap up with a few questions that get into a little bit more detail about Grand Traverse Band's approach to jurisprudence. We've been touching again and again on this issue of cultural values, common law, common tribal law and I'm curious, several years ago the Grand Traverse Band formally integrated the peacemaking approach to dispute resolution into its justice system. Can you talk about how that came about, what was the impetus, what does it look like, how does it work?"

John Petoskey:

"Well, the value of the peacemaking court...first of all, I want to acknowledge that Navajo Nation started with peacemaking court and I'm not familiar with the full scope of that, but I know that they had a peacemaking court long before other tribes did and brought in their values and cultural tradition to the resolutions of disputes that were involved on family relations. And at that time, our chief judge, his name is Mike Petoskey, he's not my brother, we're often confused because we're close in age and look alike. He is my first cousin. He was our tribal judge and had been our tribal chief judge for about 15 years and he was familiar with a lot of Navajo judges because he went to law school at the University of New Mexico and he had a common experience with some of these judges based upon their military experience in Vietnam and similar life experience even though these people were from the interior of Navajo, Lukachukai. So it was Ray Austin that he was a good friend with. I think Ray has published a book on the Navajo judicial systems. And Mike and Ray had been friends for many years, well, going to law school and had a common denominator even though they were widely geographically dispersed and culturally dispersed, one being Ottawa and one being Navajo. And so Mike was dealing with the types of problems that come up in Indian communities that are families-in-crisis problems and part of the way of resolving those problems in the non-Indian society under child abuse and neglect and families in need of supervision under the state model, if you look at their codes, are very destructive to the individual family unit because the resolution is, "˜This is not going to work so we're going to terminate the parental rights. We want to take the child away. We're going to sanction the parent and the family is dispersed.' I'm not saying that across the board, but that is one model that the family law in non-Indian society uses to resolve families in crisis and that may work if you have a larger group that you're...of people that you're dealing with and larger resources. But the tribe didn't have the larger resources and the group that it's dealing with is a common core of people that are related to each other across time and terminating and dispersing the family is not something that is...that the tribe wants to do, because a lot of the historical experience of the tribal members is suffering the state system of termination and dispersal of the family and then slowly finding your way back to the community. And so an alternative is to try to fix the destructive family patterns that exist within the family in question or whatever family it is. I don't have any family in question, I'm just saying this is how or what the situations that came up and the way to do that is to bring in other members of the extended family into a whole process of saying, "˜Well, what is the problem and why are you behaving in this manner that creates destructive consequences for your children or destructive consequences for your husband or wife or for your mother or father or for your aunts and uncles?' The behavior of one individual has a ripple effect like the stone in the pond that goes out into the whole community. And so the concept of peacemaking is to recognize that and to bring all of the people in the pond, if you will, that feel that ripple effect into the process to resolve that stone and to engage in dialogue, and there is a value within the Ottawa and Ojibwe tradition that all of our inter-family relationships are really community-based relationships and extend out to everybody and that a resolution of those community-based relationships of necessity involves all of these people that it extends out to because your actions today do not just impact your nuclear family, your husband, wife, mother, daughter. They also impact your aunts, uncles, brothers, sisters, grandparents, and so bringing that whole group together or the principles within that group to work on the solution for that behavior is better than viewing it as a nuclear unit of a family, husband, wife, children and that's it and that as the scope of what the community was that had to be fixed. And the peacemaking court was to say, if you look at the larger community which everybody is impacted by this behavior and you try to bring the larger community into that process with the individual that is misbehaving, if you will, and saying, "˜This is what your behavior is causing to the whole community and we are here to help you to resolve that behavior,' and to bring the person back into the community by explaining what the impacts of their behavior has on the whole community. That's the fundamental concept. There's a long Indian word that I can't pronounce that my wife [Eva Petoskey] can, and so you might bring that up with her, and she has a better grasp of the language than I do."

Ian Record:

"So how in your estimation has it worked out so far, the use of peacemaking for Grand Traverse?"

John Petoskey:

"It's worked out well because it...there are a lot of people in Indian Country that are in pain and suffering for a variety of...this is sort of a leftist orientation, but of historical trauma, of what your parents and grandparents went through and so that has an impact on your present life and when I was talking about just looking at my own life, I'm 61 years old and I can look back to see my grandparents who I knew were born in the 1870s and there's been tremendous change from where my children are right now who were born in the 1990s and are in graduate school in college and going through different changes of their own, but we're all connected to this one place and we're all from this one place and we all grew up there. But the change is constant and for Grand Traverse Band since 1980 in the scale of things change has been positive for the community. The community has reasserted its traditions and reasserted its control over its community and when it lost its control over its community it lost control over its traditions because we weren't directing our lives, we were being directed by other people and so directing our lives even if it's in an impaired and fractured community is a process of healing that community and so that peacemaking court in the method that I just described is a process of resolving a lot of disputes that are very, very difficult and very difficult to resolve and that take a lot of time. It's not ever going to be perfect and it's not ever going to be over, it's always going to change."

Ian Record:

"As a final question, what I'm struck by in hearing you and others talk about the peacemaking approach is that often the western adversarial system, which is focused on punitive measures tends to focus on the symptom, which is the misbehavior whereas, peacemaking really seeks to get at the root cause of what's driving this behavior and sort of...and attacking that root cause to prevent that from happening again rather than punishing someone for what has already happened. Is that basically how it works?"

John Petoskey:

"I would say yes, but again I would say my wife has a better handle on that, but it's bringing in the community and the impacts on the community and saying to the individual, "˜You should have empathy and compassion for the acts that you're doing and the impacts on people that you have relationships with, long-term relationships with.' Sometimes they're loving relationships, sometimes they're not loving relationships, they're stressful relationships, but the point is everybody has a consequence for their behavior and those consequences are felt by the whole community and it's trying to say to the individual, "˜Your behavior affects the whole community and the whole community is here to try to tell you that to change your behavior so those consequences don't impact us,' because they do."

