restorative justice

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.

Grand Traverse Band Tribal Court

Year

Constitutionally separated from the political influences of government, the Tribal Court hears more than 500 cases per year, and utilizes "peacemaking" to mediate in cases in which dispute resolution is preferred to an adversarial approach. The Court adjudicates on such issues as child abuse, juvenile delinquency, guardianships, contract disputes, constitutional issues, personal and property injuries, and employment disputes. By turning to the Peacemaking system, the Tribe has been able to resolve often contentious legal issues in a manner which helps retain the social fabric that ties the community together.

Resource Type
Citation

"Tribal Court of the Grand Traverse Band". Honoring Nations: 1999 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2000. Report.

Permissions

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

Tulalip Alternative Sentencing Program

Year

Born out of a need to create a judicial system that Tulalip citizens can trust and that also helps offenders to recover rather than just "throwing them away," the Tulalip Tribal Court Alternative Sentencing Program supports efforts to establish a crime free community. Focusing on the mental, physical, and spiritual health of offenders, while incorporating cultural values, the program melds indigenous and therapeutic jurisprudence, Honoree Program Descriptions going beyond placing offenders in jail. Tulalip citizens now better reflect the sentiments of a traditional saying, "To pull that canoe, you have to pull together."

 

Native Nations
Resource Type
Citation

"Alternative Sentencing Program." Honoring Nations: 2006 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2007. Report.

Permissions

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

Kake Circle Peacemaking

Year

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

Resource Type
Citation

"Kake Circle Peacemaking". Honoring Nations: 2003 Honoree. The Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2004. Report.

Permissions

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

Navajo Nation Judicial Branch: New Law and Old Law Together

Year

The Judicial Branch of the Navajo Nation seeks to revive and strengthen traditional common law while ensuring the efficacy of the Nation’s western-based court model adopted by the Nation. With over 250 Peacemakers among its seven court districts, the Judicial Branch utilizes traditional methods of dispute resolution as the "law of preference," which allows the courts to be more responsive to people, issues, and traditional institutions. Responding to a desire for others to learn how the Navajo judicial system operates and to teach others how to effectively utilize common law, the Supreme Court has held more than 13 sessions in off-Reservation venues since 1992. The Branch has also developed the Navajo Nation Bar Association, comprised of over 300 members who are licensed to practice in the Navajo Courts.

Native Nations
Resource Type
Citation

"New Law and Old Law Together". Honoring Nations: 1999 Honoree. The Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2000. Report.

Permissions

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

NNI Indigenous Leadership Fellow: John Petoskey (Part 1)

Producer
Native Nations Institute
Year

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

People
Resource Type
Citation

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

Ian Record:

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

John Petoskey:

"Thank you."

Ian Record:

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

John Petoskey:

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

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

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

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

Ian Record:

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

John Petoskey:

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

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

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

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

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

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

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

Ian Record:

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

John Petoskey:

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

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

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"Yes."

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

"At Grand Traverse Band or in general?"

Ian Record:

"Just in general I think."

John Petoskey:

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

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

Ian Record:

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

John Petoskey:

"Yes."

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

John Petoskey:

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

Ian Record:

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

Joseph Flies-Away: The Role of Justice Systems in Nation Building

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, Joseph Flies-Away, citizen and former chief judge of the Hualapai Tribe, discusses the central roe that justice systems can and should play in Native nation rebuilding efforts, how justice systems serve as platforms for healing and cultural renewal, and what Native nations can do to create strong and independent justice systems capable of facilitating nation rebuilding.

Native Nations
Resource Type
Citation

Flies-Away, Joseph. "The Role of Justice Systems in Nation Building." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 20, 2009. Interview.

Ian Record:

"I'm very pleased today to be here with Joe Flies-Away, who's a member of the Hualapai Tribe and also, until recently, the chief justice of the tribe for the tribal court system. And we're here today to talk about tribal justice systems and specifically the role that they can play in Native nation building, rebuilding Native communities. And so that was actually going to be my first question to you is, what, based on your vast experience not only as a tribal judge, but also in the other capacities you've served for your nation as a legislator and also a planner involved with developing the economic development arm of your nation, what role or roles can tribal justice systems play in rebuilding Native nations?"

Joseph Flies-Away:

"Well, the first question to look at or the first issue is what is a justice system? A lot of people just think it's a court, but a justice system may include many parts. And so if it's just the court system, judicial system, the judges and that, that's one part, but then the whole system...so people need to always think about, what are they talking about? But a good judicial system, a court system would contribute to stability and peace and harmony and the things that people talk about. In economic issues or economic development, it creates a plane on which other people may want to be a part of or invest in. So there's a lot of different ways to look at it. I break things up when I talk about these issues in four parts; the people, the policy, the place, and the pecuniary possibilities. The people part, the court system or justice system, can create peace and harmony or goodness between people or solve conflicts, resolve issues between people, parties, whatever. The policy is the law, common law. Court systems help develop common law. The legislators will write law but a court system will develop court orders, which will create a common law. So that policy section is about law and government structure. The third, place. Place is like environmental support. So issues that may be clean air, clean water or contributes to good environment types of things. And then structure, like water and sewer and all that type of thing. Some governments are billing for water usage, sewer, solid waste and all this kind of thing. So that area, they can help make good decisions when someone's in conflict with a utility company. So that's the place. The pecuniary possibility is the economic development. They could help in decisions that create a good place for people to feel comfortable about doing business, about doing commerce, about entering into contracts, those types of things. So all of those areas can be covered by a good judicial system if it is functioning well and the parts are running well. A lot of times, however, that may not be the case."

Ian Record:

"So what does a...you talked about judicial systems, justice systems and you talked about it in a broad sense. What do those systems look like or maybe what do those systems require to be effective?"

Joseph Flies-Away:

"Well, I guess one of the things to look at with that question is it depends on that tribe. A lot of tribes will opt to develop a court system that's modeled right after the Anglo-American state court and they want to just, ‘Okay, we should be just like that.' Other systems may want to be a peacemaker court or more culturally based, culturally accordant type of system, where it brings in elders or brings in panel of people to help solve an issue, consensus-based issue or consensus-based decision making. So it would depend on what system they're in. But if they're doing a, say an Anglo-type state court system, they have to have all the parts. They have to have the ability to file papers, the ability to have that claim be processed in a court docket by court clerks, go through the system, be timely, mailed out, timely served, timely set on the docket schedule hearing and all of those parts that you would necessarily need to have a hearing, and then the decision process with the judge or jury -- or if it's a civil case, depending on what it is -- all those parts need to be well working. But sometimes there's always a problem with one part and so that may mess it up, but all of those, if it's an Anglo system-like model, then all those things.

The peacemaking side, it would be up to the tribe. That's a development that tribes are doing. They can create a system any way they want to make it. The one thing they need to have -- that I tell people when I talk to them -- is, ‘Just make sure you give notice to all the people and due process. If you do all that and however you do it is going to be great.' So how they fashion that system is going to be based on whether or not they give good due process and notice to the parties. ‘Here, this is what you need to come to court for and this is what we're going to talk about, be prepared. And these are the people who are going to be there to help decide,' and what not. But all the tribes, they can create... like Navajo has peacemaking. They have a peacemaker that comes in and that person will sit and hear all these parties, the families, everyone, and go through maybe a day-long discussion or maybe longer. A peacemaking in that sense... culturally accordant decision or dispute resolution systems like that, they actually take a lot of time, which we don't always have. That's the conundrum.

So it depends on the tribes. If you have a state model, it's those things that are necessary which most of us maybe can see. Well, hopefully you haven't been to court all the time. But if it's a tribal system, a culturally accordant system that's based in their culture, then I don't know all those parts. It would be based in what they have developed and it would be unique, and again, as long as they have due process. So there are different ways of looking at it. Justice systems in Indian Country are for Native people. They can be so creative if they really want to be, but a lot of people have chosen not to be yet, so hopefully they'll be developing more."

Ian Record:

"You mentioned some tribes that...or the fact that tribes can be very creative in developing their justice systems and reclaiming their justice systems in many cases. Do you...can you possibly share some examples of tribes that have been creative?"

Joseph Flies-Away:

"Well, I've...the Grand Traverse Band [of Ottawa and Chippewa Indians] up in Michigan, they have a peacemaking-type person who does peacemaking and they do that. Karuk, they have peacemakers. Navajo Nation, they have peacemakers. They have sentencing circles up in Canada, places like that. So there are...and in Alaska, they'll have a panel of five elders...but they had five elders come and they sit there and they heard a lot of juvenile cases and they would sit there and lecture the kid for whatever he or she did wrong and so they can create all that. The problem...and like in Bethel [Alaska] they kind of do similar things or up in Barrow [Alaska] they would have a group of judges not... and maybe some elders but they would make decisions collectively. The collective decision-making process is a very tribal practice. So that's how they do it. Sometimes the issue is writing down their decision. Who's going to write it down? And we need again to have...that's part of the due process -- a decision that's a record, record a record, keep the record, make a decision, give it to them. Sometimes that doesn't happen very well, but those are places that have tried to do that and others are trying to develop wellness courts or drug courts. State court systems have what they call drug courts, Native courts have healing to wellness courts and they kind of follow the same process, but they have a team that helps make decisions and the judge helps make the decisions for an individual person who's dealing with drugs and alcohol problems, so then they're doing different things in that. So different tribes are doing those types of things."

Ian Record:

"So essentially what you're saying is, as tribes are reclaiming control over their governing systems, you're seeing an increasing amount of diversity among justice systems in Indian Country?"

Joseph Flies-Away:

"Yeah, some are just, like I said, modeling, but a lot of others are trying to do something that either is like what they used to do or is a hybrid of what they used to do, because we can't go back and do it exactly the same. We can't go back and be exactly how we were, but you can find ways or maybe the spirit of it and bring it forward and put it into a structure or process that models something that was in the past, and I see that happening in some places."

Ian Record:

"A lot of the Native Nations Institute and Harvard Project research has focused on this issue of court systems and their role for instance in creating that environment you talked about, an environment for investment, an environment of confidence, of stability. What...and what the research has shown is that among nations that have what are termed independent court systems where there's...there are, essentially those court systems render decisions, practice jurisprudence free of interference from the other either branches of governments, functions of government, elected officials who represent those other functions of government. Those nations tend to perform better in the area of economics and things of that nature. What from your experience do independent court systems require, justice systems require?"

Joseph Flies-Away:

"Well, that's a separation of powers issue, and I might not agree with all the research that's there, partly because...and I would suppose it's true that they do better if there's an independent court system, but even though...and there's very few who have a constitutional separation of powers court. The latest is maybe 30, 35, 40, I don't know. Somebody would have to do that research and figure it out. Not many people have that. They do it by statute to create a separate branch that is independent. However, what gets in the way...you can write that down in a constitution and a code, but yet the persons who come into the positions of council or even the judges, they do not effectuate it. They act in ways that go against separation of powers. A councilman will go see the judge, the judge will go see councilmen and they talk and it gives the people the appearance of, ‘Well, they're talking, they're in cahoots.' So even if you have a structure, it may not work that way because of the people who are part of it -- people, policy, place, pecuniary possibility -- so the people are always going to be a part of it. But I agree, however, that when the legislative branch or administrative branch of government does not interfere with the judge or go over there and say, ‘Hey, you've got to do it this way,' sure, it's going to be...it will make the decisions feel that they are right or fair and without anyone getting in the way. And it creates an environment where people will say, ‘Well, I'm going to participate in that or try to participate in commerce there because I'm going to get a fair deal.' So, yes, I would agree with that and out there it does work. There are places where there's no separation of powers, however, and it kind of works, too. There's many tribes, so looking at all of them might be very difficult, but again it goes back to the people. If you have a person in the judge job and people in the council job who in their minds understand the importance of separation of powers, say, ‘We don't mess with them, we shouldn't get in their way.' They have no law, they have no constitution, it could work there, too. So it goes back to that human part of it. And I've seen that a lot of time, which the research that people quote doesn't take that into account as much as I think it is there in Indian Country."

Ian Record:

"So yeah, there's this issue of what's culturally acceptable, it may not...or socially, it's expressed through the social mores versus something that's hard and fast on paper."

Joseph Flies-Away:

"Well, in a lot of tribes there was a distinct separation of powers between individuals. Chief did this, medicine man did this, head man did this and gosh, in the Pueblos, very identifiable. You do this, you do that and you don't do this. So it is a cultural base of separation of powers. But there is also this collective decision-making process so...but we have been, since interruption by Anglo-American people we get confused. And so we were, ‘Oh, we knew back here,' but then all these people come and mess us up and we're kind of like confused here and we're trying to move forward and make it right again. But I think there is a history of that. We've just got to find it, appreciate it and maybe there are places where it was always a collective decision and we are so different. That's one thing people should realize. Tribes are very different in the United States, in Canada, all Indigenous people all over the place are different and they can't say, ‘Oh, well, they're Indian and they're going to do it all the same.' We aren't all the same and so individuals working or individuals seeking to do business with them or in commerce or any other way they need to know what type or where they're coming from or where that group is coming from."

Ian Record:

"You mentioned about this issue of investment, that when you have an effective court system, an effective rule of law in place and working in the community and the nation, that it creates this stability and this confidence for investors in commerce as you mentioned, but doesn't it also hold true for citizens of that nation, for members of the nation to say, ‘Hey, if I have a dispute or something, it's going to be resolved fairly on the merits,' that sort of thing?"

Joseph Flies-Away:

"It goes to that, too. Custody issues, divorce issues, all of those types of things will be effective beneficially by a good court system that isn't tampered with by anyone, that they are listening to the information, the evidence presented, they're listening to the parties only and they're making the best decision based on the law written or the law and custom and what is told to them and any kind of dispute that is brought, elections, all types of things. If there's no tampering with it, the independence of those institutions of dispute resolutions then create a better environment for everybody in all those ways."

Ian Record:

"So you mentioned there's a need...in order for tribal justice systems to be effective, not only to be effective, but to be legitimate, viewed as legitimate in the eyes of most importantly the people that it serves, that there has to be a sense of fairness and the sense of essentially political support. So support by elected officials in the other branches, if you will, that this is their function, this is their job. And you also mentioned previously that this issue of...for tribal justice systems to be effective, they need to have effective bureaucracies within those systems. We've heard tribal leaders from other nations lament the fact that in their communities often fellow leaders don't view tribal justice systems as essentially a stand-alone branch, but they view them more as a department of the government and perhaps as a result don't fund them accordingly, don't really support them to the degree that they need to be supported. Is that something you've experienced, and how critical is that issue?"

