Public Law 280

Leech Lake Joint Tribal-State Jurisdiction

Year

Across Indian Country tribes are strengthening and better defining their governments in order to meet the unique needs of their communities. As Native nations work to expand their sovereign powers, tribal justice departments can play a critical role in achieving those goals. In the early 2000s, the Leech Lake Band of Ojibwe faced a rising crime rate. Because Minnesota is subject to Public Law 280, county and state agencies controlled the primary resources for law enforcement and judicial processing. But recidivism statistics for its tribal citizens showed that the state system was not addressing the problem. Despite its limited judicial infrastructure, the nation had a strong desire to intercede, and a strong commitment to holistic care rooted in traditional values. It was with this determination that Leech Lake set aside a history of interracial tension to work with neighboring counties to create a Wellness Court that helps people overcome their drug and alcohol addictions.

 

Native Nations
Resource Type
Citation

"Leech Lake Joint Tribal-State Jurisdiction." Honoring Nations: 2010 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2011. Report.

Devon Lomayesva: Making Constitution Reform and Tribal Law Work

Producer
Native Nations Institute
Year

Devon Lomayesva, a citizen of the Iipay Nation of Santa Ysabel in California, offers her perspectives on asserting tribal law in a P.L. 280 state. The Iipay Nation of Santa Ysabel underwent a constitutional reform process, and Devon shares her experiences with and perspectives of that process. Her expertise as a former Iipay Nation of Santa Ysabel council member and practicing tribal attorney affords her insight into the successes and challenges of reforming and implementing Indigenous governance structures that reinforce tribal sovereignty.

Resource Type
Citation

Lomayesva, Devon, "Making Constitution Reform and Tribal Law Work," Interview, Leading Native Nations interview series, Native Nations Institute for Leadership, Management, and Policy, University of Arizona, Tucson, AZ,  November 10, 2014.

Veronica Hirsch:

Welcome to Leading Native Nations. I’m your host Veronica Hirsch. On today’s program we are honored to have with us Devon Lomayesva, a citizen of the Iipay Nation of Santa Ysabel in California. Devon currently serves as staff attorney for the Soboba Band of Luiseno Indians. Devon, welcome. Good to have you with us today. I’ve shared a little bit about who you are but why don’t you start by telling us a bit about yourself. What did I leave out?

Devon Lomayesva:

Well, thank you for having me. I have been in San Diego my entire life. I was born and raised there. I’m, as you said, from the Iipay Nation of Santa Ysabel and I lived there when I was very young and like many families moved off the reservation so my dad could have work and grew up around the reservation for most of the rest of the time and lived back and forth after that. So very near the reservation my entire life. I went to school all in San Diego. I went to about seven elementary schools, middle schools and high schools altogether so I moved around a lot. And ended up going to community college at Grossmont and then transferred to San Diego State as a history major and went on to California Western School of Law. And from there I accepted a National Association for Public Interest Law Fellowship with California Indian Legal Services where I spent a very large part of my career learning the ins and outs of federal Indian law and tribal law and from there was able to get an in house counsel position for my own tribe. Went back to California Indian Legal Services as the Executive Director for about five years and after that that’s where I am at Soboba. During all that time I’ve been pretty involved with my tribe. I’ve served in a number of capacities. I was elected as a tribal council member in about ‘96 in my early, mid-20s so was a young age when I took that. I was reelected but resigned because I had come in as the tribe’s attorney and so that’s the position I preferred to take. I’ve been the Gathering Committee Chair for the last 16 years and I’ve recently been on the Judicial Commission which recommends and selects the tribal court for the tribe and most recently the Election Commission Chair. We just had elections a little over a week ago so pretty active. Outside of my tribe and my legal work I also co-founded the American Indian Recruitment Programs with my husband when we were both students at San Diego State and that program has been running for over 20 years now to offer culturally appropriate mentoring and tutoring services to native youth in the San Diego area including reservation and urban area native students from middle school through high school and we’ve had great results in getting them to not only graduate from high school but to also continue on to higher education. And I’m a mom of three little ones. That keeps me busy as well.

Veronica Hirsch:

I want to transition now though to talk specifically about your personal opinion, your insight regarding aspects of native nation building and so I’ll begin with this question. How do you personally define nation building and what does that mean for the Iipay Nation of Santa Ysabel?

Devon Lomayesva:

Nation building is a term that I guess you hear more and more now as tribes begin to identify as nations in front of the Band, the Tribe, the Rancheria, the Pueblo and that’s something that I think speaks a lot to even the question that you ask. And you have to look back at the history, your own tribal history to really know what native nation building is and my perspective as a tribal member for my tribe only is that it has to be something that’s just that, it has to include the nation, it has to be inclusive. It needs to involve the entire community to the extent they want to participate. Many times you have community meetings and people don’t come but the opportunity and the notice needs to be there to be all inclusive and to do it in different forms, not just to have a large meeting where some people don’t feel comfortable. As a leader to open up the doors for one-on-one for people that want to be heard that way. So it needs to start with inclusion and it’s really about how can we best govern ourselves. What structures need to be put into place so we can get where we need to go? What are our goals as a tribe? It’s not an easy thing to define or to just do. It’s a lifelong process for most of us and something that at least in the history of California tribes and my tribe within California that you need to be able to say, ‘This is what we’ve been through, this is what we want. What are our priorities?’ and take that…and my tribe’s actually started to do that in a number of the legal reforms that we’ve made, the infrastructure that I know we want to have. So I guess to sum it up it’s that inclusion, it’s that leadership taking responsibility for bringing in everyone together and it’s putting in the framework that works best for you, whether it’s the written law or it’s the infrastructure for the services, for your judicial systems, whatever your priorities are. So it has to be something personal, there’s not one formula that’s going to work for every nation.

Veronica Hirsch:

I appreciate your inclusion of using multiple means by which to engage community members in that nation building process and the fact that you emphasize inclusion as well which really leads into my next question which is the following. Based upon your former council member experience, what do nation building leaders do?

Devon Lomayesva:

Like I said earlier, when I was on council that was my mid-20s and you always wish you would have had all the experience and go back and do it. Of course then you get other experience and say, ‘Well, I’m not sure if I want to do that.’ But at the time that I was on council and still today there exists many, many social issues; poverty, high unemployment on the reservation, we’re remote as far as San Diego County tribes go. People always say, ‘Oh, you’re only an hour from downtown San Diego.’ Well, if you have no job and you have no money and you have no car and probably no driver’s license you might as well be 500 miles away from downtown San Diego because it’s not accessible. The bus comes once a week and I think that’s important to understand the context of when I was on council. We had a large generation gap in our council at the time I was on there. A chairman that had been the chairman for many, many, many years and a couple of us that were younger and full of energy and we learned very quickly that things won’t get done to “build the nation” if you just run in and think that all your ideas that you bring from the outside are going to just come in and, ‘Well, just get a fire station, just do it.’ ‘Well, just have drug treatment programs,’ and it’s not that easy and it takes a lot of patience. It takes a lot of getting to learn the history of the tribe. We all don’t know the histories of our tribes. I feel I have a good handle on it but there are so many other things that I know I don’t know that I see would be so valuable to help move our people along. A lot of people don’t want to say that or admit that but it’s the reality. Custom and tradition is something that we hold dear within our tribe and many of the tribes around us because that was our traditional law was the custom and tradition. But when you go through the many, many periods in history that we have as Iipay people, as Santa Ysabel Reservation, that custom and tradition changes and it moves in different directions and when you try to bring it back in there’s not agreement on it because our nations and our clanships have been so broken. And in that effort to try to bring that back, you can’t do that if you don’t know the history. So that’s something that is fundamental for any council to build their community, to build their nation. You have to know the cultural components, the cultural history, the legal history and the textbook history because you compare those and you learn from that. So that’s number one for me and other than that it’s going back to that inclusion and seeing what the community wants because you need that community support in order to put in the infrastructure and the goals and the plans that you want to move forward.

Veronica Hirsch:

You touched upon some of the challenges in your former capacity as an Iipay Nation tribal council member and I’d like to address…I’d like if you would please address some of those challenges more specifically. Based upon your experience, what are the unique challenges of being a council member of a native nation?

Devon Lomayesva:

Well, no surprise to anyone that’s been in this capacity or worked with tribes is it’s the politics and by nature you are a politician when you are a tribal council member. You are an elected leader. There are still tribes that have appointed leaders and I can’t speak to how those work. There’s hereditary leaders. But in my experience and within my people, we’re at the point where for many, many decades we have elected our officials. So it’s political, it’s based on your family. It doesn’t mean your family always supports you but families, even if they’re bifurcated or split, those are still units that come together and it’s very obvious and it’s not secret. But you have to be able, and it sounds so obvious, it seems so clear but you have to separate yourself from that and it’s not an exercise that’s easy for any of us because that bias creeps in constantly and honestly takes away from that nation building, from that infrastructure, from dealing with those social ills that plague and hold us back from being what we can be to our full potential, from practicing our culture, from speaking our language. Those things hold you back and as council, a former council member and someone who works with councils a lot in my profession, that is alive and well and something that needs to be addressed on a serious level but it can only happen from within the tribe. You can write ethics codes, you can give training but if the council members aren’t going to internalize that and see that getting over those past family histories that have caused that tension all these years or the bias or those things, you’re not going to be able to move forward in the way that I think that you would want to as a leader. So it’s very important to recognize that and stop and it takes someone to call people out on that and I was in many situations where there was a vote of the people that some council member said, ‘Well, we’re not going to do that ‘cause that’s not what’s best for the tribe.’ I was like, ‘No, we’re representatives of the tribe and even if you personally don’t agree with it, which happened many, many times, that’s your charge and that’s your responsibility to carry that out. So there’s many, many challenges but I think it’s absolutely working it with a group of people that come from varying and potentially competing agendas but coming together for the good of the people and being united.

Veronica Hirsch:

Looking back now, what do you wish you knew before you first began serving on your nation’s elected council?

Devon Lomayesva:

I talked a little bit about knowing more about the history and I feel at this time now I’ve improved upon that. My tribe doesn’t have or especially at that time didn’t have a lot of written law, we didn’t have codified titled and things like that that other tribes have had so a lot of it was on that custom and tradition and I think it’s really vital and it’s again something that we all say we’re going to do but we don’t always go out and do is talk to the people that have been around and get a consensus about what is the custom and tradition about how we pass our land and it’s an ongoing issue today. We don’t have an assignment ordinance, we don’t have a land use code or a land use plan so all these tensions and because it’s not written or it’s not consensus within the people, it goes to further complicate those issues of passing of family land and it brings out the worst in people. ‘Well, you just don’t want to do that because you don’t like my family.’ And tribal leaders get hit with that all the time and I’ll tell you sometimes it’s true. So you go back to saying, ‘As a leader, I need to know the history, I need to know what the consensus is at a minimum about these pressing issues.’ Land is always going to be a primary issue for native people. That’s our base, that’s where we come from and to not take the responsibility as a leader to know and understand that is truly an injustice to your position and to the people ultimately. Other things that I think I wish I would have known is probably maybe a little bit more about the organizations or tribal groups that the tribe participates in and how they operate. I really didn’t look into that because I really didn’t know and I don’t necessarily know how you would do that if you didn’t know in the first place but I think for younger members that are looking to run for leadership, watch, go to the council meetings. Many of them are open but people don’t go and just listen and learn. It takes a lot more listening before you can do the learning and go to your general council meetings because you’ll see how the tribal councils interact and you can make up your mind for yourself, do you want to be this kind of a leader, do you want to be that kind of a leader and there’s many different types and forms and so observe. Go out and observe and talk to people, something I wish I would have done a little bit more.

Veronica Hirsch:

You mentioned previously some of the challenges associated with land currently, that the Iipay Nation of Santa Ysabel does not yet have a land use code in place and that really speaks to a portion of the next question I’d like to ask regarding some of the unique challenges of California based tribes. So using California based native nations as an example, do small tribes have an easier or harder time regarding nation building?

Devon Lomayesva:

I thought about this question before and if you look at the state of our tribes across the nation now, I think it’s easy to generalize and say, ‘Well, if you have a large tribe land base with larger numbers of membership then you can do so much more. You can build more, you ha…maybe you get more funding because you have a higher population or you have a larger land base,’ depending on where you’re getting funding from which is very true because California with very small Bands, Rancherias, very small membership all for very specific and real historical reasons we have been left out. We’ve been left out of the tribal justice system because we have these small numbers or we’re told, ‘Oh, you can combine together.’ We’re two separate nations. Consortium courts has been something that California tribes have resorted to because of the funding issue and also because if you only have 30 people in your tribe, it makes it difficult to fill all those positions. So yes, size can matter with funding. But with smaller tribes in some instances the community is the community. Some of the larger tribes you have districts and those communities are one and maybe that’s traditional. They…that was a village within the larger nation. For us, the way the tribes were put together out here and there’s of course exceptions to tribes that, and that’s why they’re the confederated tribes or united tribes because their tribes were forced to be together. But most of them at least in San Diego, we were those independent villages that were part of a larger nation but were autonomous. So the Santa Ysabel Reservation is the Ellykwanan Village and that’s…you can say that for just about every reservation with a few historical exceptions there. So when you have that smaller group, you have that smaller community that’s more easily accessible. You come together and you all come together when you have your general council meetings, your community meetings. Of course we have a lot of people that live off the reservation like many or most reservations. So in that respect I think that inclusion I was talking about earlier might be easier for a smaller tribe than a larger tribe but it takes money to do these things which is the reality and when you’re told by government funders that you don’t meet that criteria, it’s really difficult and despite the perceptions that are out there today that all tribes have gaming money, our tribe doesn’t. We don’t have that. It didn’t work for us and there’s other ventures the tribe is trying and I don’t know if they’ll be successful but you have to have those resources and while you can have a strong will of the people, you can’t implement without those resources. So of course the answer is it depends. It depends on how you’re able to structure the tribe. I talked a little bit about the tribal justice funding that’s historically been denied to California. That’s not only because of our smaller numbers and land base because collectively we have huge numbers. We have a huge representation throughout the state. San Diego County has one of the largest number of reservations of any county in the country but we’re also a Public law 280 state and I think we’ll talk about that more later but that’s also been a reason to deny funding to California tribes. ‘Well, you have the state. You don’t need those funds.’ Clearly you can’t build a nation if you’re having to use the laws of a state. So it really just depends and I think in some ways it’s helpful to be smaller and really that reflects historically and traditionally how we were. We were smaller Bands of a larger entity but now we are separate as a federally recognized tribe which wasn’t obviously how we were set up originally. So the challenges continue.

Veronica Hirsch:

You’ve touched upon resource access as well as limitations in available resources or limited abilities to access those resources and also about the historical context of California native nations within what is now known…designated as Public Law 280. And so my next question touches upon that. Do California based native nations face unique challenges associated with their location in a Public Law 280 designated state? And if so, can you please elaborate on some of those challenges?

