self-determination

Suzan Shown Harjo: Five Decades of Fighting for Tribal Sovereignty and Self-Determination

Producer
Native Nations Institute
Year

In this wide-ranging interview, longtime Native American rights advocate Suzan Harjo discusses her involvement in the development and ratification of the American Indian Religious Freedom Act, the Native American Graves Protection and Repatriation Act, and the legislation creating the National Museum of the American Indian. She also offers her definition of sovereignty, and paints a vivid historical picture of the forces at work that led to the passage of Indian Self-Determination and Education Assistance Act in 1975.

Native Nations
Resource Type
Citation

Harjo, Suzan Shown. "Five Decades of Fighting for Tribal Sovereignty and Self-Determination." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 11, 2008. Interview.

Ian Record:

"Welcome to Leading Native Nations. I’m your host Ian Record. On today’s program, we welcome Suzan Harjo. Suzan Harjo is a woman of many talents. Not only is she the President and Executive Director of the Morning Star Institute, which is a national Native rights organization founded in 1984 for Native people’s traditional and cultural advocacy, arts promotion and research, but she’s also a poet, writer, lecturer and curator. So welcome here to Tucson, Suzan. Why don’t you begin by telling us a little bit about yourself."

Suzan Harjo:

"Okay. Well, I’m Cheyenne and Hodulgee Muscogee. My mother was Cheyenne and my father was Muscogee Creek and I was raised culturally in both ways in Oklahoma. And I’m a writer and that took me to New York City and it took me to Washington, D.C. and a lot of what I write is federal Indian law. So I’ve developed the line of cultural rights for Native people for a long time from the American Indian Religious Freedom Act to the follow on legislation of repatriation and I was part of the coalition in 1967 after our ceremonies at Bear Butte in South Dakota that began work that led to museum reform to the National Museum of the American Indian to repatriation law and to the Religious Freedom set of laws and policies."

Ian Record:

"Well, great. And we’re going to talk about a lot of those policies that you’ve been involved in firsthand, but first I wanted to start at the basic level essentially and discuss sovereignty. And what I wanted to ask you is the word sovereignty means a lot of different things to different people. It’s a word when you’re working on the ground in Indian Country you hear tossed around all the time and that means a lot of different things to a lot of different people. And I was wondering if you could just talk to us and tell us how you define sovereignty for Native nations."

Suzan Harjo:

"Well, the reason you hear so many definitions is first of all we think it’s an Indian word and we don’t think it means jurisdiction and who controls the king’s animals and that sort of concept of sovereignty that comes from Europe. Sovereignty is the act of sovereignty. We as Native nations are inherently sovereign and whatever we do to act sovereign is the definition of sovereignty."

Ian Record:

"It was interesting, I was actually in a panel presentation yesterday in Denver with David Lester, who’s the Executive Director of the Council of Energy Resource Tribes and he was discussing this exact question that 'sovereignty' inherently is a western term. It’s a colonizer’s term. And he defined sovereignty as, ‘it’s our right to be who the Creator intended us to be,’ and he said it’s really no more than that. And then he went on to talk about things like economic development, for instance, is just one of many ways that we work to become the people that the Creator intended us to be. I hear that same sort of refrain in your answer."

Suzan Harjo:

"Well, when something’s inherent, it’s inherent. You are who you are from the inside out and it’s not something that’s over layered either in law or in policy and it’s not something that the Europeans brought from Europe. It is your language. Speaking your language is an act of sovereignty. Reclaiming your language is an act of sovereignty. So the way it’s used by many people is simply as jurisdiction or simply as gaming operations and that’s so limiting. That’s really myopic, but for some Native nations that’s all they have. They don’t have their language anymore or they don’t have other vestiges of sovereignty but we have those things that define us. We have our rights of selecting citizens, setting citizenship criteria, saying who we are and who we aren’t, who is not part of us. That is an act of sovereignty. Citizenship is an act of sovereignty. We’re not, where I think we’re kind of falling down is that a lot of our people are not respecting our Native nations, but that’s something that has been taught to us and laid on us by federal and state government and private people who have, teachers and others in public schools who for so many decades and generations disrespected our elders, disrespected our traditions, disrespected our languages, disrespected our children, on and on and on and said that we were nothing, we were dead, gone, buried, forgotten at the end of the 1800s. So it is no surprise that a lot of our people do not have a strong sense of civics about our own nationhood and our own sovereignty and our own personhood. We have to get through a lot of self-hatred, a lot of this internalized oppression. These are more than buzz phrases. This happened to us. When the federal government issued civilization regulations in the mid-1880s that outlawed the Sun Dance and all other so-called ceremonies, that outlawed Indian languages, that outlawed the so-called practices of a medicine man and characterized all that was traditional and fine and good as heathen and pagan and hostile and improper and illegal for which the people were punished mightily, some of them unto death. That was interference and suppression, social suppression, national suppression, tribal suppression, personal suppression, religious suppression of a high and low order for 50 years. They were not lifted until the 1930s. So when you have that kind of generational oppression, it doesn’t go away in one generation or two generations and still today, the question I’m asked most often when I work with different nations to undertake enterprises, things that are acts of sovereignty, the first thing I’m asked is, ‘Will this make them mad?’ Hey, well, and what are they going to do, take away the Western hemisphere? I hope it makes them mad. So sovereignty is the act of sovereignty. It’s whatever people do with their inherent powers."

Ian Record:

"Well, thank you for that answer. I wanted to move on now to again some of these monumental policy initiatives and changes in Washington that you’ve been a direct part of. As you know, since the 1960s and certainly the 1970s Native nations have aggressively moved to strengthen and expand their exercise of sovereignty. Can you describe this process from your point of view and your direct experience with that?"

Suzan Harjo:

"Well, I reject the premise of the question. Native nations have moved aggressively to exercise sovereignty since coming into contact with the White man. There’s no beginning in the ‘60s or beginning in the ‘70s, so I reject the premise of the question. Native nations throughout the 1900s in the Pacific Northwest, for example, were moving aggressively to carry out their treaty fishing rights and treaty hunting rights and treaty gathering rights and they were stopped continually by federal and state people who denied that there were treaty rights, denied their part of the treaty in upholding the fishing rights of the people. So much so that in the ‘70s when the treaty fishing rights case that’s called the Boldt Decision finally went to the Supreme Court and was decided in 1979, the Supreme Court in effect said, ‘This case has been before us five times this century. We don’t want to see it again.’ They had consistently ruled that the Indians were right. They had consistently upheld the treaties. So what you are asking is when America started paying attention to Indian rights, when the general public started saying, ‘Oh, maybe the Indians aren’t all dead.’ That’s not the same as Native nations vigorously pursuing and aggressively pursuing sovereign powers and sovereign rights. Native nations all over the country were trying to do what it was we were entitled to do through the orderly processes of our nations and the United States in our nation to nation relationship, which is now sometimes diminished and called a 'government-to-government' relationship, but that really is lowering the bar. So I would submit that our nations never stopped being who we are and we often were not heard or our efforts were thwarted. And why? Because one side had superior weaponry. We don’t have the nuclear bomb so of course we’re going to lose some contests. But did we roll over and play dead? No. And I don’t think that there has been a more vigorous or a less vigorous assertion of sovereignty or sovereign rights since, well, at anytime. I don’t think there’s been an ebb and flow. I think that’s a fiction."

Ian Record:

"Well, with respect to your involvement, I believe you’ve been in D.C. fighting these battles since the ‘60s and I was wondering if you could just talk about your experience there and I think in particular with respect to the Indian Self-Determination and Education Assistance Act of 1975. That didn’t happen overnight. That was the fruition of many years of hard fought battles and can you talk about those battles and how, essentially what was going on throughout the country manifested itself in this major policy shift in Washington?"

Suzan Harjo:

"Well, I didn’t get to Washington until the end of 1974, but I was outside of Washington watching the process, observing how things are done in Washington and as a journalist in part and as a radio producer in part and as a part of Native delegations to Washington. So I understood how things worked, but I was an outside person when we developed the ideas, when we envisioned the National Museum of the American Indian I was not in Washington. That was a result of our elders saying, ‘After ceremonies, don’t go away...,’ in June of ‘67, ‘...stay for meetings and let’s figure out how to do these things.’ And we came up with a whole agenda of how to gain more respect in American society and in how to elevate our status and get mummies out of, off display and that sort of thing. It was a whole agenda of respect. Now at that same time, a lot of Native people were doing other kinds of things that were developing economic development or other kinds of work in other areas and our common problem was in the way that Indian affairs were ignored in Washington, D.C. except by the Bureau of Indian Affairs and then they were controlled by the Bureau of Indian Affairs. That common realization by young people, older people, elders and people who were in tribal leadership position, people who were religious leaders and people who were, as I was at the time, a practitioner of traditional religion. We all came to the same realizations that something had to be done with the Bureau of Indian Affairs. Everyone having that realization led to an effort for Native nations to gain more control and for the BIA to have less control because in the ‘70s when we started going to...I first went to Washington in the early ‘70s, early ‘60s with my tribal delegation. They selected me and a boy when we -- Cheyenne boy and me -- when we were seniors in high school in Oklahoma City and they took us to Washington with them. And we were supposed to, it was the custom, stop by the Bureau of Indian Affairs and let them know where we planned to go. And so our act of resistance was that our business committee, our tribal leaders didn’t stop by the Bureau of Indian Affairs and we were followed around town by them as we went to the Justice Department, as we met with people on Capitol Hill and the Bureau of Indian Affairs agents would be short, right behind us and it was, and they were upset that we didn’t stop and talk with them and tell them where we were going so they had to follow us. That was their duty, that was their mission. So that’s the kind of thing that people were experiencing. The Bureau of Indian Affairs people really thought they controlled Indian tribes. So out of that, now it could have taken many forms. People really liked the title rather than the law itself, 'self-determination,' because it sounded good but a lot of people talked about it as self termination as well and weren’t quite sure that, there were some people who were very invested in the Bureau of Indian Affairs and having a strong federal agency presence because they had lived through termination and the severing of the federal tribal relationship so they wanted something that was solid and strong in Washington to act as an advocate for Indian people. For the most part though, it was not being an advocate for Indian people and the Indian Health Service was also perceived as something that wasn’t doing the job that it should do and there were so many people dying of the flu and colds and pneumonia in Indian Country, not to mention tuberculosis and the other far more serious in general society problems, but it was the common stuff that was taking its toll in Indian Country. So you had people in poverty, ill health, ill housed and the worst, the worst of the worst on the demographic ladder, Indians were always at the bottom of everything, the lowest employment. Anyway you could measure how a society was doing or how a people were doing, we were the worst. We were doing the worst. And so everyone understood that something had to be done to get more power to the tribes and to have more of the functions of the BIA -- that is money, that really translates into money -- transferred to the Indian tribes and that’s what was so important about the Indian Self Determination Act, not that it was a great law. You read it and say, ‘This is not much,’ but it was something and it was the answer to the anger that was building by everyone. Everyone was very upset, very angry and you had people in the Pacific Northwest being maimed and imprisoned for fishing under laws signed by the United States and treaties signed by their nation and the United States nation. 'How dare they do those things!' And so the outrage was very high and that was just a tiny escape valve for the federal government and good that it happened and it began, or helped, it helped further a trend that had begun under the [Lyndon B.] Johnson Administration where the Johnson Administration had tried to put a lot of social programs in the hands of tribes and make more social programs and more programs of general applicability available to the people, to the Indian people. And self determination under [Richard] Nixon/[Gerald] Ford, first the Nixon message and then the Ford law, was a furtherance of what the Johnson Administration had tried to do to get away from termination and get more money and power and programs in the hands of the people, just more local government. So that’s what that was all about. The Nixon 'Self-Determination' message, I remember Ramona Bennett who was the Chairwoman of the Puyallup Tribe in Washington State, coming to Washington and she said, ‘I came to Washington and everywhere I went the BIA, everywhere on Capitol Hill they handed me a copy of Richard Nixon’s 'Self-Determination' message. So I read it and read it and read it on the plane on the way home and got off the plane and we took over Cushman Hospital.’ And I thought that was just a marvelous example of what it set in motion. It did set in motion the self-determining of Native people that went beyond any sort of contracting law. It was sort of like your initial question about sovereignty. What is self determination? Doing what you, in their case, the tribe needed to take over Cushman Hospital and they did. And it was just funny that it was as a result of Richard Nixon’s statement on self-determination."

Ian Record:

"Yeah, that’s interesting you mentioned that example and also your characterization of the Self-Determination Act as a tiny escape valve, at least as far as the federal government conceded it because in the research of the Native Nations Institute and the Harvard Project, what we’ve seen is a growing number of native nations beginning in the ‘70s and particularly since that time have driven essentially a Mack truck through that tiny escape valve and aggressively pursued self determination to a far greater scope than the federal government I think ever conceived through this law."

Suzan Harjo:

"Well, yes. I was in part, I was one of the people that helped interpret the Self Determination-Act when I first worked for the National Congress of American Indians and we did a lot of testifying on Capitol Hill in ‘75, and ‘75 about the meaning of the Self-Determination Act, who could do what with it, what it meant and how it could be used to benefit the Native people. And so we did look for every opportunity in the Act and if the Act was silent on something, we assumed we could do it because it didn’t say no. And that was a unique way of interpreting federal Indian law. It had been interpreted in the opposite direction by the Bureau of Indian Affairs for a very long time that if something didn’t say explicitly that you could do something then the answer was no, you couldn’t do it. So we flipped that and started saying, if it doesn’t have an express prohibition against doing it, then do it, just don’t ask permission, just do it."

Ian Record:

"Just do it, the Nike slogan."

Suzan Harjo:

"Yeah."

Ian Record:

"As you know, a lot of the research of the Native Nations Institute and the Harvard Project dating back to the mid- to late 1980s -- so you’re looking at essentially a decade after this Act was passed -- has focused on why some nations have been more successful than others in pursuing their goals of self determination, whatever those goals might be. They might be economic, they might be cultural, they might be social, etc. From your perspective, do you see any common factors that perhaps empower some tribes to be more successful in that regard and perhaps some factors on the flip side that perhaps get in the way of other tribes from moving forward and pursuing their goals and achieving their goals?"