Ian Record:

"Well, John, we really appreciate you agreeing to serve as a fellow with the Native Nations Institute and agreeing to sit down with us today and sharing your thoughts, experience and wisdom with us. And this is part one of a two-part interview. We'll be interviewing you again this week in more detail about some of the work you've done in terms of developing Grand Traverse's legal infrastructure and I'd like to thank you for your time today. And that's all the time we have on today's program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute's website at nni.arizona.edu. Thank you for joining us. Copyright 2013 Arizona Board of Regents."

From the Rebuilding Native Nations Course Series: "The Importance of Cultural Match"

Producer
Native Nations Institute
Year

Dr. Manley Begay provides an overview of cultural match, which the Native Nations Institute and the Harvard Project have identified as one of the five keys to successful Native nation building.

Native Nations
Citation

Begay, Jr., Manley A. "Introduction to Native Nation Building." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. 2011. Lecture.

"Cultural match, really interesting piece of the research that took place. To be effective, governing institutions must have legitimacy with the people. In other words, the people have to think and believe in the government that this is the way that Ysleta Pueblo operates; this is the way we have always done it; this is the way Laguna operates their government; this is the way Navajos really do it -- this is the Navajo way; this is the Blackfoot way; this is the O'odham way. There is this perception, there is this belief that this is the way we do it, so that sort of sends the message that the government is legitimate in the eyes of the people. It is a reflection on who they are as a people.

They have to match Indigenous ideas about how authority should be organized and exercised in the contemporary sense. Look at the third and fourth bullet points: in the contemporary sense. You go to Flathead reservation where there are three tribes -- Pend d'Orielle, Salish, and Kootenai -- and if you are thinking about putting together an Indigenous idea about authority at Flathead, whose culture do you follow? One of three? All of the three? Two of the three? How do you do it? So it has to be in the contemporary sense because we've changed in a lot of different ways, and our kids have changed as well, and they are going to change even more so. So how do we think about it in a contemporary cultural setting? Places where traditional culture is still very strong -- like at Cochiti Pueblo, or like at Jemez, and a lot of the Pueblos, and a lot of the other tribes. Like at Iroquois with the Onondaga, where the traditional culture is still very strong, they've incorporated that type of thinking into the government itself. At Navajo, where I come from, we have the fundamental law of Navajo incorporated into our judicial structure. Not necessarily in the legislative branch, or the executive branch, but clearly in the judicial branch. It's present there, so decisions that are rendered by the Supreme Court judges at Navajo are based on fundamental laws, customary law, custom law, traditional law, natural law. So it's based on our creation stories, it's based on how we think about the world. But if you don't have that present, you sort of basically have to re-invent yourself and think about: how do we think about it in a contemporary cultural sense?

The same with economic strategies -- the last bullet point there. Some tribes go [with] tribal enterprise economic systems where the tribe owns all the businesses, some tribes go [with] private entrepreneurship where they support individual entrepreneurs, some tribes have done both and those have cultural ramifications as well. How we think about the world determines what kind of economic strategy we choose, because if it is going to be legitimate, it gets the support of the people rather than tearing it down. So culture matters." 

Native Nation Building TV: "Introduction to Nation Building"

Producer
Native Nations Institute
Year

Guests Manley Begay and Stephen Cornell present the key research findings of the Native Nations Institute and the Harvard Project on American Indian Economic Development. They explain the five keys to successful community and economic development for Native nations (sovereignty or practical self-rule, effective institutions of self-governance, cultural match, strategic orientation, and leadership), and provide examples of Native nations that are rebuilding their nations. 

Mary Kim Titla: "Welcome to Native Nation Building. I'm your host Mary Kim Titla. Contemporary Native Nations face many daunting challenges including building effective governments, developing strong economies, solving difficult social problems and balancing cultural integrity and change. Native Nation Building explores these complex challenges and 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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Mary Kim Titla: "Today's program examines where, how and why nation building is currently taking place in Native communities throughout the United States and beyond, in particular the fundamental issues governing Native nations' efforts to restore their social sovereignty and economic vitality and shape their own futures. Here today to discuss these nation-building issues are Drs. Manley Begay and Stephen Cornell. Dr. Begay, a citizen of the Navajo Nation, is Director of the Native Nations Institute for Leadership, Management and Policy at the Udall Center for Studies in Public Policy at the University of Arizona, where he also serves as Senior Lecturer in the American Indian Studies Programs. Dr. Cornell is the Director of the Udall Center for Studies in Public Policy and a Professor of Sociology and Public Administration and Policy at the University of Arizona. For the past two decades, they both have worked extensively with Native Nations in a major research effort that seeks to identify the keys to solving the challenges to nation building. Welcome, gentleman, nice to have you here today."

Dr. Stephen Cornell: "Thanks for having us."

Mary Kim Titla: "First of all, what is nation building in practical terms?"

Dr. Stephen Cornell: "Nation building is really about how Indigenous nations in the U.S. and elsewhere can put together the tools they need to build the futures that they want. And by the tools they need, we really mean the tools of governance. These are nations in our experience with very ambitious goals, they face daunting challenges, they carry the legacies of colonialism, they are trying to overcome deficits in economic affairs, in health, in all kinds of areas. If they're going to do that, they need the governing tools that are adequate to that task and Nation building is about identifying those tools, putting them in place, being sure that they match Indigenous ideas and culture and putting them to work."

Mary Kim Titla: "Can you talk about some of the tools? Explain that."

Dr. Stephen Cornell: "Yeah. A lot of Indian nations here in the United States have governments that they did not design. That's not true of all of them, but a lot of tribal governments were designed basically by the U.S. Department of the Interior back in the 1930s. They aren't very sophisticated structures of government. Some of them have no provision for adequate court systems or ways to resolve disputes within the nation. Some of them have got unwieldy legislatures. Some of them don't have the kinds of procedures that you need if you're going to move vigorously and effectively to make good decisions, implement them, get things done. So we're talking about rethinking some of the those tools of government. What kinds of tribal courts or other dispute resolution mechanisms will serve Indigenous needs and interests? What kinds of governing structures will people believe in and support within the nation's own community? Are those structures adequate to what the nation is trying to do? So when we talk about tools, we're talking about the practical mechanisms that nation's use to organize how they go about trying to get stuff done."

Mary Kim Titla: "Dr. Begay, would you like to add to that?"