Devon Lomayesva:

Absolutely. Public Law 280 was passed without consultation with tribes so off the bat it was something that tribes were not informed about, weren’t consulted, not even permission but not even told ahead of time, ‘This is how this is going to work.’ And in a state that endured several periods from different sovereigns implementing and dictating their laws, the tribes in California had a very unique history in that they were able to adapt. We’ve had to adapt to the changing tides I guess you could say. So Public Law 280, it was something that was just added on. So what it did, and this is the part from my legal perspective, I honestly don’t know if we’re ever going to be able to…what does Public Law 280 mean because it’s not defined and it takes court cases to define it for the smallest of things that you think, ‘Well, shouldn’t we know that.’ But what it ultimately does is because it was a law that dealt with the jurisdiction in Indian Country, criminal and civil, that at the end of the day what it really does is it puts the safety and the security of tribes in jeopardy which I don’t know what the intended result was. Some people say it was because the federal government didn’t want to shell out the resources, we go back to the resources, for all the tribes. There’s over 100 recognized tribes in California. At that time these tribes were still here maybe some of them weren’t recognized at the time of the passage of Public Law 280 but there were still a lot of tribes and I could go on and on about the history of the law but essentially it was done number one without the tribe’s consent or inclusion and the effect of it was not thought out and it wasn’t funded. So the state had to take over these specific areas of jurisdiction—criminal and limited civil—without any money. So they’re of course going to be resentful, they’re going to be, ‘What are we supposed to do? How are we supposed to do this?’ So what happens is the feds leave the tribes which for better or for worse, that was law enforcement for many of the tribes, the BIA police and when they’re gone and it’s the state, we don’t have money to do this. You…I guess you have to toughen up with what you have and you get these stories and these histories of an interaction with California law enforcement—of course no interaction from law enforcement is usually pleasant but it was…it was very bad. It was not met well and it resulted in just as bad if not worse situation in Indian Country where you have confusion as to what laws apply, you have just brute force coming in because ‘we don’t have time for this, we don’t have the money for this, we’re just going to come and we’re going to get it done now,’ and that’s not the way law enforcement’s supposed to work, at least not in our country, in our states, in our tribes. We don’t do things like that, aren’t supposed to. So over these many, many decades up to today and I’ll just give an example. You have a domestic violence situation on the reservation. You have an Indian and a non-Indian married couple and you are a neighbor, you hear, you call. ‘Hey, we have a couple of parents out there fighting. We heard a gunshot.’ ‘Okay. Well, we’ll try to get somebody out.’ Half hour, hour, two hours, five hours, next day comes. So what’s happened in that time? Either somebody has been severely injured or tribal leaders have to risk their safety, a family member, a neighbor, maybe even a child has to put themselves in that situation to let it resolve in some way and most of the time not in a good way and you can’t completely fault the California law enforcement systems. There is some valid claim to availability but after 50 years you think there might have been some kind of a way to set up your police stations, your sheriff stations to know, ‘This reservation and all these reservations in this county are your responsibility.’ So this happens. We have a tribal police officer and tribal police officers can have varying ranges of authority. Are they tribal police, are they rangers, are they security, are they casino security? And these things have been litigated and they mean different things as to what authority you have as a tribal police officer and how well you can protect those people. Right now, in San Ysabel most people will call the police officer first but he doesn’t have access to what every other police officer from the state or from the county would have. He doesn’t have the ability to run license plates. He doesn’t have the ability to call for backup unless he calls the sheriff. So you can just see here the challenges in protecting people and that’s what this is about. This is about protecting the safety of your community from the criminal standpoint. Just to be clear, Public Law 280 did not take away criminal jurisdiction from tribes, it’s concurrent. They run together. But, going back to what I said earlier about resources and the size of tribes, it’s not that easy just to set up your codes and your court and your law enforcement to be able to enforce criminal law and that’s why California today in 2014 we have only a couple tribes that are enforcing very small components of criminal law and they had to go through arduous processes to be able to get to that point and a lot of money and a lot of back and forth, a lot of insurance. So it’s not something that is available for most tribes in California. And on the civil side of things, it’s just as confusing. It did not…there’s not a clear line for where the state has civil jurisdiction and the tribe does. You get this a lot with evictions. ‘Well, you’ve got to go down and get an unlawful detainer.’ Well, no we don’t. This is tribal land, this is a tribal person but the state can’t enforce tribal law. So you just see, your head just starts to…and this is for lawyers and judges and police officers and tribal leaders alike. While there’s constant education on Public Law 280, there’s change in leadership, there’s change in lawyers, there’s change in the police officers that serve your area. So it’s a constant education that will never end just by definition of the players that are involved. So a very, very significant and relevant issue for California tribes but yes, the challenges are many and if it wasn’t enough challenges with just trying to protect your communities, this law did nothing to help clarify. But at the end of the day there is still a dramatic reliance upon the state to provide law enforcement because the resources, the infrastructure is not there. You can’t just set up a police force overnight. You have to have…the police officer has to have something to enforce. You can’t say, ‘Oh, go enforce custom and tradition.’ Well, who’s going to tell the police officers that that is. So it’s a very complex problem but tribes are making headway with their own tribal police. For the tribes that have the resources, they’ve been able to do that and even join with tribes that do not to offer that education, the training, the resources. And I think we’re making a little bit of headway in getting that funding out here to California. There’s been recent cases that have kind of beat that down but at the same time it’s encouraging so I think we’re getting there. Just one more thing on this is one way, and my tribe has done this and many of the tribes at least in San Diego County and a few that I know of beyond, have passed either piece of security codes or law and order codes that they’re civil in nature but they have the usual criminal offences that are put into a civil context. So things like harassment, it’s a civil penalty but at least it allows the tribe to issue a citation against that person and what do you do, you put a fine. And it forces that person into tribal court so at least there’s something to hold them accountable for that bad behavior. And most people don’t want to go to court, it’s scary—even tribal court, very scary for people that have been in outside court—because you just don’t know. But that familiarity is increasing as more and more people are cited into tribal court to be a part of that system, to legitimize that system, to put revenue for the tribe for those bad behaviors to reinvest in the law enforcement, to put those funds on those citations. And also have a way to deter the behavior which is what we want. We want to discourage the behavior and I see that working, slowly but surely.

I kind of mentioned a little bit about the tribal court and we have been a part of the Intertribal Court of Southern California, I don’t know, six, seven years give or take since it was first developed as an intertribal court. Most of the tribes as I mentioned several times are small. Pooling those resources together made more sense. So…but it is still the Iipay Nation of Santa Ysabel Tribal Court. We don’t share law. The law has to come from the tribe so Santa Ysabel, we go to court we don’t use other tribe’s law. So a lot of people don’t understand how an intertribal court works. So we share judges because that way we can share the resources but that judge applies the law of the tribe. So if the tribe hasn’t passed it, then it’s not used. So our constitution and the Peace and Security Code, Law and Order Code, we also have a Children’s Code, we are…we have an Election Law. So all those laws are basically part of what the intertribal court will hear. Now within our constitution it states that the court will hear all matters that arise under the constitution. So that makes it a little bit difficult because we have the constitution which is just that—it’s guiding policy and principle and structure. It’s not the daily law that you apply. So for some of those areas that we don’t have a law, using the constitution only can be a challenge. And I use that background to go back to your question because the more you’re in tribal court, the more you’re able to resolve those issues without having to resort to the state courts, to state law enforcement. So the example of…when you go to our reservation, the main part of the reservation, you enter on a BIA funded road and BIA funded roads are technically public roads so we can’t close that off so you get non-Indian people, non-Iipay Nation member people driving on the road and they are subject to the laws of the nation. So if they violate the Law and Order Code, they can be cited into tribal court. That’s something…what ifi they’re drunk driving? We can cite them in there and you don’t necessarily have to go to the state, to the local law enforcement. So that’s where I see this working is having that infrastructure, whether we have to pool resources and shared or not it’s been really good because people are actually going. First people, ‘Oh, tribal court…’ You’re driving through another state and maybe you get a ticket driving through the nation’s portion of the highway. ‘Oh, tribal court, pff,’ throw it away. Well, that doesn’t work anymore because the courts have evolved into a way where they’re working with the state and they’re getting that comity or you’re working with credit reporting agencies and we all know that credit controls your life for better for worse. If you throw the ticket away you’re going to default and that’s going to be on your credit and you’re going to be subject to a fine. So we’re able to do this from the empowerment from our constitution to our laws to the citation into the court to its finality and we do all of that without the state. That doesn’t mean that there’s issues that we don’t have the ability to do yet but I think that’s probably the broadest example of where we are right now on how we’re doing that.

Veronica Hirsch:

You briefly mentioned empowerment arising from the Iipay Nation of Santa Ysabel constitution and I’d like to transition into a discussion of the development of what is now the Iipay Nation of Santa Ysabel constitution by first looking at the or rather beginning a conversation about the amendments made to previous Articles of Association. My question is as follows. Were any amendments made to the 1974 Santa Ysabel Bank of Diegueno Mission Indians Articles of Association? If so, when and why were such amendments made and how significant in intent and impact were those possible amendments?

Devon Lomayesva:

Just to give a little bit of history on…to give some context to this question. The tribes in California came from very, very diverse cultural and linguistic backgrounds. There’s not…California tribes cannot be generalized so in the context of the Iipay Nation of Santa Ysabel and many of the tribes that surrounded us, we governed by a qipai which was later came to be known as the captain who was someone who led but not as an individual with the sole power. Their power came from essentially the support that they had and if people decided they no longer wanted to support you, you essentially were no longer going to be the leader. That’s a very simplified version but it goes to speak to how we traditionally governed to how we get to these other documents and the way leadership functions. So moving through the times where our leaders were essentially disempowered and our tribes were in disarray as far as how are they hanging on to the traditional and still functioning. And you get to the Indian Reorganization Act which our tribe voted against. So at that time in the ‘30s, we did not adopt an IRA constitution. I know scholars differ on whether there was in fact a cookie cutter IRA constitution or whether the tribe were free to draft their own, but from what I’ve seen most of them look pretty similar and for whatever that’s worth that’s how they came about. And while Santa Ysabel did not adopt that at the time, if you look at the constitutions that many of the tribes adopted during that IRA timeframe, our Articles of Association look a lot like that and essentially from how I view it the government was trying to set tribes up like corporations because nations don’t have Articles of Incorporation, corporations do and this whole the notions of membership and elections and duties, that’s what I see in my nonprofit articles and bylaws. That’s not what applies to a nation. You have either your traditions which for many tribes those were not written but you still had the councils and the delegates and the understanding of how that was and whether you put it to writing or not it exists in a form that makes your government function. So when we get to the point of the 74 articles, you come through a lot of history including a lot of division among our people about the appropriate role of the tribal leaders and how they interact with the United States government and their representative, the Bureau of Indian Affairs. We had entities such as the Mission Indian Federation that was borne out of Southern California. There’s very emotional, mixed feelings about this entity but from the most objective standpoint that I can offer just looking at what its purpose was, its purpose was to make the best of what the reality was which was the BIA was here to stay in the lives of tribes and we better start fighting for the ability to govern our tribes, understand what the laws are that apply to us, be informed, be educated about the laws they’re passing without our consent so that when they come about we’re prepared as tribal leaders. On the other hand, those wanting to keep that tradition maintained, fighting for that, fighting for our clanships and our traditional structures to be kept in place and that has survived in a co-mingled sense. So again, in ‘74 the will of the people was to take back a little bit of that power to govern ourselves, to exercise that sovereignty as we all talk about as tribes or that quasi sovereignty, the domestic dependent nation. Whatever you want to call what we have as tribes, we’re going to exercise it to the most that we can and we decided we no longer need the BIA to give us their stamp of approval on changes to the law that governs our people. So that was very significant in removing the secretarial approval provisions of that. And I think that’s really kind of been the, I guess the culture of the tribe from before that point but since you mentioned that, that has just been a continuation and I think that really speaks to why we’re still here and governing. California was decimated to numbers that we really shouldn’t have survived as people because the numbers were so low but we have and we’ve continued to thrive and to regain lands—very slowly and very painfully in some respects but we are here and we’re governing. And from that point we’ve just further asserted our ability to govern ourselves and to implement our own laws that we choose to be responsible on our own. No more running to the BIA and saying, ‘Oh, chairman’s not following our law, what are you going to do.’ But some tribes still have those provisions in there, our neighboring tribes and of course that’s their choice and tribes make those choices for different reasons but oftentimes whatever the issue is that caused resorting to the Bureau for that assistance in interpretation, it’s sure going to take you a lot longer to resolve once that additional party is in there. But that’s just my experience.

Veronica Hirsch:

You mentioned briefly that it’s in your opinion just the nature of the Iipay Nation of Santa Ysabel to refute some of the more intrusive actions of the BIA as an entity upon the people, upon the community and so I’d like to follow up on that point that you mentioned with this question. Can you discuss in more depth what you believe prompted the removal of that Secretary of Interior approval clause?

Devon Lomayesva:

I’ve spoken with a few leaders from that time and you get varying answers but you don’t even necessarily have to talk to anybody if you know what was going on at that time. This was the ‘70s, the era of self-determination which probably at that time people weren’t walking going around, ‘Oh, this is the era of self-determination,’ but it was certainly an awakening. This was the time of AIM, of Alcatraz, of…and people may have their own opinions about what those times in history did for our people, for good, for bad but whatever you…wherever you fall on that you can’t deny that it was certainly a time of empowerment for native people. Many of…my own dad and many of the people from his generation were members of AIM, some more active than others. A lot of the tribal leaders and people today that really have been on the forefront of advocating for the continued existence of our tribes were at Alcatraz and so it kind of all culminates into that sense where natives were going to school, native studies departments were growing and people were wanting to take classes, people were saying, ‘Our traditions aren’t gone, they’re not dead. We’re still here.’ And it was just…it would have been a great time. I was just a little baby so I don’t remember anything but it just kind…it just makes sense that that happened for Santa Ysabel just knowing our people and knowing what they were involved in at the time, knowing what they were doing. It just makes sense to me that that was a further expression of, ‘We don’t need you to be who we are.’ And I think it’s just as simple as that but yet that complex when you look at who we’ve been as a people and I think that was it. It was the time for that to happen essentially.

Veronica Hirsch:

And what do you think has been the lasting impact of that action that yes is grounded within specific history of that self-determination era as we now term it with the activity, the national attention focused upon the American Indian movement, the occupation of Alcatraz? What do you believe has been the impact though of that specific removal of the approval clause?

Devon Lomayesva:

I think what it’s done and for those of us that come from that community and our tribes are very close in San Diego, we all have relatives on pretty much every reservation because even the other tribes, we have Luiseño and Cahuilla and Cupeño in addition to the Ipai-Tipai Kumeyaay, all the different names we’ve been given over time. So it’s a very close community and it always has been since we’ve been here and that interaction has always been there. But I think that it just shows in the things we’ve done. Santa Ysabel has never been known to be a tribe that just rubber stamps anything and we kind of have that reputation. We don’t go with the flow necessarily and that hasn’t always been a great thing but it’s been something that has shown through in some of the laws that we’ve passed. We developed a Children’s Code several years back and when we were…this was a couple of attorneys working on it, myself included. ‘Well, where do you want the jurisdiction to be? Do you want it to be on the reservation in San Diego?’ It’s like, ‘Well, why do we have to limit it to that? It should be wherever our kids are. We don’t care, wherever they are.’ So okay, let’s see what happens. Yeah, of course there are some federal law provisions that might put a damper on some of the exercise of that but we said, ‘We’re going to put it in there and we’re going to see what happens.’ And what has happened is that provision is still in there and our tribe has been able because of our Children’s Code ad because of the commitment of the tribe to prioritize our children via social services, Children’s Code, attorneys and law enforcement and courts, all of which you have to have if you’re to have a meaningful Children’s Code, we’ve been able to get children back that were this close to adoption in Pennsylvania with non-relative foster parents when we had a grandma on another reservation nobody even knew. So if it wasn’t for that will of our people and the will of our social worker to fly back there not knowing anybody and to say, ‘Our law says we’re taking that child,’ and it worked. And since then there’s been kids from New York, Pennsylvania, I think even Texas and all kinds of other places where we’ve been able to find family for those children and I don’t think there’s anything more important than that and that’s why we have laws like the Indian Child Welfare Act to protect those children that come into state courts. Well, most of the time, if they’re not on the reservation or close, we’re not going to know about the case until the state tells us so we need that law but when you’re on the reservation that law doesn’t apply. It’s our law. So with those together we’ve been able to be I guess you could say very progressive and proactive and I think that’s one of the greatest examples of we don’t need approval from anyone other than our people in order to protect the interests of our children and by nature the entire Indian family and our people.

Veronica Hirsch:

You mentioned the powerful impact of the will of the people and of specifically the Iipay Nation of Santa Ysabel and I’d like to now transition to questions regarding the will of the people with reference to the 2005 constitution. So in 2005 the Iipay Nation of Santa Ysabel adopted a constitution. What prompted the nation to go down the constitution reform road?