Suzan Harjo:

"Well, before Jack Abramoff, it was customary for the community of Native nations to come together for the common good and develop programs or general laws in a way that could be useful, beneficial for all Native peoples. What the Abramoff scandal brought to light was that there were Native peoples who were just behaving like any corporation and trying to get the edge over any other corporation and when I ran the National Congress of American Indians during the ‘80s, that was never ever the custom or the practice. So up until the late ‘80s, until we got the gaming law, everyone was supporting everyone else so it was a, you came together for mutual support and if one group, if one intertribal organization wanted to do something, everyone would support them in that effort or just stand back, certainly not oppose them. So this idea of just one-upsmanship and edging out another Native nation for profit, for personal profit I think is a sad turn of events in our national Native efforts, and there’s just no accounting for greed and we have very greedy people among us. We have a lot of greedy white people among us, a lot of greedy other kinds of people, and we have our own homegrown greedy people. So what accounts for the success of one nation and not success of another? In part that kind of greed, an overload of greed on the part of a successful nation willing to undercut, keep down another Native nation. I think that’s what was brought to light by the Abramoff scandal and what a lot of our leadership hasn’t owned up to and are still some of them covering up and that’s unfortunate. So the specific success by one nation as opposed to another may be as a result of dirty tricks and undermining and throwing a lot of money to see that the other nation is not successful. That has translated into other kinds of rights in other parts of the country and you see a lot of ugliness one nation to another and that’s where it’s backfiring for a lot of people and the leaders who let Jack Abramoff have his way or who encouraged him or hired him because they wanted a pit bull are being turned out by the people because they’re saying, ‘At home we don’t want to be this kind of person. We don’t want to be this kind of nation. We don’t want to have this kind of Native tribal character. That’s not who we are.’ And I think that’s really good. So we had to have a kind of pot boiler to make people decide. Now some are just saying, ‘Heck, yeah, we want that. We want to be the richest ones. We want to be the most cutthroat. We want to be the meanest ones.’ So it’s in a way like everything else, it all comes down to people and it all comes down to leadership and the people having the kind of leaders that they want to have, putting in office the kind of people they want to represent them. Now it doesn’t mean that they wanted the Jack Abramoff clones or payers or dupes. It does mean though that when all of that was done with and they assessed what had happened, they took a sharp turn in the opposite direction, whatever the opposite direction was and that’s still sorting itself out. We’ve been impoverished for a long time and we’ve only been comfortable...some Native nations have been comfortable, some are mega rich, only a handful, some are comfortable and some are still way in the depths of poverty. So we have to figure out what’s keeping the people in the depths of poverty. If it’s not other Native nations doing that and keeping them down, is it the federal government keeping them down? There are still people in the federal bureaucracy who are dying to get control of Indian tribes again and some of them are doing it through the kind of carrot and stick flattery. You see many, I’ve been in Washington a long time and I see people, delegations come in and they do cow tow to the very, to federal bureaucrats and they do sell out very, for a photo op and they don’t insist on substance. Not everyone. I’m talking about just a small number of people who do this. The most successful of the tribal leaders will not do the photo op unless they have something to back it up with, unless they’ve gotten something for the people, unless they have some sort of really clear promise or a negotiated agreement or a law or they, it’s not just, ‘How nice can we be to the white people?’ but some people still have that orientation and a lot of people in Washington exploit that because there are still people who are on the payroll or on the side of for other non-monetary reasons the people who are trying to exploit our resources and the people who are trying to keep us from not just making money on things, but having them altogether. So there are still people who are trying to take our gathering places, who are certainly trying to keep control of our sacred places. That has not stopped and there is a predictable backlash against any Native people that exercise sovereignty in any area, whether it’s water rights or gaming operations, whether it’s being too cultural. People get jealous of that and [say], ‘Give me some of that medicine.’ No matter what it is that is being exercised in a way that can be commodified, there are people who try to gain a share of that commodified entity or they try to take it away from Native people altogether and that’s still going on. There are still organized networks of people who call themselves in organizations 'anti-Indian' or 'equal rights' -- 'equal rights' is buzz word for no treaties, no special Indian rights. And this issue has been taken to the Supreme Court a lot and the Supreme Court always answers the same thing, ‘Special rights of Indians don’t interfere with the constitutional rights of non-Indians, so shut up.’ I mean, that’s what is supposed to happen, but that keeps going on. And in every way that Native nations raise a resource right or commit an act of sovereignty, there are non-Indian people who are there saying, ‘Either give me some or you don’t get to do that anymore.’ And why? Part of it is racism and an ancient fear that once in control of anything, Native people will be as bad to the non-Indians as the non-Indians have been to us. That is not our history. That is not our history. Whether you look at the Maine Indian land claim settlement of the claim to two-thirds of the state in a settlement for 300,000 acres of land, that was an act of compassion on the part of the Passamaquoddys and Penobscots in not suing every citizen in the claim area. That was an act of compassion because they said, ‘We don’t want to scare people the way our people have been scared.’ I thought that was so admirable of them and so they wanted their lawsuit held in abeyance pending the outcome of talks. They said, ‘Just talk to us.’ They didn’t want to go through an entire litigation process and hurt the people in that claim area. I thought that was extraordinary."

Ian Record:

"You mentioned sacred places, which is a good segue into my next question. As you mentioned, you were directly involved in the creation and the passage of the American Indian Religious Freedom Act. Can you just describe what...how that act came about and really what was the impetus behind it and perhaps your perspective on its impact 30 years later?"

Suzan Harjo:

"Well, I keep referencing this 1967 meeting, which was the nucleus of a coalition that became a national coalition for cultural rights and we had a second meeting, because we were mostly -- although there were people from other nations there at that ‘67 meeting in June -- we were mostly Cheyennes, Arapahoes and Lakotas, your basic Little Big Horn coalition. And we talked about a lot of things and realized that the Lakotas had different issues than the Cheyennes, even though we have so much in common, that there were slightly different things, slightly different experiences, different religions, different things that we had to do that we were being prevented from doing. So everyone had the ‘no trespassing’ signs in commons, the ‘no Indians and dogs allowed’ signs in common. We all had that in common, but what we realized was we needed to know more in order to do something that would help everyone and that was our goal was to help everyone. And it really was a, there was an emphasis on freedom. So we, and I can’t emphasize enough that we were still criminalized even though the civilization regulations had been lifted 30 years earlier, we were still criminalized when we practiced our religions and we were demonized by a lot of Native people too who had bought the whole bill of goods and who called us pagans and that sort of thing in resolutions and in letters to the BIA. So we realized that we had to do a lot of things to help ourselves and to help other people so, anytime that we tried to get to a sacred place that had been confiscated and turned into the public domain, we had to go through private property, federal property, sometimes state property and everywhere were these ‘keep out’ signs and ‘no trespassing’ signs and we were literally in order to continue a pilgrimage lifting barbed wire to get to these places. We still do that today in some places, so it’s not over, it’s not ended. So we wanted to see beyond that and make sure that in making ourselves free from a lot of these constraints that we weren’t imperiling anyone else. So kind of put out the word to different parts of the country what we were doing, what we were trying to do and that we wanted museum reform, we wanted a national cultural center, that’s what we called the museum facing the capitol and so the capitol, the people who were making laws about us would have to look us in the face. And we wanted something where people weren’t confiscated eagle feathers from us and we wanted the ‘no trespassing’ signs gone. So we got an invitation from Governor Robert Lewis to go to Zuni and so we went there, a pretty big delegation, and he had invited some other people and we had a similar set of meetings for a week and discussed what they needed and what they were afraid of and what they were confronted with and so that became, we were building a door like this and then it became a wider door, kind of a taller door. Everywhere we would go there would be another kind of issue that people wanted to be a part of this thing. So while we were building a door to get everyone through, we ended up with something that was very oddly configured and you can say the same sort of thing about all of these laws in the cultural rights realm, repatriation certainly is a good example of that, and the reason it doesn’t, these don’t look like other laws is because so many different cultures and so many different ways of dealing with issues had to be accommodated. And I do mean had to be. I mean, that was a real mission that everyone felt was we needed to be absolutely inclusive and to not have language that would restrict other people. So we just continued lots and lots of meetings like this, lots of gatherings, hundreds. We had hundreds of meetings of this kind, some later at Native American Rights Fund, some out in the open where everyone would camp, some at hotels in conjunction with Affiliated Tribes of Northwest Indians or National Congress of American Indians, and it was a very important movement that took hold in Washington and a lot of people were responsive. And the first two people I went to were Senator Barry Goldwater in this state and Senator Ted Kennedy because they were the most conservative and most liberal and then all you do is fill in the blanks in between. And both of them were so receptive and that’s when we really knew that we were going to prevail on a national Indian cultural rights agenda was when we were able to get really broad sponsorship and then in the House another person from Arizona, Congressman Morris Udall, was our champion there. So that, and if you look at the Religious Freedom Act and you look at the report of the president pursuant to the Religious Freedom Act, it was done after a year’s implementation. After a year’s implementation of 50 agencies' review of their rules and regulations in the context of Indian religious freedom, you see that it covers a lot of areas, it covers museum reform, sacred objects, sacred places. It’s quite a broad set of policies and the overall, overarching policy statement is to preserve and protect Native religious religions and practitioners of those religions. That was huge because it, the only, it had been the policy of the United States to destroy them. So that’s why we had to have an Indian religious act and why we had to have repatriation and the like, all the follow on legislation because this was a policy statement and then you go from there to make something that is specific to a topic. So that’s sort of how we got from the ‘67 meeting to just lots and lots of, they weren’t hearings, they were gatherings where we exchanged information and there was a lot of traditional knowledge sharing and learning that we were all doing. We all came away with in effect Ph.D.s in comparative religion. It was quite the thing. And I am so privileged to have been a part of that and to have been educated by so many extraordinary people. So that period was just an amazing thing. It was an, talk about an exercise of sovereignty. This was the people rising up and saying, ‘This is what we want and need and we need it to look like this.’ And that’s what repatriation was. We continued that same process from ‘78 when we did the Religious Freedom Act to ‘89 when we finally got the Indian museum and the historic repatriation provision agreement with the Smithsonian. And after that it took only 11 months to get it applied to the rest of the United States, to every other federal agency, educational institution and museum that was, that had any sort of federal tie. And that’s a pretty remarkable thing. And we literally got everything that we wanted and a process to try to do something about the things that were causing people so many nightmares. In part, our elders in ‘67 called us together because so many people were having nightmares about people who were held in these places and things that were held, our living beings, our sacred objects, that were being held in these places and they were describing them as prisoners of war. And at that point, we didn’t know exactly how it had happened, but by the ‘80s we had found the documentation to support what our oral history told us about beheadings. We knew there had to be a policy and a program to behead us and just because it was in everyone’s oral history, but we didn’t find until the ‘80s the information about the Indian crania study of the U.S. Army Surgeon General and we didn’t know until I started having negotiating sessions at the Smithsonian with Bob Adams, who was Secretary of the Smithsonian, that they had in fact 18,500 human remains, 4,500 skulls from the Indian crania study. We knew all of that from our own history, but we didn’t know how it was done until we found the paper, and thank goodness for the Magna Carta culture.

Ian Record:

"I wanted to follow up on the American Indian Religious Freedom Act and also NAGPRA, Native American Graves Protection and Repatriation Act, and just get your sense, now that there’s been obviously 30 years since AIRFA, moving on 20 years, I believe, since NAGPRA. How have those two acts worked out in practice? Are they achieving the goals that those folks that you were initially working with had set out?"

Suzan Harjo:

"Well, AIRFA is a policy statement, so it is what it is and we expected to gain more follow-on legislation from it than we have. So our big failing would be in sacred places protection and what we need are legal protections for sacred places and what we’ve been doing is cobbling together protections made of all sorts of other laws and processes and then some outright buying of areas of sacred places. We can’t obviously buy everything and some things were taken from the Indian people and we were confined to reservations and not allowed by the civilization regulations to roam off the reservation. That was an act that was unlawful, to roam off the reservation and for all of these sacred places that were off reservation, they were attempting to stop the relationship between the place and the people going there to pray. So a lot of people went there anyway of course, but had to do it underground and had to, had to make themselves criminals and hostiles and fomenters of decent and all of that and risk imprisonment, withdrawal of rations, starvation and any open-ended sentence that an Indian agent might apply in his discretion. So these places, none of these places were taken properly. They were all stolen. These were our usual and accustomed places, these were places that it didn’t occur to our ancestors that we wouldn’t be able to go there. Yet we were stopped. It didn’t occur to them that someone would take them and say, ‘Now these are ours, not yours.’ But that’s what happened. So we haven’t fulfilled the hope that we had of securing legal protections of a general nature, of a national nature for these important places to all our peoples. As far as repatriation, that is a good example of what was supposed to happen. We did do follow-on legislation. We were able to get it and I think we were able to get it because we were able to find so much of the documentation that was about an area of American life that most people on Capitol Hill had no idea existed and they would say, ‘You’re kidding. This is what the United States did? How is this possible?’ And there it was in black and white, there it was in green boxes in museums. So we had a good case, we made a good case for repatriation and I think, and we set up three processes, two laws and one process at NMAI and they were all slightly different, they had slightly different standards, the legal standard, the test under the two laws, one for the Smithsonian and one for everyone else, was or is preponderance of the evidence, which is 5941. In the NMAI [National Museum of the American Indian] trustees repatriation policy that governs NMAI, we made that a reasonable belief standard to see if that would be different in its implementation from preponderance of the evidence, reasonable belief not quite requiring a majority of belief, however you quantify these things. And it hasn’t made all that much difference, I don’t think, proving to me at least the point that everything comes down to people. It matters who’s in the delegation on the tribal side, it matters who’s in the repository receiving side and when the people get together what is their interaction and what are their motives and are they really concentrated on the good of the Indian people, the public good for education. Are they truly concentrated on these things or is it about people looking at us as if we’re the butterfly collection or our people, our ancestors as if they’re the butterflies that are pinned down. That’s a different way of looking at the world and that’s not the kind of world that we made with the repatriation laws. We made something that was interactive, that would bring together the peoples who cared most about the subject and that it was supposed to be for the good. I think that they’ve accomplished that and they’re not finished and it’s a long process. It’s a long process because Native people, it’s not a simple matter to repatriate. No one has the ceremony for what you do when people come and dig up your grave and take your great grandma or your grandma to Washington or to University of Arizona or UCLA or the Colorado Historical Society. There’s no ceremony for that except for those who have it now. So everyone, and you don’t just invent ceremony all of a sudden. You have to say, ‘Is this like anything else? What happened when there was a flood and bodies floated up, what happened? Ah, we did this, we did that.’ So people have to think of other things that it’s most like and find a way to discuss it in a way that’s not just ripping the scab off everything that’s happened in the whole of the 500 years and find a way to discuss it in a way that everyone can be put back together again. So that’s a lot and that requires a lot. Repatriation has placed a tremendous burden on Native nations, which is usually discussed as a paperwork burden. Say, ‘Wow, we’ve got a mountain of paper.’ It’s put a tremendous burden on everyone, but when it’s done best, it’s a tremendous learning process because people, well, like the teachers say, everything is a teaching opportunity. This is a teaching and learning opportunity for everyone. It’s a way of talking to the artist in the community. We want our cultural patrimony back so you see these designs. We want our people back so people can stop having nightmares about them and we put them to rest finally. So it’s a small measure of justice in a very unjust history and an unjust world. The really smart thing we did in repatriation law in both the ‘89 and the ‘90 law and in the NMAI trustees policy was to leave the implementation of the law up to the people doing the repatriations themselves. And that was, well, we had two choices. We could have guessed and we would never have guessed right, never. There are so many surprises that have come up in the individual repatriations. Or we could do what we did, which was to punt. We agreed on the general policy, we agreed that there was going to be a repatriation law, we agreed that it would be human rights of Native Americans. All of that was agreed to. And then we didn’t tie everyone’s hands with too much law. We left a lot to be, the manner of repatriation, so people looking for guidance in the law need to look to the spirit rather than the letter and then to do what they agree to do because that’s the whole point. People are coming together for a common purpose and they need to do whatever they need to do to make it dignified, to make it respectful, to make it lasting or to make it an interim thing. They might just say, ‘This is what we’re doing for now, but that doesn’t mean that everyone has to do it this way afterward,’ because it’s up to the current, to the living people to define cultural appropriateness, to do religious interpretation, to understand what the people need right now and then to, what kind of presentation? Does it need to be just something that’s written down and no one talks about it again? Does it need to be something done as a ceremony? Does it need to be something done that’s not a ceremony, but done with ceremoniousness? There are all sorts of ways to do these repatriations and the best thing is for the peoples to, on the Native side and on the repository side, to come together and to deal with it in the way that they can agree to deal with it. And that’s part of healing and that’s what we wanted to accomplish. So, and that’s what I hear from lots and lots of people who do repatriations is that they have accomplished that. But it takes a long time to get from point A to point Z. It just takes a long, long time. And sometimes you don’t quite get there, but you just run out of time or you run out of patience or you feel that it’s going in a negative rather than positive direction. There are lots of reasons that people decide that the end has been reached. Sometimes it’s a person on a particular repatriation committee knows they have three months in office or a tribal leader and they just have to get it done before then. Sometimes it’s a religious thing where the important thing is to get this back before this thing happens in the sky or before this kind of thing happens or to keep the salmon running or to keep the buffalo healthy. There are all sorts of community reasons that people do things or they just want not to deal with the subject anymore and to do, to resolve it quickly and quietly. There are all sorts of reasons for pace and style and as I said, I think that’s the smartest thing we did with the repatriation laws was to leave it up to the people."