Dr. Manley Begay: "Sure. It seems from the work that we've been doing that nation building or nation rebuilding, as Steve mentioned, really began to occur with most Indian nations around 1975 when the Indian Self-Determination Act was ushered in, and since then a lot of Indian nations have begun to wrestle with rethinking their political systems, rethinking their economies and it's not unlike other nations that have gone through colonization and all of a sudden found themselves in the midst of freedom, if you will, very much like what occurred in Eastern Europe after the Soviet Union fell apart. Poland is wrestling with issues of constitutional reform, you had the European Union there, and Indian nations are in the same boat and a lot of other colonized society are wrestling with Nation building and rebuilding."

Mary Kim Titla: "Let's talk about the research. What prompted the Harvard Project and the Native Nations Institute to embark on the research?"

Dr. Stephen Cornell: "This kind of got us wondering what is it that makes some nations more successful than others, and in fact the data that we first looked at had to do in part with timber and with forestry. A lot of Indian nations have timber resources. Some of them seemed to be doing a better job of managing those resources than others and we got interested in why. And being professors, we thought maybe we knew the answers already -- typical of professors -- and so we thought, well, it'll be educational attainment or it'll be the Nations that have big natural resources will be doing well or the ones that have access to capital will be doing well. But we decided we'd better go look and we got a grant from the Ford Foundation to do some research. We spent a lot of time in the field getting stories of what was working, how did this enterprise succeed, how did this one fail, what else have you tried to do, what seems to be working here, what are the problems you're encountering. And the interesting sort of payoff to the research was it turned out that the critical elements were really political ones, that if you had your political house together, if you had some stability in the government, if you were successful in keeping political considerations out of enterprise management decisions or out of tribal court decisions -- if you could do some of those political things, then these sort of economic assets like good education or good natural resources or being close to a major market -- those would start to pay off. If you couldn't get the government house in order, then those assets tended to be wasted. So the result to the research was really to focus our attention on these political issues and the effect they were having on how these Nations did, whether or not they were able to achieve their goals."

Dr. Manley Begay: "And what was really interesting about the research findings initially was that we knew of no known cases of economic development, successful economic development, occurring without assertions of political sovereignty. And secondly, we also found that capable governing institutional development was a major piece of nation building. And thirdly, those institutions had to be culturally appropriate. And since then we've also found that Indian nations that are planning for the long haul if you will, a hundred years down the road -- what kind of society are we going to build, what do we perceive the society to look like 50 years from now --and those that have done that seem to be faring well or faring better than others that have not. Lastly, leadership is really critical. So these five components and research findings formed the basis for the work that we've been doing all along."

Mary Kim Titla: "Can you give us a snapshot of current Native nation-building efforts among indigenous peoples throughout the U.S. and Canada?"

Dr. Stephen Cornell: "Yeah, in fact there are a number of Nations across the U.S. right now that are engaged in constitutional processes. The Osage Nation in Oklahoma has just launched a major constitutional reform effort. The Crow Tribe of Montana, the Northern Cheyennes are involved in that. The San Carlos Apaches are engaged in governance reform or rethinking how they govern themselves. This is happening a good deal across the U.S. It's also happening in Canada where we see First Nations that are engaged in constitutional processes. Some of them are also engaged, especially in British Columbia, in treaty processes that involved working out new relationships with British Columbia and with Canada and that process also involves rethinking governance. So we see a lot of constitutional stuff happening there. We see some developments in tribal courts. The Mohawk Council of Akwesasne, which straddles the Ontario/New York boundary, are engaged right now in trying to rebuild their justice system. They of course face some interesting justice problems because of that boundary, because they're a nation that operates in two different jurisdictions and then they have their own jurisdiction. It's a complicated situation. They're trying to develop a court and justice system that's adequate to that set of challenges. We see a number of nations like the Ho-Chunk, the Winnebago Tribe of Nebraska, have started a corporation called Ho-Chunk Inc., which has been a very successful enterprise reducing unemployment there. They put a lot of thought into, how do you set up this enterprise so that it has a good chance of succeeding?"

Dr. Manley Begay: "And up in Canada there's the Membertou First Nation on the east side of Canada that's actually wrestled with figuring out how to develop a capable governing institution and they did that through what's called the ISO [International Organization for Standardization], sort of international standards set-up, and then also the Siksika Blackfoot Nation in Alberta have also really moved forward in thinking about nation building and is actually doing relatively well. Lac La Ronge as well. They're finding some success in promoting their wild rice not only in Canada and the United States but also overseas as well. So there are a number of stories of First Nations and bands up in Canada, tribes in the United States that have gone the extra effort to figure out how to build nations that work, and obviously one of the major success stories is the Mississippi Choctaw. And they did that without gaming. Initially they set up good governing institutions, they asserted sovereignty, really thought through how to develop a culturally appropriate political system and actually we refer to them as the Singapore of Indian Country. They did that without gaming. Only later on did they get into gaming and every day you'll see upwards of 7,000 black and white workers going on to Nation land to work. As a result, they've become the major political and economic powerhouse in the southeast and they've done that through nation building."

Mary Kim Titla: "And I've been there to Mississippi Choctaw and I've seen what they've done. It's really great with [Chief] Phillip Martin and other tribal leaders. I imagine that they must face many obstacles and of course those obstacles can get in the way of objectives. Can you talk about some of the obstacles that some of these Nations are facing?"