Devon Lomayesva:

At the time of…well, I should back up. So we obviously had our Articles of Association that we had governed under up until that time for many, many, many years unchanged that it was our general council who is the entity that makes the decisions, passes laws, is the controller of the government. The general council is all tribal members 18 years and older. It’s as simple as that and we convene every month at 10:30 on Sunday and it’s been like that forever. And our quorum was…I think it was 17 people and most of the time we had a quorum. Once in a while you wouldn’t so you’d just talk for a while and you were done. But as time went on tribes started doing more things and gaming came about and in…several tribes had gone into Bingo in the early ‘80s and I won’t go into all the history of gaming but it finally got to a point where of course there’s some legal challenges to what some of the tribes are doing and tribes came out on top despite Public Law 280. And so tribes were, very generalized form here, able to gain on Indian land with a whole bunch of caveats and exceptions. So as tribes like mine started seeing other tribes building these facilities and making all these funds, ‘Well, why can’t we do that?’ And that’s kind of a very generalized sentiment of what happened, at least from…in California and in San Diego specifically. So in the mid-’90s there started this process to get a compact in place between the tribes and the state which is required under IGRA, the Indian Gaming Regulatory Act. So all the tribe…literally every tribe was represented here and we say, ‘Well, what’s this compact going to be? What’s it going to say? What’s it going to do?’ And what resulted was a compact from 1999 and a lot of tribes signed off on that and that was their ticket to be able to go into tribal gaming. Our tribe actually also voted to accept the ‘99 compact. However, our tribal chairman at the time refused to go and sign it despite the mandate. So despite a lot of internal issues we were left out of that and it wasn’t until several years later that new leadership came in and said, ‘Hey, we still want to do this. The people still want to have a casino so we need to get a compact.’ And we eventually got one. It wasn’t like the ‘99 compact. It was much less favorable and ultimately turned out to require so much that that is part of the reason why we no longer have a casino. But putting that in the context of this constitution in 2005 was as I said the Articles of Association were drafted as if we’re a corporation. So there’s a lot of things in there that if you’re this big investor on the outside you might be a little scared and say, ‘Oh, well, what are my rights and remedies with the tribe? What am I going to be able to do if you don’t pay or you default or you…’ whatever, all the legal issues. So the tribe was…had our compact so we were already moving forward with our investors and contractors on the casino. But the discussion at the same time was, ‘We need to have a better law in place. We need to have a real constitution, something that’s going to contain a statement of who we are and it’s really going to talk more about our people, it’s really going to be a true governing document. It’s not going to be this cookie cutter, BIA template that’s worked for I guess the democracy that we have lived by for all these decades and historically.’ So everybody was excited about it and there was a committee formed, there was an attorney on the committee, several tribal members and a couple of the tribal leaders that started meeting. I was not on the committee and I was not the lawyer on the committee. At that time I was the in house council for the tribe and I was working on a number of other things. So from my understanding and I did go to a couple meetings and listen in for a variety of reasons, there was a model brought to the committee and the understanding was that the model was a starting point to have the committee on behalf of the people start to mold it into something that made sense for who we are as Santa Ysabel. So the process went along, there was a few community meetings. ‘What do you guys want to see?’ ‘Oh, we really want to see…’ ‘Do you want a tribal court?’ ‘Well, yeah, a tribal court. We like what we’re doing so far with that. Let’s continue to explore that.’ Really general conversation. A lot of the people had never seen a constitution other than maybe the United States Constitution. They said, ‘Ah, well, are we going to have the United States Constitution?’ ‘Oh, no, it’s going to be tailored to what you guys have traditionally and historically and…but it’s going to have some components of United States. It’s going to have separation of powers and branches of government.’ ‘Oh, okay, that sounds good.’ So those kind of conversation were happening and it finally gets down to where we have some drafts that are looking like they’re going to be close to what the final is going to be. And I have to say that what I’m saying now is my observation of what happened and I only speak for myself. I’m not speaking on behalf of the tribe or the nation or any other person other than myself. But I think that my observation and my perception is also shared by a number of others and I will circle back to that statement in just a few minutes. So the…one of the final drafts came about and it had some really good things in it. It set out a little bit of the history of who we are, it established a base role in our membership. It was desperately needed based on previous changes to the Enrollment Ordinance, actually recent changes that resulted in a great increase in tribal membership which had divided opinion but it included people that should have been enrolled in the tribe. So there were some good provisions. There was the judiciary but then there was this executive and legislative, very long sections and there was no more tribal council. It was like, hmm. There was still a general council but you already had the three branches—executive, legislative and judiciary so you had four branches ‘cause you had the general council and just in my mind and knowing my tribe, knowing the laws of the tribe, knowing how we’ve always operated, I was a little worried. I said, ‘Well, gee, I don’t…I wonder how this is going to work.’ And so…and other people felt that way. Other people said, ‘Well, we’ve got to do this. We need this. If we want people to invest with us, we want people to take us seriously we have to do this.’ So you had different…and this was within the tribal leadership that these conversations primarily happened and as one of the tribe’s attorneys I was there along with the attorney doing the constitution and there was a lot of disagreement. There was a lot of different views on what the result would be of this provisions. And I felt very, very strongly that this was too much change too soon because what essentially happened within the constitution committee was that for whatever reason the model that was brought to them was essentially what ended up as the final draft and the entire…entire Articles of Association was completely thrown out except for I guess you could say the general council and yes there was a membership provision but it looked nothing like it. And just knowing a little bit about history generally in the world and how nations have risen and fallen, when you have such dramatic change, it’s a stress on the people and it’s an unknown and it can lead to very unintended results and outcomes. And I noted that and I was told, ‘Thank you but no thank you. That’s your opinion.’ And others were told the same thing and it was the leadership at the time that said, ‘This is what we want to go with.’ Said, ‘Okay. I guess we’ll see how the vote turns out.’ There was a final meeting, it was explained. Not word for word. It was explained more generally. You didn’t have what I would consider to be a representative representation. It was a smaller number than I hoped and this affects whether you’re on or off the reservation so for whatever it’s worth we had those meetings and it was sent out and it was passed. Almost immediately we didn’t know what to do. Just one more quick thing. Another thing that’s in the constitution is a savings clause which was heavily debated and I have to say at least my opinion and observation on that area won that little battle because originally that was not in there and I said, ‘Well, that basically means that every tribal law we have will be null and void and we will have nothing except this document that’s completely different from what we’ve governed under for decades and we will have nothing except this document. How are… You’re going to throw out laws that we’ve had for decades.’ And so the savings clause was in there and the result of that was that any law that’s not in conflict with the constitution shall be valid.  So that saved a lot of our previous tribal law including custom and tradition. So after it was passed we started looking into…well, actually before it was passed and I’m forgetting a lot of points because it was a very, very stressful time for a lot of us that were kind of in the mix. And one of the I guess you could say warnings was that how are we going to pay to implement all the requirements because it was…it’s crazy. It was at least a dozen departments which are great ideas, fantastic if you have the resources and not even money resources. We’re talking human capital. We’re talking people resources. ‘Do you have 12 people that are going to be the head of the Department of Finance, the Department of the Environment, the Department of Culture? How are you going to get people, let alone qualified people to fill all these positions and are they all going to work for free? Where are they going to work? We have a tribal office that has three offices and a temporary trailer that has squirrels running around up top. How are you going to do this?’ ‘Well, we have a casino coming.’

So the discussion was, ‘How are you going to pay for all these departments? How…where are you going to house them?’ And it was a real discussion and it was very unnerving to hear that it was going to be the casino money that was going to pay for all this because of the compact that we signed we had to go into an MOU with the county which was a complete disaster but for a number of reasons politically we agreed to that and it’s hard. And I’m just going to digress for a minute because you have a people that have been severely impoverished for so long. When there’s the promise of something better, it’s like, ‘Wow!’ and you’re star struck and you’re blinded by, ‘Well, look, they do really good,’ and ‘Wow! They get education, they get cars and they get their homes repaired.’ And it was just…you can’t necessarily fault the people for being excited. We had all these little vignettes and all these little…cool little trinkets that we all got and little…we were having bagels and coffee and all these great things at our meetings that never happened before so…and those things weren’t bad but it really distorted the people’s ability to think about what’s this going to really mean. Not what is it going to mean for us in the next year when we’ve got all this money. That was the thought, ‘We’re going to have all this money. Wow! Now we’re probably going to build new offices, you won’t have to worry about that.’ But nobody that about what if it doesn’t work, what is this going to mean for us. So going to where it was approved, almost immediately we started having problems with, ‘How are we going to implement this?’ My opinion is from day one we started violating our constitution and that’s not something that anybody wants to say or admit but it’s the reality and it’s the truth and that’s something that you can’t argue with. But at the same time we didn’t have any other choice because we didn’t have that money to go and immediately implement everything it required. So we then had to for the first time…the constitution had a new election procedure and it’s very detailed which was to me kind of surprising that the elections portion would be so detailed in the constitution and not in an election code or law. But whatever. And it had all the terms for the first election under the constitution. Because it was the first you had to do this and you could do that. So we did that and the elections happened and of course there has to be winners and losers in elections and there was a challenge to the elections and there was challenges that happened actually before the elections on key provisions that I started thinking about, ‘Wow, who would ever take that position?’ But when you go back and you think about how this document came about, how it was “pitched”, how it was described, it made perfect sense if you were those people that were going to remain employed or elected. And I think that’s really important because this is an issue that’s very difficult for tribal members, tribal leaders, the attorneys to all talk about but it’s a reality and that’s why it’s so important to really think about these documents and for anyone, any tribe that’s thinking about revising their constitutions or even their laws or policies, they have a huge effect on the people and when provisions are put in for political reasons, you’re not necessarily going to see it when you’re reading the document. You’re not going to see it ‘til afterward and then you get these, and again this is my opinion, you get these insane interpretations that couldn’t possibly be what was intended in this sort of framework, a democracy that we’re supposed to have, to where you essentially have a document that allows for the chairperson to almost have total control of the tribe. And people say, ‘Oh, no, because there’s a legislature, that’s your balance. There’s your judiciary, that’s your balance.’ Well, but when you don’t have the resources, the funding and the people that are supposed to be in all those positions, those…they’re barely hanging on by a thread. But you still have the chairperson. We’ve had a legislature that has not had to full capacity for years. We just had elections so as of this coming first week of December, for the first time we’ll have a fully elected legislature but we haven’t. We haven’t had a complete election commission, judicial commission, none of the department heads, maybe a couple, maybe a couple have actually been filled and I don’t even know if they’ve even been given the titles that are mandated under the constitution. So while you’re supposed to have had 10, 20, 30, 40 people as either elected representatives or appointed or hired, you really don’t and so that leaves the whole intent of the document impossible to fulfill because you have lack of quorum. We didn’t have a quorum of the general council for over three years. Three years. How can you run a government on that? How…well, you know how? Because it doesn’t really matter because the new constitution doesn’t need the general council. They only need the general council if the will of the people is to go through all these hoops, petitions and certifications and mandatory waiting periods and then a reading into the record and all these things that even civics teacher’s minds would spin let alone people that have been operating under a more simple structure of articles where the general council ruled and only delegated power to the tribal council. Now you have a situation where the general council has the power but if and only if they exercise it under an enormity of policies and procedures within the constitution that were never explained. So when you come full circle to where we’re at today, we had an actual sizeable amount of tribal members run for the legislative positions. We actually had more than double run for the positions available, which made me happy because it really prompted people to have to say, ‘Well, why do you want to be a tribal leader? Why do you want to be in this position?’ And to my surprise but also to my liking and I’m kind of, ‘Ah, thank goodness.’ A lot of people are really looking towards constitution reform and that was a platform for some of the people that were elected by decisive margins. So I think what we’re going to see with this legislature and our executive is the people have seen how this constitution has played out over the last few years and we want change and the people want change. I want change. And it doesn’t mean we have to throw it away and go back because there are good things but I think what the people have said is they feel like they’ve been disempowered which is the complete opposite of what you want to come out of a document that was supposed to bring you structure and investment and all these opportunities. And I’m hopeful and I think there’s several areas where the people that have still been coming to the meetings even though we don’t get quorums, people with varying educational levels, varying ages from 18 to their 90s want to see the people take back some of the power. So I’m hopeful that there’s going to be something that’s going to be a little bit of the old and the new combined together for something that better reflects who we are. So that’s ongoing and we’ll see how that plays out. It’s a really tough process to amend the constitution. It takes a lot of people to come together through a very defined and articulated process but I think we can do it. So when I circle back to constitutional reform in Indian Country, I can only speak to being a part of this process in varying degrees of participation but don’t accept what’s first given to you. Don’t accept a cookie cutter. Don’t accept something that comes from another tribe because you’re told that it works for that tribe because for all the similarities and the shared histories that we have as tribal people, we are all so different and from my reservation to the reservations next door, we pride ourselves on those similarities but honestly more on those differences because that’s who defines us as the village that we were, the village that we are and the “federally recognized tribe” that we are today. And I think people are starting to see that but it’s been too recent for some tribes to see what the effects are. But no matter what you think you have to offer, if you see something as a tribal person, a tribal leader, another tribal attorney, whatever your position is, just throw it out there because the more we stop and think and play out scenarios, I really think there should be like a law school exam or something where you throw out these hypotheticals and throw it…make up something that happens on the reservation and apply your constitution that you’re thinking of adopting to that and see what the real result is and that would go such a long way. We didn’t do that and frankly there were those that didn’t want to do that. So whether we adopted ours out of lack of our own due diligence and work, whether it was political influence, I think it was a little of all of those combined but that took away the voice of our people and while you can tell your kids, ‘Don’t put your finger in the light socket,’ some of them still do it and they don’t learn ‘til they do that. At least if anything I hope that tribal people will just not take what’s given to them because certainly historically we haven’t always done that or we wouldn’t still be here. It’s been an interesting experience and I’m just hopeful that something that makes more sense for who we are is going to come out of whatever reform gets started next year.

Veronica Hirsch:

Thank you for that explanation. You mentioned that the current 2005 adopted constitution for the Iipay Nation of Santa Ysabel represents a significant departure from the previous 1974 Articles of Association and also that in your opinion another phase of constitutional reform is eminent for the community. So with that in mind I’d like to ask you, thinking forward, what strategies and approaches do you think should be used to educate Iipay Nation citizens not only about their current constitution but about whatever perspective future suggestions for amendment might arise?

Devon Lomayesva:

There are so many things that I guess from my background and my experience what I could see is helpful and calling a community meeting, all the…make sure you have food, do it in the morning when people are fresh, have copies for everybody, give it out ahead of time. These are…that’s all well and good and yes that might help with participation but you can’t try to just do it all at one time. You can’t… You really have to be honest and realistic about the capacity of your members to grasp and understand, not because of ignorance or education, but because of the lack of experience. We can’t expect that they’re going to know how to play these scenarios out and the reality is is that tribal leaders are going to have to rely on someone. You’re going to start with a premise or an issue and I think the best thing to do is to make it more of what we call the roundtable, to put everybody on equal footing because the worst thing you can do is have the leadership dictating and educating what this is about because by nature it’s going to be…it’s going to be what they feel is best and they’re already in the office, they’re already there so it needs to come from the community but you have to be able to rely on who brought this to you, where did you get this because it has to be something. You could always start with nothing and maybe that’s good or you start with what you have. What have we had all these years? Well, obviously it couldn’t have been completely bad because we’ve allowed it to continue for decades. So what is it that’s missing from this document? So if you have something that’s been working but you’ve noticed there’s been some things that have prohibited you from moving forward as a nation, then start with those things. And for us it was, ‘Oh, we’ve got to have people that are attracted to the reservation that feel protected that want to do business with us.’ And that was really one of the big pushes. Well, then what can we put in there? We can put for limited waivers of sovereign immunity. There’s all kinds of things you can do but you really have to…you have to be able to rely on your attorneys, your counsel. You have to be able to rely on your professionals. Maybe you’re going to hire one of those entities out there that says, ‘Hey, we help tribes write constitutions.’ And I’ll tell you, there are some good ones but there are some bad ones and how do you know that? How do you know that if you’re just starting out? It takes a lot of homework before you get to that point where you’re with your community. But I really think going back to what I had just stated about really what is an issue that you, Joe, what do you think is an issue that we’re not able to deal with as a people right now that you would like to see made possible? Okay. You want to have a cattle ordinance. That’s been an issue for you for a long time. Okay. Well, how can the constitution help that? Is that even the role of the constitution? What is a constitution? These fundamental questions…and those weren’t…those might have been brought to the constitutional committee but they certainly weren’t brought to the people at the community meetings and if they were it was told to them. It wasn’t, ‘What do you want your founding organic document to be?’ Do you have to call it a constitution? And yes, you can…this takes a very long time. You can’t… I mean, the year and maybe a little bit less than a year and a half I think that we took to do this we probably should have spent a lot longer. But ask the people, ‘Well, what’s wrong with what you have now? What’s not working?’ And that’ll give you a lot of insight into what the potential changes may be. Don’t just throw it out and bring in something random. I think that’s a huge mistake. Bring in a whole bunch of models, read them, actually read them. And for the people that just are like, ‘I don’t even know what this is saying,’ you have to be realistic that you’re going to have to rely on the people that do whether they’re people that are…whether you bring in universities that have projects. There’s a lot of universities out there that do assist tribes with constitution reform, there’s lawyers, there’s clinics, there’s all kinds of means. You have to make the decision to trust those people and move forward. But take the time that you need, don’t throw out what you have because most of us have been using whatever that is for a long time. In our situation coming up, I really think that it’s going to be our current constitution with our articles right alongside of it and kind of regrouping. So if you do it that way or you have a few models and you really have to fundamentally decide how you want to structure your government. I don’t think anybody ever thought, ‘Oh, well, by doing executive, legislative, judicial,’ that there was essentially going to be no place for the general council and the ironic thing is if you look at our constitution, it has the general council up there as, ‘They are the supreme governing body of the tribe.’ Well, not really because in order for them to exercise that supreme governing authority, they have to go through a process that is very intimidating and that takes somebody to really go out there and rally a large, large number of people. So they’re now in a reactionary form. They’re no longer in the form where they are calling the shots because it used to be come to a meeting, from the floor of the general council I make a motion, it’s done. That cannot happen anymore. It does not happen. When we finally had a quorum at our last meeting, we were…there is a requirement for I guess you could say a ratification by the general council of certain things that need to be done. So just the example, the judicial commission is charged with finding, evaluating and recommending who the tribal court should be or actually the tribal judge and I could go off on that tangent for a little bit but I will wait. But essentially our judicial commission came back and said, ‘You know what, we recommend that we keep the tribal court, the Inter-Tribal Court of Southern California.’ So there was actually a vote and the general council said yes. So there are times when they do have the power but as far as what we were used to in the day to day business, they don’t get to vote on the laws. That’s now a legislative process and the general council has no…has had no role in that and we’ve passed all these laws without the general council. So know what you want your structure to be and play out those scenarios and ask those questions and you’ll be in a much better position when you have to actually go and implement whatever document that you adopt.