Joseph Flies-Away:

"I experience that in my own court, yes. It is unfortunate, but it's the same with the United States government. When the U.S. Supreme Court was created, they were in the basement, they were in the closet, they were in the bar, they were in the old place where the legislator was. It wasn't until 1958 that they got their own building, and that's like 150 years. So we're just following them. But yes, tribal governments, some of them will tend to not give the full -- I'm not sure of the word -- but they don't give it all to that court system and say, ‘You are a branch of government,' particularly in those that are branches, for instance at Hualapai. Hualapai there are two branches of government, the judicial system and the legislative, but the judicial system does not get all the resources it needs. It doesn't have a building, but maybe we have to wait 150 years like the United States Supreme Court, which I guess isn't so bad. But yes, and then they think of it because they are funded by consolidated grant funds from the Bureau of Indian Affairs. It's like, ‘Well, we're just giving them money and it's a programmatic decision and so they're just funding them at this amount.' The court system there though gets a lot of money from that grant. But it's not enough for that branch of government to really do the best job possible, to really be the...make the best decisions. To do what it needs to do for the people, it needs a lot more resources and that's the same for a lot of places that I've been. I've been to a lot of court systems and a lot of tribes from Alaska to Florida seeing what they do in different ways and that is a story that's similar, that the governments need to pay more attention to their...particularly if they have a constitutional branch of government, support it like a branch and not like just a program. And it would do them well. But it does go on, but you see little efforts like at other places where they're building big buildings like Gila River, Fort McDowell, they can see some contribution or some investment in those court systems, but that's just the shell. What's inside of it there are sometimes issues with. Pretty shell, the feeling isn't yet solid. So that also needs...but then they're at least going in a good direction."

Ian Record:

"Among those nations that perhaps haven't realized the importance, do you think it's in part this sense of, they're either dismissing or not understanding how important tribal justice systems can be as a vehicle for advancing their nation-building priorities?"

Joseph Flies-Away:

"Well, that goes to a leadership issue, so that's a whole other realm of things, but tribal leaders sometimes are new, they're just figuring out what their decisions must be and they are bombarded with papers and papers and papers and people and, ‘Can you do this for me?,' and all this stuff, so there is so much volume of requests and responsibility, that part of it is just that, 'I can't get to it,' and they don't have enough time to really study and appreciate that part of their government. So part of it's just that. Other part says, well, they might not like the court system. Maybe the court did something bad to them, I don't know, but I think the main part is they just don't have enough time to devote to really understanding that. And again, they are new sometimes, they're young, they haven't spent much time and they have a...councilmen have a particular focus sometimes. They wanted to be on council maybe for a particular issue and then they're spending more time on that -- environment and economic development -- but yet if somebody was really teaching them, like if NNI [the Native Nations Institute] was really showing this, that how is that all related. They have to see that and somebody needs to bring it altogether. And sometimes I see a lot of training that's always separate and it's not whole. So there's different issues why, but I always just think sometimes...I guess it's a positive reason, they just don't have enough time. There's too much to do as a council leader, council member and it's...they're drowning in work."

Ian Record:

"One of your judicial colleagues, a woman named Theresa Pouley, she's a judge at the Tulalip Tribal Court, who...they've become one of the pioneers in Indian Country in terms of reclaiming their justice systems. They started essentially a restorative system of justice."

Joseph Flies-Away:

"Yeah, I think it's the heart, 'good-heart' thing. Is that them?"

Ian Record:

"I can't remember, but the reason I bring her up is we had occasion to bring her here to address one of our assemblies of tribal leaders for one of our seminars and she said something, which really struck me, which was that many nations are really missing out on the opportunity they have with tribal justice systems to use those systems, to use the form of a tribal court, for instance, as a vehicle to express the core values of the people, to really...to share those core values, to advance those core values among the people because in those scenarios within that forum, you're dealing with issues of family, you're dealing with issues of community, of society and this is where we have a real opportunity here. And she said that's what they're trying to do at Tulalip is through this, developing this common law through this restorative justice approach, to really re-instill a lot of those core values."

Joseph Flies-Away:

"Yeah, the court system is...our judicial system -- or whatever you want to call it -- is one of the places that will save the culture, if they look at it that way. A lot of people don't see that. Any issue brought to the court, the court...there's written law, but then if they could look and see, well, 'What was the practice, common practice, the culture in this area?' And upon decision -- and if they have appellate court and goes through and solidified there -- a cultural understanding of something can be written down and recorded, and that is the way it will be from hence on. Yes, a lot of tribes don't think of that and that is one thing that a judicial system can do, if the people in it know, but a lot of times, the players don't know that. They want to be the judge or there's a judge and they're judging, but they're not thinking about that and...but it is...a judicial system is a way to save culture in a way and it's just not used that much all the time."

Ian Record:

"So I want to talk...we've touched on this issue of political interference in tribal jurisprudence and I guess I will just ask you flat out, based on your experience, what are some of the impacts, I would assume a lot of those impacts would be negative, when politics is allowed to interfere in tribal jurisprudence?"

Joseph Flies-Away:

"Well, it creates a system where people can't believe there's going to be good decisions -- inconsistency: ‘Well, this guy's going to go over there and have the judge do something different, but then another person will come and it'll be like the one before.' It creates inconsistent decision making, favoritism, and altogether in that situation. I've had previously council members try to say to me in writing, ‘This is what you should do.' And I would write back, ‘No, you can't tell me to do that.' And it's only happened twice to my recollection, because we actually have a separation of powers by constitution; there's laws there. But in other places, it does happen, and unfortunately that's where the people then start having no belief in that system. They'll say, ‘Why should I go there? It's only going to be changed or so and so is going to be able to change it or affect the decision,' and they don't feel comfortable, there's no comfortability in the decision-making process, there's no faith in it, and then again inconsistent decisions because X will get this and Y will get that because of the interference. And it may happen in different ways directly. One way that I think it does occur is by money. Sometimes the legislative branch will say, ‘Well...' or the administrator might say, ‘Well, you're just not going to get all your money,' and then the judge, ‘I guess I have to do something else,' or something. So it's different ways it can happen. But I think that's becoming less and less, I would hope. I would really hope that that's how it is because when I talk to judges, we only talk and they have that sense of -- particularly if it's written down -- you can't do that, but even if it's not there, we all understand as judges there's a separation by practice or just by feeling, I guess, that judges make the decisions and they're not too affected, and a lot of us understand that and they do their best. Unfortunately maybe in some places some judges come and some judges go, they get fired and that happens, too."

Ian Record:

"So in that situation when you have a justice system that is experiencing political interference and you have that...essentially the people in the community receiving that message that you're talking about. Well, this shows them that this is the way things are being done, it's inconsistent. That message also ripples beyond reservation borders, does it not, to the outside world?"

Joseph Flies-Away:

"Yeah, it would go beyond. It goes through to other people in the next communities and they'll call it a 'kangaroo court.' There are...we're looking at courts in California and Public Law 280 states and some people would prefer not to go to the court system, their own court, if they had one. Some have one, some don't. If they were going to develop their court system...I remember one individual saying to me, ‘No, no, I don't want to go to a court system here. My decision...they'll tell everybody what happened.' They have the faith...no faith in that, so they would even choose, even if they had a justice system... a court system on the reservation, go to the state system because they have jurisdiction as well on certain issues. So that's just among the members, but then people talk, they'll say, ‘Well, god, our court system is ridiculous. You can't get a good decision there,' and it goes beyond and then it creates a whole system where no one wants to deal with the court. But again, I am believing that that's less and less. I'm hoping. I mean, people probably could tell me, no, that's still happening, but I would hope that it's becoming less and less."

Ian Record:

"Switching gears just a bit, Joe, I'd like to talk a bit about this issue of tribal jurisdiction and what from your perspective are the major challenges facing tribal jurisdiction today, kind of just in the panoramic sense, and then how can Native nations overcome those challenges and specifically how can they use their own justice systems to overcome those challenges?"

Joseph Flies-Away:

"Well, the jurisdiction question is just by itself a question that judges have to ask [in] every case: ‘Do I have jurisdiction in this matter,' and while in some cases it looks obvious, sometimes it isn't and...but I believe court systems or judges for tribes should push the envelope on jurisdiction as much as they possibly can legally anyway, if they're a member and something happened over here, but they're still a member and it says you have jurisdiction over members and why not. I've had judges tell me, ‘No, you can't because it happened over here, the incident,' but you still have jurisdiction of the member and we kind of go back and forth on it. But I would push it a little bit because it... the more jurisdiction you exercise, the greater power, the greater sovereign power you're exercising. So it's a bigger thing. But there are other jurisdictions next to you, or even tribes actually argue over cases, kids' cases for instance. One party's here, one party's there, and there's a kid involved. I've had discussions with judges where, ‘That's my case,' and ‘No, no, no, that's my case,' and I'm, ‘Come on, we've got to...let's figure this out.' And so I've been able to talk with judges and we would figure it out. ‘Okay, well, you do this part of it until that part's done and then we'll finish it over here,' or vice versa. So even tribes have jurisdictional questions that they can work out. I know a lot of judges who have talked together and we call each other on certain cases. It's the state system if you're Public Law 280 or [it's] unknown who does have jurisdiction, like it happened here to a member or something. I've talked to state judges before asking them, ‘Are you going to take this case or what are you...,' like a probation issue, something happens on probation over there, on probation here, something happened at both places and sometimes they'll say, ‘Well, you can just handle it, I'll waive it over here,' and go back and forth on it. So it's that having the power to deal with something is something all courts have to first decide and then you get into issues. Well, if there's another judge thinking the same thing, then you have to deal with them or the lawyers do that. In some cases there are no lawyers in tribal courts. So the judges play more of an active role. When there's no advocacy like that, judges do a little bit more. As more and more lawyers come to tribal court, then maybe we'll do less and less of that, but...because they're really supposed to do that, but a lot of tribal courts don't have the lawyers to say, ‘You don't have jurisdiction here, judge,' and, ‘Yeah, you do,' kind of thing. But the court I believe should assert as much jurisdiction as possible if they can find it in their law and they have a good basis to do so, because again it supports their sovereignty. If they don't do that, if they're always letting it go, they can always say, ‘Concurrent jurisdiction exists, they can do it too, but we're going to do it too,' then they're letting go bits of their power, bits and pieces of their strength to somebody else and that's not a good thing. So it's...that's a question again, every judge has to ask each time a case comes, ‘Do I have jurisdiction?' and in fact in your findings the court has jurisdiction pursuant to a section of the code or whatever, we always have...we should be saying that in our findings. I think for certain tribes, it's much more easy when it's a tribe that's like Hualapai that's all trust land as opposed to like Salt River or Gila River where there's checkerboard fee land involved and all of those types of things. ‘Oh, it's on the reservation, it's fee land,' and every...all those questions you have to ask and certain tribes have it a bit easier, other tribes have it a bit difficult and in Public Law 280 states, a lot of questions."

Ian Record:

"So what I'm hearing from you is this goal of pushing the envelope of jurisdiction is essentially a strategic exercise, where you have to say, ‘Okay, what is going to serve our best interests,' because there's certain areas you could get into but it may not serve you."

Joseph Flies-Away:

"Well, the first priority is the case. I can't think like a tribal council member when I'm a judge, but you look at the case first and if there's a question about jurisdiction that you think you have it or not, then you would, I would push the envelope on jurisdiction if it looks like by law, because that's exercising sovereignty. But I shouldn't be making the decision, ‘I'm going to exercise jurisdiction just because I can,' it should be based in something before I do it, but I think in those decisions a judge would extend their jurisdiction, the long arm of jurisdiction that other courts do, they should do that in the best, in situations when they believe they have the power to do it. Not just...I've seen some cases where judges have just did it and they had no jurisdiction, tribal court judges. It was...they lacked jurisdiction, but they just did it. I don't know if it was a mistake or ignorance or whatever or just being cocky, sometimes that happens."

Ian Record:

"So have you seen some trends emerging in this area of pushing the envelope of jurisdiction through tribal justice systems that you could share, maybe some major areas? I know you mentioned child custody and things like that, but..."

Joseph Flies-Away:

"Well, not specifically, but courts...like in these cases with civil traffic in a road that runs through a reservation. The state has a right of way and then the tribe...it's the tribe's land and they're both going to, there might be a little speeding, they're already giving tickets like that, but some other issue happens and they're going to take that case, but at that same time the county judge is going to want that case because maybe a state officer has filed it there. And then if there's a...then sometimes they'll -- maybe they'll talk, I would -- but some tribes don't talk to their county, they don't get, they have no communication, so things like that where there's ambiguity or there's concurrent jurisdiction. In divorces, it's like if the law on a tribal reservation says, ‘Had to live on the reservation for 90 days, 60 days,' and... but the person actually... it's not... the fact is not so clear and they may assert jurisdiction over that and then the other party might go to the state court and there might be a little issue there and then somebody would really have to present some facts to figure out what law applies and who's going to...but if you believe it, if you believe you have it and I...judges I know, they would probably assert the jurisdiction if they could see it in the pleadings, in the law, they would tend to do that, I believe."

Ian Record:

"I want to switch gears here at this point. We're going to wrap up with kind of a general discussion of what tribal justice... strong, effective tribal justice systems require, but I wanted to touch a bit on this issue of federal Indian law, which is not only a huge issue for tribal judges and tribal justice systems, but it's a huge issue for Native nations overall and certainly a topic that Native leaders need to keep abreast of. And with that in mind, I wanted to ask you a few questions, the first of which deals with something that you as a lawyer are well aware of and that's the Marshall Trilogy, the Cherokee cases, which were handed down in the 1830s and..."

Joseph Flies-Away:

"I wasn't alive then."

Ian Record:

"You weren't alive then, yes. We'll be sure to get that on the record but...and talking with...the federal Indian law experts still universally regard it as the foundation of federal Indian law, and I was curious to know from your perspective how those three Supreme Court decisions continue to impact Native nations and tribal jurisdiction today."

Joseph Flies-Away:

"Well, the one that I think about of those three...Worcester...I can't even say it -- Worcester v. Georgia, I can never say that word. The 'domestic, dependent nation' line and I'm pretty sure it's that case, but I once wrote domestic dependent nation in something I wrote, but our dependent domestic nation, I wrote it backwards, I guess. But that one line in those cases where it deemed a tribal government a nation, I believe has a lot of strength to it. The dependent domestic or domestic...when I teach federal...when I taught federal law, I taught once, I teach in circles and I draw a big circle. Well, I draw a circle and a circle, and then I tell the students, ‘This is a tribe and this is the United States,' and then we do a history. And then I go, ‘Here's the United States,' this is after conquering and we're in the middle and then we throw the state in there at some point, but I do it in circles and I have them say, ‘Okay, here's where we were,' and then as we go...and there's a dotted line, too, because they can come into it, a solid line means you've got no say so like membership would be...and then you have a circle with a circle and in that middle part what you can share and the parts you just don't. I teach it like that and so domestic dependent is, well, you're a circle within a circle, you're within that bigger circle, but you still have a lot of say about what's inside. But I ask the students this question, and I would ask tribal leaders if I taught this...well, I do, I actually do this. I did this at Ysleta del Sur [Pueblo]. I said, ‘What is it, how do you see these circles with Texas with the United States,' or if I'm in California, ‘with California and the United States,' wherever I'm at, I'll include the state and I'll put them through this exercise of drawing these circles, and it's very interesting to see how they all come up with it. And then I'll talk about the nation part and then domestic...but dependent meaning, ‘Well, yeah, we get a lot of money from them, we're dependent on them,' but yet we go through that discussion, but I leave at the end, ‘But we're still a nation,' and that that one case, we should always remember that, that tribal leaders should be conscious of the fact that we're nations. A lot of tribal governments like to use the word 'tribe' and in fact at home some say, ‘Why are we using the word 'nation'? We use the Hualapai Nation and then some like Hualapai Tribe.' Well, the word 'tribe' is a very small word as compared to 'nation' and in English, 'tribe' is a small group of people, 'nation' is a bunch of tribes. And in fact, Hualapai was 13 bands of people and so there was a Pai nation and Hualapai was one band. And so actually if we want to push the thinking to our people that we are a 'nation,' then use that word. If we continue using the word 'tribe,' which some do and that's their decision and that's fine, but it's a smaller sense of it. So I look at that case and I think about the nation and where we fit and the goal however is how we started out. Here's Hualapai or whatever tribe and here's the United States. Go through all of these circles mingling in and I...he processes or the exercises I have the student go through how they all mingle with each other, but the end is to be again like this. The only way you're going to get there, though, to be an independent nation is to do a lot of economic development, to be able to pay for your own things, should not be dependent anymore, to come out of that circle to be not domestic. But that's going to be hundreds, thousands of years away perhaps, but maybe not. I don't know. Some places maybe could do that. So when I teach federal Indian law and we talk about those cases, I really concentrate on that aspect of it and the court was saying, ‘Well, these tribes, though they were conquered...,' and they use all that stuff, Doctrine of Discovery and all those types of things in there, that... Justice [John] Marshall was saying, ‘But they still have a lot of power to themselves and Georgia's laws aren't going to matter, that state's not going to matter to Cherokee.' And so you've got to pull out from those cases what empowers tribal leaders and what empowers tribal members to think like a nation and if you don't do that, we're going to be thinking about a smaller group of people always within a larger group of people, always under their wing, always being under them and never being their own and I think that tribal people need to pull out of that. And if it's just by the meaning of that word, that's one way to do it. So I use those cases to try to pull out those things and of course the legal issues, but I think they're more empowering in a way rather...not just a legal thing...I mean, that's important, but how we are thought of and what we can take from that forward for our people. That's what I think of that. So it may not be such a legal..."