Dr. Stephen Cornell: "Boy, I think one of the obstacles that -- in fact I was just last week in Canada and talking with a First Nations leader and he said, 'You know, a lot of my people have been, we've learned over time to be dependent on Canada and to be dependent on federal agencies in Canada, and part of the work that we face as First Nations leaders,' he said, 'is trying to change that mind frame, trying to get into a mind frame that says, 'We can change this, we can take responsibility for what happens here.'' There's a -- Manley just mentioned the Siksika Nation of Blackfoot in Alberta. Chief Strater Crow Foot, whose the chief of that nation, he spoke at a session that Manley and I were both at not long ago and he said, 'We're trying to replace the victim attitude with a victor attitude.' He said, 'The victim attitude keeps you sitting still, the victor attitude gets you moving.' And he said, 'In my nation, that's one of our primary tasks as leaders is to change that attitude, a feeling that if we're really going to have an impact we've got to alter the way people look at the world around them, the way they think about what's possible.' So that's certainly one of the obstacles. Another obstacle, and Manley touched on this, is simply that sovereignty obstacle. It's getting the jurisdictional power to make decisions for yourself. That's something which Indian nations in the U.S., they've had a lot of jurisdictional power. It gets chipped away at by the U.S. Supreme Court, it's often under attack in the states and in Congress. Luckily, so far, much of it is surviving. In Canada, First Nations are struggling to achieve the level of sovereignty Indian Nations in the U.S. have, but that's an obstacle. If someone else is making the decisions for you, you're not likely to go much of anywhere. It's their decisions, the program represents their interests. Shifting real decision-making power into Indigenous hands is a critical piece of nation building. These nations have to be rebuilt by Indigenous people, not by decisions made in Washington or Ottawa or someplace like that. So I think the other big obstacle is that sovereignty piece. You've got to have the power to make things happen."

Mary Kim Titla: "We've talked about obstacles. Let's talk about assets. What are some of the greatest nation-building assets?"

Dr. Manley Begay: "Leadership is an asset. However, it's only an asset if you can couple that with developing good capable institutions, and if you set in place the rule of law and policies and codes and constitutions. That goes a long way. You can wait for a good leader to come around, and it takes 20 years to get a good leader, but you can't always be sure that the leader was going to be good. However, if you put in place policy, rules and regulations, you can always trust those rules, and enforcing those rules becomes part of nation building, and it seems to me that that's an asset that we see, the creativeness, the innovativeness of Indian people to really wrestle with figuring out how to do this, and to do it in a culturally appropriate fashion is an asset. And it's not something that's new."

Dr. Stephen Cornell: "The other thing we have to recognize as an asset is Indigenous cultures themselves, and sometimes people who think about how Indigenous culture is an asset think of it mainly in terms of stuff you can sell -- arts and crafts or something like that -- and that's an important way to think about it. We tend to think about it, though, in terms of what can we learn from Indigenous cultures about appropriate organization, so that the government that works at Navajo is not necessarily going to be the same as the government that works at Osage, because they are different nations with different heritages, different cultures, and part of the challenge of nation building is figuring out what set of institutions in fact resonate with what people here believe about how authority should be exercised, about how we should pursue goals. We've worked with some of the Pueblos in New Mexico where you have governing institutions that are very traditional. There are no elections, there are no legal codes, no written constitutions. The governing institutions are deeply rooted either in Pueblo tradition or in several hundred years of working under Pueblo influences, Spanish influences and other things. They've been borne out of Pueblo experience. You go up to the Flatheads in Montana, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, and you'll see a tribal government that looks very different. It looks, as our colleague Joe Kalt likes to say, 'It looks like it came out of my high school civics textbook.' Well, you've got three nations on that reservation and those nations have had to find a way to govern themselves that they all can support so it doesn't look very traditional. There are three traditions there, they might be in conflict with each other. So they've had to find a set of institutions that work for them. But that link to Indigenous cultures, that ability to tap into the fact that these nations long ago solved tough human problems and maybe the ways they solved some of those problems still work today. Let's tap into that. At Navajo, their court system, their justice system today combines western jurisprudence with longstanding Navajo ways of dealing with disharmony or conflict and that makes them an extraordinarily effective court system that no outsider could have invented. It had to be generated by Navajo people."

Mary Kim Titla: "Can we talk about more of the research and the five major keys to successful community and economic development among Nations?"

Dr. Stephen Cornell: "The first finding that came out of this research really was the sovereignty finding, the fact that Indigenous nations themselves have to be in the driver's seat if things are going to happen. So there's a kind of a power issue there. Where is the power? And from a research point of view, it just underlined something that Manley touched on earlier, that we haven't been able to find a case across Indian Country of sustained, self-determined economic development where someone other than the Indigenous nation was calling the shots. So that turns out to be a necessary piece of the puzzle. The second piece that came in on the research findings was that, yeah, but that's not enough in and of itself. You've got to back it up with the kinds of governing institutions that Manley has been talking about. They've got to be capable of dealing with contemporary challenges. They've got to be stable. They've got to control, keep politics in its place. They've got to assure people that if I have a claim, a dispute with the nation, it'll be dealt with fairly. Part of the challenge for Indigenous leaders today is, how do we hang onto our talented, energetic young people with ideas? If I've got a family to support, will I pursue supporting that family at home on the rez or will I move to L.A. or Minneapolis or something like that? For tribal leaders, how do we create an environment that says, 'You can do it right here, we'll make it possible, we'll keep you'? That means a governing situation in which it doesn't matter who my family is, who I voted for, I'll get a fair shake. So that second finding was about capable governing institutions. The third was this thing we've just been talking a bit about of the cultural match piece of making sure those institutions really have the support of the people, that people believe this is our government, not an import from somebody else -- this is ours. And then these last two pieces that Manley talked about, the strategic thinking that gets people to make decisions on what's on our agenda today in terms of what matters in the long run and what does that mean for how we decide this today. And then that piece of leadership."

Dr. Manley Begay: "Yeah, to give you an example, back to Mississippi Choctaw. Initially a big portion of the population of the Choctaws were moved to Indian Territory in Oklahoma on the Trail of Tears, so you essentially had this society that was uprooted back in the 1830s and only small groups stayed in Mississippi. But they held onto the land, they held on to who they were as Choctaws. And as time went on they went through the termination period, they went through...and here comes the Indian Self-Determination Act and they essentially wrestled jurisdiction and power and control from the feds as well as state government and began to pursue a long-term plan, and Chief Phillip Martin was sort of the main impetus for assertions of sovereignty back then. And once they wrestled a significant amount of decision-making power from the federal government and also from the State [of Mississippi], they began to think through, how do we develop a capable governing institution? And they did that basically by necessity because before they could attract manufacturing companies to the nation, they had to think about a commercial code, they had to think about appropriate policy rules and regulations, laws being put in place, a good court system, separating business from politics, and so forth so that the investor could feel safe in investing on nation land. And then the cultural match piece came in. Historically, Mississippi Choctaws really had the strong chief executive-type of political structure, but they also had a strong court system. They had a separation of powers and checks and balances set up, which allowed for them to plan well. So a lot of this was planned out years and years ago. A lot of the success Mississippi Choctaws are having now was planned 50 years ago, and so today you essentially have a zero percent unemployment rate, you have to import labor and so forth, so the strategic thinking piece came into play. And then you have good leadership, you essentially have really good leadership. So all of the ingredients to successful nation building seems to be present at Mississippi Choctaw. But we've seen it at Fort McDowell, we've seen it at Siksika, we've seen it at all of these places that we've mentioned that have built nations that seem to be working well."