Veronica Hirsch:

With regard to constitutional reform, have you witnessed any successful strategies in engaging tribal citizens in these efforts?

Devon Lomayesva:

In most tribes and there’s a lot of us that have talked about this recently, you have a core of the people that are everywhere. You have the people that come to the meetings, the people that run for office, the people that put on the gatherings, the people that show up to help cook for funerals, you have kind of a core and then you have those people that show up on the outskirts so you kind of know your community. You know pretty much where people stand as far as their participation. I don’t have a magic answer for how to engage the people that we know for years and years and years and their parents and grandparents before them have always chosen to stay on the sidelines which that’s what they’ve chosen to do. So I think that the invitation goes a long way. Even though you might not participate, if the meaningful invitation is there. Tribal leaders still go and knock on doors. Some of our committees still actually go and knock on doors ‘cause not everybody is going to respond to something in the mail, not everybody is going to be at the meeting to hear it and you do the best you can. At a time when the majority of tribal members are living off reservation, not necessarily by choice—probably a lot of resource issues, housing, you name it—it’s hard because our people are spread out everywhere and when they live out of state they’re not going to come back for meetings. Once in a while they do. So you really have to know your community and you have to know the people that traditionally engage in it and you hope for the best. When we…right now a lot of people say, ‘Oh, well, you should just be…it’s so much money to send notices.’ ‘Well, everybody’s on Facebook, everybody checks their email.’ Well, you know what, no they don’t. We still have people that live without electricity, without running water and they have a simple phone that doesn’t have data. I was…even though technically on the election commission we could have just said, ‘Well, you agreed that we could send these electronically and you signed a paper. I don’t care, we’re going to mail every single sample ballot to everybody because we want to make sure that they get it in as many ways as possible.’ And that is essential and you can see the difference in the turnout. Just like in our own cities and states, the voting percentage… This last election was deplorable and I think everybody knew that coming in that it was going to be low turnout and I was actually kind of looking at the percentages and I think our tribal election had a higher turnout than we just did on the national election overall and so I guess that was kind of encouraging but at the same time not. So there’s nothing magic about it but it certainly is being aware of how you’re notifying people and how you are approaching them. And some people it takes a lot of time but you have to…maybe you have to go to the elder’s committee meeting and you say, ‘Look, you guys, we know you have your concerns.’ Go to the veteran’s committee, go to the gathering committee. ‘What are your issues.’ Don’t just say, ‘Hey, come on out, we’re going to have a meeting next week to talk about this.’ Get to know their issues and even though they might not show up, by taking the time to talk to those committees, they represent those interests, you’re probably going to get a lot of feedback that you can then relay or at least to throw into the discussion. ‘Hey, they’re not here but when I met with the elders the other day they were really concerned about X.’ And even…they say, ‘I don’t know if I agree with that but I want to let you know.’ And I think that’s your obligation. If you’re someone that’s going to be in this reform process, you have the obligation to share what you’ve heard and that makes for a much better discussion and it puts more scenarios out there. So I think that personal contact is vital, going to your committees and this is whether you’re a tribal leader, whether you’re on the committee or you’re just somebody that as a member wants to have as much representation as possible. The personal connections are vital. Hold the meeting at the same time as another meeting. Not the same time but to piggyback before or after another meeting and that really helps to get better turnout and what other incentives that work for your people. It’s always nice to have a cup of coffee when you’re talking about something and that really goes a long way and I’ve seen that work. So that’s probably the best that I could offer. But there’s certainly nothing magic about just mailing out a notice so for whatever it’s worth, that personal contact.

Veronica Hirsch:

Related to the topic of successful strategies, I’d like to ask, can you describe any successes that you would term as such as part of this 2005 constitutional reform process? You mentioned the inclusion of the savings clause which I think could appropriately be considered a success of this process. Can you either expand upon that or describe any other successes that arose out of the 2005 constitutional reform process?

Devon Lomayesva:

Two stick out just going in order. The first is that, and I was really surprised that this section wasn’t more hotly debated because if…we all know one of the things that’s debated is membership and it was really surprising that the creation of a base roll was included. And what that did essentially is it took the most current form of the enrollment ordinance which had previously been amended to include a number of other California census when originally the membership of Santa Ysabel was only based off the 1940 census and a lot of our tribes in San Diego and I know several throughout California, the 1940 census was their base or 1929. I’m always amazed at how many census there were. There were dozens of census out there so to only use one it’s kind of like, ‘Oh, that’s interesting. What if you weren’t there that day?’ Well, I guess you weren’t on it and it’s that simple how many people were left off the rolls. So when we changed our enrollment ordinance, we added on a very, very comprehensive history of our various villages which I think really helped people to vote to change that because it’s unfortunate that you always hear, ‘Well, if there’s more members there’s going to be less resources.’ And this is way before we were thinking about…not before thinking about but before the casino was more of a realization which is a sad but true conversation that comes into the mix when you talk about membership and per capita, it’s real and it’s sad but it’s something that I think eventually and even now tribes are dealing with in a way that we have to maintain our membership, we have to be here. So despite some of that and some of the ‘Well, if they weren’t on the ‘40m, then they’re not even supposed to be from here.’ You get all…you get the difference of opinions. We adopted it, we adopted at least…I don’t want to guess but at least five other documents where we allowed people to enroll that were on those that were affiliated with Santa Ysabel and so that was all put into the constitution and everybody who was enrolled as of the time of the adoption of the constitution was going to be on the base roll and that process as far as I know is still being put together but it’s there. And now even though our enrollment committee has dwindled in numbers, have to get that staff back up, we have a more inclusive membership of those that came from Santa Ysabel and so that was very encouraging because you created a base roll where now people can’t go back. You can’t go back to the ‘40 and say, ‘Well, they’re not on there.’ ‘Well, no, because now our new base roll is…’ I think it’s supposed to be 2007 base roll is what our goal was. And so that’s going to include…think of all the members that came since that time to have a more complete and accessible roll where people that are eligible and entitled to be enrolled can go to that base. So that was encouraging and I think that was a good thing for the tribe to put that in the constitution ‘cause membership is fundamental within the tribes and that was important to be in there. The other was the judiciary. As I said, we had joined the tribal court and were just kind of learning about it and kind of seeing how it was going to come together but that’s’ something vital because until then disputes were resolved by either the tribal chairman, the tribal council or the general council. I couldn’t imagine having this constitution without a sound judiciary and it must be by design because the general council wouldn’t have the power to act in that capacity anymore and you would only have the tribal chairman who by definition in the constitution kind of presides over everything and the legislature is there to write and pass laws and budgets but not the day to day governing and dispute resolution. So whether it was by design or just because that was something the tribe was leaning to, the judiciary has been a really good forum because it’s also motivated the tribe to look to passing other laws, I mentioned the Law and Order Code which can now be heard in tribal court and it gives… Actually the court itself is on another reservation about half an hour or 40 minutes away so people…it depends on the person but you go to a different place where you feel…’cause when you’re a smaller tribe you feel like, ‘Oh, it’s biased. Everything’s going to be based on the family.’ But in this situation it works well for us because it’s off site with a judge who is not a tribal member which I have my own feelings about that. I actually am also pro tem for the Inter-Tribal Court and I’ve heard cases for other tribes and other families but not for my own and I think that if I were to hear something for my own tribe, I’d probably end up being conflicted out because of being on council, of being on all the committees and being an attorney for the tribe, eventually probably something would conflict me out. So while it’s our court, the beauty of it is that we have options and if we were to try to hire our own judge to come up like the constitution calls for, it would be very difficult. You go back to a resource issue and this is kind of where I say that the judiciary was a good part of the constitution but I have to do that with the caveat that there is some disagreement and some interpretation and compliance issues right now with how the constitution is actually meshing with our adoption of the Inter-Tribal Court because in my opinion we have some problems. But generally the judiciary has been a good thing but we’ve only used the Inter-Tribal Court so that’s really my only context So the tribal court.

The 2005 constitution included a judiciary whereby a judicial commission would make recommendations for a tribal judge in essentially a trial judge and an appellate judge capacity. So you were supposed to go out and find judges and presumably you’d have to pay for them. I remember the discussions when we were talking about this because the Inter-Tribal Court was already on the radar and something we had joined but not necessarily had used yet so we were all just saying, ‘Oh, Inter-Tribal Court.’ You don’t necessarily have to put that in the constitution but draft it so that if we do keep the Inter-Tribal Court it’s going to be compatible. But…and this goes back to the unfortunate politics that get inflicted into the drafting of constitutions and other laws. There had been a decision that was adverse to some of those that were on…well, that were elected leaders so the Inter-Tribal Court left them with I guess you could say a bad taste in their mouth. That wasn’t… ‘Well, we don’t want the Inter-Tribal Court because we didn’t win.’ That’s really what it boils down to. But the problem is that we were already a member and already using the tribal court. So what the draft…and I obviously don’t agree with this to today…what the drafting did was say…it kept all the language that Santa Ysabel has to hire its own judges despite all the discussion of, ‘We don’t have money, we don’t have resources, we don’t have a court, we don’t have a bailiff, we don’t have any of these things,’ that language was left in there and it has all these specifics. It’s very long, this section. All these specifics about, ‘This is how you recall the judge, this is how the court’s supposed to function,’ all these specific procedures for the court. But the problem is, it said, ‘However, despite the provisions of this constitution, the Iipay Nation may use the Inter-Tribal Court up to 36 months after the adoption of this constitution,’ and that was kind of another version of a savings clause. It saved the Inter-Tribal Court. The thought process was that, ‘Well, within three years we’ll be able to have our own court, no problem ‘cause we’re going to have all this money, because we’re going to be able to do all these things, because we’re going to have all these people that…a judicial commission that are going to be empowered and informed to do all this stuff.’ Well, the 36 months came and went and the tribe…our casino was about to close, we had no money, we had nobody coming to meetings, we had nobody on the judicial commission so we were in this state of, ‘We can’t even comply with the constitution if we wanted to.’ And I reflect back on hearing some of the leadership at the time and attorneys saying, ‘You can get volunteer judges, the law schools, they’ll help you.’ That’s not a court. Yeah, you can get a volunteer but you still have to have a process. They’re probably not going to pay. You’re probably going to need some mileage and you’re going to need some…let’s think practically how this is going to work out.’ And all that was just ignored. ‘Hey, you’ve got 36 months for your Inter-Tribal Court.’ I remember somebody saying, ‘for your Inter-Tribal Court,’ and this was before I had anything to do with the court, saying that to other leaders, saying that to other committee members in meetings. It was very divisive. But at the time where it had come and gone, the…there was a time before we stopped having quorums that the judicial commission said, and I was actually on it at that time. We went and met with the Inter-Tribal Court and said, ‘How much do you charge us? What’s the set up? What do we get?’ And then we had looked at other tribal courts where the tribe completely funded their own court. You can’t compare the cost. It was just hands down, even if we wanted to do it, we couldn’t even afford to pay the full dues under the Inter-Tribal Court let alone try to establish our own. So we came back with a recommendation and it was presented by the leadership and it was voted upon and approved. Well, being as…I don’t know what words come to mind…dysfunctional, unorganized, lacking infrastructure. We had a case come up about six months ago where the tribal member was issued a citation under the Law and Order Code. They went to tribal court and she said, ‘This court doesn’t have jurisdiction. We are not a member. We did not adopt it. Our constitution says we can only use you for up to 36 months so you do not have jurisdiction over me.’ And I was like, ‘Hey, pretty good. Way to read it.’ But I said, ‘But that’s going to be quashed because we have proof that the general council, as they’re supposed to, adopted the recommendation of the judicial council.’ Well, somebody wasn’t taking notes or minutes and there was no evidence to show that the tribe had in fact made that vote and done that. So the judge says, ‘Until you can bring me proof that you’ve adopted that, there is no jurisdiction and this case is basically going to be stayed, it’s going to be on hold.’ What did that do? It was like, ‘Ah, pffh, we can go out and violate anything we want and what are you going to do about it?’ So the judicial commission, me not being a part of it because by that time I was a judge at the Inter-Tribal Court, did the same thing that the previous had did, came back, same recommendation, still don’t have any money, still don’t have any infrastructure, the Inter-Tribal Court is the best court for us and that vote was presented at the meeting where we had nominations and that was the only reason there was a quorum because it was tribal nominations. By luck or planned luck, whatever it was, the vote came up, there was a quorum and the general council did adopt the Inter-Tribal Court. So, ‘Okay, phew.’ So now we could go back to Inter-Tribal Court, ‘Hey, proof.’ But here’s the problem, the constitution still says only up to 36 months so what does that mean? I think you could get a judge to say, ‘Okay, well, since you followed the provisions and the people voted on it, okay.’ But what does that mean for all the provisions in there that talk about removing the judge, that talk about the powers of the appellate court? So then are we allowed to just ignore all that and follow the policies and procedures of the Inter-Tribal Court? That’s the most logical but there’s other provisions in there that work with other provisions that aren’t under the judiciary so how does that work? Well, I don’t know because nobody’s tested it out yet. Now we haven’t had a case go to the court yet to challenge that but it could come. So it’s very unnerving to not know if we are in fact protected by the constitution and what it promises to have in there. So nobody knows at this point. We think we’re okay for now but it’s not compatible.

Veronica Hirsch:

Your answer illustrates the complexities of the actual implementation of these various aspects of constitutions, constitutional reform so I’d like to ask you, how…in your opinion how can constitutional reform best intentions better translate into actual implementation?

Devon Lomayesva:

I think you again have to go back to why do you want to change it, why do you need something different? If your only answer is because you want to attract investors, then it’s not very well thought out because in my opinion that’s not a legitimate reason. You could pass a corporation code, you could pass economic development code or ordinance to deal with that. You could do so many things. You have to have some foundational reasons that you completely explore and vet with the people to make that huge of a change because you’re not going to be able to anticipate all the outcomes. You’re not going to be able to anticipate all the effects. Even things that aren’t even related to the category you don’t think about, about the ripple effect of changing things. And why fix what’s broken…what’s not broken. If it’s not broken, you don’t need to fix it. We all kind of know the saying. So why did we throw away all the things in our articles that had worked for us for so long to this unknown. Yes, we did have some things that should be improved. I think the membership was good. Adding in the authority to have a tribal court, that could have been added in. But think about it, have visuals. People say, ‘Oh, native people, it’s visual,’ and it’s very true. It’s very true that you want to look at things from more of an observational standpoint. I was…I can’t remember where I was now. A conference I was at, one of the gentlemen that was in a boarding school said, ‘They sent me to this boarding school, they want me to read about how birds and the animals live but why can’t I Just walk outside and learn that?’ And I think that’s really, really telling of our history but also us having to come to terms with what have we become as tribal governments. Have we thrown that observation and hands on focus and way of governance out? Have we come to be only written? And if so, not everybody has molded into that. How do we explain that to the people that this is going to affect that only learn and see things from being out there? And it gets to that personal touch, it gets to the real issues and being as thorough as possible and not allowing something that’s magical to come in and replace. ‘This is the best thing.’ Look out for the sales people, look out for the people that are promising to give you something that’s going to overnight make things better. It’s like the TV channels where, ‘Only seen on TV. Get it now. Miracle this, miracle that.’ There’s no such thing in governance and I think we need to be cognizant of that as tribal leaders and tribal people.

Veronica Hirsch:

The shift in not only general council’s ability to achieve quorum from the 1974 Articles of Association to the then 2005 Constitution and I’d like if you could please explain, and we could even put it in that context of before and after so to speak, if you could describe the general council’s efficacy and what are the successes and the potential pitfalls that have and will impact the general council.