Ian Record:

"It's a philosophical..."

Joseph Flies Away:

"It's a more..."

Ian Record:

"...Mindset change."

Joseph Flies-Away:

"Yeah, the change...because we've been conquered and cowed people and so we're like, ‘Oh, we've got to pull out and become out here like we started.'"

Ian Record:

"So a more general question, your thoughts on what impacts colonialism, the assimilation policies, and other federal policies generally have had on...had on preexisting Indigenous systems of justice, of dispute resolution, and I guess I would speak to the gravity of the challenge facing many nations in terms of having to rebuild those systems."

Joseph Flies-Away:

"Well, again, if we started here and these people came and interrupted and said, ‘You're going to be like this,' and a lot of us ended up being like this, it took away who we are here. It took away the practices and the ways of our people, of the common practice culture, it took away that. It took it away completely or it took parts away, but a lot of places it just completely took it away. So while we had previously a certain way of doing things, the interaction or the coming of these other people just took away the practices so we aren't who we were. Now tribes can go back and try to reclaim that, but you can't go back and be exactly like that. There are certain practices, like at Hualapai a long, long time ago, if you were really, really bad, they might kill you. There was... I was reading this one thing and I asked my great grandmother, there was medicine people who did not heal, if you didn't heal, they'd beat you up or might kill you. So malpractice was an issue because there was a lot of medicine men back then and they must have been healing because otherwise they would have been out. So we won't do that. The death penalty, tribes probably couldn't do that anymore. So you can't go back and be exactly who you were, but you could pull from that and bring it forward and you can incorporate it. And a lot of people are merging the new way with the old way. I hear people like at a conference like today where they're trying to be back here, but yet all people grow, you go forward. I have this thing, which I wanted to share with them, but I didn't do it. The people gather, ground and grow. That's my community nation-building statement -- that people gather, ground, and grow, and now I say 'green' because of all the green stuff. So they... whoever the people are, they come together and they gather and they figure out their structure and how they're going to relate to each other and they ground themselves and they build structures and institutions and grow, they get stronger and they're going to keep doing that. So it... in that growth portion, they can bring the past forward and take what was powerful and good -- language and what they can remember -- and bring it forward and ceremonies and if they've forgotten all the ceremonies or have in parts of it, well, they can recreate parts of it and bring it forward and put it into now. So tribes can reinvigorate things, and if they did that, then perhaps they'd be a lot more stronger, but when all those people came and messed everything up, they really screwed Native people up. But we have the power to move forward and build better things, better and new things, if they can just see that. Some are, some aren't, some are lagging, some are moving forward, but I think perhaps that's just how they're meant to be at that moment and then perhaps later they'll do better, or maybe not."

Ian Record:

"So I asked you generally about colonialism's impact on tribal justice systems, one of the major watershed pieces of legislation that Congress passed for Indian Country was the Indian Reorganization Act, which was passed in 1934. Many Native nations still operate to this day with essentially the boiler plate system of government, the boiler plate constitution that the IRA set in place, and I was wondering if you could speak to the legacy of the IRA for tribal justice systems."

Joseph Flies-Away:

"Again, if we looked at who we were and interaction and then a specific legislation like that -- again, not all tribes signed that, not all tribes are IRA tribes but Hualapai, many are -- it created a constitution for them. It basically said, ‘This is how you're going to be. And it took away the previous way or the way that they were prior and they rearranged their whole structure basically. And it formed a structure of government that just was antithetical or contrary to what they were before. So we're stuck in that in a way. We have at Hualapai a council government. Actually had a 1934, 1955, 1991 constitution. We used to have in one of the previous ones, a chief sit on the council, but for some reason they took that out. I thought that was kind of cool when I found that out, but that's gone, but we could have had like a representative on council from each of the 14 bands. If we were knowing what we could do, we might have done it differently, so when the big-circle government said, ‘This is how you little circle governments are going to do it,' they really interrupted how we were, and I think we struggle with that. I heard someone today talk about Robert's Rules of Order. I said, ‘Who the hell was Robert and why do we care, right?' A lot of people want to follow these rules and why? We could develop our own. When people brought in all these things, a lot of our members, our leaders perhaps, they think we have to stay like that, and we don't have to be that way. So it kind of just stifled everybody. But maybe...and for the sake of it, some of them take it and they do well with it. So there are, but I think a lot of us struggle with that form of government that was told to us, ‘You have to do it like this now,' whereas, it wasn't the way we were. But I think over time, if it's been 100 years, going to be 100 years, maybe they have then adopted it because tribal people are very...they're good at adapting. You gave the people the horse and they became the best horsemen. So if you gave them the IRA government, maybe they're going to make the best of it. I'm thinking positive. But it just...that legislation, however it came when they...one thing I should say, however, when they were trying to do that, that was...it was a way though to give more power back to the people too, I guess. They were saying, ‘Here, you have a way to be...' It was a way of saying, ‘You're going to do your own government,' but they gave it...they gave them a form. They should have said, ‘You have the way to do government, figure it out.' But they didn't -- they gave us structure. So it in a way is good, and then I think now tribal leaders are beginning to say, ‘Well, wait a minute. We don't have to be like this. We don't have to be exactly like United States with a three-branch government and all this kind of stuff.' Hualapai has two branches of government. We can do different things. And I think that that kind of thinking is becoming more and more. So there was many, many years of just stifling. But people did well with it. There was also the corporate shell situation, which they were able to start doing business without being sued and whatnot, so some of that was good. But it is a way...you go somewhere and...it's almost like you see nowadays when America goes all around the world and say, ‘Here, you're going to be like us.' And they're still doing that. They should think back, ‘Wait a minute, we shouldn't be doing this all the time. Let's just kind of help them out, but let's not tell them how to be.' And they don't think they're doing that, but that's how it seems. So there was just an interruption and maybe now we're kind of coming out of that."

Ian Record:

"So you mentioned that Hualapai back in the 1930s adopted the Indian Reorganization Act and what we've seen a cross a lot of tribes who did adopt the IRA is this, essentially this boilerplate clause that left in the hands of the council or the legislative body, the authority to create a court system, and that was essentially the only mention of a judicial function in these governments that they set up. Is that something that Hualapai struggles with, is that something you've seen other tribes struggle with, this trying to reconcile this to say, ‘The judicial function really needs to be a separate function or have its own identity'?"

Joseph Flies-Away:

"In '34 we had that boilerplate. In '55, it was similar. But we had a -- what do you call those courts -- a CFR court. And though we had a tribal policeman do all the things that the superintendent guy would tell him to do, it was '91 that we got our own separation of powers. So from the ‘80s to the ‘90s, consultants or lawyers, people are saying, ‘You guys got to do this.' I wasn't around at the time, but it happened and we separated it and we became a two-branch government, but we're one of the few, there's not very many. I don't know what happened back there in the past, but I know there were tribal judges in a tribal court since 1950-something, and a tribal person would be sitting in that chair making decisions for the people, after the superintendent was no longer doing it, and the tribal judge was deciding, but it was more like a CFR court and they were following the laws of the white man. They weren't able to apply custom and tradition or they were told that that didn't matter, I'm not sure, but that wasn't what was applied. It was the old code that the American government gave you, ‘You can't do this, can't do that,' and they would then have a sanction and they would sanction. Whereas before, perhaps they would sit all in a group if you were acting bad and say, ‘You were acting like this or you did this to my family and we're telling your family. If you keep doing it, we're going to beat you up or we're going to throw you in the canyon,' or whatever it might be and in front of everybody that person will be told what will happen if they continue acting in a way contrary to the norm, in a bad way. And that's kind of how things were decided. If there was an issue and it was too close for that particular band, they would ask perhaps a head man or a chief of the next band over or someone not actually related to come in and listen and help decide. We don't do that anymore. But there's no reason why we cannot bring that back. I would like to do that, but we're...but our system is so embodied or entrenched with that Anglo adversarial system, partly because other people who've come to our tribe, outsiders, Natives even come to our tribe, they promote that because that's what they know. People come with what they know. I would rather just [whirring sound] and go back and try to bring something better, but it's hard working for your own people, so I don't know if I'll ever do that but tribes can do that. If they are told...but like I also tell judges and tribal leaders, developing a government, developing a judicial system takes many lives. You're going to be like Moses, if you know who Moses is. You're not going to see the promised land, but you're going to contribute to it, put some seeds in there, and then hopefully someday you'll get there. That's how I look at it, just kind of move it in that direction, but I won't see the end."

Ian Record:

"Back to this issue of the federal Indian policy arena and...I want to ask you a question specifically about what's going on currently in the U.S. Supreme Court. And I was curious to get your opinion on how should Native nations view the current U.S. Supreme Court given its current composition, its recent cases with respect to Indian Country, and perhaps maybe some thoughts from you on what you would advise tribes to do in response to kind of strategize about how to approach the court given what's going on."

Joseph Flies-Away:

"Cases probably shouldn't be brought there right now. I don't know. I have my own theory about certain things with Supreme Court Justice [Antonin] Scalia and his originalist thinking. To me, if that's...that's what he...you're supposed to go with what they said back then. Well, back then, they thought of tribes as nations. Then why do you keep stripping it away. He's hypocritical in my thinking. So the only strategy I can think of is if you'd go to court, argue with the Supreme Court, you'd play on him and you'd say somehow in an off way how hypocritical he is if he doesn't go back to the originalist thinking by thinking tribes are independent nations, how they thought of [them] back then, because when it comes to tribes, that's the only time he goes the other way, it seems to me. But other than that, I wouldn't go to that court, not with those justices, but that's the only thing I see there, unless I'm wrong. I've bought all these books on him and I'm reading them because it seems to me that's the only way with him. He talks this way and then he's going to be a hypocrite if you don't...a case comes to him and you push original thinking and he goes the other way. How could he do all these cases that way? It would be bad. But other than that, I don't know. I wouldn't want to tell anybody what to do, not now."

Ian Record:

"We've heard other people respond to that question, essentially echoing what you said, which is probably in tribes' best interest -- unless they have an unbelievably strong case -- is to not take a case up there. And absent that approach of taking cases to the Supreme Court, doesn't that behoove tribes...wouldn't it behoove tribes then to become innovative -- which we're seeing a lot tribes do -- becoming very innovative in terms of making sure that their rights are protected, advancing their rights in other ways, whether it's through MOUs with other jurisdictions, things... you've made allusion to this issue of concurrent jurisdictions working together on certain things rather than just butting heads."

Joseph Flies-Away:

"Yeah, the one thing about nations is nations have to deal with the other nations and they have to talk and communicate and they have to make deals or they have to work together. Sometimes tribes don't want to deal with the next person or the jurisdiction next to them, don't want to share information, but being a sovereign, that's part of being a sovereign. To be a true sovereign, you work with some other sovereign, you don't stay away from them, you've got to work with them. So in order to be more powerful, you have to deal with that sovereign and you make agreements, you make laws that work with theirs, you make your own laws that...or you lobby their lawmakers to do things that help you. So there are a lot of things that tribes can do and are doing and are becoming a little bit more creative. And that's again like giving the horse, tribal people are going to be thinking about it not like these people, they're going to think about it and then maybe come up with some other way and they're going to be, ‘Ah, we've got this and we're going to do it like this.' So there's different ways to do it and not...taking something to the Supreme Court is on a specific issue and whatnot, but you want to not have those issues, you want to start dealing with them up front, you want to start working things out. Nation building, part of my model is confrontation, communication, compromise and concord. So you confront the issue, you communicate it, that means talk about it, you compromise, you give and take, and then you reach that peace, concord. So you would move in that direction and tribes need to start doing that before it becomes an issue that needs to go to nine people or five people in cases that will make a decision that will go totally maybe bad for everybody, not just them. It affects everyone, unless it's such a specific matter that it only pertains to them, but most of the time in federal law, it's a huge issue like the Carcieri one, those ones before 1934, they are...after they can't put land into trust. It affects those people, but it wouldn't affect us or certain tribes, but that kind of creates these tribes against these tribes. So you want to start...again, being a true sovereign is working with other sovereigns and dealing with them and communicating with them and making compromises with them. So we can't stay away from people, we have to do those things. But a lot of us are kind of hesitant, either because we don't know how to approach, we don't know how to deal, but over time we're learning that. One time I called the judge and he said, ‘I've never heard from a judge from Hualapai before.' I said, ‘Well, this is me and I want to know something,' and so we talked one time. So it's happening and it's just a matter of time when we get really, really good at it. But again, as Moses, we might not see that part, but I think it's doable."

Ian Record:

"In fact before I get to those last two questions, what you just mentioned recalls another question I wanted to ask you and that is this issue of transparency in jurisprudence is something you've alluded to, and I was wondering if you could speak directly to that issue and how important transparency is to having effective justice systems."

Joseph Flies-Away:

"Transparency in how, what do you mean?"

Ian Record:

"Transparency in how the verdicts are rendered, transparency in the process."

Joseph Flies-Away:

"Well, it has to be fair. When I think of the word transparency, it's like they know exactly...well, the process they should be aware of how it works, but sometimes like in certain cases they don't, they can't know everything that's presented, certain things. But the process should be open...sometimes they want to close a criminal matter, but by law we're supposed to be open case. So the process should be open, everybody should know how it works, and then it should be consistent. And that to me is how I see transparency. It's consistent, people know what's supposed to happen; it's not going to change. A lot of tribes, however, have problems when they don't have court rules because when you don't have court rules, and this happens actually a lot. A pro tem judge like myself will go somewhere and there are no rules and something comes up, previous judge did it differently and I do it differently. That happens a lot when a tribe doesn't have rules. But everybody knows that so that's not a problem. They're going, ‘Oh, it's a different judge, he's going to do it differently or she's going to do it differently.' But in general, people should know how the process is going to work generally, and then they should be aware of it and kind of see it go through and follow it to the end, to the decision making and not be secretive and the judge goes into the back with the prosecutor or something like that. It shouldn't be that way at all."