Ian Record:

"You are also, among your many activities, one of the plaintiffs in the Washington Redskins trademark lawsuit, which has been going on for several years now."

Suzan Harjo:

"Sixteen."

Ian Record:

"Sixteen -- more than several. Just describe for us briefly why this suit was brought, what was the basis of it and what the current status of it is and essentially what larger problem it’s trying to address."

Suzan Harjo:

"Well, all roads for me lead back to our ‘67 meeting at Bear Butte, which was just eye opening for me and the people kept talking about respect and respect and respect and how we were being, we were not being respected in general society and one of the things that got tossed around was all of the, all of these sports teams that were walking all over our good names and walking all over our reputations and that that was helping keep us down and helping make everything else possible and that not enough people were speaking out about it. And that really meant a lot for those of us who were from Oklahoma, where sports are a really big deal and we joined up with the effort already underway in Oklahoma to try to get rid of Little Red who was the mascot for the University of Oklahoma and that became the first of the American references in sports, Native American references in American sports to go by the wayside. It was ended...Little Red was the first dead mascot in 1970 and after that came Syracuse and Stanford and Dartmouth and a lot of others. Until this time, when we’ve eliminated over -- we collectively, not me, but we collectively -- have eliminated over two-thirds of the Native references in American sports. So we’ve won already. Now that’s in educational sports. In pro sports, not one has changed. So you have 2,200 in educational sports have changed, have dropped their stereotypes, not one in pro sports. So there was a trademark trial, a trademark lawyer, patent and trademark lawyer named Steve Baird who was doing research on causes of action in trademark law to deal with this issue and so he wanted to interview me when I was, I think I had just stepped down as Director of National Congress of American Indians, but I was all over the record on this issue for many years and decades. And so he called and he was in Minneapolis and could he come and interview me. So he and his wife came over and we were doing an interview and the first question he asked me was, ‘Why did you reject, ’ because I’d said that we’d met many times. He said, ‘Had you ever considered a lawsuit against the Washington team?’ and I said, ‘Well, yes, but we rejected the civil rights approaches and they didn’t seem quite right for this forum that we knew we would have the hardest row to hoe in pro sports.’ So he said, ‘Well, why did you reject the forum of the U.S. Patent and Trademark Board?’ And I said, ‘Oh, well, we didn’t.’ And he said, ‘Well, did you reject or why did you reject, if you did, the Lanham Act as a cause of action?’ And I said, ‘I have no idea what you’re talking about.’ And he was so smart, he explained all of this to me about a pocketbook incentive lawsuit and how the Lanham Act said that you can’t get a trademark license if you have disparaging -- there are four tests -- if you have something that’s derogatory to anyone or anything or if it holds people or thing up to contempt, holds a people or thing up to ridicule or is scandalous and it seemed to me that we fit all of those. It was certainly scandalous to us, but I didn’t know if it was scandalous to general society. So he explained that it would be difficult to have them do it retroactively. What we would have to do is ask them to cancel the licenses, the trademark licenses that the team owners had received in the late ‘60s and, rather than going in the front end to have them not issue the license and that there were complexities in the lawsuit. So by the time he left, I had hired him as my lawyer and then I took a poll of the, I talked to the Board of Morning Star [Institute] and Morning Star became the sponsor for the lawsuit and then I made elaborate lists and called up six people and each one said yes. And the first one I called was Vine Deloria, Jr. and he said, ‘Oh, hell yes. I’m definitely for that.' We’ve got to do something to take this burden on ourselves as the responsible adult population and not have our, not pass this burden on to our children and their children and their children. So that’s why we did it. And his other remark was so much like one of the remarks that had been made at that ‘67 gathering where he said, ‘We have to tell people that this is not acceptable, but we have to say it and we haven’t done enough of that.’ And that was exactly what I had heard and I thought, ‘This is really such a smart man and such a wise elder.’ I think there were many of us who knew Vine was a wise elder before he accepted that he was and he was always very self deprecating. And so we had, I wanted seven people because seven is a really important number for the Cheyennes and we won in ‘99 before the U.S. Patent and Trademark Board. Filed in ‘92, won in ‘99, lost before the federal district court in 2003, and we’ve been on appeal before the U.S. Court of Appeals since then with one narrow question having been sent back to the lower court about whether latches, the passage of time runs against the youngest of the seven of us who was in diapers at the time that they filed for trademark protection and the Court of Appeals sent that question back with some language that said roughly, ‘There are always going to be Native Americans born and obviously some of them are going to continue to be offended. What about them?’ They were asking themselves and continue to do. So from that I concocted a lawsuit of young people who have no latches problem and again wanted to have it mirror our lawsuit and got seven, but one had to drop out. So it’s now six young Native people between the ages of 18 and 24 so there was no lag or minimal lag between them reaching their maturity and filing the lawsuit. And they filed our same lawsuit, they did that in 2006 and their lawsuit is being held in abeyance pending the outcome of ours."

Ian Record:

"So depending on how they rule on yours, they would proceed with the other one."

Suzan Harjo:

"Then they proceed, right. And it’s a different lawsuit so if they don’t, if the Court of Appeals does not reach the merits whether it’s disparaging or not to us, in our lawsuit then they have to reach it in the next one because they have no loophole, no escape hatch of latches for the Washington football club to get through. So they may escape through that loophole in ours, but they can’t through the next one and that’s just one forum and one cause of action and one tiny group of people. We’ve got a lot of relatives and there are lots of forums and all of that is to say that we’re on the downhill slide on winning this issue and, when you think about it, over 2,000 schools have gone through this process thoroughly and some at length, University of Oklahoma for almost 10 years, some of them really for a long time, before deciding to eliminate their Native references. That’s amazing. That’s really a societal sea change all around the country in the heartland, on the coast, everywhere, big towns, little towns, and almost all of those happened one by one by one except for LA [Los Angeles] Unified School District, they did it as a school district. Dallas-Fort Worth did it for half of Dallas-Fort Worth as a district. Lewisville, Kentucky did it as two counties in one school system. So other than those, though, it’s been done school by school and it’s always the same process and always the same arguments and it’s amazing how you could almost script it and say, ‘This is what’s going to be said. They’re going to say, 'You’re not offended.' You’re going to say, 'You’re not honored.' And that’s going to be the argument.’ And it has been and you almost want to say in the middle of these negotiations, ‘I know you think you’re being original, but we’ve heard it all before.’ Nonetheless, not every argument has been made in every situation and that’s what’s being played out all over America. So we’ve won on that. Whether or not we lose this lawsuit or win this lawsuit, these names are gone, these references are gone."

Ian Record:

"I wanted to wrap up with again getting back to a very general question and really what I’m curious to know from you is what do you see for the future of Indian Country and Native nations?"

Suzan Harjo:

"Well, "

Ian Record:

"I didn’t say it was a simple question, I just said it was a general one."

Suzan Harjo:

"I was the National Coordinator for the 1992 Alliance, which was from ‘89 to ‘93 really providing Native voices on the occasion of the Columbus Quincentenary, which was 1992 and one of the things that I put in place for October 1992 to kind of wrap everything up was a meeting of 100 wisdom keepers -- all Native people -- wisdom keepers, artists and writers to come together and then I co-chaired that with my old friend Oren Lyons, who’s an Onondaga Chief from the Haudenosaunee Six Nations Iroquois Confederacy. And we invited, we just put together a list of our, of the people we most admired and respected and asked them to come. What we were finding was that we knew a lot of different people and that a lot of people, I talked to Vine Deloria for example and he said, ‘Oh, I think that’d be really interesting. I’ve never met, ’ and he named several people. So we put together people mainly so we could just talk about the future and we called it 'Our Visions: The Next 500 Years,' and I will tell you that no one mentioned Columbus at that entire week of meetings and we came out with a wonderful statement, which I will get to you so you can read it into this record called ‘A Statement Toward the Next 500 Years.’ And essentially it says we’re going to be talking our languages, speaking in our languages, we’re going to be the Native people, we’re going to reclaim a lot of our traditions, we’re going to clear out some of the underbrush of stereotypes so our images come through. And it talked a lot about reclamation in a sense and who we were going to be not in relation to anyone else, but as ourselves. And one thing, it was just a marvelous, marvelous thing, and there were all sorts of people there who knocked each other off the charisma meter. Scott Momaday and Vine Deloria and Joy Harjo and it was just an extraordinary group of hundred people, Thomas Banyacya, just amazing, amazing people. And everyone came up with this statement. So that’s how I feel and as the years have gone by there have been so many examples of things that have gone away, things that have been called extinct that are now being revived, which is just, our old people on the Muscogee side say, ‘Never count out anyone, never count out anything because there they will appear again.’ And people all over the place say that about medicine plants that haven’t been seen in a long time and here they are. The teal blue butterfly, which was thought to be extinct for 100 years has reappeared in northern California. And the Pequot language, which, well the Pequots were said to be extinct and then there they were. I know they were there, I was the lead lobbyist on their land claim settlement. And what they have done with their extraordinary wealth through gaming and creating the world’s largest casino, Foxwoods, is they’ve done a lot of good. One of the amazing things they’ve done is to reclaim their language. They know how it sounds. There are lots of Algonquin languages that are spoken today including Cheyenne. No one, everyone thinks we’re from the plains, but we’re not. We’re from up that way. And they, so they know the sound of the language, they know words and there’s vocabulary, a lot of stuff was written down and now they have people speaking it and that’s an amazing thing. Now talk about an act of sovereignty. Here they are doing language reclamation and it really, this is what we in effect envisioned in 1992 when we did our retreat and said, ‘What is it that we want for the next 500 years? We want to be the Native people in the next 500 years and even more so than we are now.’ So this is what’s happening."

Ian Record:

"Well, Suzan, I really appreciate your time. I think a lot of people are going to learn quite a bit from your thoughts and perspectives. We’d like to thank Suzan Harjo for joining on us on this program of Leading Native Nations, a radio series of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Leading Native Nations, please visit the Native Nations Institute website at nni.arizona.edu. Thank you for joining us."

Walter Echo-Hawk: In the Light of Justice: The Rise of Human Rights in Native America & the U.N. Declaration of the Rights of Indigenous Peoples

Producer
Indigenous Peoples' Law and Policy Program
Year

Walter Echo-Hawk, legendary civil rights attorney, discusses his latest book In the Light of Justice: The Rise of Human Rights in Native America & the UN Declaration of the Rights of Indigenous Peoples, stressing the need for Native nations and peoples to band together to mount a campaign to compel the United States to fully embrace and implement the UN Declaration on the Rights of Indigenous Peoples.

Native Nations
Resource Type
Citation

Echo-Hawk, Walter. "In the Light of Justice: The Rise of Human Rights in Native America & the U.N. Declaration of the Rights of Indigenous Peoples." Indigenous Peoples' Law & Policy Program, James E. Rogers College of Law, The University of Arizona. Tucson, Arizona. November 20, 2013. Presentation.

James Anaya:

“The Indigenous Peoples Law and Policy Program is pleased to host a range of thought-provoking speakers in multiple settings over the course of each academic year as part of our multi-faceted program of learning and outreach. This evening we are especially privileged to have with us one of the truly groundbreaking advocates and thinkers of recent decades on issues concerning Native Americans in the United States and abroad, Mr. Walter Echo-Hawk.

A citizen of the Pawnee Nation, Walter Echo-Hawk is a distinguished lawyer who for years was one of the leading attorneys of the Native American Rights Fund, a former justice of the Supreme Court of the Pawnee Nation and now the Chief Justice of the Kickapoo Supreme Court, an author with numerous influential books and articles, and an activist whose energies extend to innovative initiatives to support Native American arts and culture. His vast legal experience includes precedent-setting cases involving Native American religious freedom, prisoner rights, water rights, and rights of reburial and repatriation. His work litigating and lobbying on Native American rights goes back to 1973 and much of that work occurred during pivotal years when America witnessed the rise of modern Indian nations. As American Indian tribes reclaimed their land, sovereignty and pride in an historic stride toward freedom and justice, Walter Echo-Hawk worked at the epicenter of a great social movement alongside tribal leaders on many issues, visiting Indian tribes in their Indigenous habitats throughout North America. He was instrumental in the passage of numerous important laws like the Native American Graves Protection and Repatriation Act of 1990 and the American Indian Religious Freedom Act amendments in 1994.

As a scholar and author, Walter Echo Hawk’s numerous published works include his acclaimed book In the Courts of the Conquerors: The 10 Worst Indian Law Cases Ever Decided. This is an outstanding and insightful critique of the evolution of federal Indian law doctrine and its social implications. This evening we’re privileged to hear Walter talk about his most recent book In the Light of Justice: The Rise of Human Rights in Native America & the UN Declaration on the Rights of Indigenous Peoples. In this book, Walter explains how the harm historically inflicted on the Indigenous peoples in the United States still commands attention because of the ongoing affects of the past on conditions today. He helps us understand why justice requires confronting the combined injustices of the past and present and he points us to tools for achieving reconciliation between the majority and Indigenous peoples focusing on the United Nations Declaration on the Rights of Indigenous Peoples of the United Nations as such a tool.

This UN declaration is an expression of standards grounded in fundamental human rights and a global consensus among governments and Indigenous peoples worldwide. It was adopted in the year 2007 by the UN general assembly with the affirmative votes of an overwhelming majority of UN member states, [and] expressions of celebration by Indigenous peoples from around the world who had been long advocating for the declaration. At the urging of Indigenous leaders from throughout the country, President Barack Obama announced the United States’ support for the Declaration on December 16, 2010, reversing the United State’s earlier position and he did so before a gathering at the White House of leaders of Indigenous nations and tribes. In his wonderful new book, Walter Echo Hawk shows us the seeds of change in the Declaration. “With the Declaration,’ he tells us, ‘we are in a rare moment of potential transformation, of a tectonic shift toward a new era of human relations that extends the promise of justice beyond the boundaries set by the past. It is a move farther along the path of greatness for which America yearns.’ This book inspires and moves us to seize that moment. Please welcome, please join me in welcoming Walter Echo-Hawk.”

[applause]

Walter Echo-Hawk:

“Well, thank you so much Professor Anaya for that very kind and generous introduction. I have admired Professor Anaya for many, many years. We first met in the mid 1970s when Jim was the General Counsel to the National Indian Youth Council [NIYC] and I was on their board of directors, and at that time he was deeply involved in civil rights litigation on behalf of NIYC and international litigation and international tribunals as well way back in the early 1980s. I’ve admired your work and your groundbreaking career for many, many years in the field of international human rights law and I think that your work has really opened new vistas for our Native people here at home and I’m very, I think, indebted to you also for writing the foreword to my new book In the Light of Justice and I’m grateful for that. It just put a lot of pressure on me to do my best because I have respected your work so much over the years.

I want to thank Professor Tatum, Melissa Tatum, the Director of the Indian [Peoples] Law [and Policy] Program here, Professor Mary Guss also as well for your kindness in showing me around town, making my presence possible here this evening. And lastly, I thank each and every one of you for coming tonight to be with me here. It’s certainly my great honor and privilege to be here at the Law School. This ranking law school is well known throughout Indian Country and among my colleagues in the practice of federal Indian law as being an important center for Indian law and policy. Some of the very brilliant scholarship that has emanated here from the Law School with folks like Professor Anaya and the other faculty, all-star faculty that is assembled here at the Law School including Professor Williams, Rob Williams, have truly opened some major vistas for Indian tribes and my colleagues throughout the nation. So I’m very glad to be here, very honored to be at this center of knowledge here. I feel like I’m very at the fount of knowledge if not very close to it.