Devon Lomayesva:

As I had said, the general council/tribal council setup is the ultimate democracy. It is…and it’s frustrating because…because it is such a true democracy which is the will of the people. The will of the people changes and it can change every month and it’s extremely frustrating and it’s extremely damaging. But at the same time, as a whole it’s worked and it’s kept the people together. There’s a reason to come together because together you are the general council and you have the power to make important decisions, you have the power and not only the power but you ultimately then have the responsibility, you’re an active part of government. Each and every one of you actually does count. A lot of times when you vote you’re like, ‘Gosh, I voted late. I already know my vote doesn’t count.’ But when you’re in this kind of a tribal government setting and it’s such a small amount of people, it’s really vital and so the general council has been the only way to accomplish the results that you want as a people. It’s been the way to pass laws. It’s been the way to punish people, to make sure tribal leaders are put in their place or congratulated or people are honored. That is something that the general council has really maintained the power and responsibility to do for decades and decades. Albeit there’s times when the general council will change on you as a tribal leader perspective or as a tribal member. They decide, ‘You know what, we actually decided we don’t want to have that as our law anymore.’ And so it can cause some chaos in government but with all systems you take the good with the bad and I think it’s been generally good. When you get to…and the general council up to the time of the other…of the new constitution, we only had to have 17 or 18 people present and while that wasn’t necessarily a good representation of the total membership, voting membership, it was still something that was attainable and we all knew and most of the time we got many, many more than that. There wasn’t even a problem. But… I talked about the change in the enrollment ordinance. That happened and so we had more people coming to the meetings so never a problem with quorum. But then these kind of rolled together, the effect of the new enrollment ordinance, the new constitution. The constitution required 10 percent of the general council which is voting members 18 and up be present for a quorum. Well, if you have 600 adult members, then you need 60 people there. 60 people is a far cry from 18. That’s three times the amount and in all the… I’ve been going to the meetings since, off and on since I was in my early teens and I’ve been going since. Rarely do you get 60 people there other than elections or big votes that rarely come about. Maybe voting on an ordinance or something ‘cause we didn’t always do it by mail, secret ballot. We used to just, hey, you’d be proud of your vote and you’re going to raise your hand in front of everybody and we all just voted right there on the floor. Now everything’s secret ballot. So getting the 60 people there was really something that I have to think about ‘cause it didn’t sound like much. Eh, 10 percent. I don’t think anybody really thought about it, about ‘Are we going to be able to make the quorum?’ Of course I did ‘cause it’s like, oh, geez, this is going to be tough. ‘Oh, well, we have a lot more people enrolled now, people are still enrolling.’ Then I think about, well…or did somebody think about this? Did somebody think about, ‘Wow, 60 people. That’s going to be tough to maintain. Could that be good for me?’ Well, yeah, it could but I don’t know. But you just think about it and you think about the reasons behind the drafting and that takes you back to how important it is, when you see these things, when you see these changes, you’ve got to play them out. You’ve got to throw in some scenarios. You’ve got to say, ‘Okay, what does this mean?’ I could name off all the people that come to our meetings right now, piece of cake, that have been coming for the last three years. And to think 60? Even on the day that I said we just recently got the quorum, we didn’t have it from the beginning of the meeting. We had to solicit to get a quorum. Some people were saying, ‘Oh, that’s illegal?’ I said, ‘Where is it illegal that I can’t call up my uncle and say, “Hey, come down to the meeting so we can get a quorum”?’ And that’s what we had to do. So even…even with nominations for elections it was…we didn’t have a quorum until we made it happen. So by design I don’t really know what happened there but the effect is that it goes without saying, three years with no quorum and the constitution itself, as I said, allows for the majority of business to continue on without the general council. Yeah, the judicial commission, they had to recommend the court but how often does the judicial commission have to do that with the general council? Well, it’s only happened twice so that’s…while it’s very vital, it’s not something that requires an ongoing quorum. So everything else, the budget, all the laws, all those things can happen with the general council absent and they have happened. So the efficacy of the general council is that…they’re essentially powerless. They have to go… They don’t have a voice. It’s reactionary, it’s after the fact. And until the general council is led by or understands or is educated about that process and actually one of our recent legislative candidates who previously served on the legislature said, ‘I know you guys feel like you’ve been disempowered, disenfranchised but you know what, it’s really not that hard and we can talk about it. I know we never have but you guys can do this if you want to, if you learn.’ I kind of agree with that but I also feel that the process is still going to be pretty daunting. But that shows that our own elected leaders have realized that, have recognized that and so the change is coming. We’ll just see if we can accomplish it.

Veronica Hirsch:

Lastly, reflecting on that process, I’d like to ask, what can other native nations engaging in constitutional reform learn from the Iipay Nation?

Devon Lomayesva:

I think they can learn number one that too much change overnight is going to have insurmountable, unintended consequences. They should learn or could learn that you don’t just end with your first bite at the apple, that you explore, that you research and that you get as many advisors from the membership, from the leadership, from your trusted consultants, attorneys, whoever they are and you flush those out. You don’t throw away things that have been working. You keep those and you hold dear to those because it’s rare. You think about realistically the funds, the resources, the human resources, the people that are going to have to play out the roles that you’ve put into that document because that is your document, that is the number one law of the land that everybody is more than happy, trust me, to say, ‘But that’s our law. That’s our number one law. That election law conflicts with the constitution. Why aren’t you following the constitution?’ And they’re the first to be pointing that out and you as a tribal leader need to be able to understand every single piece of that and if there’s things that are working for you, keep it in there. Change the things that there’s consensus that there needs to be reform. And don’t do it purely for economic gain because as tribes you are a nation and that’s only one component of it. And I guess last, what you can learn is that change can be good but it’s a process and it’s not something that will happen overnight. And in our year and a half we could have spent another year and a half and probably still not been able to flush out and anticipate all the changes that would happen with it so take your time and don’t rush it.

Veronica Hirsch:

Thank you, Devon Lomayesva, for providing us your personal opinion and insight regarding the Iipay Nation of Santa Ysabel’s constitutional reform process. And I thank you for joining us today as part of our Leading Native Nations program.

Devon Lomayesva:

Thank you for having me

 

Honoring Nations: Rick Hill: Sovereignty Today

Producer
Harvard Project on American Indian Economic Development
Year

Former Oneida Nation Business Committee Chairman Rick Hill offers his perspectives on sovereignty today through the lens of the challenges facing his nation and the strategies theyr employing to achieve their nation-building goals. 

People
Resource Type
Citation

Hill, Rick. "Sovereignty Today." Honoring Nations symposium. Harvard Project on American Indian Economics, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 17, 2009. Presentation.

"Well, good afternoon to you all. I'm glad you're still awake here. This kind of reminds me of the Mo [Morris] Udall statement, 'Everything's been said, but not said by everyone.' So, here we are. I think if you get a copy of this book, it has a great explanation about the Oneida Farms and it's very well written. It's basically my speech, so you guys can read that on your own time and I will do some other things here.

I really enjoyed the humor today. It kind of kept me awake. The teepee creeper story, the other lady that was, the co-mingling thing here, and I say, 'More warriors, more warriors, more warriors.' So I thought that was good -- that we're a dying race of people. And I liked the other thing that our friend, Manley, said about being at Harvard. Indians gathering at Harvard, we should all run. Manley, I enjoyed that, I thought that was good and I'll borrow that. And then when I walked in I seen the commander. I was like, 'who in the hell's the commander? What's this about?' So then I walked through the halls here and I see it's George Washington and he's the commander. And so it made me think about what my elders taught me about the history.

Basically -- and Oren [Lyons] knows this story better than I do -- but they know that Oneidas gave George Washington and the Continental Army -- we were the first allies of George Washington. And a lot of us went to Canada, decided not to be in the war, and others stuck around and were the first allies of George Washington, if you didn't know that. And fed his army at Valley Forge [because] the colonists couldn't afford to give them their little bit of food that they had. So it was a matter of survival. And so the Oneidas brought 500 bushels of corn, as the story goes. And they taught them how to make cornbread and corn soup, [because] those guys were just gobbling it up when they received it and their stomachs swelled up -- they were just looking for something to eat. And so that was the staple that was the turning point in the war. Otherwise, we'd all be speaking French. That would really be the case. But somehow those chapters are left out of our American history, and that whole big chapter about genocide that happens to be missing in the curriculum, [because] actually, it was to start out to wipe us all out, right? That was the whole thing. It went from our people, to the buffalo, to whatever staple we had to build our economies, to feed our people, was to the first issuing of the small pox blanket, was the first form of chemical genocide, right?

That was all strategically done. We started out in the War Department [because] they were trying to kill us all off and figure ways to do that: exterminate us. And then we ended up in the Interior Department -- no coincidence there, right, because it was about the land, and then it's about all the resources. And then the history goes on about the policy. So that's what we're up against, in terms of our communities, when we exercise sovereignty. We were always running against the grain relative to those policies. So I used to do the gaming speech and I always went back to like, we've been reduced to gaming. We owned all this territory and all these resources. They had the weapons -- that was the whole thing. They had superior weaponry. It was our families against military force. And so here we fast forward to gaming and the dollars that gaming gives us for economic development that allow us to do a lot of the things that we can do today. So that's based on demographics and hopefully the other Indian communities and nations will have some form of economic development, less a tax base, to run your governments. So I always like when we can all get together, because it's sharing ideas and sharing resources and getting new ideas to bring home to advance your community and to protect your inherent sovereignty and all that. So that takes a lot of infrastructure to do all that kind of stuff. So I wanted to put that out there.

The other thing that I came here is, I was like, 'Wow, I'm in Boston.' And then I thought about our senator friend Kennedy who just passed on, Ted Kennedy. And several years ago, I had the opportunity to meet the Senator. And so we flew here and then we went to a reception where all the other mucky mucks here and we waited and we waited and we waited and we waited. So he worked the whole room and then he finally came over to say hello to us and we were all happy that it was our time. And then he started telling a story about Bobby Kennedy. Their family always wanted to help the less fortunate or the different races of people and they have a legacy of that. And so he just shared the story about how him and Bobby had a conversation one day and he actually asked him to help the Indian folks out. And so I guess some history would speak to that, I don't really know that in detail, but Indian education and health reform and all these other things and he had a hand in it and he had us in mind to pass some of those kind of things. I thought that was kind of an interesting moment for me personally. And then later on to meet his son Patrick, I think that's a good thing. I think Patrick's a solid guy and I feel for the family and all that stuff.

But there's always the Kennedy jokes, right, the Kennedy stuff. Like, a guy will walk into a bar, a regular old guy will walk into a bar and see a woman sitting on a stool and say, 'Why?' Then Ted Kennedy walks into a bar and sees a woman sitting on a stool and he says, 'Why not?' Or it was so quiet in the room you could hear a Kennedy's pants drop. I always like that one, yeah. So we'll save the late show for later. I have to get the mood of the crowd here. Oh, wait one more. I can't escape this. How about, John Kennedy should be in heaven because any man that would share Marilyn Monroe with his brother Bobby should be in heaven. So there, I had to get that off my chest.

There's a legacy there and who's going to take this spot? Who's going to fill this void up on Capitol Hill? So everybody will be vetting for this new senator position, but who's going to lay on the tracks for the Indians? So we have to go and develop and educate. And my buddy Tim Wapato -- he's passed on -- he says, 'When we educate white folks, it's a lifetime commitment. And then it's your kid's lifetime commitment.' And that's what we're up against. [Because] if they don't live next door to Indians or have these disputes with our communities -- these local units of government and county governments and state governments -- they don't have an idea, but yet they're going to vote on major pieces of legislation -- the Indian Healthcare Improvement Act or education act comes up, or you want to resolve your land claims, that kind of stuff. That's all. We need to develop friends and new friends and it's a continuous process.

So I see Oren -- and I think about land claims a lot of times when I see Oren. And the Haudenosaunee had a certain position, we had our position on land claims but yet, there was over 27 million acres of land. And that conversation, after 200 years is still occurring. So in terms of exercising sovereignty we're still in that conversation. Who knows how it's going to come out, but yet that's still pending after 200 years. So for us to have the staying power to stay in these conversations is important as we develop our communities and our educational systems, and teaching about sovereignty and the importance of inherent sovereignty, that this fight goes on and on and on and on and on.

My traditional chief told me -- when I was recruited to run for chairman last, I was in office a year, we have three-year terms. So I started when I was 23, I'm 56 now. So I've seen different leaders through time. I was happy to see my father Norbert, Purcell Powless, Roger Jourdain, Wendell Chino, Oren and a lot of folks. I was really blessed with seeing how these guys protect sovereignty and the fire and brimstone routine that Chairman Chino used to represent. It was all about sovereignty and his territory and 'you'd be damned if you do something in my territory, over my dead body,' it was like that. And now I think I kind of feel like that's kind of missing. I don't feel the fire in people's belly anymore. I feel a little bit here when I hear some of the speakers, but I don't oftentimes feel it.

And then as I go back home, we have 16,000 members, we have 3,000 employees, and we have a large general tribal council, which is the ultimate body. And so with that -- $100 a meeting for our members to come to the meeting -- we get anywhere from 1,500 to over 2,000 people at a meeting, but they all left because of relocation programs and survival reasons. So like a generation and a half, they're back home, so to speak. And so when they drive up, the infrastructure's there, the casino's there, the bank's there, the industrial park's there, all these kinds of things are there. So they didn't have any sweat equity into building this, so they have a different mindset about what that's all about.

But I have a fond appreciation, [because] when we had our debate about the per capita issue more recently, they were going to issue, they emptied the coffers at one time -- like you said, the other council -- but the other general tribal council took the position that they were going to pay themselves first. And so they emptied about $89 million out of the coffers that took us generations to build. And then more recently, we had a conversation [because] there was another petition for another $160 million for our 16,000 members. And so I asked if they would suspend the rules. And so as the meeting went on, they eventually suspended the rules. We had great testimony then [because] they knew -- when we talked early on at this conference here about traditional values and way of discussing and consensus building, that's what we ended up doing. So we had a lot of testimony about [that] land was important, health care was important, educational resources are important and all these kinds of things were more important than the dollars as an individual member. So it was nation first and then let's talk about, 'Can we afford the per capita later on?'

And so that was important in terms of – [Because] in 1934 we went through, you guys understand the Allotment Act. And we lost most of our land and we went down to a few hundred acres. And with the advent of gaming we were able to buy land back, and tobacco sales, we were able to buy a lot of our land back. So that builds more the foundation of what we do in the community and the institutions we put into our community. The importance of nation building, to get everybody on the same page in terms of the allocation of resources for certain priorities for the nation, and that's the challenge that we have now. What does that look like? What are the priorities? There's only so many resources. And how do you allocate them on priorities?

So when I got into the office a year ago or so, we had a 100-day plan, and it evolved to the 200-day plan, [because] there was so much to vet, in terms of what we're going to do. So we established three standing committees on quality of life and economic development, commerce and land development. I think was another subcommittee. So I think we got a way to funnel our issues in and they're vetted and then they're brought as recommendations to the committee later on. So we've been able to at least go in that direction.

The other thing I think it's important to mention, at least I think it is, is about what Oren kind of alluded to early on in his open remarks. And there's an urgency about all this subject matter we're talking about here. There is an urgency to get things in place and to find the best talent to protect your inherent sovereignty. And a lot of it is related to the climate changes and stuff like that, and then it relates back to health of the community. And I think on the climate change issue, I don't know who this group of people is, but I heard about a group of elders and medicine people one time who were discussing that. And we need to demand to get into that conversation [because] they probably can help position us with that message and how we should prepare for that time. And then I look at our farm thing and I was thinking about that too. And our farm is to have more of a traditional way of agriculture. And then you look at, I go to my health center, and if you want to campaign, you'll see everybody at the health center. We have a huge health center, but you'll see everybody there, right? We've got heart issues, diabetic issues, we're a sick people. We are. And the only cure for that is really, good eating and a healthier lifestyle. The other subgroup we have is called the Quality of Life, so we're trying to look at the quality of life for our people. Although we have this great farm, not everybody uses the farm [because] it's a lot easier going to Walmart to pick up your frozen food, right? So to me it's about, food is the medicine, the fresher the better. And if we can, like I said, the farmers' market should be right next to the health center. So people can get their medicine or more traditional forms of medicine should be in the health center. So these kinds of things, we've got to breath more healthier lifestyle into our people and if you have strong individuals then you've got stronger families then you've got a stronger community and those kinds of things. So I think in terms of what the message Oren was talking about -- the climate and the health of the people in the community -- it starts on the ground. And we need to really make a bigger push urgently to try to get that done. I think that's an important thing to advance here.