Ian Record:

"I want to ask you about a topic that the Native Nations Institute has been spending an increasing amount of time looking at and that's this issue of sovereign immunity, and we convened an executive forum a couple years ago with leaders from nations, experts, lawyers in this area that are working in this area. I was wondering, from your experience, if you can comment on the issue of sovereign immunity and specifically how it can be used as a tool to advance tribal sovereignty."

Joseph Flies-Away:

"It can advance and not advance. So let me start at what sovereign immunity comes from. Sovereign immunity is a doctrine that comes from Anglo Saxon, the 'king can do no wrong.' So we have to ask, ‘Do we have kings?' Native Hawaiians, today, maybe they do. Maybe they say, ‘The king can do no wrong,' that's applicable in their culture. In tribal systems, maybe they had a chief kind of like a king and maybe they believe, ‘The chief can do no wrong,' so if that's applicable, then that's cultural, they can apply it, cultural law. But in other places it's not like that. Some tribes believe chiefs can do wrong, people can come tell you. You meet together and say, ‘We don't like this.' So it may not be applicable, that concept, ‘The king can do no wrong,' or, ‘The chief can do no wrong.' What I see sometimes is lawyers, if a tribe does something perhaps to a non-member Native, for instance, they do something bad to him or they do something that is a volative, basically under the Indian Civil Rights Act or whatever it is. That person can't sue because of sovereign immunity. The lawyers are going to say right away, present the defense of sovereign immunity. Now if we want justice, that's not providing justice. That's helping the tribe because they can't be sued, but it's not helping generally justice because if a tribal council made a decision...because certainly in my mind tribal councils can do wrong, they can make bad decisions, and I have seen it. And it may not be because of just spite or meanness or whatever, it could be just lack of knowledge or they acted hastily at whatever it was or whatever it is. But they make bad decisions and it affects human lives or it affects somebody. Now if that person has no recourse...and my idea about what they can do isn't they can sue for all the money, that's not what I'm saying. And somebody misconstrued what I was saying one time. I'm not for that. It's more of an equitable relief. If a council makes a bad decision, a person should be able to take them to court or take them to the judicial system and say, ‘Hey, you violated due process or you violated something,' particularly if they have their own bill of rights, which a lot of tribes now are doing. And that decision then would be vacated and they'd be told, ‘You did wrong, do it again.' And if there's a little bit of something that person deserves if they like got $20 taken...whatever it is, parking ticket, something...they should give them that, but not a million dollars. It's not a...my idea of being able to sue tribal government is not for monetary damages. It's for equitable relief and just that fixing what you did wrong because like I said before, tribal council members could be young or naí¯ve or not knowing, not knowledgeable in certain things and make a collective decision that affects someone else and is a bad one and it hurts them. I don't believe that doctrine should always be thrown out and lawyers do that all the time. And they'll say...and they'll write...I've seen many motions, ‘First motion, motion to dismiss, tribe is immune from suit for sovereign immunity.' And I wrote a couple opinions...I just...’No, it doesn't work that way. We have a constitution at Hualapai. It says, ‘Every person has these rights. It's not member, it's not Hualapai; it's person.' So if you're a person and if I define person as a corporation or whatever, if this council did something wrong, that person has the ability to go to court and sue something in equity so just to make a better deci...or to redo the decision or vacate it and do something differently.' But not for money and I'm very firm on that and other people will say, ‘No, we have to have that because it supports economic development.' Well, to me, if you're going to keep making bad decisions and screwing people over like that, that's not good for business. People won't do business with you any more, they're going to know, ‘We won't go over there because they'll do something bad, go on a contract with you, breach it and you can't sue them.' That doesn't help no one. So I don't...I don't even know why tribes even say the term. They should be saying something in their own language, but not using 'King So and So's' words because those English kings back then were horrible people. They would cut your head off. I just don't know why we even want to be close to that. And maybe some of us did the same thing, I don't know."

Ian Record:

"It's interesting: you talked earlier in your answer about how the fact that they may invoke sovereign immunity and it helps the tribe in that case, but then you make allusion towards the end of your answer that in the long run, it doesn't help the tribe much at all because people get the message pretty quick that..."

Joseph Flies-Away:

"Yes. They won't do business with you."

Ian Record:

"Exactly."

Joseph Flies-Away:

"And they won't interact with you. They'll just say, ‘You don't get a fair shot at that place. They're just for themselves.' And they say that in certain places now. You can't...because it's always thrown out that way, ‘Well, we're immune from suit.' Even the businesses, even the corporations, even the casinos, first thing is immunity. They get insurance and they do all those things, they should be able to do all that stuff and protect themselves. And I'm just saying if they did something wrong, something bad. If it's not that, then..."

Ian Record:

"And what we're seeing is a lot of Native nations are using sovereign immunity as a tool as I mentioned pretty innovatively, and in fact when they do waive it in a contract with an outside vendor perhaps, they're waiving it into their own court system."

Joseph Flies-Away:

"Yeah, they should do that first because that is their place. They may have to negotiate. Some people won't...they may do a clause, choice of law clause where it takes them to an arbitrator or takes them to something else, because if that person's just not going to do business with an Indian tribe, some tribes have to do that with these people. But the best thing is to bring...but they're going to look at that court system, they're going to look at, 'Who's the judge?' And I've even had someone say they did research on our court to see who the judge was...at me. So they'll do that before they agree, because they don't want to invest or put money into something where it's not going to be fair. And it's just so common-sensical. It's a good business practice. But I see too many right away, in my court, other courts, ‘Motion to dismiss, tribe is immune from suit.'"

Ian Record:

"Do you think some of that comes from a confusion among the people who call the shots in a particular nation that if you waive 'sovereign immunity' you're somehow waiving your 'sovereignty'?"

Joseph Flies-Away:

"Well, this goes back to acting like a sovereign, you have to work with other sovereigns, and waiving it or to do business with someone else, that's a part of it. That's being a sovereign. That's acting like a nation. So the tribal leaders, many times they confuse sovereignty with sovereign immunity. They're not the same thing. Sovereignty is the ability to be your own nation, you're one to yourself, you're your own country or whatever it is. Sovereign immunity is just saying, ‘Well, you can't sue me no matter what I do.' They're kind of related, but they're not the same thing. And some council members just make it the same -- if you waive sovereign immunity, you're waiving the sovereignty. But it's not like that and we need to educate them on the distinction between the two and maybe...I wrote an opinion one time in a case that...it was a trial court [case], but no one appealed it. I said, ‘Native people and at Hualapai have the concept of fair dealing and fair trade generally.' And you know, good trade, you see it on Dances with Wolves or whatever, I think that goes across all Indigenous people, it's kind of fair. You treat each other fairly in situations so that goes...that's a cultural concept that goes full with business. So you can't screw over these people, we have to be fair to them. And so that's why part of the basis why sovereign immunity in that case wasn't going to work and plus we had a constitution that says persons have rights, etc., etc. So those things together, the written and the cultural I put together and said, ‘No, we're not going to have that right now, not with this.' But then I said, ‘But it's not...' The person would not ever...we never got...it ended after that first hearing. But a person suing is not going to be able to sue a tribe for all its worth. I agree that tribes have to be protected from...we don't have any money. We didn't have any money, right. But it has to be in equity, it has to be just the fairness, the fairness that I believe is cultural to tribes. We've got to treat people fair and there has to be a mechanism in that court system or something, some...maybe it's an outside...maybe it's another branch of government, maybe it's a program, it's somewhere where they can go and say, ‘I was treated unfairly, I need a hearing and a review of this act,' and they need to have that. And if they're found to have done wrong or something, well, then redo it and make it fair. Equality and fairness I believe is a concept genuine to Native people, most people I think. I think it's a human thing really across the board. Some people just don't recall it and remember, they do it badly.' But the sovereign immunity by itself is something -- it's not tribal, it's not traditional, for most of us. Some tribes, I actually have heard them say, ‘No, we could never do nothing to the chief.' I heard them say that. Well, if that's true, then okay. They're being...they're applying their culture, but I don't see that in my tribe. I mean it's not what I've heard and read."

Ian Record:

"Wanted to end with a kind of nuts-and-bolts, everything-in-one question here, I guess a wrap-up question and that is...and this is kind of the topic we started with which is how can strong, independent justice systems serve as a tool for Native nations to meet the contemporary challenges of nation building and specifically how can Native nations or how do those justice systems empower Native nations to achieve their strategic priorities?"

Joseph Flies-Away:

"Well, the justice system again is a place where people go to resolve conflict and throughout all human existence and the rest of it, until we blow up, there's always going to be a problem, there's always going to be controversy, there's always going to be conflict. As much as there's going to be cooperation in the world, there's always going to be a conflict. They're balanced, they're one end of the spectrum, I mean one conflict...total cooperation-conflict, so it's going to be there. So a justice system is a place for the tribe where any disputes can go and be resolved. Now as...I go back to the people gather, ground and grow. They're going to gather, they're going to ground and grow and throughout this process there's always going to be those problems. A justice system or a place for dispute resolution, a good one or one that works from a 'good heart' kind of place, is going to contribute to that process, it's going to help them move forward in that community and nation building process. NNI and Harvard, they have the nation-building thing. I don't see it like that only. I see community and nation building. You have to have the people get along and we are related and we have links and relationships like the clanships and all that kind of thing. We're...that's the membership thing, we're members together. The citizenship thing or the nation-building thing is hierarchical. The community building is vertical or wait, no, which one's this way?"

Ian Record:

"Horizontal."

Joseph Flies-Away:

"Horizontal, the horizon, I always have to think of that. Community building is horizontal, this one, and nation building is vertical, this one, and so you have both. So that you have to...as the people gather, ground and grow, they're going to get along or not and they have a place to go, but as they build institutions and become more hierarchical and citizens and defining where you fit in the government, they're going to be like this, but that court system will help resolve problems as it moves forward. But it's never an end...it never ends, until we blow up like I say. That's how I...maybe someday it would happen. That process, the judicial system or whatever they're going to call it...people don't have to call it that, it's just we get that from Anglo words. It's going to help the people in their community- and nation-building journey in all aspects and if they have that there, then things will be a lot lighter, things will be easier, things will be consistent, things will be something where they will have faith in the ability to even do things, because if there's a problem, there's somewhere to go to resolve it. And so if all tribes had that, then their path to some end is going to be a better place or a better end...no end, but a better journey because they're going to keep moving in that direction. If they don't have that, they're always going to be hurting, they're always going to be fighting, they're always going to be not going in the direction that they should. Things won't be resolved, people get hurt, the feelings that...a lot of people don't in court systems want you to bring in your feelings, but you have emotion, human beings have emotion, so it's a part of that and I think tribal people are very emotional, we really hold on. So that will be affected. My paradigm, nation-building model also incorporates a spirituality of law model, which means, well, basically it's a healing thing. When law brings people together, it connects them, it builds ties and connections. A good justice system will identify how we're connected. Legislative people should write good law to tell us how we're related and how we get along, what our relationship is in whatever business or whatever. But when there's gaps, the court system can say, ‘This is the filler. This is how we should get along or not.' So when you build those kinds of connections, you are healing each other, so the spirituality of law in a court system is, the better the court system's able to identify how human beings are related and linked and are tied together, the more healing. When you are untied and disconnected, it causes sickness. Justice Yazzie says...used to say or he says still, ‘A criminal is one who acts like he has no relatives.' That means he doesn't act like he has any connections. So a criminal needs to be tied back to his family, to his tribe, to his people. So the court system should be able to do in ceremony or in process, in procedure, even if it's a trial, retie the lost links, which then would create healing, which is a good thing. If we don't, we leave them to be sick and lost and untied and disconnected and that's a bad thing. So that's how I see...that's how I see my work. That's what I try to do. But when we're doing it under the...in this adversarial system given to us, it's a very difficult task, but I still try to do that. That's how I see my role as a judge but not just as a judge, as a human being, as a community nation builder person, that's how I see that."

Ian Record:

"Well, Joe, I really appreciate your time. I thank you for your perspectives and your thoughts and yeah, thanks."

Joseph Flies-Away:

"You're welcome."

Kake Circle Peacemaking - Overview Video

Producer
Harvard Project on American Indian Economic Development
Year

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

Resource Type
Citation

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

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

[Singing]

Mike Jackson:

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

Kake Circle Peacemaking

[Singing]

Mike Jackson:

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

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

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

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

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

Justin McDonald:

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

Mike Jackson:

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

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

Justin McDonald:

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

Lakrista Ekis:

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

Justin McDonald:

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

Mike Jackson:

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

Lakrista Ekis:

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

Justin McDonald:

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

Lakrista Ekis:

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

[Singing]

Guidelines of Peacemaking

Mike Jackson:

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

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

[Singing]

The Circle Process

Mike Jackson:

Stage I: Opening

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

Stage II: Legal Facts

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

Stage III: Clarifying Information

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

Stage IIII: Finding Common Ground

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

Stage V: Exploring Options

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

Stage VI: Developing Consensus

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

Stage VII: Closing of Circle

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

Justin McDonald:

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

Mike Jackson:

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

Justin McDonald:

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

Mike Jackson:

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

Justin McDonald:

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

Mike Jackson:

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

[Singing]

Principles Common To All Circles

Mike Jackson:

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

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

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

[Singing]

Benefits of Integrating the Court System with the Community Circle

Mike Jackson:

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

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

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

Justin McDonald:

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

Mike Jackson:

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

Justin McDonald:

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

Mike Jackson:

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

Justin McDonald:

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

Mike Jackson:

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

[Singing]

For More Information Contact

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

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

Kellogg Video Productions 2003
Edited by Brian Kellogg
907 351 6439

Property of OVK

John McCoy: The Tulalip Tribes: Building and Exercising the Rule of Law for Economic Growth

Producer
Native Nations Institute
Year

Former Manager of Quil Ceda Village John McCoy discusses how the Tulalip Tribes have systematically strengthened their governance capacity and rule of law in order to foster economic diversification and growth. He also stresses the importance of Native nations building relationships with other governments and non-governmental partners in order to achieve their strategic goals.

People
Native Nations
Resource Type
Citation

McCoy, John. "The Tulalip Tribes: Building and Exercising the Rule of Law for Economic Growth." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 18, 2009. Interview.

Ian Record:

“Well I’m here with John McCoy who is the general manager of Quil Ceda Village, which is an economic development entity of the Tulalip Tribes in Washington, and he also serves as representative for District 38 in the State of Washington legislature. I’d like to thank you for being with us today.”

John McCoy:

“I’m very happy to be here.”

Ian Record:

“I’d like to start by asking you a question that I ask of virtually everyone I sit down and chat with and that is, how would you define Native nation building and what does it specifically involve for your nation?”

John McCoy:

“Native nation building is providing whatever particular tribe it is the tools in order for them to govern themselves and provide tools like economic development for self-sufficiency.”

Ian Record:

“How about for Tulalip, what does that involve for you, that process that you just described?”