And so I’m very honored to give a presentation this evening about my book In the Light of Justice, and this book is about a brand new legal framework for defining Native American rights here in the United States. The book does basically three things. First, it examines the landmark UN Declaration on the Rights of Indigenous Peoples that Professor Anaya mentioned. This is a landmark international human rights instrument that creates a very comprehensive stand-alone legal framework for defining the rights of Native Americans as well as Indigenous peoples worldwide. As Jim mentioned, this UN declaration was approved in the year 2007 by the General Assembly. It was endorsed by the United States government in the year 2010 so it’s technically a part of U.S. Indian policy and today 150 nations around the world have also endorsed this UN Declaration, making it the new order of the day it seems to me. Secondly, this book goes on then to compare our existing law and social policy with regard to Native Americans to these UN standards, these minimum human rights standards that is established by the Declaration to see how well our domestic law stacks up against these human rights standards. And then thirdly, the book urges our nation to undertake a social and legal movement to implement these UN standards into our law and social policy.

What I’d like to do tonight is to basically cover three areas with you this evening. First, I’d like to talk about why I felt compelled to write this book. Secondly, I want to describe briefly this declaration and this new human rights framework for defining Native American rights. And then thirdly, I want to discuss some of the findings that I made in my comparative legal analysis and some of my conclusions that I drew in this legal analysis of the declaration and especially to talk about the need for implementing these standards in our own nation here in the United States, including some of the implementation challenges that our generation or this generation will face in implementing these UN standards into our law and social policy. But before I begin, I need to add a caveat here and that is that I am not and don’t hold myself out to be an international law expert. I haven’t gone to the UN, I haven’t gone to Geneva, I did not participate in the making of this declaration and the book simply examines this declaration and its implications purely from the standpoint of a domestic practitioner of federal Indian law to look at the possibilities of this in terms of strengthening our existing law and policy. So with that, I think after I hope we’ll have time for some questions and answers and then we’ll be able to sign a few books afterwards and I think this’ll be a rare opportunity especially if James joins me in signing some books. So you’ll have the signature of both of the authors of this book. So it should be a collector’s edition for you book collectors out there.

But at the outset, I’d like to just begin with the premise of this book and that is this -- that I believe that this is a historic time for federal Indian law and policy and of course we know that federal Indian law is our current legal framework here in the United States for defining Native American rights and we know through our experience in the modern era of federal Indian law that federal Indian law basically has two sides to it. On the one hand, it has some very strong protective features that are protective of Native American rights that arise from the doctrine of inherent tribal sovereignty and the related protectorate principles that was articulated in Worcester v. Georgia, and within that protective side of federal Indian law in the last two generations our Indian nations have made great nation-building advances in this tribal sovereignty movement and we can look around the country and see the fruits of that effort all around us, and it’s been described by Charles Wilkinson as giving rise to our modern Indian nations rivaling the great American social movements, the environmental movement, the women’s movement, the civil rights movement in American history. But on the other side of the coin, federal Indian law also has a dark side to it as well with some very clear anti-Indigenous functions that are seen in a whole host of nefarious legal doctrines that were implanted in the body of federal Indian law by the Supreme Court many decades ago, in numerous unjust legal fictions and a significant body of the jurisprudence of racism as defined by Webster’s dictionary book can be found in some of these Supreme Court decisions that are still the law of the land today. So this dark side to federal Indian law holds us back as Native people, it makes us vulnerable and it also keeps us poor. And so we have these two sides of our existing legal framework.

But today as I mentioned is a historic time because we can now clearly see two legal frameworks for defining Native American rights. Our old legal framework of federal Indian law and then out on the horizon we can see this brand-new human rights framework out on the horizon and it reminds me of an old Pawnee song about a spotted horse that we see way far away and it’s coming our way and it makes us feel good because we know it’s bringing good things for us and that’s how this declaration is. And so we can clearly see these two frameworks now and we stand at a crossroads today between these two legal frameworks here in the United States and I think that the challenge of our generation of legal practitioners and tribal leaders and Native American peoples is to basically work to save the very best from our old framework, our most protective features and to merge that with this new human rights framework to create a stronger body of law that is more just and to make it a seamless…to merge the two frameworks into a strengthened and more just legal framework for the 21st century in a post-colonial world.

So I want to turn to my first task tonight and that is: why did I write this book? I was motivated by three reasons, the first being the need to strengthen federal Indian law. As I’ve alluded to earlier, although we’ve made great strides under our existing legal framework, I feel like we have stalled out in recent years because there’s been a gradual weakening of federal Indian law since 1985 with the U.S. Supreme Court trend towards trimming back hard-won Native American rights beginning with the [William] Rehnquist Court in 1985. Court observers tell us that Indian nations have lost over 80 percent of their cases into the present day, in some terms losing 88 percent of our cases, and that frightening statistic means that prison inmates fare better before the high court than our Indian nations. That’s caused some of our leading legal scholars to ask, ‘Is federal Indian law dead?’ And then we have this dark side to our body of law that I mentioned earlier and that compounds this problem it seems to me. Scholars have thoroughly studied this dark side to federal Indian law. They’ve identified these factors there that make our rights vulnerable today. These nefarious legal doctrines have been traced to their origins in medieval Europe. These internal tensions that are found in our body of law between self-determining peoples that have [an] inherent right of tribal sovereignty on the one hand being hostage to these doctrines of unfettered colonialism, conquest and colonialism. You can’t have these two conditions, they’re mutually incompatible so we have these inherent tensions that struggle…are pitted against one another in our body of law. And so that’s not questioned today in the year 2013 in any serious way, but we’ve lived with this body of law since 1970 at the inception of the modern era of federal Indian law. Our litigators basically took this legal framework as we found it. We didn’t create federal Indian law, we simply took this legal framework as we found it and tried to make the best of it. We tried to coax the courts into applying the most protective features of this legal framework and then simply living with this dark side. But it seems to me that now in recent years we have stalled out. I think we’ve faltered in recent years. I think Indian Country is huddled against an assault by the Supreme Court for its further weakening our legal rights and we’ve stalled out it seems to me at the very doorstep of true self-determination as that principle is broadly defined in modern international rights law and it may be that our Indian tribes have come as far as we can go under this existing regime and to go any further we’re going to have to reform that legal framework. I think there’s an axiom here and that is that a race of people can only advance so far under an unjust legal regime and that there’ll come a time where they have to turn on that legal regime and challenge it to go any further in their aspirations. And I think we may have rode our pony as far as we can and to go further we’re going to have to focus for the very first time on challenging some of the dark side of federal Indian law and strengthening our legal framework. So these problems in the law have troubled me as a lifelong practitioner of federal Indian law and I felt that federal Indian law today is in deep trouble. It needs a lifeline and perhaps this UN Declaration is that lifeline. So I felt it well worth my while to examine this new legal framework.

The second reason that motivated me to write this book was if you look around Indian Country today and in our tribal communities, we will see numerous, hard-to-solve social ills that stalk our tribal communities today. Despite our best efforts to redress these social ills, we see these shocking socioeconomic gaps between Native Americans and our non-Indian neighbors with the lowest life expectancy in the nation, the highest rate of poverty, poorest housing, serious shocking gaps in the medical treatment, mental healthcare, highest rate of violence in the nation, highest suicide rates, unemployment. These ills have lingered for so long in our tribal communities that they’re seen as normal and they threaten to become permanent. How do we account for these shocking inequities? Social science researchers tell us that these are unhealed wounds inherited from our…as historical trauma from [the] legacy of conquest; dispossession, subjugation, marginalization created these open wounds and they haven’t healed yet in the year 2013, despite our best efforts. These are the end products of our current legal regime, our existing law and policy, and I believe that this declaration is specifically designed to redress this inherit…the inherited effects of colonialism through a human rights framework. It’s a prescription for the social ills, and so I therefore thought it was worth my time to examine that framework in this book.

The third reason that I wrote this book is that the UN approval of this declaration in the year 2007, which was done in a landslide crowning victory for over 20 years in the United Nations of work by Indigenous pioneers who accessed the international realm for the very first time in a couple hundred years. This landmark achievement was basically unheralded. It caught the United States by surprise; it caught Indian Country by surprise. I feel like it caught our tribal leaders and our tribal attorneys [who] were unfamiliar with it. We hadn’t read it. It caught us with our chaps down, so to speak. And so since that time, and especially since the year 2010, Indian Country has just begun to read this document for the very first time and our tribal attorneys to read it and educate ourselves. It’s been the subject of a Senate oversight hearing. It’s been the subject of conferences at the federal bar, at NCAI [National Congress of American Indians], at tribal leaders' forums and law school conferences. And as we study this document I felt that it would be helpful to provide some baseline information about this declaration to help our self-education process on this new human rights framework, to look at some of the implications, to provide some baseline information about it, some reconnaissance-level legal analysis and that’s what this book attempts to do, to assist Indian Country and our nation in looking at this new legal framework for defining the rights of our people.

Let me turn now to: what is this UN framework? And let me just ask you, if you’ve read this raise your hand. If you’ve read this declaration, raise your hand. By golly, I’m glad James has read it. That’s a pretty nice substantial fraction. But many places where I ask that question, very few hands will go up.

So I just want to make about seven fundamental points about this new human rights framework. The first, the point is that it…in 46 articles, it lays out the minimum standards, minimum human rights standards for the…protecting the survival, dignity and well-being of Indigenous peoples worldwide -- that includes Native Americans, American Indians, Alaska Natives, Native Hawaiians. As Professor Anaya mentioned, it was approved by the UN in 2007, it was formally endorsed by the United States in 2010, 150 nations around the world as well.

Secondly, this document contains the authentic aspirations of Indigenous peoples in large measure because they wrote it and they negotiated it through the UN human rights framework. And if you read it as a practitioner of federal Indian law, you’ll see that all of the issues that our clients are concerned about and that we’ve litigated on and towards are contained in this document.

Thirdly, these standards as I mentioned earlier are comprehensive in nature. They address the full range of our Native American issues and aspirations. Our property rights, political rights, civil rights, economic rights, social rights, cultural rights, religious rights, environmental rights; it’s all there in this framework. And the interesting thing about it is the rights that are described in here are described as inherent, inherent human rights and I think that that’s very significant because an inherent human right means that the UN didn’t give these rights to Native people. These are rights that we already have.

So these are inherent human rights that nobody gave to Indigenous peoples, but rather they arise from our Indigenous histories, our Indigenous institutions, but were beyond reach by Native people in their domestic legal forums. What the United Nations did here was basically look to the larger body of modern international human rights law and simply pulled the norms and the human rights treaty provisions, pulled it out of this larger body and put them into this declaration and it’s showing the 150 nations of the world how to interpret this larger body of human rights law in the unique context of Indigenous peoples so that Indigenous peoples have the same human rights that the rest of humanity already enjoys. Further, these rights that are described in here, it is said that they’re supposed to be interpreted according to notions of justice, equality, good faith, democracy, a very just foundation for these inherent human rights, more just foundation than that found in the dark side of federal Indian law. Moreover, related to that, these rights are not considered to be new rights or special rights, but simply as I mentioned earlier just simply rights that are drawn from the existing body of international human rights law.

Next I’d like to talk about some of my major finding about these rights that I… conclusions that I drew in this book. Firstly, that these UN human rights standards are largely compatible with our U.S. law and policy in its finest hour. And at its very best and in its finest hour ,our federal Indian law in the 10 best cases ever decided about Indians show a fundamental compatibility with many of these standards. And those standards, if they were to become part of our body of law would simply make the very best in our legal culture more reliable and more dependable, but at the same time I also found, secondly, that many areas in our existing law and policy simply fail to pass muster under these standards, they don’t comply with these standards. And the book goes on to lay out these many, many areas that we need…where we need to uplift our existing law and policy so that they conform or are compatible with these minimum human rights standards.

The sixth point I wanted to make about this framework is that the Declaration is not a self-implementing instrument. It’s not legally binding law that federal courts must enforce, but rather the Declaration asks the United States to implement these standards in partnership with Native people, that the United States and all these other 150 nations are supposed to work with Native people to implement these standards, to provide technical assistance, to provide funding, to go forward in a nation-building kind of an effort to implement these standards. And so I think that that is a call to action to Indian Country to sit down with the government and see how we should go about implementing these standards in partnership.

I’d like to begin winding this lecture down here by looking at the need for these standards in our own country here. I think that the threshold question for all Americans of good will, including our tribal leaders and our tribal attorneys, is why do we need these standards in our own country? Aren’t we the leading democracy? Are you saying that we have injustice in our midst? Many Americans of goodwill will admit that yes, our nation was birthed on the human rights principle and we’ve got a very proud heritage of human rights that have always animated our nation from the very inception down to the present day. We’ve gone to war to protect human rights, to punish those who violate human rights, and it may be true that we haven’t always lived up to these core American human right values throughout our history in terms of our treatment of Native people here in the U.S., but are we responsible for healing a painful past when we didn’t personally have any hand in these appalling miscarriages of justice? It’s unfair to come to me when I had no part in that and ask me to heal the past. Others will ask, honestly ask, ‘Is an international law ineffective and unenforceable?’ That’s a myth that I once believed in as a dyed-in-the-wool practitioner of federal Indian law. Besides, many people just don’t like the UN. We don’t want to be bossed around by the UN or international law. Other Americans of good faith, goodwill, will say, ‘Why can’t we just rely on our existing law and policy to address these problems? After all, we have the Bill of Rights. Why not just apply the Bill of Rights and treat everybody alike and nothing more? We’ve got a comprehensive body of federal Indian law already. Why not just rely on it to fix these problems?’ And as advocates we must be able to answer each of these questions in a very persuasive way at the outset, otherwise we should fold up our tents and go home. So this book tries to answer those questions about the need for these standards in our nation. It explores answers. It looks at…it basically sees four reasons regarding the need for these standards: legal reasons, political reasons, social reasons and environmental reasons. And I hope that after you review these reasons in the book that you’ll agree with me that we do have compelling reasons and a compelling need to implement these standards here in the United States.

The first reason being a legal reason. As I mentioned earlier, to strengthen our body of federal Indian law, to reform that dark side of federal Indian law and root out the law of colonialism, the doctrines of conquest, doctrines of racism, all of these dark sides of our existing framework that have anti-Indigenous functions, to resolve our internal tensions and we have to remember that as I mentioned earlier or maybe it was later today that right now in our existing legal framework if you read our Supreme Court decisions in our foundational cases you will see that when it comes to defining Native American rights that the Supreme Court expressly eschews looking at ‘abstract principles of justice’ or ‘questions of morality’ when defining Native American rights. So this has produced an amoral body of law that is bereft of the human rights principle and I think that that has led to an amazing prevalence of unjust cases in federal Indian law. And so there is a need to reform federal Indian law to try to inject this human rights principle. I know as a litigator whenever you’re able to inject human rights into your issue, your position is immediately strengthened, and we found that when we were making the NAGPRA [Native American Graves Protection and Repatriation Act] statute that we were stymied in our negotiations, stalled out because of self-interest between the scientists, museums and the tribal communities until we agreed to follow the human rights principle and that kind of cracked the case and led to the passage of NAGPRA. And you can imagine if your client’s right to self-determination was considered an inherent human right, your client’s right to culture, your client’s right to accountable public media and so on and so forth, rights to protect Indigenous habitat were deemed to be inherent human rights, that’s going to put you in a much stronger legal position. So we have a legal reason here.

Secondly, we have social reasons, that is this inherited legacy of conquest that I talked about earlier, and the need to finally try to solve these hard-to-solve social ills. These are root problems that we’ve inherited in our tribal communities, cry out for healing in a national program of reconciliation and I think that this declaration is the antidote for those social ills and will enable our nation to solve them at long last and then move forward.