I had a lot of other Kennedy jokes to share with you. However, my time is limited and they're really for late night. The other thing that we're doing, we know we don't have resources to do the things, [because] we don't have tax bases as governments, so we're in the process of really working with our corporations to try to monetize what we're doing within our corporations. And then some of you asked me a question about the silos in the communities, and we're bringing groups together to break down the silos and collaborate to really have a stronger more vibrant economy. And more recently we started businesses in the environmental arena, and it does environmental engineering, construction and management services. We were able to buy a golf course that was bankrupt and to expand our hospitality business, to go along with our casino and other things we do well. We're looking at the biomass projects, and [I] was happy to work with Chief [James] Gray here [because] he's the present Chief of the Consortium of Renewable Energy Nations. So I wanted to put that out there. If you're interested in that, we can get you information. By us coming together to define the organization and to address the federal legislation on citing and permitting, and get some of these federal citing and permitting issues, impediments lifted, have some kind of one-stop-shopping thing. Because on the investment side, we've got to be competitive with the commercial side -- no one's going to invest in our renewable energy projects. So we've got to work hard on that legislative piece and we all need to come together to help do that.

One last thing is our committee decided to address Public Law 280 and retrocede [jurisdiction] from the State of Wisconsin. And that happened when I was 23. Now they're going to revisit that folder and try to build a plan to move towards that. And I think that's a good thing in terms of what are we doing to address sovereign issues and exercising our own sovereignty. So that's really important that we get all of our infrastructure. So we're really looking at our judicial system and giving them more authority and more power and those kinds of things. The other thing that's kind of a thorn in their side and John -- [I] was happy to see John after many years -- after the gaming wars, to come to our community and talk about these anti-Indian groups that are rearing their ugly heads again. We should all be aware of that. I think up north in northern Wisconsin there's actually billboards from the...from the fishing wars to more sophisticated ways of campaigning to change federal Indian law and Indian policy. They're more sophisticated in their messaging and their networking. They have more expertise to try to disrupt Indian tribal governments, as we want to exercise our sovereignty. So they don't like land into trust. They don't like you to have jurisdiction. And all these battles go on, so we need to all pull together.

In Wisconsin, we're working with the 11 nations there to organize and do something that John has done in the past, that have proven to be successful, some public service announcements regarding our communities and what we're capable of and what we can do. But we need to be aware of that, because that's just an ongoing battle. I guess they figured they job ain't done. They didn't exterminate us yet, so they're going to figure to try to change Indian federal law and policy to thwart our governing authorities, our inherent rights. So be aware of that, if you haven't noticed it. But that's something that will affect all of us -- if they can change Indian federal law and policy, that's going to affect all of our communities. So they'll be trying to find a court case that they can advance and the courts. My dad always told me, 'It's really hard for an Indian to get a fair trial on a court that sits on stolen land.' So there's enough case law to support that theory my dad was trying to teach me when I was much younger. You can't get a fair trial in a court that sits on stolen land.

So we need to be careful about when they think it's a controversy and they want to raise it up to the area and raise it higher. We got a case that was about condemnation in our community and we thought we had the set of facts on our side. And we usually do when we want to advance something, and only to have Judge Griesbach look the other way and be political and say they could condemn our fee land. So we stopped there [because] it affects us, but we couldn't advance that [because] then it'll affect everybody else, right? So even when you've got the facts on your side, it doesn't necessarily mean you're going to get a fair day, so be conscious of that as we get challenged by these rednecks to get us into a court situation. As Charlie would say, 'You should never judge a man by the color of his neck.'

All right, so I guess these remarks didn't do me any good today, but I wanted to put that energy out there and hopefully get your attention on some things here. And I appreciate the good work of my niece here, Megan Hill, and all of your good work. Don't take no prisoners, and don't become one. Thank you."

Honoring Nations: David Gipp: Sovereignty, Education and United Tribes Technical College

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Harvard Project on American Indian Economic Development
Year

United Tribes Technical College President David Gipp discusses the impetus behind the establishment of United Tribes Technical College (UTTC) and the emergence of the tribal college movement, the growth of UTTC over the past four decades, and the critical roles tribal colleges and universities play in Native nations' efforts to rebuild their nations. 

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Resource Type
Citation

Gipp, David. "Sovereignty, Education and United Tribes Technical College." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 18, 2009. Presentation.

"Thank you, Megan. It's great to be here. I don't often miss these sessions as a member of the Board [of Governors], and I apologize for not being here the last two days. Unfortunately, my schedule was such that it was difficult to get here, but I finally made it. I'm always late but I usually get there, as they say. So it's great to be here and I look forward to the presentations yet that are to come for this morning. I want to thank you for the prayer this morning and especially, the prayer where we talk about those who are in our communities -- and we use the word [Lakota Language] ones -- the ones that are kind of out there and we don't always see, the ones that are what we call pitiful and are in need sometimes, and don't get the privileges we have of being at this table here today at especially such a prestigious place. Those are the people that I serve, and I'm sure that many of you serve back in your home communities, especially if you're either in an elected position or have been in one. You know those people and who they are, and you know that these are the people that we really stand for back in our communities. Many of them are traditional people, many of them hang onto their culture in very closed and close ways, and some of them suffer because of the issues of poverty. In fact, many of them do -- at least in my part of the country in North and South Dakota and Montana and in other parts as well. So I think of these people when we're here and when I'm having a good breakfast, or whatever it is, and I appreciate that. And I've had my share of life from those days as well, having come up in that respect. So I appreciate that prayer and we think of these people. I want to extend my condolences to the Hill family -- and to all of you for your losses in your family as well -- and our prayers and good wishes for you and all of those who are dear to you. We have those kinds of things that happen to us, in all of our families again, because we're human beings and we come from the good earth here. So I think of those kinds of things.

I listen to Chief [Oren] Lyons and his speech about what happened back at Wounded Knee and I think of December 15, 1890 when Sitting Bull was killed. And two weeks later, the first Wounded Knee happened and quite a number of our people were killed -- Lakota people who were, Minneconjou who were, Hunkpapa, some Oglalas, Blackfeet Sioux and many others that were within that band -- that were on their way in, by the way, to give up, if you will, coming off the prairie. And [they were] some of the very last to be brought into what was to become reservation life, to the kind of confinement that we have lived with for many, many now centuries. And we were giving up a way of life, our freedom, if you will, giving up our constitution, if you will -- our constitution as we knew it and understood it. And many of our tribal nations have historically gone through that from the time that Columbus landed -- mistakenly landed -- on the shores of North America and stole the first Indian, kidnapped and took him back before Queen Isabella, and those kinds of things. Today, those would be considered crimes against humanity and inhumane acts. Although sometimes our own government continues to justify those things, as Chief Lyons pointed out, at the highest levels of government.

And so we need to be sure that what we do -- and this is one of the things that I think Honoring Nations does -- is brings the very best of Indian Country forward of what we're doing, that we're human beings, that we're not 'savages,' that we're not 'uncivilized,' that in fact we have our own civilizations and we have our own way of doing things and we have our own methodologies, all of these things that you know better than I do. And those are the presentations that we give to America -- and we have given freely and openly -- but we need to share them among ourselves so that those people that I talked about, the [Lakota language] ones, can benefit and can learn and talk about that. I talked to one of my students the other day, who has dreams of coming to Harvard. I don't know if he'll ever get here, hopefully he will, if that's what his dream is -- there are other places I told him he can go to school too, but we'll deal with that one later. Those are the kinds of things we look at when we talk about opportunity, because it's opportunity that -- as an educator --that we want to make. We want to be sure that our people are on a level playing ground and that they have that adequate and highly capable opportunity to bring themselves forward to be a part of life; and mostly, to do some good things for themselves and for their families and again for their community, as they so choose. And that's what United Tribes [Technical College] was about. We did officially, on September 6th, celebrate our 40th anniversary as an institution, as a school, as a training place that began in September of 1969. But the beginning of that goes back some years, back into the '60s, when a lot of us were ensconced with doing some fundamentals -- by us, I meant tribal leadership and tribal councils and other people.

I was just coming out of high school back in the mid-60s, but I remember listening to the TV at the boarding school that I was in South Dakota and watching TV. And the people of South Dakota had voted that day -- in I believe it was '65 or so -- and they voted that the tribes of South Dakota would continue to have their own civil and criminal jurisdiction. In North Dakota, something similar was happening. The tribes of North Dakota came together and they became United Tribes of North Dakota. In South Dakota, it was United Sioux Tribes of South Dakota and they were the remnants of the great Sioux Nation, by the way. But my point being is the tribes in many states, in many communities, were fighting for the fundamentals of civil and criminal jurisdiction. Jurisdictions that, yes, we continue to fight about even today -- in the courts and with all kinds of people and with the states and cities and counties and those kinds of governments versus our tribes and tribal governments, so that fight certainly isn't over -- but they laid the groundwork for those that were successful in retaining that civil and criminal jurisdiction in the mid-60s by having rejected Public Law 280 as a methodology for having the state to assume those jurisdictions; and that's what happened in North and South Dakota. And obviously, I capsulized this in a few brief statements because this was something that went on for years and years, and you know the origins of Public Law 280. My point being is they were at least successful in saving that fundamental of jurisdiction of the tribes, otherwise we would not have this -- and many of our tribes that went under 280 know the difficulties of being a 280 tribe -- because that was not our choice. It was put upon us by the U.S. government and then by the states themselves -- states that certainly didn't exist when we were long, long around, let's put it that way. We know that we predate all of these governments, including the U.S. Constitution.

So those were the formative years for places like United Tribes of North Dakota, but one of the lessons learned out of that success was, if we come together -- and in our region we have Arikara, we have Mandan, we have Hidatsa, we have Lakota and Dakota, and we have Chippewa, Ojibwe or Prairie Chippewa -- as sometimes they're referred to on the Northern Plains -- and all of those tribes had historic differences at various times, but you know all of those tribes also got along, long before the non-Native ever came around. And those are the stories that are not told. Those are the stories that are not told. And that's also an element of Honoring Nations: ways in which we come together in good ways, ways that we share and that we trade, and that's what Honoring Nations is about.

Sitting Bull is often portrayed as a great hostile -- a guy who hated everyone. That's not true. I'm a Hunkpapa, and our family and all of our people knew him as a humble, as a generous, and as an open man. One of the children he adopted, in fact, and raised was an Arikara -- a supposed enemy, by the way, archenemy of the Lakota or Sioux. So we knew and we knew how to get along in our own good ways when we needed to and when we wanted to. And so we didn't need the lessons of the non-Native, even today. And the lessons of Honoring Nations, I think, is an excellent way in which we begin to share effectively, effective ways in which we continue in rebuilding the renaissance of rebuilding tribal nations.

And that's in effect what United Tribes [Technical College] was about, because when they came together in those mid 60s -- saved, if you will, or preserved that civil and criminal jurisdiction -- one of the things they said, our tribal leaders said is, ‘We can produce other kinds of success by coming together in unity and in spirit.' And one of those results was United Tribe's educational technical center. They spotted an old fort in Bismarck, North Dakota called Fort Abraham Lincoln -- the second Fort Abraham Lincoln, by the way. The first Abraham Lincoln is to the west of us, just across the Missouri River in Bismarck, North Dakota. And that first Abraham Lincoln is in ruins and that's where Custer left for his final ride, I'll put it politely. So I'm over at the second Abraham Lincoln that was built between 1900 and 1910. And you'll see the parade grounds, the circular parade grounds, and the brick buildings and that sort of thing. For some people, it reminds them of old boarding schools, but it was a military fort. And they're what I call the cookie-cutter forts of the turn of the century, built from 1900-1910 or so, and that's when this one was built. And it produced soldiers for World War I. It went on and was used by the North Dakota Army Guard, by the way, up until 1939-1940, when INS [Immigration and Naturalization Service] took it over and housed Japanese and German aliens there for five years. And then it was returned again to the North Dakota government. And in 1965, it was decommissioned completely and by 1968, we took it over. And that was again that lesson learned by United Tribes, by the United Tribes leaders and they said, ‘If we come together on issues, then why not do training?' We predate most of the tribal colleges, with the exception of Navajo Community College in 1968, but we actually were chartered in 1968, officially. And they said, ‘Let's get that fort,' one of our tribal leaders said and they did. And again, I simplify the story, but the point being is it was a good example of the Indians taking over the fort, but this time for peaceful and educational purposes and for our own wellbeing and on our own terms and conditions. So those are things that we keep in mind as we build and rebuild and we put things back together -- that our critical purpose is not only to preserve and protect, but to build. And again, I go back to what Honoring Nations stands for and what the kinds of lessons are that you provide for all of us throughout Indian Country, for those people back there at home.

And I look at my own Standing Rock area -- in North and South Dakota, which is where I'm from -- and I look at the issues of poverty, I look at the issues of the high suicide rate, some of the highest suicide rates in the nation, by the way. And I think of the story, of what Chief Lyons talked about at Wounded Knee in 1973 and going into that area at that time, about that same period of time. And what we were committed to was building and rebuilding our own educational systems, and we're still doing that. In 1973, there were six tribal colleges; today there are 37. In 1973, we were serving about 1,500, maybe 1,700 students nationally among those six schools, today we serve close to 30,000 students. Today 51 percent of our population or better across Indian Country is under the age of 25. And in many communities that 51 percent or better is under the age of 18 where you come from; we have a growing population. And so the challenge for us is to provide that quality education. The challenge for us is to provide even more, because our young people are hungry for the knowledge of who they are and what they're about. Yes, they need the skills. Yes, they need to be able to participate and actively compete, if you will, in areas of science, math and technology. I was just at a congressional panel yesterday in which we are beginning to develop our own engineering degrees on our own terms and conditions. [President] Joe McDonald out at Salish Kootenai [College] produced the first four-year engineering graduate this past May and we will do more. It starts in small ways.

But I remember in 1973 when a lot of people in D.C. -- where the Chief was -- said, ‘Why are you guys doing this? You can send your kids over to the local university, or whatever.' Well, local for us is anywhere from 50 to 150 miles away in our area of the country. The second thing is that mainstreams, only about 4 percent yet -- and this is a 30-year old statistic, by the way, that still stands -- only about 4 percent of our kids, our children that go through mainstream institutions, make it through with a four-year degree. That's a dismal shame upon America and upon American higher education, ladies and gentlemen. That's a shame. That's immoral that we have so few coming through the system getting and accomplishing degrees. So when I see an American Indian graduate with a two-year or a four-year degree, I tell you, I give them high commendations, I give them high commendations. And yes, there are great issues that they have to face even at that, but the point is we need more of these people. We need all of our trained and educated people back in our communities. And we face the risk of losing them every day to mainstream America because there are so many opportunities out there for them. And that is what nation building is all about, assuring that we have ways for these people to come back into the system. Too often, I hear young people say, ‘There's not a place for me to go back to,' either because the job doesn't exist or because there are certain kinds of politics back home. We need to teach our own tribal leaders -- and as leaders yourselves -- ways in which we welcome these people back, and ways in which we can have them come back into our communities, or ways in which they can continue to contribute -- whether they're in a national post, a regional post at even a mainstream institution -- because we are together and that is the way we continue and rebuild tribal America as I look at it.

And that's part of what really United Tribes [Technical College] is all about, that's part of what the tribal colleges are all about. But I mentioned in 1973 going into Pine Ridge -- myself with a crew of my staff, to do training among faculty, with Gerald One Feather, who had just completed his chairmanship, and Dick Wilson, of course, was chairman of the Oglalas at that time -- but going through roadblocks. On one end were -- Dick Wilson says, they often described them -- the GOONs [Guardians of the Oglala Nation]. So we turned around and went clear down the other way and went back into Nebraska and came back to the east side of that particular reserve. And then we ran into the AIM-ers [American Indian Movement]. So then we had to go back, come back through this way, double track and then go back through another road to get to what was then, the college. And the Oglala Lakota College -- which is now pretty much centrally located out of Kyle, but also has the rest of its centers, satellites, and all of the various communities throughout the Oglala Lakota area up there -- was pretty much in just what I would call broken down trailers and that's where they were teaching classes. But we went in and we talked to some of the staff and faculty and the president and did some work there. And then Gerald invited us out to his place just northwest of Pine Ridge. We managed to get over there late that afternoon into the evening and we had dinner with him. And we sat there and he was talking to us about what they were doing with the college and how things were going to go with it. We looked out of his windows there, his front windows, and they were all, there was no windows. We said, ‘What happened to your windows?' He said, ‘Well, they got shot out last night.'

But I guess my point is, we've had our war and this has happened in other communities as well, disparities. But what we have learned is we go on -- I'm not saying we aren't afflicted by them in negative ways -- but nevertheless we go on, because we're a strong people. We're a very strong, resilient people. We're a people that can accept and take change and incorporate it and do it in proactive ways. Otherwise we wouldn't be here, our children wouldn't be here, our grandchildren wouldn't be here -- given the size and makeup and complexity of our population, given the different languages that we have, the different customs that we have, from one nation to the other. As small and tiny as we are in this huge nation of 270, or more, million of the United States of America, we're still here and we will continue to be here. But the important thing is that we continue to build, as best as we can, and on our own terms and conditions. That's what tribal colleges are about: our own terms and conditions. They are the fundamental rights that go even before and beyond treaties.