John McCoy:

“Well, at Tulalip we began a number of years ago. In the ‘80s our chairman at the time, Stan Jones, was very instrumental in getting the Indian Gaming Regulatory Act passed in 1988. And so with that act then, tribes started to move to build these casinos so that they can get resources to do economic development. So at Tulalip, we opened our first casino in ‘92, but we had a bingo operation that opened in ‘82, then a casino that opened in ‘92 and we began the process of diversification. And so consequently, through that diversification, we created Quil Ceda Village, which is a federal city that we created with the help of the federal government. And so that established our economic base and the need to start diversifying, because gaming could go away at the stroke of a pen on any day, any time, so we needed to diversify. So we’ve been on a quest, if you will, of diversifying our economic base. Right now, the base is primarily retail and gaming, but we need to do other things, technical, biomed, biotech, anything along those lines. And so I am working to attract those type businesses to Tulalip. So this is a long-term process, that is our vision and our goal and every now and then we’ll meet to adjust the goal. We don’t change the goal, we adjust it, and then figure out what we need to do for the next five years to get to that goal.”

Ian Record:

“So you mentioned that Quil Ceda Village, which has become the economic engine along with gaming for the Tulalip Tribes and specifically moved it down this path of economic diversification, which as you mentioned is critical to sustainability because you don’t want to be in the situation where you have that one economy or that one industry that you’re relying solely on. How did Tulalip Tribes come to the point where it said, ‘Federally chartered city, this is the way to go,’ because as far as I know, you’re the only tribe that has a federally chartered city?”

John McCoy:

“Yes, we do. In fact, there are only two federal cities in the United States: Quil Ceda Village and Washington, D.C. We’re the only two. Back in ‘94, summer of ‘94, we had a general council meeting and out of that general council meeting they told the business manager, who was me, that I was not to do any development on the interior of the reservation, I could only do development in the northeast corner of the reservation along I-5. So with that in mind, I started looking around at the properties up there in the northeast corner of the reservation. Well, at the time, a very large chunk of it was taken up by Boeing. Boeing had their test facility out there where they tested engines, where they did the shooting the chicken into the windshield, testing the covers off missile silos; they did all kinds of interesting things out there. Well, that lease was to lapse in 2001, but they had the option, their option, to extend it out to 2011. So looking at everything that had been done, and I talked with the council and they basically told me, ‘Politely ask Boeing to leave, that we need that property for our economic development.’ So I began the discussion with Boeing and they agreed that they would leave in 2001. We actually...they started their cleanup and dismantling their facilities out there and they discovered that they actually could leave by 1999. So they actually left, but they still paid us for the two years left remaining on the lease, which was nice of them. And then we proceeded about the development of Quil Ceda Village. Well, a reservation attorney and I had been having numerous conversations about, ‘How should we structure this? What would be the most advantageous to the tribe?’ And our reservation attorney, a lot of folks know Mike Taylor, he’s quite an innovative guy. And so he came and he said, ‘Well, this has never been done before and I’ve done a lot of these business deals and structures and everything.’ He said, ‘Let’s try a federal city.’ And I had to think about that, right, because no other tribe had done it. The Navajo had done one, but it was purely within their own bounds and for their own reasons; ours was to attract off-reservation businesses on to the reservation. So our structure was totally different than the Navajo model. So we created this federal city. We had to get approval of the IRS [Internal Revenue Service], Department of Justice, and Department of Interior, and that’s a very long story, but anyway, we got it done. And so we created the city and we did that for a couple reasons: to position ourselves to be able to employ our own taxes -- and a lot of folks just don’t understand tribal governments. You say 'tribal government' and their eyes roll back in their heads. They just don’t get it. They don’t...whereas almost every tribal government in the United States is structured like a state government, everybody understands state government, but for some reason when you say tribal government, they just lose it. So we created the Consolidated Borough of Quil Ceda Village and called it a municipality. Then everybody was okay with that, they understood that. And so we created a charter, we created ordinances, and we put them all online. So anybody can go to the Quil Ceda Village website and see all our ordinances and our charter and our leasing procedures. Our leasing procedures were very important because then potential tenants could go online and see what the process was, have their attorneys look at it, and then we could work on a deal. So we had something that they could see and that it was a process and they understood the process. So there was no mystery there. The only hang up that we get is that we have a very aggressive -- progressive, not aggressive -- progressive court system and so any disputes we have in the contracts they’ll be done in tribal court. Well, a lot of them balk at that. We’ve had some tenants that we really wanted, wouldn’t come in just because of that fact, but I also reminded them that their court system was hostile to me. So it’s not a good environment. I said, ‘Our court system is very progressive.’ And in fact, in ‘94 I went to West Law and asked them if they would post tribal ordinances and opinions and court decisions and all that; [they] didn’t want to talk to me. Three years ago, they come to the door, ‘Would you join us?’ And I said, 'Naturally, we’ll join you.’ And so now our opinions, ordinances and decisions are posted on West Law so that everybody can see our track record. And a number of other tribes are doing that also, which is very good for Indian Country because now everyone can see how the courts are functioning and they can have a degree of basically a predictable outcome and that way tribes will then get full faith and credit. So that’s the big deal, full faith and credit.”

Ian Record:

“So you made reference to the charters, the codes, the ordinances, the procedures that you guys had to put in place to make this very innovative approach to economic development work. Can you speak to perhaps some of the other legal infrastructures, the other political infrastructures and perhaps the capacities that you guys had to put in place to really pull this thing off?”

John McCoy:

“It was very deliberative because we had to plan everything and put it in sequence. We had to come up with a ‘governmental structure’ for the Quil Ceda Village. And so what we did is that Quil Ceda Village is a political subdivision of the Tulalip Tribes, but it has three council members. Those three council members govern what goes on in Quil Ceda Village. And so once we established that, then we got our charter done and then we started employing our ordinances. Now we employed ordinances as we need them because me as a state legislator understand that too many ordinances become an encumbrance. And so I’m trying to address some of those issues in the state government. But in Quil Ceda Village, because I have some control over it, we only issue ordinances as we run into problems or if we anticipate a problem, we see something coming down and then we’ll create an ordinance and then we’ll post it. And it’s done...that process is just like any other municipality. They have to have two open meetings and then...before the passage of the ordinance. They are public meetings. All our meetings are posted online. So we put all those in place and we’re functioning like a government. We do everything else that any other municipality does. We take care of roads, traffic lights, street lights, water lines, sewer lines and we also have a state-of-the-art sewer plant.”

Ian Record:

“You mentioned your tribal court system and how progressive it is. We’ve had occasion to bring one of your judges, Theresa Pouley, down to some of our seminars with tribal leaders and she takes them through a very powerful overview of the incredible work that they’re doing there in the court system. Can you talk about that court system and specifically what prompted Tulalip to essentially reclaim the function of justice, providing justice to the tribes? Because previous to the establishment of the current court system that was something that the State of Washington largely had control of.”

John McCoy:

“Right. For a tribal government to operate effectively, they need all the tools in the tool bag in order to be effective in the protection of their sovereignty, the treaty protections and those issues. So in ‘94, Mike Taylor again, he said, ‘John, we need to get the state to retrocede.' So I took that up and I went to Olympia and created legislation. It took me a couple years to get it passed, but they finally passed it. I kept reminding them while I was lobbying them saying, ‘There’s seven other tribes that already retroceded so you’re just adding us.’ But there were some tense moments of some very conservative-viewed people that didn’t like that idea that law enforcement, tribal law enforcement could arrest somebody. So that happened on both sides of the aisles, it just wasn’t any one party. So that took a little bit of work on my part, but we got it done. So then that allowed us to open up and create our own law enforcement department. Well, when you’re going to be doing things in law enforcement, you need a court system. So we started building the court system along with the law enforcement. We built them together. And so our court system has gotten quite progressively, like I’ve said. They do the standard court proceedings, but we also do the one step further in bringing in our culture. We have an elders' panel that reviews and works with first time offenders. So these are non-violent crimes; violent crimes have got to do the normal process, but the non-violent crimes, the elder panel will do an intervention and they will work with them and hopefully help them to see the error of their ways and that they start making the appropriate decisions. So that’s actually been quite effective and so we’re quite proud of it. And so because of the notoriety we got from our court system being honored by the Honoring [Nations] Program, we’ve had tribes from around the nation come in to see our courts and we’ve also had Afghan come to our court to view it. And one of their...the professor that...the UW professor that brought them up, through his wife, who is a state legislator, had informed me that after the visit to our court system the Afghan judge said, ‘Well, your western law’s okay, but we like that tribal court better.’ So that was quite a feather in the hat.”

Ian Record:

“And your court system over the past several years has really begun to produce some pretty dramatic results in terms of its ability to combat crime through the alternative methods, through the restorative justice approach than the predecessor did it, and it’s the kind of standard western punitive approach to justice.”

John McCoy:

“Right.”

Ian Record:

“Isn’t that right?”

John McCoy:

“Yes. So that’s why I, down in the state legislature I talk about those things down there. Why, these first-time offenders, why do we got to throw them in jail? Why don’t we have an intervention program? So the state had been doing drug courts, which were good. Unfortunately, this last session there were some budget cuts and a few of the drug courts got cut. But we need to do more of that. Tribes know how to do it. They’ve been doing them for millenniums and that’s how they...that’s what their court system was, intervention and trying to show them the error of their ways and start making more appropriate decisions. So there’s...I say that our non-Indian friends, I tell them, I said, ‘Don’t you get a little envious that you don’t have any culture? You have none. Whereas we have some culture, we have some history that for millennium and we did things like that.’ So to me it’s the right approach. That’s how it should be done. Just take the first-time offender. Most of the time it’s a young person, young people they think they’re indestructible. The world is their playpen and basically they do the right things and then for maybe 30 seconds out of their life they did something wrong. If it’s non-violent, we should intervene and help them work through that, not throw them in jail because if you incarcerate them, where are they going? They’re going in with a bunch of other bad people that really do bad things and they give their stories to this person and they pick up some more bad things to do. So let’s keep them out, let’s intervene first. If it doesn’t work, then you do the other methods.”

Ian Record:

“So just how critical are tribal justice systems overall, which include the court, law enforcement, etc., just how critical a role do they play in rebuilding Native nations?”

John McCoy:

“That is all part of the structure. That is how you...how you use and deploy, implement your sovereignty. Those are tools. This is how it leads to self-sufficiency. You have control of your destiny. You are making tribal governments make the rules. They just need a court system to help them follow the rules that they wrote, which is only appropriate because that’s what everybody else does, so why not us? So law enforcement and court systems, health systems, family services, those are all integral parts of a tribal government in order to be self-sustaining and self-governing.”

Ian Record:

“A follow-up question to that about justice systems: what role do they play in terms of supporting a Native nation’s efforts to create a strong economy, a strong sustainable economy?”

John McCoy:

“Law enforcement gives your customer base a sense of safety, that there’s somebody here to protect me when I’m there. At Quil Ceda Village during the normal week, we get over 30,000 visitors a day. During the weekend, it’s over 50,000 a day. So the mere presence of the law enforcement vehicle cruising the parking lots and the streets and everything gives everybody a sense of safety, that they’re protected and that they can come here and enjoy whatever the amenities are and not have to worry about being harmed.”

Ian Record:

“The research of the Native Nations Institute and the Harvard Project has found that in fact, justice systems are a critical pivotal factor in whether a Native nation can create a strong economy, one that can stand the test of time and I’m curious to know, the Tulalip Tribes are one of those regarded as having a very strong, a very independent, empowered court system. And so from that experience, I was wondering if you could speak to what you feel are the requirements of a strong, independent court system. What does it look like, what does it require? Granted it may, because of cultural reasons, it may look a little bit different from place to place, it may employ different methods, but in terms of organizationally, functionally, institutionally, what does a strong independent court system require?”

John McCoy:

“Again, you hear me say tools a lot. This is a tool. Naturally you need your judges, experienced trained judges. You need your court clerks and that they know how to run the court so that the judges can do what they do and don’t have to worry about the administration; so you need a good strong administrative section. You also need public defenders because not everybody can afford an attorney; so you need public defenders. And then, we like to think all judges judge and sentence the same way. Well, they’re human beings and on occasion they make a mistake and so consequently you need an appeal system. So you have to have an appeal system in place so that something could be appealed. Now after that appeal, if you still don’t like it, well, then that’s when you move to the federal courts. So there is redress, you have protections of public defenders, you have your prosecutor and then they all are independent. They make their decisions, then you have the judge making their decision or the jury, yes, we have juries and we have an appeal system. So that’s what really makes it strong. You have all the elements, everybody knows what their job is and they just implement.”

Ian Record:

“And doesn’t that then require tribal leadership, particularly legislators who are setting a budget, to treat and fund those justice systems as a full arm of the government and not necessarily as a program? We often hear tribal judges for instance lament the fact that ‘Where I work, they treat us as just another program,’ versus something larger and something more encompassing.”

John McCoy:

“Right. They have to be independent. They have to be independent and not worry about political consequences. So consequently at Tulalip the court system comes in, here’s the budget. So normally, without hesitation they say, ‘Okay, here’s your money.’ They can’t tell them how to spend it, they just give them the money and then they...the court administration then takes care of the budget. So you have to give them that autonomy. Same with law enforcement, you’ve got to do the same with law enforcement. ‘Here’s your money, now you go do your job.’”

Ian Record:

“And I would assume that holds true for not just the justice systems, but the other critical functions of tribal government...”

John McCoy:

“Yes.”

Ian Record:

“...where leadership has to, at some point, say, ‘I’m going to delegate this authority to you to carry out the long-term goals of the nation.’”

John McCoy:

“Right. So that’s where the leadership, the elected leadership, their role is set policy, their role is not day-to-day administration. They set policy, then let their organizations function. Trust them, they’ll do the right thing.”

Ian Record:

“I want to turn back to economic development for a bit. And the NNI and Harvard Project research over the past few decades has clearly shown that rules are more important than resources when it comes to building strong economies. So for instance, you can be a nation with tremendous resources, perhaps natural resources, human resources, financial resources, but if you have a lousy set of institutions or rules, you’re going to be hampered in your ability to move your nation forward. Whereas, on the flip side, you may be a nation that has limited resources, but if you put in place a really good environment of rules you can really leverage those limited resources and begin to grow your nation and move it forward. Is that something you see and perhaps one of the reasons why Tulalip has paid such great attention to this issue of rules?”

John McCoy:

“That is correct. When I first came home in ‘94, I had gone off in the Air Force for 20 years and then I worked for a large computer firm for another 12 and then I came home. The rules and regulations and policies that were in place at the time were for a government of maybe 75 people or less. But when I came home in ‘94, we were up to just a little over 200 and so...and then policies, procedures and ordinances hadn’t been updated and so they were unwieldy, they were difficult to use for a larger organization. So we set about changing those. The first one we had to do, which was the most glaring, was a new human resources ordinance. That had to be done, it was accomplished, had input from lots of folks, and so it’s a good ordinance. The only issue that I might have with it, its management is guilty until proven innocent. Everything is on the employee. So anyway, it causes the managers to be really on their toes making sure that they’re doing things right. So in that process there’s also an employee grievance system, you need that. So you need some sort of dispute resolution in there so we have a very good dispute resolution process. So the rules are published and they’re out there for everybody to follow. When someone new comes onboard, they’re given a copy. ‘Here’s your copy of the human resources ordinance,’ and we make them sign a receipt for it so they acknowledge that they got it. Now we can’t make them read it, but it’s there for them. So then there was other ordinance, the ordinance of setting up the courts, the ordinance setting up the law enforcement, those had to be accomplished and then those things that they needed to make them function. So setting up strong policies is a necessity because you need predictability. Back running...when tribes were very small, employees of two, three, 10, 20, 30 people, well, you can run it like a mom-and-pop grocery store. Well, now, tribal governments are big business. They can’t be run like a mom-and-pop grocery store. You need processes in place to remove as much of the political atmosphere as possible so that they can function with reliability and respectability.”