Thirdly, we have these political reasons to implement this declaration. Our nation has long been plagued with the Indian question or the Indian problem, ever since the United States first embarked on colonizing Indian lands and peoples. The political question has always been, ‘What do we do with the Indians once we’ve colonized everything? What do we do with them?’ And this has long perplexed our nation and historically…well, it’s a universal problem that all settler states with a history of colonialism have had to confront. How do we bring the Native people into the body politic? What’s the best approach for doing that on a political basis? And we’ve tried many approaches here in the United States. We’ve tried this Worcester framework of inherent tribal sovereignty for domestic dependent nations operating under the protection of the United States. We’ve tried Indian removal, to remove the tribes from our body politic. We’ve tried to exterminate Indians at the zenith of the Indian wars. We’ve zigzagged back to guardianship and Christianization methods to bring Native people into the body politic. We’ve tried self-government under the Indian Reorganization Act of 1934. We’ve swung back from there to termination to make our Indians disappear and then in 1970 swung back to Indian self-determination. So we’ve had these zigzagging policy shifts in U.S. history trying to figure out the best way to bring Native people into the body politic. The problem is that the normal mode for assimilating immigrants into our free and democratic society simply doesn’t work for Native people because we already inhabit the nation and we want to retain our Indigenous rights. Well, this declaration shows us how to do that. It tells us that we want to bring Native people into the body politic using the self-determination principle with our Indigenous rights intact, basically saying that we got it right with our Indian Self-Determination policy of 1970, that we should stay the course and do whatever we need to do to bring Native America into the body politic with all of their Indigenous human rights intact.

Fourth reason that is discussed in this book is environmental reasons. I think that there’s a healthy byproduct in recognizing and protecting Indigenous rights and that healthy byproduct has to do with this environmental crisis that our nation is confronted with. We have a growing environmental problem and a crisis that is a worldwide environmental problem that threatens human security. We see it in the mass extinction of animals and plants, the pollution of Father Sky, Mother Earth, our waters, our oceans. We see it in this climate change. We now live in a warming world thanks to the industrialized nations emitting these gases into the atmosphere. And this has caused…this crisis has caused scientists to fear a catastrophic collapse of some of our important global life systems. And so the scientists are sounding the alarm, but no one is listening. This crisis continues to get worse and not better. We can’t solve it without first getting a land ethic and [an] ocean ethic that can guide us, a moral compass to show humans and our modern society how we should comport ourselves to the natural world. And as far back as 1948, Aldo Leopold urged America, ‘Get a land ethic.’ But it’s never taken root in our nation yet. Why? We don’t have any clear guidance from our Western traditions, the Western religions, science or technology. They don’t tell us how humans should comport to the natural world. We have to look to Indigenous peoples for that, into their value system, our primal tribal religions, our hunting, fishing and gathering cosmologies and those value systems, which were the first world views of the human race that were wired into our biology as humans spread across the planet, and in that set of Indigenous value systems I think our nation will find the ingredients for an American land ethic. Without that ethic, we’re not going to be able to solve this environmental crisis and we’ve placed ourselves on the path of failed civilizations. We can’t solve it, the problem, without an ethic to guide us. It’s just simply too expensive. The problem is too severe. It costs too much money and we lack the political will to address and solve this problem. So we sorely need a land ethic and I think that there is a congruency between protecting Indigenous habitat and Indigenous land uses of Indigenous land, Indigenous cultures, empowering the Native people to protect their ways of life so that they can come to the seat at the table and maybe share some of their traditional knowledge and their value system and help us forge a land ethic. If you look at the Amazon forest, the remnants of that forest exist because of the Indigenous peoples that reside in these habitats that have been empowered to continue to live there and to defend those areas. Were it not for them, that forest would probably have long been gone. So there is that relationship between protecting and empowering Indigenous peoples and their environmental rights and addressing this environmental crisis.

So I’ve spoken too long and I want to just simply close with some quick concluding observations about the challenges in implementing this declaration and I think that I would direct your attention to James Anaya’s report that he submitted to the United States in his capacity as the UN Special Rapporteur on the Rights of Indigenous Peoples. In the year 2012, he conducted an official mission to the United States to consult with the United States government, to consult with tribal leaders to identify the human rights situation of Native Americans and barriers to implementing all of these human rights standards and he compiled this report in August of 2012. It’s entitled The Situation of Indigenous Peoples in the United States of America. And I would urge you to go to your computer and download it, and in fact I think we may have copies here this evening alongside my book tonight, our book I should say, in which Professor Anaya gives recommendations to the United States for steps that our nation must take to implement these standards. He concludes that we have a significant challenge in doing that, in rectifying and addressing our legacy of conquest here in the United States and it calls for changes, fundamental changes in all three branches of the federal government -- Congress, the President and the Executive Branch and our courts -- and these are fundamental changes that he is recommending that our nation take. And so it lays out a big task it seems to me for our generation and the next to implement these challenges to…I think this report is one of those rare policy analyses that come across from time to time, once in a great while, that can become a catalyst for change and so this report is a good starting place to download it and read it and I think you’ll agree that it does lay out a big task for our generation. And there’s a role for our law schools, our law professors, our law students, Native people, Americans of goodwill to come forward, our tribal leaders to come forward, to reach out for these human rights standards and work to implement them.

And I think the first step here is a…there’s a need for a focused national dialogue on the nature and content of human rights for Native Americans. And our nation has never had such a national dialogue of that nature in the same way that we looked at…our nation looked at Black America and the need for equality under the law for Black America. That was serious national conversation, but we’ve never had one when it comes to talking about human rights for Native America and our legal framework has no human rights judicial discourse in it at all and so we need to have a national discourse to understand the need for these standards in our country, to debunk the reasons not to act and I think that that’s a first step.

Secondly, I think we have to build a national campaign to implement these standards, to coax the government into developing a national plan of action through a national program of reconciliation to implement these standards in partnership with Native America. To do that…unless we do that, nothing’s going to happen and these human rights standards will remain beyond reach. So we need the internal machinery to set that in place for a campaign complete with guiding legal principles to develop this seamless new framework, employing some of our finest legal minds in our ranking law schools to help us do that, strategies and a focused public relations and public education campaign to educate the public about this, very similar to the campaign that Black America engaged in for 58 years to overturn Plessy v. Ferguson in the landmark case of Brown v. Board of Education. There’s lessons to be learned there in that campaign. There’s lessons to be learned from our tribal sovereignty movement that could be helpful in guiding a campaign to implement these standards in the 21st century.

And so with that brings me to my final point that this campaign has to also develop some philosophical foundation, some philosophical principles to motivate social action, social justice action and to guide our campaign into the light of justice. I don’t think we have to look far for that philosophical foundation for this campaign. We only have to look as far as to our wisdom traditions of the human race, remembering that from day one of the history of the human race has been one of atrocity, acts of genocide, warfare, catastrophes brought about by man’s inhumanity to man in the whole course of human history and along the way our ancestors developed some wisdom traditions that come to us from the world’s religions that teach us and tell us how to heal historical injuries, injuries of the kind that we have perpetrated on other people. These wisdom traditions work as sure as the rain must fall and they tell us it’s just five steps, it’s not rocket science. The first step being an injury has taken place and here we’re talking about this legacy of conquest that is still seen and felt today.

The second step is whatever tradition you come from your finest and highest teachings tell you that when you’ve injured somebody you must go to that person and apologize, prostrate yourself and ask for forgiveness. It’s a very hard step to do because we often demonize the people that we have harmed, wished them ill and it’s inconceivable, unthinkable to then go to them on bended knee and ask them to forgive us. It’s a hard thing to do, but our wisdom traditions teach us that we have to do that to relieve our guilt, to relieve their shame, to begin clearing the air for a healing process.

And that brings us to our third step in this healing process and that is to accept the apology and forgive; also very hard to do. I think one of the indicia of a traumatized community is simply they’re unable to forgive those who have trespassed against them. It’s hard to do, but it’s important that we forgive. Only the strong can forgive. It’s probably our highest, strongest human spiritual power that we have to forgive and all of our traditions teach us that we must forgive.

That third step then leads us to the…once peace is made it leads us to the fourth step in this process, acts of atonement. The burden shifts back to the perpetrator’s community to perform acts of atonement, to make amends, to wipe the slate clean as best as humans can do. We know we can’t turn back the hands of time, but we can do everything within our power as humans to make things right and I think these acts of atonement and this process are laid out in that declaration. It shows us what we must do here.

Once that step has gone through, it brings us to the last step and that is healing and reconciliation and at that point we’ve done everything that humans can do to heal, taken that high road to heal a historical injury in our midst regardless of the cause and from there we sit at the center of human compassion and we can honestly say at that point that I am you and you are me and we are one. We’ve been reunited and we can go on from there. And so I think that these wisdom traditions work in even the most heinous situations and I think we only need to look that far as a philosophical foundation for a campaign to guide us to that promised land so that we might all stand in the light of justice.”

[applause]

James Anaya:

“Walt has agreed to take a few questions. You have about five, maybe 10 minutes.”

Walter Echo-Hawk:

“Okay. I was hoping to filibuster so that we wouldn’t have to do any questions, but as long as they’re easy ones but please…yeah, five minutes, questions and then we have some books compliments of the campus bookstore. Anyone? Sir.”

Audience member:

“I think it was wonderful to hear you. And you have talked about how the United Nations Declaration can help the United States of America and do you have anything in the United Nations Declaration, which could be taken from the United States? I mean is there some teachings of United States Native culture, which is endorsed by the United Nations Declaration?”

Walter Echo-Hawk:

“Well, I feel that it’s very important for the United States to take a leadership role in implementing these standards in its own backyard. As President [Dwight] Eisenhower said, ‘Whatever America wants in the rest of the world first has to take place in our own backyard,’ and we hold ourselves out to the world as a human rights champion. We’re always running to the UN to have humanitarian intervention, to get support of the UN, and so I think that we don’t want to be the last nation on earth to implement these standards. We want to be among the first and the rest of the world is already embarking upon implementing these standards and that train is leaving the station and we need to be in there because I think that we are a very strong world power, we have influence around the world and if we’re able to successfully implement these human rights standards here in our own land, in one of the hard-core settler states or settler nations, then that would provide, I would hope, precedent for other nations to do the same thing around the world. It’s getting to be a smaller globe and we need to look across our boundaries to other lands. Certainly that’s what happened in the making of this declaration when Indigenous peoples came together and went to the UN. But I think it’s important for America not to be the last country on the planet to fully implement each and every one of these standards, that we should be among the first to try to take a leadership role to redeem our place as a champion of human rights worldwide because we use this as a tool in our foreign policy. Human rights is an important tool in our foreign policy and so we need to get matters fixed in our own backyards before we can do that in a legitimate way. Ma’am?”

Audience member:

“What suggestions could you give us in regards to getting such a national campaign you’re calling for moving, to find who needs to listen, who can move things and basically who can do what? Do you have any suggestions of how to achieve this, how to support and contribute?”

Walter Echo-Hawk:

“I think that…well, I have a couple, two chapters in the book that’s devoted to that, chapters nine and 10, so you’ll have to read it. You have to buy the book and read it. I think we have to mount a social movement, maybe a mother of all campaigns. To do that we have to internally put in place the machinery to do that, we have to go to our tribal leaders, ask them to get out of the casinos for a little bit, uplift their vision to see this new framework. We need a cadre I think of tribal leaders that can lead us into the light of justice. We need to staff them with some of our best attorneys that we have that are versed in human rights law and we need to have a lot of ingredients internally to vet some of these remedies that we’re talking about. We want to be sure we’re not going to make bad law or we’re not going to weaken our rights as Native Americans that we already have, rather we want to be sure that we strengthen them. Then we have to develop a strategic law development strategy and guided by astute political strategists with a…armed also with a very vigorous public education campaign. So I’m talking about the entire race of people and all of our assets and I think that we’re in a much better place to do that, Native America, in the year 2013. We’ve come a long way. We’ve got the experience, the capability and the resources to do that. Our survival, cultural survival depends on it. And you can look back to when the national…the NAACP was founded in 1910 and they were trying to overturn Plessy v. Ferguson and they had enormous hurdles in front of them at that time and yet it took them 58 years, but they did it. And I think we’re more poised now, Indian Country, to do that, but it’s going to be…take a lot of work. I think our young attorneys have to talk…learn the parlance of human rights, international human rights because we are now in a brand-new era of federal Indian law, a human rights era. And when President Obama endorsed this declaration, it ushered in a brand new era for federal Indian law and I think that the task for this next generation is to implement that declaration. Just like back in 1970, our goal at that time was to implement the Indian self-determination policy and it took a couple generations to basically do that in full measure. As I say, I think we’ve made big advances, we’ve come as far as we can though and now we’re in this human rights era of federal Indian law and policy and I think it’s incumbent upon you younger people, it’s easier for me to say, to take that up and carry it forward. Sir?”

Audience member:

“I was wondering, you mentioned some domestic examples like NAACP sort of leading the way for Black America. You also mentioned we should be sort of the leader as the United States in implementing human rights. Are there any…the declaration granted in 2007, are there any countries that sort of set a good precedent for us to follow?”

Walter Echo-Hawk:

“Yeah, I think…was it Bolivia or which country…? It just simply passed a statute incorporating the whole declaration in one fell swoop, but I think Jim may have a better idea on that. But there’s other countries. I think each country is unique. They have their own Indigenous issues, they have their own legal cultures that they’re looking at and I think we can look around the world and benefit from the experience in other countries in implementing it and the book kind of does that in a few limited examples. But I don’t know if you have anything to offer, Jim, from your perspective? Sir, in the back.”

Audience member:

“In your perspective, what is self-determination? Is there a timeframe of that since 1970 to now or further?”

Walter Echo-Hawk:

“Well, I think that in the United States we reached our low point in 1950. In the ‘50s it was the termination era. It was a low point in Native life in our country it seems to me. The policy was termination, to make Indian tribes disappear as quickly as possible. And our activists and tribal leaders in the 1950s and in the 1960s worked as best they could to resist immediate and wholesale termination by the federal government. And their work…in the ‘60s, Vine Deloria was the Executive Director of NCAI and Clyde Warrior was the President of the National Indian Youth Council. They were articulating, especially Vine was articulating this self-determination principle to set our Indian tribes on a different path to the promised land in the civil rights movement, which was implementing Brown v. Board of Education. He articulated the self-determination policy to -- ultimately, that was approved in 1970 by President Nixon in a historic message to Congress -- and that Indian self-determination policy broke from termination and forced assimilation to transfer power back to the tribes as much as possible. And so from that point, from 1970 to the current date, I think that’s been at the center of our tribal sovereignty movement and I think it will continue to be. The UN Declaration, at the very core of this declaration is the self-determination principle, and so it shows us that our nation is sort of on the right path here with our self-determination aspiration, self-government, Indigenous institutions, tribal cultures, the right to culture. All of these are related to our self-determination or sovereignty -- political sovereignty, cultural sovereignty, economic sovereignty. And so I think that this, as far as I can see, it’s still…and it’s the centerpiece of this UN Declaration and that’s why it’s pretty compatible with our existing U.S. policy and we need to continue on that path by just simply uplifting these different areas where our existing laws fall short of the UN standards.” 

From the Rebuilding Native Nations Course Series: "Self-Determination and Governance Are Related"

Producer
Native Nations Institute
Year

Harvard Project on American Indian Economic Development Co-Director Stephen Cornell stresses the importance of Native nations exercising sovereignty effectively over time as an important way to defend their sovereignty.

Native Nations
Topics
Citation

Cornell, Stephen. "Self-Determination and Governance Are Related." Native Nations Institute for Leadership, Management, and Policy. University of Arizona. Tucson, Arizona. 2011. Lecture.