Sitting Bull never signed a treaty, from where I'm from. He was a Hunkpapa Lakota, but as he said when he picked up that piece of earth and dropped it back to the ground, he said, ‘I never gave up or sold an ounce,' to be interpreted, by the way, of the earth, ‘because I am part of it. I've never given it up. No matter what they say. No matter what kind of piece of paper they put in front of me.' And yes, we have to adhere to things like treaties. And yes, it's important to assure that they're enforced, if you will. But he never signed a treaty. He fought his whole life and he gave his life telling people, ‘If you sign that, you sign your life away.' For him, that was what destiny was about and that was the loss of freedom. We're in a different era now, and even he recognized, though, that we had to make changes that were significant among ourselves, because he had gone on the Wild West Show with Buffalo Bill Cody and went clear across to Europe and been in D.C. One of the things -- he came back and he visited in a little school on Standing Rock, when it was settled, after he had been brought in, brought back from Canada and had been held in prison at Fort Randall for two years, brought back to Standing Rock and some of my own people followed him back up. They brought him back by riverboat up the Missouri and the rest of the people that were with him walked; they didn't ride on that boat. One of them was my grandmother, who was a little infant and brought up from that area of the country -- Fort Randall back up to Standing Rock. But he later visited that school where my grandmother was at, and it was called the Kennel Industrial School. It's not there anymore. In fact that whole community was inundated, flooded by the great dams that were put upon the Missouri River Basin from Montana clear down into Nebraska. But he walked in that school and he said -- and he talked to the children and he looked at all of them -- and he said, ‘You need to learn, you need to learn what the wasicus are doing and you need to learn how they write and what they do.' He said, ‘I can't read or write.' He could write his name, but he said, ‘You need to do these things and learn what they are about, because that is the only way you're going to protect yourself, it's the only way you're going to keep who you are.' He said, ‘I've seen them,' he said. He said, ‘They're going to come in such great numbers.' He said, ‘When you see the ant pile,' he said, ‘there are even more than that coming. They're not here yet, but they're coming. You see them around us right now.' He meant wasicus, the white man. He said, ‘They're bringing things that you can't see or understand all the time, but you must learn about them and you must learn their way, because otherwise you won't be able to take care of yourself.' He said, ‘I've seen them,' and he said, ‘there's more than you can ever imagine or think that are coming.' And he said, ‘It's something we cannot stop.' So even he knew at the end, just before the end, that there was a complete change in life. And he had his own school that was established in his community, just shortly before he was shot. So he was making changes himself.

But for other reasons, I won't get into the whole story about his killing, and how he was murdered, unfortunately, by other Native people. And these are the things -- and that is one of the first lessons we must always remember -- that the United States government has used effectively the Roman rule of ‘divide and conquer' very effectively among us. And we must always be cautious that we, as Native people, don't become continued victims of that, and that we don't use those non-Indian ways to take advantage of each other or to harm or hurt each other. Those are the realities. That was one of the lessons we should have learned out of the last Wounded Knee that Oren Lyons talked about a little bit ago. Because when we create those kinds of conflicts among ourselves, it also creates very harsh, bad realities, for generations to come, among ourselves. And then I can go back to the good lessons I hear and I listen to about what you are doing out in those communities -- of dealing with issues of disparity, turning them around and creating whole new kinds of opportunities, whole new kinds of wonderful hope and giving hope to others -- so that that student I talked to the other day may indeed be here at Harvard, but will continue on in a good way, carrying with him some good kinds of new proactive, if you will, weapons, but also ways that we continue to create peace and humanity among ourselves. Because that's where our hearts are, that's where our hearts are. They are good hearts. [Lakota Language]. Thank you very much."

Theresa M. Pouley: Reclaiming and Reforming Justice at Tulalip

Producer
Native Nations Institute
Year

Tulalip Tribal Court Chief Judge Theresa M. Pouley shares the long-term, positive effects of the Tulalip Alternative Sentencing Program on the Tulalip tribal community.

Native Nations
Resource Type
Citation

Pouley, Theresa M. "Reclaiming and Reforming Justice at Tulalip." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 26, 2008. Presentation.

"I am Theresa Pouley. I'm a judge. I've been a judge for a long time, only in tribal courts. That's the only place I ever wanted to be a judge. And I've been a tribal court judge for ten years; six of those years were as the chief judge of the Lummi Nation. So that almost is a credential all in itself. I'm honored to be here today. I rarely get to speak in front of so many council people. It's not a good spot for a tribal court judge, usually. I'm honored to be associated with Tulalip's tribal court. I was really honored and humbled to be awarded High Honors at the Honoring Nations program for a tribal court program. I'm here to share that experience with you today about Tulalip's alternative sentencing program and hopefully we can learn some lessons from it.

Every day I think about Tulalip and its justice system. Most judges in tribal courts think about those issues all the time. At Tulalip, whenever I think about it and whenever I give a presentation like this, I always stop for a second and see if I can come up with a pearl of wisdom from our ancestors. So today I thought about it and there's an old Shenandoah proverb that I think fits Tulalip's alternative sentencing program. It says, 'It's no longer enough to cry peace. We have to act peace, live peace and live in peace.' So when I think and talk about the alternative sentencing program I always do it in those three ways. How do we act peace? Let's talk about the history of Tulalip. Where did they get to where they are today? Let's live peace. What's Tulalip doing now that's different and useful in resolving some of the issues that are facing our communities? And the last one is how do we live in peace? What are the lessons that we learn from that so we can move into the future?

So let's start with the history. And I like to go way back when I talk about Tulalip. I read a bunch of stuff about Tulalip -- I'm actually a Colville tribal member, which is a cousin on the other side of the mountains in Washington State. So I went about the business of learning about Tulalip. Tulalip is historically a fishing community. That's why that picture is up there and it always reminds me of who I speak. They were a very peaceful people. All of their disputes were resolved by families or resolved by the elders in their communities and almost every Indian agent, non-Indian person who came to Tulalip said the exact same thing. They're a peaceful people. Now just like all the rest of the Indian nations -- and that includes everyone that you're at -- that was pretty badly interrupted in the late 1800s. And Tulalip's system of problem solving went from that dispute resolution that was family and community based to being a system based on punishment and prison. Doesn't make any difference what tribal jurisdiction you're from because the United States Supreme Court decided in Ex Parte Crow Dog, which sort of took all of Indian nations and put us on the same page, that the way that we did justice wasn't right; that we needed to do it in a system where there was a trial, where there was consequences and where there was punishment. Now the results are exactly the same. In 1999, the Bureau of Justice Assistance, for the very first time, came out with crime statistics in Indian Country. And for all of you as leaders you know them; you live them every day. We have two times the rate of violent victimization of Indian women in Indian Country than in any other population. We have two times the rate of tribal members in jail for drug and alcohol-related offenses. We have two times the rate of alcoholism that causes, and as a matter of fact as high as, seven out of 10 violent crimes are caused while our relatives are under the influence of drugs and alcohol. Those are alarming statistics. And it doesn't make any difference if you are living in South Dakota or you're living on the Tulalip reservation, it's the same for all of us. That's the consequences of a system of punishment and prison. Tulalip in particular had sort of a double whammy. Washington's a Public Law 280 state so not only did we have the federal government coming in and dictating how we were going to take care of problems in our community but we also had the state government coming in. So not only did we have the feds prosecuting and putting people in jail from a punishment and prison perspective but we also had the State of Washington coming in and taking tribal members and punishing them and putting them in jail. And 57 percent of the Native Americans who were actually put in jail because of a drug- and alcohol-related crime are going to be back in jail within that same year.

So Tulalip, who was really spurred by its economic development -- I don't if any of you, have any of you been to Tulalip? They have the most beautiful facilities. They have a beautiful casino, an outlet mall; they have a Walmart. That's pretty exciting in Indian Country. So they took this economic development and rather than paying it out to tribal members in per capita said, "˜We can do this better. Enough is enough. We're tired of tribal members going to jail. We're tired of a concept of prison and punishment so we're going to take it over.' In 2001, so this is just seven years ago, Tulalip retroceded all of its criminal jurisdiction from the state of Washington. And that's a big deal. Tribal court went from [a] one-day-a-month court system to 1,100 cases almost overnight. In 2001, when those cases started coming in, my boss was the chief judge at Tulalip and he did what we're trained to do as lawyers in developing tribal court systems. He implemented a system that gives everybody due process, notice and an opportunity for a hearing and guess what was happening? You can't take the state system of punishment and prison and put it in a tribal community and expect different results. And fortunately for me, my boss knew that. So he started changing the system just a little bit at a time. He would sentence people, suspend that sentence and then of course require they get drug and alcohol treatment, education, GED and then of course send them on their way. A year later they'd come back for a criminal review and guess what, they didn't do any of that stuff, right?

So that's the second one. How do you live that peace? So what did Tulalip differently? Judge [Gary] Bass just started hauling everybody in every 30 days. There's a joke at Tulalip that if you come to tribal court, get a divorce, we're going to give you a UA [urinalysis]. Want to write a will? We're going to give you a UA. You're in trouble?We're going to give you a UA. Why would you do that? Because it's absolutely critical to address the underlying cause of the crime, and the underlying cause is unresolved drug and alcohol abuse in over 80 percent of the cases at Tulalip. So you've got to identify it early so if you do a UA, you can suddenly see if somebody has a substance-abuse issue because Tulalip is right on the I-5 corridor, there's lots of drugs that are available on the Tulalip reservation. Meth is one that just scares absolutely everybody in the community.

So you've got to figure it out. If you come in and you actually are arraigned because you're accused of a crime, you will have to take a UA. Now we won't use it against you -- as the judges -- but we want to know, are you using drugs? Do we need to get you treatment? And we'll have a CD [chemical dependency] evaluation done before you even get to trial. If you go into custody in the jail, because you're a danger to the community or to yourself, you're going to get a CD evaluation while you're in jail [because] we want to know what the underlying cause of the problem is. You're going to come to court every 30 days and you're going to answer to the judge. And you're not just going to answer in a bad way. So when you say, Judge Pouley, "˜I did the best I could to get to my CD evaluation but I missed it.' Judge Pouley's not going to say, "˜Okay, go to jail for the next six months,' [because] that doesn't work. I'm going to say, "˜Okay, go get your CD appointment, bring me back the card and come back to court today,' because we have to engage people in that process. Tulalip's alternative sentencing program and alternative sentencing idea is to hold individual offenders accountable for getting better. 'Do you have a job?' 'No.' 'Okay, well, before you come to court two weeks from now you bring me some proof that you stopped at the TERO office or that you stopped to get your GED or that you're doing job training and if you do, I'm going to tell you good job from the bench,' because you want to encourage the positive and have immediate consequences for the negative behavior.

Now that expanded at Tulalip, because we still had a variety of people who were sort of our revolving door of justice people. You know who they are. The ones who come in three or four or five or six times in a year because despite our best efforts, they just can't kick a disease. It's recognition that it's a disease, that a judge can play a crucial role in diagnosis and treatment of a disease. In 2005, the chief of police at Tulalip looked around and said, "˜Wow, this is working.' So he didn't ask the chief judge. He went to the tribal council and he told the tribal council that they should plan a drug court, that they should require all of the departments at Tulalip to come together to plan a court system that was responsive to the needs of their community. And in 2005 the tribal council, the board of directors at Tulalip, passed that resolution. Chief judge didn't say, "˜Oh, no. We're not going to hear that resolution from the tribal council.' Chief of police didn't say, "˜Oh, no. We're not going to send anybody.' We all have the same problems and we all need the same solutions. So Chief Judge [Bass] and I went about the business of coordinating those meetings. And out of that a wellness court was born.

Now you just have to change everything, right? So you can't have a system of punishment and prison. You have to have a system of praise when you do a good job and accountability, immediate consequences when you don't. You have to have goals for your individual clients. You have to call them clients and not defendants. You have to change the whole way you think about the system and the wellness court really was sort of the final vehicle to do that. The wellness court is a group of people who sits and meets once a week about all of our clients in the wellness court. It includes everybody. It includes CD treatment providers, mental health providers, domestic violent perpetrator, treatment providers, but it also includes GED, job training, Northwest Indian College, casino employment, TGA who grants licenses. All of these people come together once a week to ask this very simple question. How do we help our client get better? It's a pretty amazing tool, but it's only amazing if you take the very last step. And at Tulalip we sort of did it backwards but we gave it a name. It's called [Tulalip language] -- the court giving the means to get stronger. If all of the people involved in the justice system have that perspective, it fundamentally changes the way that business gets done. It's not a western-style court system transplanted on the Tulalip reservation. It's a Tulalip court system to try and help all of our relatives get better. It's a pretty big change in just the way you think about things. And even though I'm a Colville tribal member, I have to tell you this, I've got plenty of relatives on the Tulalip reservation and that's true for most of us. Everyone in our communities is our relatives and you have to be vested in helping them get stronger.

So what's the last thing? How do you live in peace? What's the lessons we learn from it? First thing you guys are probably going to ask me is, 'Does it work? If you just change everything, does it actually work?' Well, interestingly enough, Tulalip's only been hearing cases -- remember I said -- since 2001. So in seven years, 1,100 cases we started. We had less than 400 criminal filings last year. That means it works. The number of repeat offenders at Tulalip is down 25 percent each year for two years running -- changing the way that we do business. This year in 2007 -- and I just did the statistics, I never thought this could happen -- that the number of criminal cases filed went down another 12 percent, because people are figuring out that the court's going to hold you accountable. So don't make any mistakes about that. If you're not doing what I asked you to do, you are going to spend some time in jail. But the goal of it is different. It's not punishment. It is a time for you to be individually accountable on a short-term basis. So you give me a positive UA, you go to jail for a day, not for six months. I don't know anybody who ever learned how to be clean and sober in jail. But you can sure teach that lesson if you use it as a tool.

So 12 percent decrease in crime just between 2006 and 2007, and then we had a really interesting thing happen. Our number of civil cases -- which is cases where people don't go to jail, cases where you come to resolve child custody disputes, get child support, where you want to sue for damages -- guess what happened to those? For the very first time in 2007 they were higher than our criminal cases. Now why does that matter? A lot of people say, "˜Well, geez, that just means you have to go to court and court's a terrible place.' No, because at Tulalip you can choose. You can go to tribal court if you want or you can go to state court. You don't have to come to tribal court. Six hundred and one people, 601 tribal members last year voluntarily came to tribal court instead of going to state court. Well, that's a big deal. Some of those 601 people came to get restraining orders or filed civil suits against each other instead of beating the crap out of each other. That's a good day.

So not only do you have a decrease in crime and an increase in the number of civil cases, but do you know that 80 percent of the criminal case load at Tulalip, so about 400 cases, 80 percent of those have a current drug and alcohol evaluation? Almost all of them are compelled into treatment. And the amazing thing is when people start into treatment you get so much information. Most people don't choose to be drug or alcohol addicted. There are mental health issues that need to be addressed, so almost all of our clients in wellness court also are seeing mental health counselors and they're resolving issues that are maybe centuries old. You also have to make sure that you get people a job.

My favorite sort of success story at Tulalip actually is about a person. So we took in wellness court, [Tulalip language], the hardest of the hard core: people who had had two or more cases filed a year and had been unsuccessful in probation in six years. And in 2006, no, 2007 -- last year -- we had two graduates, people who had been clean and sober for 18 months who are now working when they never worked before. We have one young lady who just moved into the fifth stage who is probably 25 years old. She was in jail probably for six months of that timeframe. You know what? She's been clean and sober for over a year. She got her kids back. She is a great parent and she's taking parenting classes and her significant other, who was also in trouble with the law all the time, they're together raising their own children in a clean and healthy way. So how do you do that? How do you accomplish that objective?