Mary Kim Titla: "We do want to talk about more of those positive stories, those models if you want to call them that. I like Mississippi Choctaw, so I'm glad that you touched on that. Are there some other examples out there that you'd like to add?"

Dr. Stephen Cornell: "Well, one that we're particularly fond of is the Citizen Potawatomi story from Oklahoma. The Citizen Potawatomi Nation back in the 1970s -- this today is a very large nation, I think its population is well over 20,000 people -- but in the 1970s they had very little land that they controlled, less than 100 acres, they had hardly any money in the bank, life was tough, [the] situation was grim. Today the Citizen Potawatomi Nation owns the First National Bank of Shawnee, Oklahoma. Today they own the supermarket in Shawnee, where they sell beef grown in their own cattle herd and vegetables grown on their own farm. They've basically got a vertically-integrated food business going. They own some of the media outlets in town. And when you talk to "Rocky" Barrett, who is the current chairman of the Nation, he says, 'Well, you know, it's really an institutions story.' And I remember the first time I heard him tell the story of the Citizen  Potawatomi Nation at a conference in Oklahoma, and afterwards I talked to him and I said, 'You know, you really tell a nation-building story about governing institutions.' And his response was, 'Oh, yeah, if you're not thinking about constitutional reform, you're not in the economic development ballgame, because what you've got to do is get that political house together and then you'll be able to create the kind of economic success.' So we look at Citizen  Potawatomi, a remarkable turnaround from the mid 1970s to the start of the 21st century in that nation's fortunes. Some nations, there are these success stories out there, and some of them are about pieces of nations and we've been fortunate -- in doing this work on nation building -- you come across nations that are doing extraordinary things that you don't hear about. I think often what we hear about are the problems in Indian Country. But some of the...we've talked about the Navajo Nation court system, which is one of these striking successes. The Columbia River Inter-Tribal Fish Commission, another example of nations coming together and solving a difficult problem creatively and effectively. At Fond du Lac, they've got a foster care program that has solved a major problem they had with the placement of tribal kids in non-Native homes. They've come up with a way to deal with that problem. It's effective, it works. These kinds of stories are all over the place out there and in one way or another they are nation-building stories."

Mary Kim Titla: "And then trying to train the young Native leaders, I think the Gila River Indian Community has done an excellent job of that with their youth council and really they're a model for a lot of tribes around the country. Anything you'd like to add?"

Dr. Manley Begay: "The Cochiti Pueblo is another Indian nation that sort of has built these very successful economic ventures. At one point in time, Cochiti, a significant part of Cochiti, was actually under water when a dam was built, and very little seemed to be in the works for how to get out of the situation that they were in. And lo and behold they essentially began to assert a certain amount of jurisdiction and a certain amount of power and authority, and today you find a tremendous amount of success at Cochiti. They've developed one of the top 100 public golf courses in the United States. They have a retirement community where Harry and Martha from Ohio go to retire. And it's a very interesting turnaround. Here a very traditional society is doing relatively well in pursuing certain economic development projects and they've done it with, as we said earlier, first pursuing jurisdiction and decision-making power and authority, and it really resonates to non-Indian society. Often non-Indian society [has] a hard time grasping political sovereignty. The thought is, 'Well, we've got to take political sovereignty away from Indian Country and then we need to tell them what to do essentially.' However, it seems as though that it's in the best interest of non-Indian society to support political sovereignty, because in the long run when economic development takes place in Indian Country, it affects nearby communities, it affects the region and in turn it affects the nation as a whole. So it has this domino effect. So it really is important for non-Indian communities, also governments, to support political sovereignty."

Mary Kim Titla: "Well, I want to thank the both of you. We've talked about a lot of things today, about some of the positive stories that are out there, some of the obstacles that Native tribes are facing and I must say that they've dealt with adversity very well and they have a history of dealing with that. I see a bright future, so thank you for what you're doing. We'd like to thank Dr. Begay and Dr. Cornell 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 nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."

Native Nation Building TV: "Why the Rule of Law and Tribal Justice Systems Matter"

Producer
Native Nations Institute
Year

Guests Robert A. Williams, Jr. and Robert Yazzie discuss the importance of having sound rules of law and justice systems, and examine their implications for effective governance and sustainable economic development. They explore these issues and their role in creating a productive environment that encourages investment of all types from Native and non-Native citizens.

Native Nations
Citation

Native Nations Institute. "Why the Rule of Law and Tribal Justice Systems Matter" (Episode 3). 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: "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."

[music]

 

Mark St. Pierre: "On today's program, we examine the critical role that tribal justice systems and the rule of law play in providing the necessary foundations for effective governance and sustainable development, and what happens when those systems and rules of law are poorly designed, implemented and understood. Here today to share their thoughts in this important topic are Robert Williams and Robert Yazzie. Mr. Yazzie, a citizen of the Navajo Nation, is the Chief Justice Emeritus of the Navajo Nation Supreme Court. He is also a visiting professor at the University of New Mexico School of Law and has served as a Navajo English interpreter for the U.S. District Court. Mr. Williams, a citizen of the Lumbee Nation, is the E. Thomas Sullivan Professor of Law and American Indian Studies at the University of Arizona's James E. Rogers College of Law. He also serves as the Chief Justice of the Pascua Yaqui Tribal Court of Appeals and the Judge Pro Tem of the Tohono O'odham Nation. Welcome, Mr. Williams and Chief Justice Yazzie. Thanks for joining us."

 

Robert Williams:  "Thank you."

 

Robert Yazzie:  "Thank you."

 

Mark St. Pierre:  "In your opinion, why is the rule of law so critical to Native nations?"