"Now, I should say before moving on from this topic that self-determination and governance are related. We had a leader of one Indian Nation here in the United States who said to us, "The best defense of sovereignty is to exercise it effectively." It's not to litigate, it's not to end up in court, it's to build that track record that says we are better at the decisions that we have in front of us, better at making those decisions and implementing them than anyone else is. You exercise sovereignty effectively and in doing so, you in a sense build that defense around it. It's the defense of an accomplished track record of acting like a sovereign."

From the Rebuilding Native Nations Course Series: "The Governance Challenge"

Producer
Native Nations Institute
Year

Harvard Project on American Indian Economic Development Co-Director Stephen Cornell differentiates between the challenge that Native nations face in having their rights of self-determination recognized and the governance challenge that they face once those rights are recognized.

Native Nations
Resource Type
Topics
Citation

Cornell, Stephen. "The Governance Challenge." Native Nations Institute for Leadership, Management, and Policy. University of Arizona. Tucson, Arizona. 2011. Lecture.

"And it does involve some different kinds of activities it’s very different from the fight for self-determination. For one thing, it’s not about claiming rights its about what you do with them once you have them. What do you make of those rights? What do you use them for? It has a lot less to do with the rights that you want than with what kind of nation or community you want to be. Let's say you were pursuing rights to control wildlife rights or natural resources within your borders, once you have that right then you’ve got to decide, 'Okay, how do we manage that wildlife and we’ve got to do it, no outside agency is going to be doing it anymore, we’ve got to start to make those decisions. How do we deal with the people who want to extract our natural resources? What process do we have for managing that?' If you have won the right to control what has happens to children going into foster care in your community, once you’ve got that right, then you’ve got to think about, 'Wait a minute, now we need a welfare system, a foster care system, a social service system that can deal with that, that can exercise that right effectively. And you answer those kinds of questions partly in terms of what kinds of nation or community do we want to be? So it’s a very different question. It has less to do with what other governments do, which is what the whole self-determination struggle is all about, it's about persuading other governments to recognize your rights, it's about changes they need to make, but once they’ve made those changes, suddenly the story is about what you do instead of what they do. Now the responsibility rests on you, and that’s a different set of burdens to carry. And finally, while the self-determination struggle tends to have an end point -- you either win those rights or us lose them -- the court makes the decision, the Supreme Court or the high court or who ever it is in the country you're in speaks or you're defending those rights that you have established because somebody is attacking them, but the governance challenge is an ongoing constant task. It doesn’t have any ending. It's something that you have to do all the time and you have to get good at it. So this is a very different set of activities from what we generally think of that are going on around self-determination."

Honoring Nations: Miriam Jorgensen: Lessons to Take Home

Producer
Harvard Project on American Indian Economic Development
Year

NNI Research Director Miriam Jorgensen concludes the 2004 Honoring Nations symposium with her impressions about the lessons learned from the convening, from the great diversity among Native nations to the great strides they are taking when they devise their own solutions to the challenges they face.

Native Nations
Resource Type
Citation

Jorgensen, Miriam. "Lessons to Take Home." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 10, 2004. Presentation.

"I just want to say thank you to the previous speaker because he really...it's Rick George? I'm sorry, I was busily writing down all your notes and the name was like the thing up ahead. You just did a fantastic job of making a lot of the same kinds of summary points that I'd like to make. Even though you were thinking ahead to the future about how to continue on the success of programs, I just hope that everyone was really taking to heart a lot of the things that he was talking about, because they really scored deeply in my mind as things that were very important. So in a sense, I kind of feel like I'm kind of adding to your list or underscoring some of the same things that you were saying. I was asked to draw together some lessons that we've heard at this symposium and also to offer some more reflections, just to try to put a tie up on things.

And I think we all have probably some different ideas about what we've learned, the thing that we're walking away with that touched us the most, but I just wanted to start off with this observation. Boy, tribes are solving really tough problems, aren't they? These are not sort of little easy things that your programs are addressing, not little administrative fixes, not little 'let's take this small program and do this little change and things are going to be done.' You're addressing problems that are as big as the rights of Native people incarcerated in local, state and federal prison; preserving the rights of American Indians and Native nations to have the say over how remains are appropriately treated and reburied; the right to control land and water and other natural resources in ways that make sense. The programs that address really tough problems like children's safety, family violence, and problems that are very overarching, but hit at the core of what Native sovereignty means, like control over whether or not you get to run your own law enforcement department, because what more fundamental right is there in tribal government than to be the one that controls, who wields coercive force within your society? Should that be the federal government? No. And tribes are...and we've honored a program, the Gila River Police Department that took that on, that task. So these are tough problems.

And that leads me to one of the big lessons that I think comes out of what we've learned today: that in addressing these tough problems, there's clearly a lot that we can learn from each other. There are ways to figure out the way through the administrative maze of working with state departments or with the federal government or even going up to the international level when that's necessary. Things we can learn from each other about those administrative fixes or about particular strategies that apply sometimes across programs of different sorts, or when we have programs that are very similar to each other, there are definitely things to learn from each other. But there's also a sort of a parentheses at the end of that, and that's the notion that if you look around this room there's also tremendous diversity. And I think that's kind of the notion of saying, 'Yeah, we can learn a lot from each other, but sometimes what we learn from each other is how different we still are.'

I think there's this thing...and I do a lot of teaching about Native America to non-Natives and of course others have said this before, that one of the things that's the first reaction is, ‘Oh, my gosh! You mean there are still a lot of Native people in the United States?' And after that they say, ‘And of course they're all the same, right?' And you look around this room and say, ‘No, we're not.' We come from very different cultural traditions. We come from very different practices, very different histories. Some tribes have the Trail of Tears, others had no removal; some had no major battles, some had lots, some have a very modern history of struggle and fight. There's just a lot of differences out there, and I think in learning from each other about our programs, it's also acknowledging that difference and saying, ‘You do it that way and that's helping me understand how our way is different and we need to be different as well.' So I think there's lessons in difference as well, as much as there is to learn from similarities and things we can do the same.

One of the other big points that I walk away with -- and all of you who have been close to the Harvard Project for years or just learning about the Harvard Project may think that this is just one of the things that we trumpet all the time, but in hearing conferences and symposia like this, I think that we're getting it right: that you can't ever abandon this notion that tribal sovereignty, the sovereignty of Native nations and the issues of self-determination and self-governance just stand above all in a lot of these programs. And you can just hear it in the strains of how important that is in the way the programs are implemented and the actions that the leaders are taking to make those programs work.

But I think another...and a reflection and something I've heard in listening to the breakouts and listening to the speakers is that the notion that that battle for sovereignty just never ends. And I think it was somebody yesterday who talked about being wary of complacency, that you may feel like you've gotten to a point where things are successful or that battle is won, but I'm reflecting on something that the gentleman Edward [Wemytewa], whose last name I'm not going to pronounce correctly, who's the Zuni Eagle Sanctuary representative said to us, ‘You know, we have to fight that battle all the time because the personnel change and sometimes memories are short. Even our own memories change and we have to keep at the forefront what our battle is for -- it's for our rights and our sovereignty,' and that's just something that keeps going as a lesson throughout as well.

Sort of a sub-piece of that, and this again is to tie into what Rick George said, is that one of the very important pieces, and kind of picking up on what, you know, the reactions I heard to Myron's [Brown] talk yesterday and some of the things that Greg Mendoza said this morning, is that one of the ways to keep fighting that battle is to really train the youth, be they on-reservation youth, off-reservation youth, folks who are really engaged or folks who are not yet engaged, is to teach them about tribal government, about the rights of American Indian people, and to have them be ready to hold that banner forward as well.

The next point -- and this is just a quick one because it's already been covered well by Mr. George -- this is the one where I was thinking, ‘Hey, this is exactly what I was going to say,' is the notion of leadership. Julie Wilson talked about this this morning a little bit, how she said there's leadership in every place. She said that was what struck her, somebody coming from the outside, looking at Indian Country, not thinking about it very much before, is how the leadership of the Honoring Nations programs emerged from lots of different places. When we think about the safety program that the Mississippi Choctaw have put together, one of the things there is that this emerged from just activists, community activists. It's the same with a program we honored several years ago, the White Earth suicide intervention program. These are not people who are already engaged in tribal government, but activists that bubbled up from within the community. Other times it's a tribal bureaucrat who says things can operate differently or somebody like Greg who was out of government, just a youth who said, ‘We need to change the system.' So leadership is everywhere and honoring that, reacting to it, providing a means for them to move forward is just an important piece too.

The last thing I want to say, and if anything this is the thing that I felt this symposium did really well and that Amy [Besaw Medford] really needs to be honored for and those who really worked with her on that, is that one of our goals in all of this is to create an environment where we can learn from each other and I think that happened. I think that this has been a place where, and I'm going to use a really sort of Harvard Business School kind of word I guess, the 'network' word, but I think we've done more than network. I think what we've done is expanded our circle of friends. Manley Begay earlier in the day was saying to me, I said, 'how do you like those sessions, Manley?' And maybe I'm telling tales out of school, but he said, ‘I've just been having trouble getting to the sessions, Miriam, because I've just been talking to so many really interesting people about great programs and learning a lot about them and expanding our teaching skills and thinking about stuff that we ought to be looking into and making more friends and renewing old friendships.' And I said, ‘Manley, I know what you mean.' And I walked away from that and I kept looking around going people are really engaging with each other. If they didn't know each other before, they're introducing themselves to each other, they're renewing old friendships and they're even getting together with their group that they came with and said, ‘Oh, I just talked to so and so and I learned about this.' That is great. That's what we wanted to do. And that, I think, is more than networking because networking to me kind of implies I'm going to get out my pack of business cards and I'm going to hand it out to people because I'm going to say to them, ‘What are you going to do for me? Are you going to get me a job? Are you going to get me a connection?' But this is networking among friends. It's expanding that circle of friends so that when we walk out of here we know lots of people who do very interesting things that can help us and the tribal communities that you work with certainly, but there are also support systems and colleagues and people to share joys with -- people who care about us personally, about our professional careers, and about the Native nations that you serve. And I think to that extent this symposium has been very successful and helpful and something that I'll definitely remember.

So those are the lessons and reflections that I offer and I just want to send you off with that spirit of positiveness and hope that you've gotten that joy out of this symposium like I have."

Honoring Nations: Manley Begay: Reflections on the Day

Producer
Harvard Project on American Indian Economic Development
Year

Harvard Project on American Development Co-Director Manley A. Begay, Jr. synthesizes the learning that took place during the first day of the 2004 Honoring Nations symposium, focusing on the nation-building success stories chronicled during the day as testaments to and reflections of Indigenous self-determination.

Native Nations
Resource Type
Topics
Citation

Begay, Jr., Manley A. "Reflections on the Day." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 11, 2004. Presentation.

"Thank you for the introduction and for sharing today with me. As I think about today, it's been a very good day. A lot of good discussions, good thoughts being expressed, and old friendships renewed and new friendships made. And all in all it's been a very good day. And as Amy mentioned, I am Navajo. I come from Tuba City by way of Wheatfields. Wheatfields is north of Window Rock about 50 miles. And my clans are Maii deeshgiizhinii -- that's my clan, Coyote Pass Clan. And I'm born for Tachiinii, the Red-Running-Into-the-Water People. And my maternal grandfather is Lokaa Dine'e, the Reed People. And my paternal grandfather is Todichiinii, Bitter Water People. So that's who I am as a Navajo person. And up to the year 2000, I had the great pleasure and honor of working with Joe Kalt here at Harvard. And since then, I've been stationed at the University of Arizona in Tucson, where I serve as a senior lecturer for the American Indian Studies Program, and also serve as Director for the Native Nations Institute for Leadership, Management and Policy, and the Native Nations Institute is a sister organization to the Harvard Project. And since then I've been working with Stephen Cornell, who directs the Udall Center for Studies in Public Policy, the other partner in crime.

And Andrew Lee asked me to talk a little bit about, before I begin to talk, a little bit about this particular logo. This logo is something that I began working on when Joe was really young. Now he's getting old and gray. And so this is sort of an art project I started working on. And when I finally came up with the design, a good friend John Thornier got together with me and he has the talent of working computers and the Mac program and all that, and he basically perfected this design. And this particular logo is really about power and strength. It's really about vision. It's really about unity and a sense of direction. And you can see that the eagle is in the center. And you know what the eagle means to many of us as Native people; it's the source of strength, it's a source of vision, and it's really sort of the centerpiece of the Harvard Project on American Indian Economic Development. And you'll see a number of feathers that go around, which represents Native nations throughout Indian country. And around that you'll see a hoop, and that hoop signifies unity and togetherness. And there's a sinew that wraps around that particular hoop. And sinew is really, I believe represents sovereignty, it really represents this sense of strength. The old ones would say that we should be like deer hide, fine deer hide, and that particular deer hide could be used for bows and arrows and it's very, very strong, yet at the same time it's flexible and it's soft and it can be tender. And so it really has these elements of both -- sort of strength, protection, yet at the same time one of tenderness and softness and flexibility. So that particular sinew wraps around that hoop and really signifies togetherness, strength, sovereignty. And that makes up this particular emblem. And obviously the four eagle feathers represents the four directions, the four winds.

You know, sitting here today and going into a few of the sessions, I've been asked to sort of reflect on this, this day. And, you know, I can't help but also recognize that I have relatives here and family members here as well, many of whom I respect highly. And it's really quite an honor also to be in their presence and to know that they are from not only Navajo country, but also from Indian Country at-large. At the Native Nations Institute at the University of Arizona, I share a joint duty with Joan Timeche. I'm not sure where Joan is at. She's probably at Harvard Square. No, Joan's back there. Joan and I run the show to the best of our abilities. And Joan comes from the Hopi Nation. And it is not true that Hopis and Navajos don't get along. We get along. I just follow what she says.

You know, not too long ago, we were being controlled by the federal government -- and Anthony Pico talks a bit about this -- and we were being controlled by the federal government through the Bureau of Indian Affairs. State governments and other entities also controlled us to a large extent. We were dictated to about how to govern and how to run programs and how to live. In our travels -- Joe Kalt, Steve Cornell and I -- we ran across a tribal chairman at one point in time that said, 'You know, I remember when, as a tribal chairman, before we could even make a decision I had to lean over to the BIA superintendent right next to me, get his permission before the council could vote.' Clearly somebody else was in power, not our own leaders. And this was occurring only a few years ago. It's not like it occurred decades and decades and decades ago. It just occurred recently.

Then things began to change at the urging, sometimes strongly, by the National Congress of American Indians, by the American Indian Movement, by the National Indian Youth Council, and many other organizations as strong leaders throughout Indian Country. And this really occurred on the heels of the Civil Rights Movement, movements that also included the Brown Berets, the Black Panthers and others. This was a time of change in the United States socially, and music began to change, people began to question, you know, 'Who are the Beatles, you know, who are the Rolling Stones, who's Bob Dylan?' And these were folks that were in the limelight. You know, peace and love were stressed amidst the Vietnam War. It was a time of upheaval for some. It was a time of needed change for others. For Native peoples, it was a time for needed change, a change from poverty and control, and we wanted to move toward a better life and freedom. And this same tribal chairman told us a short time later, 'You know, I found a bit of strength, and with this strength I told the BIA superintendent sitting next to me, 'Well, I really don't want you to sit by me anymore, I want you to move to the end of the table.' And so he moved to the end of the table.'