Ian Record:

“So from what you’re saying, those are essentially vital to the efforts of the Tulalip Tribes and other Native nations across Indian Country to move from the days when they largely relied on a dependent economy, if you will, where they’re heavily reliant on outsiders for instance for federal appropriations and transfers to get by to essentially a situation where Native nations themselves are in the driver’s seat of economic development. So it’s those codes, it’s those institutions that you talked about. Are there any other vital pieces to that puzzle of moving from that dependent economy to a productive self-sufficient economy that you can share with us?”

John McCoy:

“Sure and it’s quite simple, it’s education. One of the things that I helped Dr. Alan Parker set up, and there are a number of [them] like at the University of Arizona, that you have these classes where you put in tribal government like the Master's of Political or Public Administration. At Evergreen State there’s, I think it’s two weeks of total immersion into tribal government as part of public administration. So that way when a tribal member gets an MPA, not only do they get exposed to the non-Indian type processes, but they get exposed to good practices in Indian Country so that they understand what their role is. So education is extremely important. At Tulalip, any tribal member that wants to go onto continuing education, whether it’s into the trades, community college, four-year university, graduate school, we pay for it.”

Ian Record:

“I want to start off with a general question, which is how does collaboration or building those relationships that I just mentioned empower Native nations to advance their strategic priorities?”

John McCoy:

“Okay, as you remember your history, we’ve been here for millennia. So we’ve always been here and we’re not going anywhere. Well, they’re not going anywhere either. So we have to learn to work and play together and you do that through collaboration, by working with the surrounding communities in solving the common problems. And we do, we have common problems. So for it to be a successful endeavor, then we need these collaborations not, like I said, we’ve got our own law enforcement, we have our own courts, but we still because we interact with non-Indians, we still need their law enforcement and their court system because when we catch a bad guy on the reservation who’s non-Indian, well, we’ve got to turn them over to the state court. So we have an MOU in place between our law enforcement and the Snohomish County Sheriffs that says, if we apprehend a non-Indian, we turn them over and they have the full faith and credit of the law officer that did the apprehension that his testimony in court will be valid. So in that process if we have to put an Indian in jail, well, we don’t have our own jail so we need an agreement with the county to incarcerate our person their jail and pay for it. So court system, same thing, working with cities on water agreements, sewer agreements. So we have a lot of common issues that we need to address and being able to work so that we build a trustful relationship because if everybody around us hates us, then it’s going to be difficult for your economic engine to work. So you have to work hard. It’s okay to say, ‘I’m Indian and this is my land,’ but we need your help and support. So you have to educate them about yourself so they know who they’re working with and then you can build these collaborative relationships.”

Ian Record:

“We see the sentiment out there in Indian Country and I think we’re seeing it less and less, but that tribal sovereignty means you need to insulate yourself and you need to kind of be those islands within surrounding hostility and therefore if you enter into some of these MOUs for instance with the state jurisdiction or local municipality you’re somehow relinquishing your sovereignty by doing that or by compromising your ideal solution if you will. But aren’t in fact those sorts of initiatives that Tulalip Tribes and many other tribes are taking more and more, aren’t those in fact an expression of sovereignty because you as a tribal government, as a nation are making that sovereign choice to say, ‘Hey, we’re going to engage this group. We’re going to engage this group, we’re going to develop this relationship in order to advance our strategic priorities’?”

John McCoy:

“That’s correct. At Tulalip, we view these collaboration efforts as strengthening our sovereignty. We’re not creating... Yes, in essence we’ve created an island, but it’s a seamless border because we’ve cross-deputized our officers; they can go on and off the reservation. In fact, yesterday the Washington State Supreme Court, even without an agreement, a tribal law enforcement [officer] can continue a fresh pursuit off reservation and that was a decision yesterday by the Washington State Supreme Court. So yes, in essence, if you want to look at a political boundaries and things, yes, it’s an island, but it’s how you employ it by collaborations, agreements, then those are just lines that can be crossed easily back and forth. And in Tulalip’s opinion, it strengthens our sovereignty because we’re getting recognition of our borders, of our jurisdiction.”

Ian Record:

“And it’s ultimately about solving problems. And I know from my research on Tulalip that you’re undertaking these sorts of efforts not just with other jurisdictions, but with other parties in order to solve problems, other private interests and a great example of that is the anaerobic digester plant. I hope I pronounced that correctly. This project that you developed working with some traditional adversaries, the local dairy farmers, who you, previous to this project, had battled for years on the issue of water and water quality. Can you talk a little bit about that project and how it came about and how it’s serving the interests of the nation?”

John McCoy:

“Okay, well, the dairymen actually came to us through our Natural Resources Department and they came to us and to me and we began the discussion. And we put it together because it was the right thing to do. We didn’t want any more animal waste going into rivers and streams. Well, how do you do that? Well, your farm’s got to be big enough to where you put it out on the fields and plow it under and enrich the earth, but they had more dairy product than they had land. So what do we do with this? Well, so we decided to work with the dairymen on this project. So as what I had to do, we had to find some land near the dairymen. Well, out there near the dairymen is the Monroe State Penitentiary. Well, they had what they called an honor farm, which was the dairy farm that provided milk for the prison. Well, that turned out to be not as cost effective and so the Monroe honor farm was decommissioned. So what are we going to do with the land? Well, we went to the state and said, ‘The tribe...’ -- now this was before I was elected -- and asked, ‘Can we have the land because you’re getting ready to declare it excess and in the rules, state and federal, tribes are at the top of the list to get excess property and we would like to use it to build an anaerobic digester on it.’ So we take the cow manure out of the system and we create methane gas, which we’ll filter, which will drive a turbine engine to generate electricity.’ So we started that process. Then I got elected and helped pass the bill to make it happen. So as long as that property is used for alternative energy, we can have the land, but if we do something else with it then it reverts back to the state. And it just so happens, I was approached by students from Seattle University that want to go out and do some algae experiments, which is alternative energy. They don’t want to do the traditional turning algae into a bio diesel; they want to look at other processes for algae. That’s a great idea so I said, ‘Yeah, we’ll do that.’ So we’re setting that process up in place right now. But the anaerobic digester is up and running. I had to change map metering law that allows for a generation facility that’s not on the dairy farm, but the dairy farms still get credit for the electricity that’s generated and so we got that law changed. Naturally, it was for the entire state not just for Tulalip, it’s the entire state. So a number of jurisdictions have enjoyed that map metering process and they’re quite happy with it. So the dairymen reduced their electrical cost because they’re generating electricity, then we’re also creating from the solids that are left, we take out, mix it with a little dirt, bag it up and sell it as fertilizer. So it all gets used.”

Ian Record:

“And the revenue from that is, from my understanding, being plowed back into some of your natural resource restoration programs.”

John McCoy:

“Yes.”

Ian Record:

“Because the ultimate goal, from what I understand, is that you want to improve the water quality of the local watersheds in order to bring the salmon back or at least have them come back at a much greater rate.”

John McCoy:

“Right. We’re doing a number of infrastructure projects for salmon enhancement like the membrane sewer plant that we installed. We just had a study done that gave us a draft of it from the University of Washington and Western Washington University that the output does remove pharmaceuticals including disruptors, birth control pills. And so with these reports done, now we should be able, be permitted to discharge straight into streams and rivers because the output exceeds federal drinking water standards. It’s actually too warm for salmon and it’s actually too clean for salmon, so we’re going to put it into a wetland to cool down and get a little nutrients and then let it flow into streams and rivers. And because of that plant that we put in, we convinced the city of Seattle to change their Bright Water Project over to a membrane technology. And other jurisdictions around us have come and visited and looked at it and said, ‘This is great, we’re going to go this direction.’”

Ian Record:

“So you’re becoming a model not just for other tribes, but other governments everywhere.”

John McCoy:

“Yes.”

Ian Record:

“That’s fantastic. I wanted to finish up with a short discussion on your experiences, trials and travails, as a state legislator. Being a Native American and a state legislator you’re in a very small group, but a growing group.”

John McCoy:

“Yes.”

Ian Record:

“And I was curious to know, get your advice perhaps, on what Native nations and leaders can do to advance their priorities through the state legislative arena. You have experience on both ends of the spectrum, both as a tribal leader and as a state legislator. What advice can you give them in terms of perhaps advancing more effectively their priorities in that arena?”

John McCoy:

“Well, my advice to them all is to create a governmental affairs office to where these folks just work on policy, that they work with legislatures, with county governments, with other city governments because you need to touch them all because they pass laws that infringe on the tribal sovereignty. So you need to be there to educate them so that they modify their law to where it does no harm to the tribal sovereignty. They’re not doing, my personal opinion, 99 percent of them are these laws that infringe on tribal sovereignty is done out of ignorance, not maliciousness. It’s out of ignorance. Once you inform them, educate them on the issue, then they adjust their language to where they do no harm. So they need to be at the city level, the county level, the state level and we’ve always done the federal level. So we need to get down into the state level. This last year, New Mexico passed, codified their agreement between the governor and the tribes on how they’re to interface with one another, they codified it. And I was still in session and I got the email saying they codified it. I said, ‘Why didn’t I think of that because we’ve got the same thing.’ So this year I am going to try to move legislation to codify Washington State’s Centennial Accord, which is our version of the framework on how the governor and the tribes interface with one another. So I want to codify that. The only thing different that I’m going to do in my bill is that I’m going to add a legislative interface. New Mexico didn’t and I’ve talked to their New Mexico legislators and they say, ‘Yeah, on second thought maybe we should have added that,’ so they may add that at a later date. But I’m going to start off with the legislative interface and I want to set up a committee that meets during the interim, not during session, during interim on the tribal issues and what pieces of legislation they may see. Now this committee that I want to set up is only made up of chairs of committees because they control what legislation goes through. So if you get them indoctrinated, educated on what the tribal issues are and what legislation they’re going to move, then they’ll have the background on it, why it’s needed and so it should help move these things through. When I first went to the legislature and I went through freshmen orientation, it was five days long and at the end of it I raised my hand and I said, ‘Where’s your Indian Law 101? You’ve got 29 tribes in the State of Washington and you did not have one word about Indian Law 101.’ So, I convinced the chief clerk, ‘You need Indian Law 101 in your freshman orientation,’ and now it’s part of the freshmen orientation. It’s not on the Senate side. I’m still working on them, but I’ve got to get that one done over there, too.”

Ian Record:

“This sounds really fascinating what you’re talking about with this education of the decision makers, the outside decision-makers that make decisions that influence tribes in a variety of ways. Would you recommend as well though that Native nations begin to think more aggressively when it comes to cultivating members of their own nations to actually pursue the sorts of positions that you currently hold in the state legislature? Isn’t there a direct role that they can play as well?”

John McCoy:

“Oh, yes. Whenever I’m at NCAI [National Congress of American Indians], NIGA [National Indian Gaming Association], NIEA [National Indian Education Association], I’m talking to everybody. ‘You need to run for office. You need to get more people in the state legislature, on county commissions, need them there.’ So in Washington State in Whatcom County, there’s a Native American on that. There’s three of us in the state legislature. There’s one running for city council in Pierce County. So they’re starting to run, it’s coming up. When I got elected in 2002, there were only 23 of us nationwide. Today, there’s almost 80 of us. And I happen to be chair of the National Caucus of Native American State Legislators. So I am proud to see it grow. About 25 to 30 are very active in the caucus. This is a non-partisan caucus, so we have both parties are in there and we just talk about tribal issues and how do we work with our counterparts on getting legislation passed. And I think we’re becoming very effective at doing that. So we continue to grow. The organization also includes Native Hawaiians because they have the same issues that we do, but they don’t have their sovereignty yet. That’s being worked on. But anyway, so we’re interfacing, we’re helping each other with legislation and I personally believe it’s a valuable tool now and we need more.”

Ian Record:

“Well, John, I really appreciate your time. This has been quite an education and thank you for sharing your experience and your wisdom and your perspectives with us.”

John McCoy:

“Yes, thank you. I really enjoyed it and everything connected with your organization, NNI and Honoring [Nations] Program. Great programs, I love them and I can’t speak high enough of them. You guys are doing a great job, too.”

Ian Record:

“Well, thank you.”

David Wilkins: Putting the Noose on Tribal Citizenship: Modern Banishment and Disenrollment

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Jr. Distinguished Indigenous Scholars Series
Year

The final speaker for the 2008 Vine Deloria, Jr. Distinguished Indigenous Scholars Series at the University of Arizona, scholar David Wilkins (Lumbee) shares his research into the recent and growing phenomenon of disenrollment that is occurring across Indian Country, and delves into the likely motivations behind the efforts of some Native nations to engage in mass disenrollments of their citizens. He also argues that disenrollment is counter-cultural to Indigenous peoples, revealing that his research unearthed few examples of this sort of behavior historically.

Resource Type
Citation

Wilkins, David. "Putting the Noose on Tribal Citizenship: Modern Banishment and Disenrollment." Vine Deloria, Jr. Distinguished Indigenous Scholars Series, American Indian Studies, University of Arizona. Tucson, Arizona. November 13, 2008. Presentation.

David Wilkins:

“Hello folks. Hello folks. All right, you’ve got to be with me here tonight. I’m really happy to be back in Tucson. Tom [Holm] actually had me come in this Sunday so I’ve been here for a fairly long while. But he set it up so that he worked me to death for a day and then I have some time off, and then I get worked to death for another day, and then I have some more time off. So it’s a nice balancing act. First of all, I want to ask does everybody have the tables and the figures? If you don’t, they should be out there at the desk there. You need to have those because this is the data that I really want to share with you tonight and really get you to ponder.

One of the great lessons I learned from Deloria and from Tom and from the other faculty that I had the privilege of studying under when I was here in the early ‘80s was the, Vine especially drummed into us the need and the absolute will to be willing to critique our own. Vine, as you know, from having read some of his publications, he not only attacked the federal government when the government needed to be attacked and the corporate world and various institutions of governance, he would also attack tribal governments when they acted astray or when they violated fundamental norms of justice and fairness. And he drilled that into us as his students and he reminded us to always be willing to challenge injustice wherever you see it. And so I’ve tried to follow his sage advice all these years. And this work that I’m going to be talking to you about tonight is one example of that.

But I really am happy to be back in Tucson and I thank you all for coming out this evening. It’s always nice to come back to one’s alma mater, especially when you’re leaving or fleeing a really cold and already snowy Minneapolis, Minnesota. We didn’t get dumped on like the Dakotas, but we got quite a bit of snow and it’s been really cold up there. And I’m not quite ready for the long slog of a Minnesota winter, but I have to steel up, which I’m down here getting all the rays that I can, trying to absorb as much as I can. It’s nice to be back on this campus and I’ve been piling as much Mexican food in my body as I can. I’m almost bilingual now I’ve eaten so much Mexican food. It’s really nice. There’s not a whole lot of good Mexican restaurants in the Twin Cities as you can imagine. But my wife is Diné, she’s from northern Arizona, born in Tuba City, raised out at Red Lake, Tonalea Chapter. I met her here when I was in my first semester as a student studying under Vine. I wasn’t quite ready to commit at the time, but she came back at the end of my tenure here after I had survived Tom’s seminars and Vine’s seminars and she said, ‘Are you ready now?’ I said, ‘Please take me in, take me in,’ and she did. And so we got married and we have three lovely children who are all practically grown now. But it’s just, she regrets not having come back with me and have a chance to be back here.