 

Robert Williams: “Well, there's two primary reasons that you want a court system that treats people fairly and issues decisions that people can make their own plans for the future on. The first is the internal aspect. The people of the nation have to have confidence in their court systems, they have to believe that if people are arrested for crimes that they'll be prosecuted, that they'll be treated fairly, that their rights will be recognized and then victims are protected. They have to understand that their contracts will be enforced in their courts. Externally, you also want the outside world to have confidence in the nation's justice system for business relationships, for people that might be invited on to the reservation, for a whole host of reasons -- relationships with governments -- and so those are the reasons that most tribes do invest in court systems and legal systems and tribal courts are working so hard on trying to enforce the rule of law."

 

Mark St. Pierre:  "Robert, at [the] Navajo Nation, your approach is kind of blended with Navajo tradition and common law. How would you respond to that question of why is the rule of law so critical to the Navajo Nation?"

 

Robert Yazzie:  "My experience says that when Navajos go to court, they expect certain things to happen. One is to say shí­ né' en dool jool, mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;color:#222222;
background:white;mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:
AR-SA">  color:#222222;background:white">means my mind will become at ease when this problem that I have is addressed and people look for a satisfied result. So when people feel confident with the court system, especially [the] establishment of relationship with the judge, knowing that the judge's role will be carried out to bring peace to the problems at hand."

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Mark St. Pierre:  "We're all away that politics creep into court systems or tend to creep into court systems in all societies, but what is the impact of politics creeping into tribal court systems?"

 

Robert Williams:  "It can be particularly insidious. One of the big problems today in Indian Country is that tribes are saddled with constitutions and systems of government that really were imposed upon them 60, 70 years ago. Yet, at the same time, when those systems were imposed, many of the checks and balances of these western-style systems of constitutional democracy weren't incorporated. One of the most important is an independent judiciary, and most tribes today do not have an independent judiciary under their constitutions, and so where judges don't have the confidence to make decisions without looking over their shoulder whether a tribal politician might be unhappy, whether they might lose their job, justice suffers in any system, and that's particularly so in Indian Country."

 

Mark St. Pierre: color:#222222;”Robert, what's your take on that?"

 

Robert Yazzie:  "I hear a lot of criticism. I think some of them have merit and some of are just pure assumption, because the outside world really doesn't understand exactly how a tribal court functions. If the outside world could really look at the details of how a tribal court functions, maybe people can appreciate what the tribal courts are going through. I've heard time and time again that there the politicians or the tribal council in any situation make decisions for tribal judges. I don't think that...that may have been true, but certainly today I think the politicians, the tribal politicians have really come to terms with their role. With the Navajo Nation, we had a case involving a pay raise and the public took issue on that and brought action before the court telling the Navajo Nation Council of 88, 'The process you followed to get what you want, to give yourselves a pay raise, is unlawful.' So the court was there to make the correction, and the correction it made is that they affirmed what the public stood for. Today, right now, the Navajo Nation Council have accepted that. I don't think they really liked the decision, but it's a decision that they choose to live with and I think they have taken...they take the courts very seriously. When it makes a decision, they want to give it support, to give it growth."

 

Mark St. Pierre:  "Rob, you've worked with a number of different tribes across the country. Can you give us examples of what a politicized justice system has done to perhaps hamper or derail community development and economic development, nation-building efforts?"

 

Robert Williams:  "Yeah, and I think it's important to recognize in a number of tribes, the Navajo are an excellent example, have moved toward an independent judiciary separating the tribal courts from tribal politics, but there are still a number of tribes out there that it's common practice sometimes for tribal elected leadership -- you may have a situation where the elected leadership changes every two years and then the courts change because people like to bring in folks they're familiar with, and so the expertise and independence that you've built up is lost. There are other situations where the business community both on and off the reservation just doesn't have confidence in the judiciary and doesn't feel that their contracts will be enforced so they'll be treated fairly, and so they may go to the tribal government and say, 'We want to have you waive your sovereign immunity. We won't sign this contract unless it's going to be litigated in state courts.' Then what you begin to get is just a general undermining of the rule of law throughout the entire reservation, and so when tribal governments do think that they can interfere in tribal courts and tribal law, it has this cascading effect, it has implications throughout the entire reservation economy and society."

 

Mark St. Pierre:  "How do you separate, what are good ways to create that true separation of the justice system from the rest of the tribal government?"

 

Robert Yazzie:  "I think in a smaller population-sized tribe it's much harder to deal with the separation of powers issue because everybody is related somehow. It's very hard to separate. But in a much bigger tribe like the Navajos or the Cherokees, I think they've pretty much come to accept what the functions of the different branches [of] government that is in place. The Navajo Nation doesn't have a constitution, so we don't have a constitution that says, there shall be an executive body, judicial body and legislative body. The way the code has been put together just gives that impression there is these separate branches, and I think that even though there are problems -- like in any other government there's problems trying to stay within your bounds and to carry out your functions. But I think the Navajo Nation has really gone through some trying times. As long as people understand that judicial independence means being able to make a decision independent of all forces -- government or political forces -- that is a decision that you can make in good conscience. 'A good decision made so you can sleep at night,' is what our boss used to always tell us when we were on the bench."

 

Robert Williams:  "And following up on that, there are specific steps that tribes can take. For example, I think the Chief Justice makes a great point that in smaller tribes, it's more difficult to achieve separation of powers cause everybody knows everyone and it may be that in that situation lifetime tenure for judges which is usually one of the ways that you achieve judicial independence might not be totally appropriate, but set terms, four years, five years. Make sure they're staggered so they don't necessarily coincide with the tribal government's election cycle. And then you have a really good system of review."

 

Mark St. Pierre:  "So what you're suggesting is that the judges perhaps be elected by the tribal membership?"

 

Robert Williams:  "Or if they're going to be appointed, let's appoint them for set terms instead of oftentimes what happens it's a year-to-year contract, then that can really erode judicial independence. But you also need a system of professional education, you need to make sure your judges are out there getting the latest education they can, that they're getting certified, that you're reviewing. There's a process. The Navajo courts have a great process where judges are regularly reviewed by the chief justice and reports are issued, you can evaluate people fairly and then put them up before the council and see if they merit being reappointed again, and that's a good way to try and get politics separated out of that process."