And I was just a young man at that time and, you know, somewhat in awe of the American Indian Movement. And their message was really a message of sovereignty at all costs. You know, I traveled at that time to Pine Ridge, to Flagstaff, Arizona to the [Childs?] Ranch, which is outside of Ajo, Arizona and protested the injustices that were occurring, the mistreatment that Indian people were going through. And these events were all part of the events like the BIA [Bureau of Indian Affairs] takeover in Washington, D.C., Wounded Knee II, the burning of the Custer Courthouse, and the taking over of the Richardson Trading Post in Gallup, New Mexico, and many other events like that. It began to change the tide of people's thinking. I even had the distinct pleasure and honor of going to Coachella Valley at one point in time and actually siding with Cesar Chavez and the United Farm Workers. What these events did was begin to change the mentality of many Native peoples from being subjugated to thinking more freely, to thinking about freedom. Remember, this is in the world's greatest nation. This is in the world's wealthiest nation. This is in the country that touts democracy and freedom as the pinnacle of civilization.

There really was a change from some outsiders deciding how we should live to the right to determine our own destinies. It was a change from the one-model-fits-all that was being perpetuated by the federal government to the right to think independently according to our own diverse cultural teachings, from an outsiders, making mistakes and not being accountable to less making our own mistakes and learning from them, from being told how we should govern to designing our own constitutions and governments. This same tribal chairman that had moved the BIA superintendent to the end of the table now was even more courageous. He said to us, he said, 'At times, you know, we're dealing with issues that we don't want the BIA to know about.' So he said, 'I finally told the BIA superintendent we don't really want you in here at this moment, so could you please leave?' And he left.

So you can see the change that occurred ever so slowly, but significant nevertheless. We are currently in the midst of a political resurgence. Finally, and over 500 years, we as Native peoples are in a position to determine our own futures with programs designed by us, not by an outside agency or person. It is in this context that we are seeing these Honoring Nation's programs. It is in this context we have wonderful uplifting stories from Lummi, Chickasaw, Menominee, Zuni, Chickaloon, Navajo, Tulalip, Gila River, Viejas. These stories are a long time coming. They are a testament to resilience of the human spirit, ushering in of justice against tremendous odds. They are a testament to the power of the human will. They are also a testament to the gifts of strength given to us by our elders, by the land, by the mountains, by the rivers, by fire, by rocks, by animals. Lastly, these programs are gifts to those yet unborn. These programs should be our gifts to those yet unborn. I look forward to the time with our young ones. Those yet unborn will say, 'I'm so glad my leaders developed those programs. My life is richer because of their wise decisions and sound management.'

I do, however, offer one word of caution. We should not become complacent with our successes. Vigilance is key, because our sovereignty is neither secure nor absolute, and poverty, poor housing, and other social ills are still with us. So the fight continues through assertion of sovereignty, with the building of culturally appropriate capable institutions of self-governance. And with good leadership may we all continue to remain strong and creative. May we continue to be vigilant in the things that we do. Thank you."

Honoring Nations: Julie Wilson: Child Welfare in Indian Country

Producer
Harvard Project on American Indian Economic Development
Year

Scholar Julie Wilson opens the session "Family Strengthening in Indian Country" with a discussion of recent research conducted by the Harvard Project on American Indian Economic Development that explores the role families play in improving child and community welfare in Indian Country, highlighting the work of five Honoring Nations award-winning programs that support child and youth development.

People
Resource Type
Topics
Citation

Wilson, Julie. "Child Welfare in Indian Country." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 11, 2004. Presentation.

Julie Wilson:

"It is really a privilege and a great pleasure to be here today to talk to you about some work that Amy [Besaw Medford], Andrew Lee, Joe Kalt and I and a couple of our students did about a year ago. The Annie E. Casey Foundation approached Joe Kalt and asked him about working with them on issues of 'Strengthening American Indian Families' and Joe said, 'Wait a minute, you don't know about Indians. And we do economic development, we don't really know a lot about Indian families. Maybe we should start first by just exploring the terrain and seeing what's going on.' So Joe contacted me. My area of research has been primarily inner cities in America, but primarily focusing on child welfare. So this was my first opportunity to look closely at what's going on with American Indians in this area. So I want to start with two obvious points. First of all, I'm not an American Indian; everybody figured that out. And second, I'm a pretty nerdy academic. So what I'm going to try to do is briefly summarize what we think we found in our study and I'd like to open it up for discussion because I'd really like some feedback of, does this resonate? Is there something we missed or are there some things that we really got wrong?

What we did, by way of looking at this, is we took five of the winners of the Honoring Nations competition, five very different programs, and explored them in some depth. We didn't have the time or the resources to go out and actually visit the site, so we were very dependent on phone interviews and the types of information that the tribes had sent to us. And obviously the next step is to go out to these tribes and to other tribes and to look at programs more closely, and some of you may want to offer some programs for us to try to look at.

One of the programs we looked at was the Fond du Lac foster care licensing and placement agency. And basically this is the Lake Superior Chippewa band, who faced a problem that there weren't enough Indian foster homes for their children. They'd exhausted the resources on the reservation and their children were being placed in homes in St. Louis County, Minnesota, which is the area of Duluth -- for those of you who know Minnesota -- and they were being placed with non-Indian families. That's primarily a community of Scandinavians and Bohemians and these were the families that were raising their children. And the tribal child welfare agency had no authority to work off the reservation. So they couldn't really be out there recruiting foster homes and creating homes for their own children. So what they did was they started negotiating with St. Louis County child welfare agencies and they established their own licensing and placement agency. They negotiated with the state and with the county and began, then with the authority, to find homes. And as they suspected, there were Indian families very willing to take the children, but they really didn't feel comfortable working with the county agency. And they now -- after only a few years -- have 58 families and 70 children in placement.

The second is the Whirling Thunder Wellness Program for the Winnebago Tribe of Nebraska, and like many other tribes the Winnebago tribe had a very serious problem with diabetes, continues to have a serious problem with diabetes for both adults and children. Since the 1970s, they'd had a model Indian Health Service diabetes program, but it was in the hospital. It wasn't focused on preventive work, it was really very much hospital based. And they decided that what they really needed to do was get in front of the problem. So in this case it was the tribal health department who took the initiative and created the Whirling Thunder Wellness Program. Now, a piece of the history that you have to know if you're not a Winnebago or not familiar with them, that Whirling Thunder was a tribal chief in the 1890s and had the tribe run foot races to keep in shape. And so it seemed quite obvious to the tribe that the program should be named after a chief who had the foresight to focus on preventive health measures. What they do is they raise awareness about diet, about exercise, about diabetes. They have a lot of culturally appropriate primary and secondary prevention programs. They run a kids' cafe where youth of the community can come and eat; they serve a lot of Native foods. They also work directly with children in after-school activities built around sports and cultural activities and work directly with families who have members who are diabetic.

Third program -- again really different -- the Menominee Community Center of Chicago. This was started by a group of off-reservation Indians who had been scattered around Chicago. At one time, many of them lived in one neighborhood but with urban redevelopment, gentrification, and the kind of renovation that goes on in cities, they'd become scattered. At a funeral one day several of them said, 'We really ought to do something about this,' and kind of get ourselves together and they created a community, a community center that they then affiliated with the Menominee Tribe. They became an official part of the Menominee Tribe and in fact the tribal council holds one of its meetings each year in Chicago in the community center. They provide support for Menominee Indians in Chicago and also sponsor trips back to the reservation in Wisconsin to connect the Chicago Menominee with the culture, the traditions, and the members of the tribe.

Fourth is the Ya Ne Dah Ah school in Chickaloon Village, Alaska, very tiny group of people; a very small tribe. And this program was started by an elder, a grandmother, who was visiting youth in jail and realized that the reason there were so many of their youth in jail was they felt alienated from the Alaskan school system. They were dropping out of school, they had very few opportunities, they were getting in trouble, and they were ending up in jail. So she started a tribal school. And it turns out in Alaska, this is no small feat because the state runs all the schools and the tribes don't get any money from the state for their own schools, so this is totally self-funded. And the school uses tribal members. The forester teaches science, people who are working with computers are teaching math and information technology. They now have 100 percent parent participation in the school; they have tribal members moving back to the community so their children can go to that school. Their test scores are above the national average, and they're beginning to export curriculum built on their tradition to other schools around the country, including non-Indian schools.

The fifth program that we looked at is the one you heard about yesterday, and I'm not going to pronounce this correctly -- I'm sorry, Myron [Brown] -- Akimel O'odham/Pee-Posh Youth Council. For those of you who were here yesterday and got to hear Myron, you know that Myron is a star. And I am smart enough to know better than to even try to follow Myron. So I'm going to let his description of the program stand, but those of you who saw the video and heard Myron know that this is a really amazing program. But again, it was started by a member of the tribe, a young adult who said, 'Those of us who have the education are going off to college, we're not coming back. We've got to do something about building youth into the culture and into the governance of the tribe.'

We looked at these programs and we said, 'What can you learn from these?' Now, there's always a flaw in social science research of this sort and that is when you look only at successful programs and you think you've learned lessons, you might not have learned the right lessons. You'd like to look at some programs that started out with similar innovative ideas, but didn't quite make it to see if what you think are the real success factors in these programs were missing from those other programs. That's another stage. Right now, I'm going to talk about nine things we think we found. Five of them I think are quite obvious and four of them are not so obvious. Let me start with the first five.

First, that effective policies and programs are self-determined. This is a theme that's run through this entire conference, it runs through the whole Honoring Nations program -- this is not news to you --  but I think for foundations like Annie E. Casey who are interested in using their resources to support families and children, this is an important lesson because it wasn't, 'You guys have a real problem here with diabetes and have we got the program for you.' It was instead, 'Our youth and our elders are sick and we need to do something about this.' It wasn't somebody coming in to say we've got a training program for youth in jail and you guys ought to just get into this program with us, it was the grandmother saying we've got to do something about the large number of our youth who are really having trouble, who are struggling and end up in jail because they see no future for themselves. 

Secondly, what's clear from these five is that leadership for these programs can emerge at any level. In some cases, it came out of the formal institutional structures of the tribal government. In other cases like the Menominee Cultural Center in Wisconsin, it was a group of seemingly isolated members of the tribe who had lost contact with one another and lost contact with the tribe who gradually put themselves back into the structure of the tribe. So this means leadership is everywhere around us and we need to be sensitive to it and build on it. 

Third, in each of these cases, we think that buy-in on the part of the tribe and the tribe's formal leadership was essential. Now, buy-in can take many forms. It can be financial support, it can be incorporation into the long-term tribal vision, it could be commitment of leadership authority, could be commitment of buildings -- lots of different ways -- but in each one of these, the tribe itself and the formal tribal government got involved and kind of gave it stamp of approval as well as resources. I seem to be missing some parts of this so I'm going to have to sort of...let's see...the fifth one...the fifth idea that we came about is that each of these programs invested in the training and the growth and the education of the individuals involved in the program, the tribes invested in them. And this is important. If you heard Mary Jo Bane's talk yesterday what you saw is that the program she talked about in Brazil, they invested in the education of these individuals that went out into the community and in each case the tribe has invested in the people.

I think these are pretty important lessons, but they're also kind of obvious. We could have all sort of sat back and said, 'Well, yeah, that's kind of common sense.' I think there are four things, though, that are really very different about what we saw in these Indian programs that I have to say I've given a lot of thought to and I'm thinking about whether or not these are tools that could be used elsewhere in the country or whether there's something that is very unique about American Indian tribes that you can build on that others really don't have.

I think the first of these is that every single one of these initiatives is spiritual at its core. And spiritual is not the same as religious, that's very hard for non-Indians to understand. It takes a while for non-Indians to immerse themselves in this culture and begin to understand this concept of spiritual, but every one of these programs is spiritual at its core, both it is clearly articulated and it's implicit in everything that goes on. And in part this spirituality is played out through a second finding and that is that each of these initiatives draws on and strengthens tribal cultural practices. In some cases, tribes have deliberately tried to bring back a language and to modernize a language. You know, what is the word for computer and for some of these things that were invented after the language began to die? All of these programs involved teaching youth traditional tribal practices, the dances, the crafts, the culture, the food, the language, the music, and this is an explicit part of it. The third thing that I think is unique about these programs and about many of the Honoring Nation winners that were not explicitly focused on families is that these programs deliberately try to pull in people from all generations and all groups. And in part this is done through this deliberate attempt to build the cultural awareness, because powwows and other activities that draw people from across generations and across clans are very important to the success of these programs and very important to the community. And I think the fourth finding that is unique, although perhaps not as unique as the other three, is that each of these programs explicitly tried to strengthen children and adults' social networks and it did this against through this idea of articulating and rebuilding the cultural traditions. That's a lot that Indians have to build on. And I was struck in reading, I read through a lot of the Honoring Nations winners and runners up and other applications and I found even programs like policing programs or salmon farming programs had parts of those programs that deliberately brought youth in -- summer jobs as police or working with the police, youth in nature conservancy jobs with salmon fishing. I think there is something very unique about these programs that we ought to be building on.

As somebody who's spent a lot of time thinking about child welfare issues, there's another aspect of these programs that we did not write about in our report, but, which I think is really important and I think deserves some serious investigation, and that is the following. One of the things that we worry about a lot in America's inner cities is the fact that the men have left. So many children are growing up with young teen mothers and without fathers. So many of the men are in jail or have left the community for other reasons. This is a problem that is also afflicting American Indians. And yet American Indians have, in many tribes, this concept of elder; a highly respected person who has authority within the tribe and who has authority with individual families even if there is no blood relationship. This is an important role. There are a number of social scientists, particularly Elijah Anderson, who have written articulately about the loss of older black men in America's inner cities. This is a treasure that American Indians had. It came through again and again in each of these programs, the role of the elder. Sometimes in starting these programs, other times in articulating the vision and carrying it through and always playing a part in it. I know there are some other people following me and I'm hoping that we will get some feedback from you on what we think we've found and that you'll have ideas for us on what the next steps might be. So thanks."

NNI Indigenous Leadership Fellow: Michael Kanentakeron Mitchell (Part 1)

Producer
Native Nations Institute
Year

Grand Chief Michael Mitchell of the Mohawk Council of Akwesasne provides an overview of the nation-building work his nation has engaged in over the past four decades, from its decision to move away from the Indian Act to its systematic development of capable governing institutions designed to exercise true self-determination and self-governance.

Resource Type
Citation

Mitchell, Michael K. "NNI Indigenous Leadership Fellow: Michael kanentakeron Mitchell (Part 1)." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 1, 2008. Interview.

Ian Record:

"Well, we're here with Chief Michael Mitchell, the former Grand Chief of the Akwesasne...Mohawk Council of Akwesasne and Mike is our first ever Indigenous Leadership Fellow of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. Mike, if we could just have you start off by introducing yourself. I'm sure you can do a much better job than I just did."

Michael K. Mitchell:

"My English name is Mike Mitchell. My Mohawk name is Kanentakeron. I belong to the Wolf Clan. I'm a faith keeper in the Longhouse on the traditional side. I was born in Akwesasne, which is located on the New York State-Ontario-Quebec border. Half, half the reservation is in the [United] States, the other half is in Canada, and two-thirds of what's in Canada is in Quebec and the other part is in Ontario. So we have...if it's anything like this, it's five jurisdictions on the outside and in the territory on the Canadian side is the Mohawk Council of Akwesasne, on the American side is another elected government called the St. Regis Tribal Council and historically we have our traditional Mohawk Nation Council. So there's three internal Mohawk governments. And the population, probably right now, it's closer to 17-18,000 and 10,000 are registered as resident Mohawks on the Canadian side of Akwesasne."

Ian Record:

"So that makes for a pretty complex governing situation, doesn't it?"

Michael K. Mitchell:

"Yes, it was, it still is, but it's...we've been able to resolve a lot of the issues, complex issues by taking over a lot of the authorities, programs and services and run it, operate it ourselves."

Ian Record:

"You've been involved with your nation's self governance for more than two decades now. I was wondering if you could provide just a general overview of nation-building efforts at Akwesasne since you became involved."