It's sort of what I call the four C's and actually I think there's six of them. At the end of the PowerPoint presentation it gives you all six of them. But I sort of lump them together in about four. You have to have communication and coordination of your services. Your law and justice system must be part of the whole tribal system. You have to be prepared as tribal council people, and tribal council judges have to be prepared to stand shoulder to shoulder with their elected officials to say, 'Enough is enough,' to say that it's time to help our relatives heal. [Because] I have to tell you, it's not all roses. We've got great statistics, but if you start holding tribal members accountable, what do you think the tribal membership says? So it's important that you're all on the same page. You have to stand together. Your tribal court system is part of your government every bit as much as any other department. And the fact that we have separation of powers doesn't mean we have a separation of problems. You and I all have the same problems. It doesn't mean that we have separation of solutions. Because I'm a judge, I know a variety of things about promising practices. Because you're tribal council people, you know a variety of things. If we put our heads together, we can get it done [because] it's really for that young lady and her husband and their kids, because we get to break that cycle of drug and alcohol abuse and poverty to give them a real future. So it's worth the effort, but you've got to be prepared and you have to be able to stand together. You have to communicate it to everybody. So it's absolutely critical that everybody in the community knows what's happening [because] if they don't, it looks a little funny. And people don't necessarily like changing the justice system. There's a lot of people who think Western-style justice systems all have to look the same, so you've got to communicate. So you've got to coordinate, communicate. You absolutely have to be corrective. So you have to have somebody who's in the position to say, "˜You did a great job. I am so proud of you. I can't believe you've been clean and sober for a year. Your kids are so proud of you. I know your grandma's so proud of you. Good job.' [Because] too many times nobody bothers to tell people good job when they do a good job. We happily toss them in jail when they don't, but it's got to be corrective. So you have to reward good behavior, but you also have to be prepared to send people to jail for the consequences if they're not doing what you need them to do. And it has to absolutely be comprehensive. That's the last C. You've got to look at it in a holistic way. You can't just do it from one department perspective. You really do have to all stand together 'cause you know what happens when we all stand separate, right? It's happened over and over and over again. About this, the future's now. About this problem of drug and alcoholism and crime on Indian reservations, we need to take control [because] that's what the Shenandoah proverb says, right? "˜It's no longer enough to cry peace. We've got to act peace, live peace and live in peace.' I think we can do it. So call your tribal court judge. We can do it together. We're all part of the solution. Thank you very much." 

Honoring Nations: Theresa M. Pouley: The Tulalip Alternative Sentencing Program

Producer
Harvard Project on American Indian Economic Development
Year

Judge Theresa M. Pouley of the Tulalip Tribal Court discusses how the Tulalip Tribes reclaimed criminal jurisdiction from the State of Washington and then developed the award-winning Tulalip Alternative Sentencing Program, which she explains is a more effective and culturally appropriate approach to the administration of justice for Tulalip citizens. 

Native Nations
Resource Type
Citation

Pouley, Theresa M. "The Tulalip Alternative Sentencing Program." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 27-28, 2007. Presentation.

Duane Champagne:

"Our first speaker will be -- well, it was supposed to be Gary Bass, who is the head judge at Tulalip and he is one of the founders and sustainers of the Alternative Sentencing Program. But in his place, he's sent us Theresa Pouley, who is associate judge and who actually made the presentation at the Honoring Nations final program. They're 2006 honorees and have a very outstanding program, which I'll let Theresa tell you about."

Theresa M. Pouley:

"Well, I want you to know first that Judge Bass really wanted to be here and he is here in spirit, but he's also here in form. If you look at the 2008 applications [brochure], his picture's right here, standing next to me. And I thought a little bit -- except justices and judges are supposed to be more serious -- that I'd wear it as a little mask today so it was really Gary Bass, but then I changed my mind. I'm Theresa Pouley. I'm the associate judge. As chief judges often do, he delegated this responsibility to me to talk to you about Tulalip's Alternative Sentencing Program. And I was actually delighted. When I talked to Amy [Besaw Medford] and she called me on the phone, she said, 'Oh, this is going to be the feel good section,' and I was like so excited [because] nobody says 'feel good' and 'tribal court' in the same sentence ever. So what I'm going to do is just remind you that when I start out, it's not going to feel very good, but when I get to the end, just like Amy's been for this whole conference -- she's totally right, it is going to work.

I always start, when I do presentations like this, by thinking about words from our ancestors, from different tribes. And in this particular case, I thought about this saying from a Shenandoah proverb that says, 'It's no longer enough to cry peace. We have to act peace, live peace and live in peace.' And Tulalip's Alternative Sentencing Program is really geared towards doing those things. How do you act peace?

You look a little bit at the history of the Tulalip tribes  -- and this is not the feel good part of my presentation -- crime on the Tulalip Indian Reservation, which is located in western Washington, traditional fishing tribe, about 3,500 tribal members now -- the reservation by the time the 1980s and 90s came around was characterized by everybody who knew it as lawless. That's a pretty serious, and makes you take a serious sigh, about how the criminal justice system is operating at Tulalip. Now why is that? It's exactly the same as it is all over Indian Country -- the federal government took over traditional Native problem-solving and replaced it with a system of punishment and prison, and not a surprise, it didn't work at Tulalip. The main road that goes through the Tulalip Reservation was designated by the Washington State Patrol and virtually every other agency as 'blood alley' because of the number of drug- and alcohol-related deaths on its highways. In 2001, the Tulalip Board of Directors said, 'Enough is enough. We're tired of having state law enforcement on the reservation, we're tired of sending tribal members to state court, we're tired of having this reputation of lawlessness on the reservation, and we're going to take our community back. We are going to solve the criminal problems that happen within the boundaries of the Tulalip Reservation.' And they did.

They got a State [of Washington] piece of legislation, which retroceded all of their criminal jurisdiction under Public Law 280, and they took over and went about the business of adjudicating its own tribal members as guilty of crimes and holding them accountable for those crimes. Now, 2001, you had a huge influx of cases. So Tulalip Tribes never has heard a criminal case, never had a criminal defendant come before the bench before, and in a two-year period of time, they had 1,100 criminal cases filed in tribal court. Zero to 1,100. Imagine, if you will.

By 2003, Chief Judge Bass came to one conclusion that should have been easy for any judge to see all along, which is, his clients were all the same clients. And why were they committing crimes? Were they committing crimes because they had criminal behavior? No. They were committing crimes because 95 percent of the time, they had substance abuse issues. Over 60 percent of the time, they had mental health issues. Many of them suffered from post-traumatic stress disorder because they were removed from their family's homes, because they were sent to boarding school. The issues that were bringing those clients to court simply were not being resolved, not on any day. So Judge Bass decided, in a Nike© kind of way, 'Just do it.' We can do it better than that.

So he created a special criminal calendar where he had clients come into court on a weekly basis and he asked them the question. 'I asked you to get a drug and alcohol evaluation. Did you get one?' And if they didn't, then he'd say, 'You're going to get one by next week and if you don't, I'll throw you in jail.' Throw you in jail for a long time like they would in the state court system? Warehouse you off 365 days? No. One day, to make the point. That's how important it was that you should get a drug and alcohol evaluation. Combined with that -- you know, modern technology is a wonderful thing. He used a system of urinalysis testing. It's a big joke at Tulalip, by the way. If you come in to get a will at Tulalip, you better be prepared to take a UA. You want a divorce, we're going to hand you the cup. Because, here's the key, early identification of drug and alcohol related issues and constant monitoring of sobriety is critical to your ability to comply with court orders. If the judge tells you that you have to get community service, that you need to get a job, you need to get a GED, what is the chance of you being able to accomplish that objective if you're addicted to drugs or alcohol? All of the state statistics will tell you exactly what the chances are: seven in 10 Native Americans in jail today are there because they did not comply with their probation. Why not? Because they're addicted to substances.

So a concerted effort was made by Judge Bass to change the way business got done. It was so successful on individual clients that the police were seeing, that the Chief of Police of the Tulalip Tribes went to the Board of Directors and said, 'I think you should pass a resolution. That resolution should require that we all investigate alternative sentencing and that we have a drug court.' And they passed a resolution implementing those things. So that's the history of how we get there. So now we know how we act peace. So how do we live peace?

We have Tulalip's Alternative Sentencing Program, which incorporates all the best values of the Native culture into a modern and traditional court system. First of all, you have regular and frequent reviews with the judge. And the judge is there not to punish you, the judge is there to encourage you to make better choices. If you do a good job, the judge is going to come off the bench and give you a hug. If you get your GED and graduate, your case is going to be closed. If you get a job when you haven't been employed for the last 20 years of your life, a round of applause is going to break out in the courtroom. That's how alternative sentencing works. We still had a group of clients that we couldn't reach, our repeat offenders who had been in court now five, or six, or seven, or eight times. And that particular system wasn't working. So the question became, what do we do with those clients? And the answer is, change. Change everything. And you start with changing the name. [Salish language]. The court 'giving the means to get stronger' is Tulalip Tribes' wellness court. Wellness court coordinates all of the services of the tribe. They all meet together once a week and those clients come forward and visit not just with the judge, but with all of the institutions of the tribe. Drug and alcohol counselor is there, mental health counselor is there, GED provider is there, Northwest Indian College is there -- everybody who has a vested interest in this person's life and in the requirements for that person sits at the table once a week. But remember, you have to change everything.

So imagine the courtroom. Now the courtroom is an entirely different place. They all sit in a circle. They start the proceedings and they open with a prayer. And everybody sitting around the circle, client, public defender, prosecutor, police officer, treatment provider, we all take our turn giving a prayer. And then all of the clients take turns doing closing prayers. Now Tulalip isn't a homogenous society. We have a variety of religions that are there, but we all get to learn and respect one another. These proceedings which happen in a circle, you don't sit on the bench–which is a problem for me when I do [Salish language], because I'm a little short, so sitting around in the circle sometimes is problematic, so I like to get up and wander around. You all sit in a circle, you open with a prayer, you close with a prayer, and they all watch out for each other.

When we first were awarded Honoring Nations in 2006, we'd just started [Salish language]. Now, we've had our first two graduates. The most rewarding thing, and this is what Amy's right about, is that I have a grandma who is a grandma to her grandchildren again, and a mother to her children again. The most rewarding thing is that I have a young mother who's 25 years old, who has four children who have all been removed from her care. And not only has she been clean and sober for eight months [because] she's got to come visit with the whole team every week, but now she's starting to get her children back. The Tulalip Tribes is planning on moving for an in-home dependency within the next couple of months. And not only that, as if that wasn't enough, her husband has always been a problem child. Since 2001, he was one of our very first criminal cases. And in 2006, he's still racking up charges. And in 2007, he's out of jail and on probation again. And guess what? He also is doing fabulously. The family's in family counseling, there's in-home services. We just gave them a congratulations card because, for the very first time in their life, they have a home with their children in it. You can just change everything and you do it just one at a time.

Now that's sort of the anecdotal information, but I'm always reminded, especially when I come to these gatherings, that it's not really my job. Nor do I get the luxury of seeing the results on a daily basis, but every once in awhile I get that reminder. We don't do this work for the mom, necessarily. We do this work to break the cycle of violence and drug addiction in our community that deprives her children and her grandchildren from being able to be tribal chairwoman. Actually, her children are all girls. So if they wanted to be tribal chairman that would be okay, too.

So if you act peace, live peace, how do you live in peace? You have to figure out how to incorporate the custom and tradition and values of the tribe into the justice system. Courts are not popular places. Nobody wants to come to court. I bet all of you when you thought you were going to talk to a judge you're like, 'Oh, man.' And I bet each and every one of you has a relative who's been to court and didn't have anything nice to say about going to court. Remember that separation of powers does not mean separation of solutions, and it certainly doesn't mean separation of problems. The Tulalip Board of Directors passed a resolution that said that we should plan a wellness court, that we should plan alternative sentencing, and the chief judge could have said, 'Absolutely not! You can't say anything about that. Separation of powers.' But he didn't because we have the same problems and we needed the same solutions. The same thing's true for the chief of police. He didn't ask those questions and he wasn't interfering with the province of the court. We need to learn how to work together. We have to quit thinking of our relatives who are in court as sort of the black sheep of our family. We have to love all of our clients and I really hope for every one of my clients everyday -- even when I send them off to jail once or twice -- that they get the message this time. [Because] I never know when I'm going to be looking at the chairman of my tribe, or when I'm looking at the mother of the chairman of the tribe. [Salish language]. That's the judge's role. The court's role is to give people the tools to help them be stronger. But that means everybody here -- this is all of your obligation -- you've got to talk to your local tribal court judge, bring them into the loop. Don't be afraid of passing a resolution. It is absolutely critical to our tribal members that we take the time to figure out how those disadvantaged people in our communities can be made whole, because if we don't, that's just perpetuated into another couple of generations. It's absolutely critical that you use justice systems to change behavior in a positive way. And when you do that, you go back to the more traditional problem solving.

At Tulalip it was like this all the time. From my own family it's absolutely like that. Court becomes a place where there's teaching to be given, not only to the person who's appearing in front of you, but to everyone else in the courtroom and everyone else in the community. Teachings are given. That's how we hand down particular pieces of information for the next generation. So, it's the old Shenandoah proverb right? Tulalip decided 'it's not enough to cry peace' anymore. 'We [absolutely] have to act peace, live peace and live in peace.' Crime rate at Tulalip, a year after this program, has decreased 25 percent -- 25 percent. That's an amazing day. And we get our mothers and our grandmothers back. We get our fathers and our grandfathers back. We do it for the future of our children in the ways of our ancestors. Thank you."

Yakama Nation Fights For Restored Authority

Year

January 17, 2014 was a big day for the Yakama Nation tribe.

On that day, Washington governor Jay Inslee signed a proclamation returning almost all civil and criminal authorities over to tribal members on the eastern Washington reservation. The next step is federal approval before the proclamation can take effect.

“The biggest benefit is that we have the right to determine our own destiny and our own laws,” said Tribal Council Chairman Harry Smiskin to the Yakima Herald Republic.

Native Nations
Resource Type
Citation

Majumdar, Sumedha. "Yakama Nation Fights For Restored Authority" Seattle Spectator.  January 17, 2014. Article. (https://seattlespectator.com/2014/01/29/yakama-nation-fights-for-restored-authority, accessed February 23, 2023)

A clear and present danger to our tribal sovereignty

Author
Year

Indian law, sovereignty and jurisdiction are not “one size fits all” issues in Indian country. There are too many variations in how different states view the Indian nations within their borders and even in how the federal government treats issues of Indian sovereignty. With the surge in Indian gaming in states like California, a state where Public Law 280 gives the state government jurisdiction over law enforcement and the courts, the issues are far different than say in South Dakota, where the state government has no jurisdiction...

Native Nations
Resource Type
Citation

Giago, Tim. "A clear and present danger to our tribal sovereignty." Indianz.com. August 13, 2012. (http://www.indianz.com/News/2012/006741.asp, accessed February 23, 2023)

Open Mike: Feds, Yakamas make historic pact

Producer
Yakima Herald-Republic
Year

Reporter Phil Ferolito joins Mike Faulk on Open Mike this week to discuss a recent pact between the U.S. Department of Justice and the Yakama Nation to notify tribal police before executing search and arrest warrants.

The move could help widen the path for the Yakama Nation, a sovereign nation, to have its full civil and criminal authority over its people returned.

Benton and Yakima counties have already agreed to not only allow a tribal police officer to be present when executing such warrants, but also to book tribal suspects into the tribe’s jail and go through an extradition process...

People
Native Nations
Resource Type
Citation

Faulk, Mike. "Open Mike: Feds, Yakamas make historic pact." Yakima Herald-Republic. August 28, 2013. Video. (http://www.indianz.com/News/2013/010951.asp?print=1, accessed September 4, 2013)

Sovereignty Under Arrest? Public Law 280 and Its Discontents

Producer
Oregon State University
Year

Law enforcement in Indian Country has been characterized as a maze of injustice, one in which offenders too easily escape and victims are too easily lost (Amnesty International, 2007). Tribal, state, and federal governments have recently sought to amend this through the passage of the Tribal Law and Order Act (TLOA) in 2010 and the expansion of cross-deputization agreements. Positioning itself amid these developments, this study seeks to determine the administrative impact of Public Law 280 (P.L. 280), which creates a concurrent jurisdictional regime between states and tribes. Taking a mixed-methodological approach, the law's effect on the sovereignty and resource capacity of tribal justice systems is first analyzed using existing data for 162 American Indian reservations. Through a series of logistic regressions, hypotheses are tested to determine whether a statistically significant difference emerges between policy treatments under P.L. 280. This quantitative analysis is then grounded in a case study of the Confederated Tribes of the Umatilla Indian Reservation, who are unique for their 1981 retrocession of criminal jurisdiction in the mandatory P.L. 280 state of Oregon. Both content analysis of archival records and semi-structured interviews with tribal, state, and federal public officials shed light on experiences of the criminal justice system before, during, and after P.L. 280. This research contributes to the overarching objectives of TLOA, which seek to locate best practices and administrative models in reducing crime and victimization on reservations...

Resource Type
Citation

Cline, Sarah N. "Sovereignty Under Arrest? Public Law 280 and Its Discontents." Master's thesis (Master of Public Policy). Oregon State University. May 20, 2013. Paper. (https://ir.library.oregonstate.edu/downloads/5999n518q, accessed November 30, 2023)