 

Mark St. Pierre:  "Let's take a look at recall. If, for instance, in a smaller tribe the people themselves are not satisfied with the performance of a judge and the pressure builds up consistently that this judge is not really working well within tribal tradition or within the beliefs or value system of the people, what are systems to recall judges?

 

Robert Yazzie:  "We follow a process that evaluates judges when they complete their two-year probation and at the end of their two-year probation, the probationary judges must go through a judicial performance evaluation where the public have their input or the staff of the judge has their input, where other practitioners who go before that judge has their input. This is a fairly new process, and through that process, some of the judges have been removed by the standing committee based on the process that's now set in place. So we don't really...we haven't had to do any recall. I think the appointment process has enough in it that it takes care of those problems."

 

Robert Williams: “Recall is one of those areas where I think you can really talk meaningfully about the difference between western systems of self-government and many Native systems. In western systems, the recall is a check of the popular democracy. A lot of legal scholars would argue that recall of judges is a bad thing because you want judges to make decisions whether or not they're against the popular will. In tribal systems, it may be a bit different, where you have traditions of consensus and traditions of equality and egalitarianism spread out across all members. So it may well be that recall could function as an effective check on what we might call judicial activism. Because these systems are so new, many times you're applying foreign systems of law and as a judge you might be a member of the tribe, you're trained in a white legal system, but that doesn't necessarily mean you understand what justice means for the people and whether or not it's culturally appropriate. So recall may well be one way that tribal communities can take back control over their legal systems."

 

Mark St. Pierre:  "Could either of you talk for a little bit about what you think the training or education should be of tribal judges. It's obvious that every tribal judge is not going to have the opportunity to go to law school for instance."

 

Robert Williams:  "I think that what's most important is that the tribal judge, particularly at the trial level, understand the community he's working with and understand the norms and values. Native Nations Institute talks about this idea of cultural match that if the rules and the principles and the laws that are being applied on the reservation don't match the cultural expectations and what people in that community think is right, they're not going to be obeyed. And so I think there's a really good argument for making sure your trial judges particularly understand the communities. At the appellate level, there you're starting to get into issues of constitutional interpretation, statutory interpretation. Again, it may not necessarily be that an appellate judge has to be a lawyer, but this has to be a person that receives training in many of the excellent programs that are available in national judicial colleges, at law schools, at universities where tribal judges at the appellate as well as the trial level can go and get educated by professors and experts and understand what the really important issues are to perform that function well."

 

Mark St. Pierre:  "How does Navajo handle the training of judges and people that work in the court system?"

 

Robert Yazzie:  "Earlier you asked a question about what should...that there is a great need for tribal courts to learn the basics of law, rules of law. But we don't stop there. I think what Rob was telling me, he talked about doing things pursuant to the cultural norms. To me what that means is for a judge who is well-trained, like say this is due process and under the constitution, as long as a person...a person gets due process and if the procedural requirements are met, minimal, that's good enough. But in the Navajo way we don't stop there. We take this concept of due process and take it over to the Navajo context and say, 'How meaningful is this due process when we apply it to this situation. What's the end result in applying this concept to this situation?' And that is what the thinking process goes through and that should be the way that judges are trained, is to have command of the western legal concepts. But if we stop there, then we're in big trouble. If we stop there period, then we're not doing anything to foster the growth of tribal courts."

 

Robert Williams:  "We do a lot of advising of tribes at the Indigenous Peoples Law and Policy Program and when they ask, 'Well, what can we do to stimulate economic development?' I tell them, 'Invest in your court systems, invest in the rule of law, invest in tribal judges.' What you'll see is, as the Harvard Project on Indian Economic Development showed, there's a direct correlation between tribes that have strong, effective judiciaries and the economic development environment, employment rates, education rates -- direct correlations. Tribes that invest in their court systems, to do the types of things that Justice Yazzie is talking about, are successful tribes."

 

Mark St. Pierre:  "How would a Navajo citizen who wants to be a judge for instance get that training today?"

 

Robert Yazzie:  "I think right now we are trying to do as much as we can to provide that opportunity. There are Navajo -- the young people are really looking for legal training, and right now I'm teaching for the Crown Point Institute of Technology, teaching the basics of law and an introduction to law, what that means and then how to think like a lawyer, how to make lawyer noise, how to prepare for bar exam and also at the same time bring in the tradition. You have this rule of law under the American Anglo system and here's the result. Then go across the street and see how the Navajos would approach the same problem. This is the process that or emphasis...this should be the emphasis in learning about law in Indian Country."

 

Robert Williams:  "And the Chief Justice is really focused on why I think being a tribal judge is a much harder job than being a regular judge in the Anglo system, and it may well be the hardest job on the reservation because on the one hand, as he explained, your tribal judge has to know the western legal system. They have to know western requirements of due process. Every criminal case in a tribal court can be reviewed on habeas corpus by a federal district judge, so you have them looking down at you. On the other hand, you also have to know Navajo custom and tradition or O'odham custom and tradition, to make that law relevant to the people whose lives it's affecting and it's constraining. And so where do you -- it's easy, you can go to law school, you can go to a judicial training center to learn about western jurisprudence and civil procedure, but where do you go to learn how to be a Navajo, where do you go to learn how to be Lakota. That's a knowledge that has to come from the heart, has to come from tradition, has to come from a community that really works on keeping that knowledge alive and making it work for them, and I think the most successful tribal court systems you see are the ones that do both those tasks, that can run the court system in an efficient effective way so that people appreciate that it's there, it makes the decisions it needs to make, but it's also making culturally appropriate decisions and decisions that are helping to move the community forward, not backward, not getting it entrenched in politics and internecine fighting that we see too oftentimes. And that's why it's such a hard job."

 

Mark St. Pierre:  "Let's take a look at that for a minute. The Navajo court system is well known for its incorporation of Navajo common law in its jurisprudence. How is that common law incorporated at Navajo just so our viewers can understand that alternative system?"