It’s been nearly 30 years, as Tom and I were talking over the last few days, since I was, I can’t imagine it has been that long, but there it is. But I thank Tom and Tsianina [Lomawaima], she’s at an ethnohistory conference right now, and the AIS [American Indian Studies] program for bringing me back as one of the speakers. The three previous speakers are hard acts to follow, especially Chief Mankiller, but I will do my best and I appreciate Teresa Spoonhunter for setting up all the logistics for my visit here.

The three concepts that I’ve worked with probably more than any others are the concepts of Indigenous governance, Indigenous activism and tribal sovereignty. And these are also concepts that were close to Vine’s heart and his mind. Although Vine as you know was our -- in using Tom’s words -- our renaissance scholar because he studied virtually everything under the sun. And so we may not see the likes of another Vine for many years to come. But these are the concepts that I work most closely with. They were first brought to my attention when I was a freshman in college in 1972 when I read Custer Died for Your Sins. Hopefully most of you have had a chance to read that. And that book really just sort of pried open my mind and taught me and reminded me of the beauty of our cultures and our languages, of our responsibilities and obligations to one another and the federal government’s politics and laws and so on. And they’re what led me to come here in the first place when Vine called me up and recruited me to the U of A [University of Arizona].

A good friend of mine, Helen Scheirbeck, who’s a Lumbee, worked in D.C. for many years. I had met her at a conference in Raleigh and she said that Vine had just established a program and when she described it, it sounded just what I had been waiting for. And she said, ‘Well, I’ll tell him that you’re interested.’ And I didn’t really believe that she even knew who Vine Deloria was, but she sounded convincing. I said, ‘Okay, well, let him know that.’ And a week later he called me up at my work place. He said, ‘Mr. Wilkins, I hear you want to come to Tucson.’ I said, ‘Is this really Vine Deloria?’ He said, ‘Well, who the hell do you think it is?’ He always spoke very bluntly to you. He described the program and told me Marlys Duchene was already out here and I said, ‘Oh, yeah, I’m ready to come to Tucson.’ And that’s how we got first introduced even though I had heard him give a couple talks in the east.

But as Tom and I were working out the details of my visit here, he told me that I would have a chance to speak to a larger audience and the topic that immediately came to my mind was 'how do our nations define ourselves?' and 'how do we determine who can rightly belong to our nations?' And more importantly, 'What are the grounds on which those relations can be terminated or severed?’So the talk is mine, but the title for the actual talk is Tom’s. He actually came up with the title. He said, ‘How does this sound?’ It sounded very good. I’ve never been very good with titles and have to draw upon my colleagues. David Gibbs, who’s here tonight, has helped me with several titles for some of my work. I’m always looking for title ideas.

But as a Lumbee, the issue of deciding who is and is not Lumbee is one that our nation takes very seriously. It is, we believe, an internal decision that outsiders should have no say so in. But since every individual Native person has been recognized as a citizen of the United States since 1924, if not earlier, and we now have three layers of citizenship -- our Native status, our state rights as citizens and our federal status -- our situation is more complicated than any other group in the country. I’m convinced that if we are not careful in addressing this issue, that the federal government may eventually be compelled or will simply choose to act and will intervene again in profound ways, ways that will I’m sure have a devastating impact on the core sovereign power of deciding who has the right to belong to our nations. They’ve done it many times before, especially during the late 1800s and early 1900s when the Department of Interior on many occasions simply stepped in and told tribes to enroll this family or this group or this individual or told them they had to evict those individuals. Under the IRA [Indian Reorganization Act], if you read many of the IRA constitutions, the issue of membership is left to the tribe, but the Secretary of Interior has the ultimate discretionary authority to override tribal membership decisions. So we should remember our history. And under the self-assumed power of congressional plenary power with the court’s blessing, the federal government maintains to this day that they have the authority to intervene in all of our affairs including that of membership or citizenship. So with that as a rather stark opening, let me get to my prepared remarks and share with you the research that I’ve been doing on this topic and then we should have plenty of time for some question and answers later on.

Native nations are in the midst of some profound changes these days that rival and in fact may well overwhelm those that we face historically. The effects of gaming revenue on our communities and our relations with other governments, the ever-increasing level of Native political involvement in non-Indian elections, something we talked about in Tom’s class the other night and in the colloquium. Were you all Obama or McCain supporters? How many Obama supporters in the room? How many McCain supporters? A couple. Any Nader folks left anymore? Do they still exist? Well, we’ll see what Obama does. But it’s interesting that we have that many people very actively involved in the national elections. The increasing international involvement of Indigenous peoples, the recent adoption by the United Nations of the declaration on Indigenous peoples rights and the ratification two summers ago of the Intertribal United League of Indigenous Nations Treaty that was signed in Washington State, which evidences our continuing national and international status. There are of course the tremendous environmental changes that are bringing about profound changes to our lands, our waters, our skies. Just today in the New York Times, anybody catch what the Supreme Court said just yesterday? They handed down a decision in which the Supreme Court by a 5-4 decision told the Navy, ‘Go ahead and use a sonar and all the other equipment you want even if it causes horrific damage to whales and dolphins and other species of the oceans.’ So again, we see what the priorities are of the Supreme Court. And then we also have fascinating cultural and linguistic developments that are having significant consequences for our nations both good and ill. And then there’s a little thing called Wall Street’s meltdown and the financial distress and crisis that the nation, in fact the world is in the middle of and we’re part of that, aren’t we?

So there’s a lot happening folks and all these developments remind me that we live in an ever shrinking and vastly interrelated world, a world that requires knowledge not only within and about our own cultures, but outside our reservation, trust or urban borders, as well. Vine Deloria always emphasized that we must develop a comprehensive bird's eye view of the world, but we must also be able to see the world from a very localized perspective. What Gunnar Myrdal once called 'a frog's eye perspective' and I think we need to have the ability to have that bird's eye view and that frog's eye view and be able to navigate between those two perspectives if we want to be effective advocates of our nations.

Now as I noted earlier, I belong to the Lumbee Nation of southeastern North Carolina. We’ve got a couple Lumbees in the house tonight. Yeah, there they are, sitting right there. We’re about 55,000 strong. We currently lack complete federal recognition as a bona fide American Indian community by the BIA [Bureau of Indian Affairs], but my lovely wife, Evelyn, as I said, is a duly enrolled member, citizen of the Diné Nation, the largest reservation-base First Nation in the country. So even before I joined the academy, I had already because of my two distinctive east and west tribal affiliations embarked on research to better understand Indigenous nationhood, tribal sovereignty and self-determination. And in fact, when our two, when I hooked up with my wife, with my tribe being so large and hers being the largest, we thought we might have 13 children but we stopped at three. That’s all we could handle.

My Ph.D. is in Comparative Politics, but I tell my students as I told the students yesterday that I’m really a “polegalorian” because I combine politics, law and history in roughly equal parts to try and better understand what makes Indigenous politics and governance and law go round. And one of the best books I read in graduate school was Frantz Fanon’s classic study The Wretched of the Earth. It’s a brilliant study of the physical and psychological damage that colonialism unleashes on those who are colonized and on the colonizers as well. And Fanon made one statement that has always resonated with me. He said, and I’m quoting here, ‘Because it is a systematic negation of the other person and a furious determination to deny the other person all attributes of humanity, colonialism forces the people it dominates to ask themselves the question constantly, ‘In reality, who am I?’ And I think that’s a powerful question and that pithy statement still echoes loudly when I see the ongoing social, economic, cultural and psychological problems that are manifest throughout Indian Country.

Vine Deloria raised a related, but even a more comprehensive question in a number of his works. Vine like Fanon was deeply concerned about the manner in which Native nations went about their psychological recovery after decades of harsh assimilation and the persistence of ongoing disparities in political, legal and economic power. In short, he understood that disparities evident in Indigenous state relations were also forcing Native peoples to inquire, ‘Who are we?’ Vine raised this question in a particularly pithy essay in 1974 and he said this, ‘The gut question has to do with the meaning of the tribe. Should it continue to be a quasi political entity or could it become primarily an economic structure or could it become once again a religious or spiritual community?’ Vine emphasized that historically Native peoples were primarily spiritual communities. But he was troubled by the directions that some tribal governments were veering towards where economic, racial, DNA, political and legal criteria were becoming more meaningful than the kinship and clan based spiritual understandings and relationships that once linked our communities solidly together and that enabled us to endure what we’ve been enduring for the better part of half a millennium.

So let me now turn to an examination of this issue, one that appears to be damaging the collective heart of Indian Country -- the banishments, expulsions and disenrollments. 'Disenrollment' is a legal term of our art devised in the 1930s under the IRA in Indian Country that have increased dramatically in recent years. This issue -- the literal, physical reduction in the size of our nations goes to the heart of Fanon and Deloria’s queries to the essence and meaning of Indigenous membership or citizenship or clanship or whatever term you’re comfortable with and directly deals with social justice, civil rights and human rights in Indian Country. Native nations, as one of our inherent powers of governance, retain the right to remove, to exclude or to disenroll people from our nations, from our lands and from our membership rolls; both legally and culturally enrolled citizens and non-Indian and non-member Indian residents as well.

But it wasn’t until I read a 1996 Federal Court of Appeals decision, Poodry v. Tonawanda Band of Seneca, which held that several Seneca, who had been banished, did indeed have recourse under federal law to test the legality of their tribal government’s actions and that’s what convinced me to take a closer look at this issue. This case raised a sticky question of whether Native individuals had the right to use non-Indian courts to contest what their nation had done to them in regards to their membership status. And this -- as I eluded to at the outset of my remarks -- is one of those areas where it’s becoming clear that some federal courts are willing to intervene in these matters because of the importance of membership or citizenship to those facing banishment or disenrollment. As the court said in Poodry, ‘Banishment was indeed a severe enough punishment involving a sufficient restraint on the liberty of those being banished to qualify as what the court said was detention and to thus permit the federal court to review under the Indian Civil Rights Acts habeas corpus rule.’ The issue of citizenship as a fundamental property right may be in the works as well in terms of when the federal courts will get involved. Since property, as we all know, in one’s person is also fundamental to Americans and the economic system of this nation. More recently, two related cases involving banishment and disenrollment among the Santa Rosa Rancheria in California, Quair v. Sisco 1 and Quair v. Sisco 2 have expanded the scope of federal review and may in fact be a harbinger of things yet to come, signaling that the feds are willing, in certain cases, to intervene if tribal governments don’t provide adequate civil safeguards to those it desires to banish or disenroll.

Now what these three cases show is that the federal courts are increasingly willing to enter into our internal decisions on enrollment or disenrollment like they once did historically and with a great deal of regularity. This has, as you can well imagine, some major implications for tribal sovereignty on this most basic issue of self-governance. So with this legal backdrop let me get into the bulk of my remarks now.

After the Poodry decision in ‘96, I noticed that banishments and disenrollments were apparently happening with much greater frequency in Indian Country. I was struck by the fact that as a number of expulsions and disenrollments continued to increase, particularly of tribally enrolled citizens, that many of our governments were justifying such exclusions on the grounds that this was a power they had always wielded and were simply wielding anew. So I began collecting. Like a packrat, I started collecting all the articles, all the cases, all the newspaper clippings I could to see what I could learn about this. With tribes increasingly engaged in terminating the cultural, political and legal identities and citizenship status of some of their own people, Fanon’s query and Deloria’s question of ‘who are we as Native nations?’ loomed in my mind. Are Native nations still in an era of tribal self-determination inaugurated in the 1960s and 1970s by Indigenous self-will and federal policy in which we make decisions based on Indigenous values that respect kinship connections or have we now entered a frightening and novel state of what I call Native self-decimation in which an ever increasing number of tribal nations are cutting off organic parts, members of their own community body by banishing or disenrolling legally and culturally recognized citizens for sometimes specious reasons?

This is I think a significant question to ask because if First Nations are indeed communities of related kinfolk, which is what we once were, then it would appear to me that the grounds on which to sever or terminate such a fundamentally organic and deeply connected human set of relationships would have to be explicit and would in fact rarely be carried out given the grave threat that such expulsions, the literal depopulation of already small communities would pose to our very existence. Unlike Arnold Schwarzenegger’s "Terminator" character, we can indeed self-terminate, ladies and gentlemen, and this seems to be happening before our very eyes. And those charts that I asked you to, that I handed out gives you some evidence that this is in fact a growing phenomena and it has me scared to hell, to be honest with you.

Furthermore, I pondered how and why it was that the United States government, a secular state with the most diverse population of any country in the world, has in place protections that make it far more difficult for the federal government to strip American citizens of their citizenship status. Federal law does allow for the expatriation of American citizens who join foreign military units or act treasonously against the United States, but only where such actions are done ‘with the intention of relinquishing U.S. nationality.’ In other words, according to the Immigration Nationality Act, American citizens are subject to loss of citizenship if they perform certain acts voluntarily and with the intention of relinquishing their citizenship. And a person wishing to denounce their U.S. citizenship must voluntarily one, appear in person before a U.S. councilor or diplomatic officer; two, do so in a foreign country, normally at a U.S. embassy or consulate; and three, sign an oath of renunciation. So it’s not easy to stop being an American citizen, see? Interestingly, an American citizen cannot renounce their citizenship while in the United States. It can’t be done by mail and it can’t be done through an agent.

In contrast, our nations have what is today virtually absolute power, dare I say plenary power, to banish members and non-Indian residents and to disenroll or disenfranchise otherwise bona fide tribal citizens. So on this critical issue, tribal governments are far more powerful than the federal governments and the state governments. But is this what we want to be known for, that we can wield that kind of power over our own relatives? While we endure and have vigorously protested the virtually unlimited federal plenary power that is exercised over our lands, our resources and our rights, many of our own tribal governments are today increasingly exercising an even more pronounced version of plenary power and this in many cases over their own relatives. I find that a frightening reality.

After completing my preliminary research, I then critically examined several related questions in this ongoing research, and I say it’s ongoing because I continue to receive and analyze data. I have friends that have been disenrolled and that are facing disenrollment and they send me all kind of newsletters and all kind of information, they keep me updated and it really is just mushrooming out of control. A colleague and I have compiled a database of 318 tribal constitutions and these include the IRA constitutions, those established in Oklahoma and Alaska and tribal constitutions that post date the IRA as well. And I’ve also over the years collected quite a few pre-IRA constitutions, some of which are going to be in that book that Tom was kind enough to blindly review for me.

Now while the constitutions that mention disenrollment or exclusion contain a variety of statements about how and why these processes may be carried out, as will be discussed in a moment, we found only one instance in all 318 constitutions where a Native nation has expressly declared that it would never banish its own citizens. Does anyone want to take a guess which tribal nation says that in their constitution? Anybody? The Pleasant Point Passamaquoddy. We’ve got a Passamaquoddy here?”

Audience member:

“Half. Half Passamaquoddy.”

David Wilkins:

“Well, there you go. In their 19, in your 1990 constitution, it says, and I quote, ‘Notwithstanding any provisions of this constitution, the government of the Pleasant Point Reservation shall have no power of banishment over tribal members.’ That’s the only one that says that. And when I first discovered that clause I got on the horn. I called the Pleasant Point and I tracked down one of the authors of their constitution and I said, ‘What compelled you to insert this clause? You’re the only tribe that has this in your constitution.’ And he said, ‘We felt that it just, we had to do this. It wouldn’t be right for us to say we have the power to decide who no longer is one of us. We’re not going to be in office for long. What if somebody comes in after us and decide that we’re not members?’ But he said, ‘I have to be honest with you. We’re having so many problems with drugs in our community we’re beginning to think we might have to revisit this.’ So I don’t know how long even this provision might last.

So as I prepared to write an article about this as I finally felt I had enough data, these are the four questions that I came up with that guided me as I entered this shaky area. The first one is, how do the current disenrollment or banishment proceedings compare or contrast with the traditional means, if that is even discernible from a documentary or oral history available, that First Nations once used to banish or remove tribal citizens, assuming that they did that? Second, why are disenrollments and banishments occurring at the intensified rate that they are? What’s moving that, what’s making that happen? Third, what are the rationales being used by tribal officials to justify the expulsion of tribal or non-tribal individuals and families? And then fourth, how do current disenrollment, banishment proceedings comport with the tribe’s constitutional provisions, if the tribe has a constitution, because half the tribes in the United States don’t operate under constitutions?

So these were the four questions that I was pondering as I moved into it and immediately, having studied this stuff for a number of years, three incongruous premises I was reminded of as I got into it. First, as sovereign nations, our governments retain as one of our central powers of self-governance the right to decide who can be in our nation. The Supreme Court said that in what case? 1978. Come on, folks. Some of you have had Robert Hershey or Tom Holm’s classes. What Supreme Court decision said in 1978 that tribes can decide their own membership? There, thank you. Yes, Santa Clara Pueblo v. Martinez. That’s the linchpin decision on that. Second, many tribal nations, under their powers as governments and landowners, also reserve in their treaties and constitutions, the right to exclude non-members from their reserved homelands with stipulated exceptions for certain federal officials. But then third, and here’s the kicker, the federal government, under the constitutionally problematic doctrine of plenary power, has reserved to itself the power to trump both of those first two premises and to overturn or interfere with any tribal nation’s powers including citizenship, membership decisions when it suits the federal government’s desires to so intervene.

It’s this third premise that our governments must always bear in mind, because nothing we do can ever fully be said to be completely immune from the scope of federal interference, notwithstanding the doctrine of tribal sovereignty or the absence of constitutional markers granting such unlimited authority to the United States government. And more disturbing, as we move deeper into the 21st century, is the fact that state governments increasingly, with the explicit and precedent defying sanction of the Supreme Court, are increasingly moving into tribal territories and jurisdictional realms and are imposing their authority over our lands, our rights, our resources. In fact, the states are beginning to act like they have a form of plenary power over us and if we don’t find some way to deal with that, we’re really going to be caught in a vise, ladies and gentlemen. So as a comparative, let me give you some background to this broad topic of banishment because as [Rene] Descartes once said, although I may be misquoting him here, ‘Intentionally, I think therefore I compare.’ I think that’s what he said. I could be wrong there.

Now, worldwide the political, religious or military leadership in societies have reserved to themselves or shared the power to authoritative expel certain individuals, families or sometimes even entire groups from their respective nations or states as a punitive measure for what they considered grave offenses. As such, enforced removal from one’s Native land entailed a devastating loss of political, territorial and cultural identity for those expatriated since those evicted were utterly deprived of the security and comfort of their own family, community, religious or ethnic group. One of the earliest recorded and arguably the most widely known case of formal exile according to Christian tradition was what? God’s banishment of Adam and Eve. I mean, Eve had to have that apple and God got a little bit ticked off and what happened? They got banished, they got evicted from the Garden of Eden for their act of disobedience. That’s a fairly ominous precedent to follow, don’t you think? Another famous exile also involved God. Cain’s killing of his brother Abel compelled God to banish him and to place a shaming mark on Cain. So that’s where it all sort of begins at least from a Western tradition. Early Greeks and Romans used exile as a form of punishment appropriate to major crimes such as homicide, although ostracism, a milder variant of exile was sometimes imposed for political reasons. Among Romans, physical exile was one way for an individual to avoid the death penalty with voluntary exile allowing the accused to cope with prolonged if not always permanent absence from their country of origin. So along with involuntary exile, voluntary expatriation is another dimension to immigration where what is sought is not primarily the advantages of the place to which one goes, but essentially freedom from whatever disadvantages prevailed at home. Sometimes we just choose to leave. That’s voluntary immigration. Now I’m addressing that particular aspect of Indigenous exile, although it’s clearly a matter that deserves attention because where do 60 percent of us now live? In urban areas. Why have we left our homelands, why have we left our reservations, our trust lands? Well, there are lots of reasons why and that would make for some interesting studies right there. So M.A. students, Ph.D. students, ponder that.

Historically, some Native nations occasionally exercised the power to banish members. However, there’s not a whole lot of documentary or even oral data on this. I searched real thoroughly because I wanted to find out, is this something we used to do and if we did, who did it and why? We do know that the Iroquois Nations, if you read the Great Law of Peace, it has several provisions regarding banishment. If a chief kills another person, that individual is banished forever. And that’s in the Great Law and there’s another provision for regular people if they commit crimes, they can also be banished although they were given an opportunity to be brought back in at a later time. The Cheyenne people on rare occasions also banished individuals who committed horrific offenses. Llewellyn and Hubbell’s book talks about their banishment procedure. But the few available sources that document the power to banish or forcibly exclude show that it was a practice that was rarely used since Indigenous communities focused on mediation, restitution and compensation to deal with problem-causing individuals. No one in tribal society wanted to be ostracized, least of all banished or exiled, and certainly tribal leaders were very careful in exercising power that might lead to such dismissals since in most cases they were probably related to those they were getting ready to banish because we were always about restorative justice, not in a punitive measures.

So with that as a background, I then moved into -- with my computer friend’s help -- a search of our tribal constitutional database to see what if anything tribal constitutions say about this. And what we found was that the terms banish, exile and exclusion do not appear in any of the 318 constitutions. But we did find the phrases loss of membership, the word expel and the word expulsion a number of times. The loss of membership was found in 150 tribal constitutions. So there are ways we can, individuals can lose their membership. Typically it’s for excessive absences if you’re a tribal official or if you have sort of a diluted blood quantum, which is another dimension. Interestingly, the term disenrollment was only found in six constitutions typically involving tribal members who had gotten themselves enrolled in more than one tribe. That’s really frowned upon by our nations, huh? You have to be all Diné or all Yakima or all Lumbee. You can’t belong to two tribes even though many of us have multiple tribal ancestries. Non-Indians and non-member Indians could also be expelled from tribal lands if they were deemed to be disruptive to tribal stability or for other related reasons. In fact, many Native nations retain the explicit right in one or more of their treaties to expel or exclude from tribal lands any non-enrolled Indians or non-Indians except those specifically authorized to be there. The Navajo Nation’s Treaty of 1868 empowers the Navajo Nation to exclude or to expel non-members from their lands if they want to do that. And I’m going to just read you a couple of examples in which, of some of the language in a few tribal constitutions that deals with the issue of exclusion.

The Abenaki people of Maine, their constitution says this, ‘The tribal council may recommend permanent disenfranchisement of any member for serious violations of any of the provisions of the constitution or bylaws made pursuant thereto and the majority vote of the members present at will, will be necessary to call such member to be permanently disenfranchised.’ The Alabama Coushatta constitution says, ‘The tribal council may, by an affirmative vote of five members, expel any members for neglect of duty or gross misconduct. Before any vote for expulsion is taken on the matter, such member shall be given an opportunity to answer any and all charges at the designated council meeting, but the decision of the tribal council shall be final.’ So a number of tribes have provisions in which they lay out very explicitly the grounds on which you can lose your membership; again, the most common phrase in many of the constitutions.

Now what this abbreviated cross-section of constitutions shows is that not surprisingly, there is a significant amount of diversity regarding the rationale used by tribal officials to formally disenroll or physically expel tribal members. In some cases, those facing expulsion or disenrollment were entitled to a hearing so they could learn the reasons they were going to be forced to leave. More often provisions for loss of membership in IRA and later constitutions tend to emphasize a voluntary angle in which tribal members might decide to emigrate from their nation in order to permanently separate themselves from their birth nation. Now it’s important to note that provisions regarding a tribe’s power to exclude non-Indians or non-member Indians from tribal lands are far more prevalent in tribal constitutions than language regarding the actual disenrollment of bona fide tribal members. In other words, when I lived on the Navajo reservation, I made sure I kept a clean nose because I didn’t want to get escorted off the rez by Mr. [Raymond] Austin or somebody in the police force. So I was always aware of that.

1978 was a watershed year for Indian rights with the Supreme Court handing down two major decisions that affected tribal sovereignty, internally and externally. In Oliphant v. Suquamish, the Court deprived tribal governments of the external power to prosecute non-Indians who committed certain crimes, while the Santa Clara case held that tribal governments retained the internal power to decide their own citizenry. Santa Clara in fact appears to have been sort of the beginning point that has emboldened tribal governments to be more emphatic or proactive or in some cases retaliatory in their efforts to clarify their tribal citizenship or membership roles because it’s in the wake of this decision that we begin to see a slow rise in the number of banishments and disenrollments, a rise that increases dramatically in the 1990s when gaming revenue becomes a major stream [of revenue] and when crime in Indian Country just takes off dramatically.

In studying contemporary law and literature, there appear to be four major reasons relied on by tribal governments to justify the banishment or disenrollment of tribal members. One, family conflicts; two, racial criteria and alleged dilution of blood quantum; three, criminal activity including treason or drug sales or gang activity; and then fourth, and finally, financial issues, whether it’s the distribution of per capita gaming assets or judgment funds or something like that. Of course in some disenrollment cases, enrollment committees, tribal councils, judicial bodies, may invoke more than one reason to justify the disenrollment of individuals or families. In other words, disenrollments may be politically motivated, economically motivated, racially motivated or culturally motivated or some combination of the above. For example, just last month the Mille Lacs Band of Ojibwe up in my wintery state banished four band members for five years based on a number of assaults and weapons violations. In this instance, the banished individuals are still entitled to receive their yearly share of casino profits, about $7,000 a year, although they can’t actually set foot on the reservation to collect the revenue. Someone had to send the check to them, it had to be mailed to them or something. And they can request reinstatement to the tribe in 2013 if they’ve lived a clean life and held steady jobs. So this was just last month, four people up in Mille Lacs.

Throughout Indian Country banishment and disenrollment proceedings have indeed increased, and as you know from the table, one of the tables in California alone, especially Laura Wass's table, you can see that at least 16 native communities have or are currently involved in the process of disenrolling sometimes significant numbers of enrolled tribal citizens. And California’s joined by Nevada, Iowa, New York, New Mexico, Minnesota, Washington, Rhode Island and other states as well. And not surprisingly, the reasons for contemporary disenrollment or expulsion of tribal members -- not to mention the disenfranchisement or expulsion of non-Indians or non-member Indians like the Black Seminoles or the Cherokee Freedmen in Oklahoma -- coincide with the ones discussed previously ranging from those steeped in traditional philosophical values to those that reflect new economic and societal forces. Each Native nation that is actively engaging in expulsion or disenrollment of enrolled citizens or non-enrolled citizens of any country deserve specific and detailed assessment. But time and the lack of comprehensive and comparative data does not permit such a systematic and comprehensive inquiry at this point. I’ve tried, but it’s not easy. Efforts to secure factual information about banishments and disenrollments is not an easy process and tribal governments are sometimes reluctant to share this kind of data with outside parties, especially nosy Lumbees, because they say, ‘Hey, you’re not a member. You don’t have the right to know.’ Moreover, the role of Bureau of Indian Affairs is vital on this issue, but attempts to secure information from that body are equally difficult since the Bureau generally insists that those are internal matters to the tribe. And of course given the Cobell litigation, I don’t know that we could even trust the information coming out of the BIA if we were able to get any information from the BIA.

So what is evident is that historically the power to banish or disenroll tribal relatives was utilized, but only in the rarest of circumstances and even then, with the expelled usually having the opportunity to be readmitted if certain conditions were met. Since Native nations were in effect extended families of related kin, the idea of permanently expelling one’s own relatives was not a decision made lightly since traditional values and norms sought strenuously to use much less traumatic forms of punishment to restore proper social behavior. However, as tribal nations continue to expand, with our citizens becoming more differentiated through intermarriage, exposure to and appropriation of certain western values via popular culture, mass media, democratic institutions, and with the oftentimes disruptive role of capital generated from gaming institutions, smoke shops, claims settlements, some tribal governments have felt compelled to consider more dramatic sanctions like banishment and disenrollment as one means to cope with an ever-changing landscape.

There are a number of brazen examples where tribal governments have acted maliciously and I believe unjustifiably to disenroll or banish some tribal citizens on the most spurious of grounds including inter-personal feuds or grabs for raw political power or sheer economic greed. In one of the harshest cases that’s on some of the tables that you have in front of you, the Picayune Rancheria of Chukchansi Indians in California have disenrolled 900 of their 1,500 citizens. Now think about that, ladies and gentlemen. More than half of the nation has been disenrolled. They no longer exist for political and legal purposes as Chukchansi. Now what does that say about this community? And those individuals have lost not only their tribal citizenship, but also their primary source of income, health care benefits, etc.

And a few months ago there was an article describing a recent ordinance by the Rocky Boy Tribal Council in Montana that makes it an offense ‘for any person to engage in communication that harms the reputation or integrity of another.’ And according to the ordinance even the mere allegation of slander or liable are sufficient grounds for the tribe to take action. And that action might lead if convicted to loss of all that person’s real property and a five-year exclusion from the reservation and a fine of up to $5,000. And a second offense is punishable by relinquishment of enrollment and permanent exclusion from the reservation. When I first heard about this, I researched that a bit more and I learned that apparently that ordinance was passed after several anonymous letters were passed around the reservation alleging that some tribal council men were buying trucks and four-wheelers with tribal funds and were misusing tribal credit cards. So there you have it. Someone has since told me that they think that that ordinance has been rescinded. I haven’t been able to verify that. I hope it has.

Now when Native nations overreact like this, such actions I believe violate not only tradition of values, but they also profoundly violate the basic civil and human rights of those disenrolled, if the disenrollees have been wrongly disenfranchised. Yet today, a wave of banishments and disenrollments have been unleashed, leading to the legal, political and cultural exile of thousands of bona fide Native citizens. As our nations continue to evolve, it is imperative that we carefully consider and follow our own traditions and values and consider those of other enlightened communities that focus on fairness, justice, moral equality and respect before engaging in behavior, disenrollment of duly enrolled citizens, that profoundly violates our peoples’ human, social and civil rights and further exposes our already vulnerable nations to outside forces ever intent on limiting what remains of tribal sovereignty. Finally, as John Maynard Keynes once said, and I’m quoting here, ‘While the means we use may be molded by the ends we seek, it is the means we use that mold the ends we achieve.’ So we'd better be careful. Thank you very much, ladies and gentlemen.”