 

Robert Yazzie:  "There's two ways we use the Navajo common law in applying common law to situations. The grassroots people have their own process, the lifeway process, the peacemaking process, and they have their own facilitator who runs the process, and in that process people are able to find the problem at hand and be able to talk things out. Here's a problem and different people can say, 'This is the way I see the problem from my perspective.' And they're able to reach a solution. So in the talking things out is where they begin to talk about values and principles, and those principles and values are the underlying basis for what makes Navajo a common law. More recently there's been a move through our own rule of law to say in every case situation, the Navajo common law shall be the law of preference. So when practitioners come to court and that's what they're told, 'Yes, this may be the Anglo position, but what is the Navajo rule of law as a matter of custom?' So in terms of incorporating there may be an issue, an issue like, for example, a judge may hear a criminal case. There's a recent decision made by the Navajo Nation Supreme Court that dealt with this concept hozho. There was an issue how the police officer handled the defendant. He didn't really...there was a question about his reading of the rights to the defendant wasn't correctly done. So when the Supreme Court looked at those facts and they thought about hozho. color:#222222;background:white">Hozho  means do things cautiously. If you are going to explain, make sure that they understand what the process is about, cautiously and with respect."

 

Mark St. Pierre:  "So it's not a minimal just reading of the rights and as quick as you can read them and then throw the handcuffs on the guy and throw him in the car."

 

Robert Yazzie:  "...And to be honest about what you're trying to accomplish with that defendant."

 

Mark St. Pierre:  "So the defendant is treated with respect as a human being."

 

Robert Yazzie:  "Exactly."

 

Mark St. Pierre:  "you've worked Rob with a wide variety of systems. What are some other examples of positive Native influence on judicial systems, cultural influences, cultural norms that you've experienced that you could share?"

 

Robert Williams:  "Yeah. I teach Indian law and one of the things that we make sure students learn about is the development of what we call tribal common law, the use of tribal customary law, not only by the Navajo but a number of tribes. We're seeing a number of tribal courts recognize the need to incorporate custom and tradition as the common law of the tribe. The Hopi, for example, their Supreme Court recently decided a case on the issue of standing. That's a technical legal term meaning basically who can bring a case, who has a right to sue the government. As we know, in the United States, it's very hard to get standing. Congress can pass a statute and you would like to go to court and sue about it, but it's very difficult, you have to show a real interest. The Hopi considered that issue of standing and who can bring a suit against the Hopi tribal government and they said, 'You know, the western concept is just way too narrow.' We are a people that believe that everyone has a say and that government is accountable. And so you saw the Hopi Supreme Court diverging from western jurisprudence and enacting a broad principle of standing which fits very well. It really is a burgeoning, a growing movement, this use of tribal customary law and it's really improving the administration of justice in Indian Country."

 

Mark St. Pierre:  "Robert, what prompted Navajo to completely revise the way they do their court system and incorporate common law? When and how did that come about?"

 

Robert Yazzie:  "Well, we had so many laws that has been imposed on us since the western court systems came in 1892. But in 1950 the Navajo Nation said, 'Enough is enough. We are not...we're no longer going to put emphasis in applying federal law to solve our cases. We are going to do things the Navajo way.' The Navajo leaders back in 1982 said, 'Well, let's look at how business...law...decision-making was done 100 years ago,' and they found out that relations had a big role, that the idea of having relations in the dispute situation meant something, and also given the relations as we're talking about here, talking things out. Without control, without a judge, without lawyers, let the relations feel that they own the problem. Let them come up with solutions. Never mind how long it will take and how many days it will take. So when people are talking things out, they're able to make some connections. You can have a longstanding dispute like land. Land dispute is the hardest thing to solve in the adversarial system, and some of them never get resolved. But lo and behold, when you give the relations the opportunity to tackle that problem, they do go back in time and say, 'This is where the problem lies and then we need to come back to terms with one another, treat each other like relatives, treat each other with respect.' And treating each other with respect, [having] a system that addresses people as humans is very, very, very important, and I think...and I see that as the future of tribal courts. We've gone too far with the western way and I think the adversarial system had its days and it needs to change and I think, I hope in my lifetime that I will be able to see that this lifeway process merge with the western system and the tribal court center and I think that will show the world that Indian people have something, they have something to contribute to make a difference where people are always fighting one another."

 

Mark St. Pierre:  "Just as kind of a wrap-up question: we've talked about court systems that function properly, when you live in a nation where the court system is working properly, what are the ramifications for the people of that nation in terms of their attitude towards their own nation and their own potential?"

 

Robert Williams:  "There's a sense of law and order, that you have personal security, you have security in your property, you have security in your investments. Indian people are entrepreneurial, too. I think anybody who spent time in an Indian community knows that Indian people have the ability to go out there and invest and work hard and create a life and create for their families. They want the same thing as everyone else does, so there's those positive benefits. There's a sense in which tribal sovereignty is strengthened, because every Indian tribe that can get its act together in this area and have effective legal systems shows the world, and as Justice Yazzie just said, that Indian people have something to contribute. And I think if tribal governments are really going to take their place in 21st-century American society that we need to really work hard in this area of creating effective tribal justice systems that make people feel not only safe and secure but proud of what it is their tribe is doing."

 

Mark St. Pierre:  "We want to give a heartfelt thank you to Robert Williams and Robert Yazzie 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 website at www.nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."

 

Navajo Peacemaking Guide

Author
Year

The concept of peacemaking or Hózhoji K’e Náhóodleel goes back to the beginning of time and is embedded in the journey narrative. In fact, according to the journey narrative, the Holy People journeyed through four worlds. In the course of their journey, they came upon many problems, which were either caused naturally or caused by the Holy People. The problems had to be addressed and resolved before the journey continued. The problems could be addressed by the use of prayers, songs and offerings. These remedies were incorporated into the Diné Traditional Ceremonies. Another way to address the problems was to talk about them in a controlled way. This talking out became the Diné peacemaking process.

The Diné traditional dispute resolution process is the Dine traditional “court of law and equity”. This process is known as Hózhoji nahat’á which can be loosely translated as reparation or mending of controversies through harmony. Diné Peacemaking is an adaptation of the traditional process...

Native Nations
Citation

Navajo Nation. Navajo Peacemaking Guide. Navajo Nation. September 2004. Guide. (http://www.navajocourts.org/Peacemaking/peaceguide.pdf, accessed August 21, 2014)