Michael K. Mitchell:

"The first time I got on Council for what was known back then as the St. Regis Band Council was in 1970, and I had just returned back from Alcatraz and just to start a few things back home, we started taking over islands on the St. Lawrence River. That kind of got people talking, "˜Maybe you should run on council.' So I served one term in 1970, but it was difficult because I was going to school at the time, ironically, film school at the National Film Board. We had our own Native Indian film crew that was doing documentary work. So it was really in 1984, well, I ran and got elected as a district chief in 1982, served two years and figured out that there's just too many outside government interference. Council was in a drastic deficit, probably half their budget of $5 million they were in a deficit and everything was controlled from the outside, which led to a lot of personality clashes within council. We're governed by the Indian Act in Canada, so we have to adhere to a lot of their regulations, codes, etc. All authorities were dictated from Ottawa through the Department of Indian Affairs. So that was sort of like an introduction. I didn't like it, I didn't want to run again, but the fact that I survived it and they were saying, "˜You should run for the top spot,' which was the Head Chief of the St. Regis Band Council.

Back then, the people didn't really elect the chiefs. You all got elected from your districts of which there are three. There's Snye, St. Regis, which is in Quebec side, and Ontario side is Cornwell Island, and each elect four chiefs they have a total... they had a total of 12. And among the 12, they would elect amongst themselves one head chief. So I had figured out, well, obviously you have to run not as yourself but you have to run with a party enough that you would control council and then make sure you have enough votes if you want to run for the head chief, which is what we did in 1984 and the person that I replaced had been head chief for about 16 years, so this wasn't easy. He had pretty well control of the community, the Council and ran it the way he wanted, the way he saw it. A lot had to do with the way the government ran things, too. So there was a very narrow causeway in terms of accessing information back to community. But regardless, we had the election in 1984 and I won by a vote of seven to five. So it wasn't expected; people were surprised. I was young back then, but I thought...ready for a change. I went about in the community and introduced myself as the new head chief and a little bit of surprise in the attitude in the community. They said, "˜You're only head chief of the council members that elected you. We didn't elect you.' And that stayed with me.

Then I ran smack into Indian Act regulations, how you run and service a community. You always had to ask for permission from the Department of Indian Affairs. So I took about less than three, four months before I recognized that we have people to bow to on every issue, on health, education, housing, economic development, and a lot of people are on welfare. People didn't have a high regard for council and it was stagnant. So I figured the only way out of this is you better cut a fine line as to where you're going to make your stand and proceed to make some changes. Right after I got on council, the person I replaced filed an appeal, went to court, and because it was a Canadian federal legislation, the Indian Act, there's many loopholes. It's pretty old. It was put in place in 1867 with very little changes. So if one wanted to mess around with it, there's a lot of legal things you can do with it. And there wasn't a whole lot of honor in the council system the way it was set up because it was controlled so much by the Canadian government. And about 10 years had gone by since the Indian agent had left because he used to run everything. So all this was fairly new. When I said it stuck in my mind when people were saying, "˜We didn't elect you,' and considering that I had to go through a Canadian court just to retain the chieftainship because being that it was so controlled I had pretty well said in my mind, "˜We've got to get out of this Canadian-controlled election process.'

I also found out I'm not supposed to release minutes of the meetings, so the community weren't really appraised that there was so much deficit in the council. Strangely enough, the Department of Indian Affairs, they came and chaired the meeting when I became...counted the votes to be elected chief, was the same person that came back a couple weeks later and he said, "˜We were about to lock up all your offices and put your community under third-party management because of your growing deficit.' So that wasn't a real good introduction. It seemed like every other week my office was occupied by my opposition. Where I lived was on Cornwell Island, Ontario and to get to St. Regis I had to go through the American side and once I'm in the village, if I want to go to Snye, I've got to go back through the American side to get back into the Canadian side of Snye. So we cross the border about 20 times a day just to service our people. Well, all those factors came into play rather fast and they had been operating this way, I would say about 50 years that they had been controlled. They had a system, delegated authority they called it, and everything that we were to do we had to ask for permission, "˜Can council do this, can council do that?'

Being that I was more used to blocking bridges and taking over islands, I took all that energy and started studying what had to be done in the community. We started doing house-to-house survey asking the community members would they like to see an election code that would be developed by the community, for the community and let's opt out of that Indian Act so that they would be the ones that would control it. And we started working out the mechanics after getting the feedback. So in that one term of two years, and that was the other thing I was upset about because I found out that two years is a very short time for elected leadership and a lot of things can happen in that two years and council members, if they want to get anything done they'll take the first year to learn the ropes. By the time the second year comes around, you're already getting pressured to provide money for such and such a person, for housing or more money for education and it's really money that set the limit, budget. Anyway, if you're going to make changes, it had to be done.

So I went to Ottawa and asked for a meeting with the Minister of Indian Affairs and I told him, I says, "˜Listen, this system that you have in place isn't working and we're going to have to make some drastic changes if the community is ever going to come out of a deficit and learn to govern themselves and look after themselves.' And the Minister's name was David Cromby. He got very interested. He said, "˜Well, you know, you have a lot of audacity to come in here and say we want to make some changes.' He said, "˜There's a system in place,' but he says, "˜I do worry about the deficit because it's not just your community, there's many other communities in the same situation.' He says, "˜What do you want to do?' And I says, "˜To improve the attitude and the atmosphere of our community, we want more of our people to take over the administration of programs and services. We want to change the election law so that we can govern ourselves and put the election process through under our own authority.' I said, "˜There's a whole history here in Akwesasne of every time somebody loses an election, you're in court, either Indian Affairs is in court as well as the council.' So he listened tentatively and he says, "˜Well, what about the deficit?' I says, "˜I'll do a deficit retirement plan, but I'll do a separate management plan and we'll wipe out that deficit within five years, but you have to agree to let us run our community.' So he went, left the meeting for awhile, he came back, talked to some people and he said, "˜They say that I can't do that, that we have a system in place,' he says, "˜But I say, we should let you try it.' He said, "˜The only other alternative is I've got to send more people, pay more money, put more money into the community and for what? There's always going to be a deficit, there's going to bad attitude.' He says, "˜I want to try this experiment.' So that was a start.

If you want to get education dollars, the ultimate authority was somebody in Indian Affairs, if you want to build a house and you need housing dollars, somebody's going to come down and take, do papers for you, applications, etc., social services, welfare, the same thing. So I asked for all these people to be sent back to Ottawa, sent home and we hired our own people. I went around and got a list of nominees...they were already working somewhere, either Ottawa, Washington, Syracuse, Albany, Toronto and we needed an administrator, manager, program directors and whoever had the qualifications, we called them, talked with them and told them what we had in mind and I said, "˜I'd like to see more people return home. You'll have a job. Bring your senior experience, your management skills and help your community because we're going to turn this around.' For some reason it caught on and people started coming back and we put together a management team to take care of the administration and I had one policy. I didn't think we had any business running the administration side -- we're politicians. So I had discussion with council saying, "˜Let's do our politics and we hire these people, let them do their administration.' So separating administration and politics was one of the first objectives and it worked. We set out a goal to analyze the political situation and carved out a period of time that we would achieve this.

And the other thing, you had to stabilize the community. The internal politics had to be taken care of so we did, it was done Mohawk style. Obviously the man that I had replaced...we had to find a way to stop the occupation. If I went to work on the American side, chances are they would cut me off over there and punch me out a few times. But there was a great hope riding on this thing about taking over. The community dealt with him. They had to settle it the Mohawk way, going out and have a little fistfight and the winner came out and they said, "˜Okay, Mike's going to have the opportunity to run this community.' And so I had that opportunity, but the greatest strength...the way I was brought up, because this is my introduction to elected system; I was brought up on the traditional side. And maybe I should take a few minutes just to acquaint everyone that on the traditional side, the women put up the leaders. And it was said that the women knew who the leaders were from the time that they crawl on the ground to when they walk to when they hunt to when they marry and have a family -- the women already knew who's going to be a good leader, who will be a good provider, who has integrity, who has good characteristics. So among the various clans of which in the Mohawks we have three major ones: Wolf, Turtle and Bear. I'm a Wolf clan, remember. My mother's a clan mother in that system. My brother's a wampum keeper in that system. So that's the family I come from. My grandfather's a faith keeper. So this whole idea of being involved in a modern, elected tribal system was new and you didn't have much authority, so if you're going to establish yourself under certain principles, I borrowed a lot of that from our traditional custom.

I found out very early that the community was ready to make changes. You raise up the optimism, people wanted to feel good about themselves and it seemed that it wasn't...it hadn't happened for awhile. I'm trying to be very polite when I talk about the Indian Act, but it is so...to me it is so evil, so dictatorial and delegated that they didn't serve our interests because we were used to perhaps more of an honor system. Do things and people looked at you for it so I borrowed that. And I says, "˜We're going to have to fight for our jurisdiction. We're going to have to fight to have our authority and if we can't convince the government that we should be controlling more services, more programs and more jurisdiction, then we have to fight them.'

Well it was only weeks away, there was some men at my office as I got to work; this is months down the line. They were fishermen and they had their boat confiscated and their nets and the motor by provincial conservation authorities. So I listened to them and I apologized to them that I had to have appointments made for me, but they were standing on the outside so I just invited them in. And this is on my way to work. Anyhow, I identified with how they fed their family. They're high steel workers and they take time off for a month and they would fish for their families and then they would fillet it and put them in the freezer and part of the traditions; people always did that. So when you have an outside government intrude on your tradition, what are you going to do? So I told them, I says, "˜Well, tomorrow I'm going to get some people together, we're going to go out on the river and if we find this conservation officer, I will talk to him.' And that sort of raised the interest of people saying, "˜You know what he's going to do? He's going to go out there on the river and see what might transpire.' So when I got out there, there was boats there already. They were ready to guide me and find this conservation officer and it didn't take more than about a half hour they spotted him leaving Cornwall [Island].

So we met in the middle of the river, right on the international boundary and we cut him off and we stopped his boat and I asked him very politely where the seizure took place. And as we're floating on the St. Lawrence River in our boats and we're talking, I said, "˜You know, around here, one minute you're in the States, the next minute you're in Canada, you're in Ontario, you're in New York State, you're back in Quebec.' I said, "˜The way the international boundary zigzags, I doubt very much if this matter was going to go to court that your charges, the seizure would hold up. So I'm going to ask you real nice if ya'll might want to just think about returning this boat to them.' And he was kind of mean. He says, "˜There's no way.' So I tried another way. I says, "˜Well, we don't need an Ontario fishing license to fish in our own waters. We have an aboriginal right, we have a treaty right, and it always says we don't need to have that when we're fishing in our territory.' He didn't buy that either. He says, "˜There's been changes.' So this went on for awhile, then my blood pressure started to come up a little bit and I told him, I says, "˜Well, in that case, sir, since you took their boats I'm going to take your boat.' And his jaw just dropped down. He says, "˜You're going to what?' I says, "˜We're going to seize your boat and I'm just going to keep it until I get their boats back.' Well, you should have saw the cheering from these guys. They said, "˜Well, let us help you.' So we dragged his boat, with him in it, back to the village. And once I got down there, we tied up at the dock and I went to the police station and I phoned Toronto, the Ministry of Natural Resources, and told them what had happened. So the rest of that day phone calls were going back and forth and as we were, higher departments, higher authorities kept calling back saying, "˜What's going on down there?' And it got to the point where the last phone call was one of their regional heads who said, "˜This could turn into an international crisis.' I says, "˜Yes, it could.'

And there had just been elections in Ontario, a new government had gotten in, and it usually doesn't work for us, but in this case it sort of did because the Premiere got on, the new Premiere of Ontario, Bob Rae. He got on and he says, "˜Listen, I know you people don't need provincial licenses to fish'. And he says, "˜But I'm more concerned about that officer that you have. Is he a hostage? Is he...what condition is he in?' I says, "˜Oh, he's sitting right here.' "˜Is he a hostage?' I says, "˜No, sir, he's not and he's welcome to go home, but he ain't got no boat so he can't go anywhere.' So he laughed. He says, "˜I see where this is going.' He says, "˜Well, let's get down to the brass tacks.' He says, "˜What do you need?' I says, "˜I need them boats back that your government confiscated from my people.' So we talked for awhile. He says, "˜You're right. I'll go look for them.' He called an hour back and he said, "˜Those boats are in Toronto.' I said, "˜Sir, that's four hours away. I want them boats back by 9:00 in the morning.' So there was a little bit of discussion at their end but the long story... short end of the long story he says, "˜Well, we'll have it back'. I said, "˜And I want that man that confiscated... this officer here to bring them back tomorrow morning.' He says, "˜I'll send somebody with him.' So they dispatched an official from the Premiere's office. Sure enough, next morning -- and I had no reason to hold this guy so they took him, allowed him to go home with his boat. But I realized early that the only language that a non-Native government understands is something drastic like that, where you have to really stand up to them and that was only the beginning.

The next morning they brought the boats back, the fishermen analyzed it, their nets, their boat, motor, oars, everything was all in there so they were happy, but that got me thinking, 'There's all these non-Native police on our waters. So how come our police aren't patrolling on the water?' 'Well, they're under the authority of the Ontario Provincial Police and so there's...work is confined to the mainland, patrolling the speed zone and accidents, etc.' 'Well, who patrols the water?' 'Royal Canadian Mounted Police and the Provincial Police.' 'Well, what about that conservation officer?' 'Well, he's under our jurisdiction, under our...as well.' So it only took a few weeks for me to ask our police and they said, "˜Well, that's the way it's always been.' I says, "˜You know, we should have our own conservation officer out there patrolling, looking after our environment, the fish, the river life, the safety on the waters.' They said, "˜Well, that's never occurred to us that we should be doing that.' So diplomatically again I asked Ontario if they would consider training some of our people to be conservation officers and they said, "˜No way.' So then I turned around and I thought, "˜Well, maybe if I ask Quebec.' They said, "˜No.' Then I asked Indian Affairs and they said, "˜No. Criminal Court of Canada applies and it's the federal police.' They had no mindset that we would be out there exercising our jurisdiction and authority.

Well, it didn't stop there because being that our reservation is half in the States and half in Canada I had one other option. I phoned Albany, New York at the State Trooper Police Academy and they had a conservation program there. I says, "˜Would that be open to Mohawks from Akwesasne?' And he said, "˜I don't see why not.' So I asked for the course that I needed and sure enough they had a very thorough course. I says, "˜Can we send some guys down there?' He said, "˜Yep.' Well, six months later the two candidates we sent down there returned home. They're wearing a Stetson hat, nine-millimeter pistols; they're in uniform. They wore the uniform of where they trained. So it's very much unlike what they wear in Canada because they're used to those taxi cab hats. There was a district Ontario Provincial Police supervisor and he really took offense to their style of dress. He wanted to arrest them right there so we had a few words.

Now the time that they were away in the six months, we put together a conservation law. Again, in that six months, Indian Affairs just wouldn't hear about it. They said, "˜You're asking your community to control your water, to control enforcement.' I said, "˜That's right.' They said, "˜It's under the Indian Act. You don't have the authority to do that.' I says, "˜Then we're going to seize it.' Seven times we send, modified, and pretty soon we stripped all authority away from them. They still wouldn't pass it. So I took it all back, reformatted it and I went to the nation council and I said, "˜We're trying to claim back some jurisdiction here and under inherent right we used to control and take care of our wildlife, water life and all the animal life. We don't do that anymore. We're going to start doing it again.' So I gave a presentation, and this is an elected leader now meeting with the traditional leaders and they had always been at odds, never got along, and I explained to them, I says, "˜Well, you send me over there to create better relations of our own people in the community. Here's what I'm going to need.' Anyway, they took it to the Grand Council and they liked the idea of reclaiming jurisdiction back and they passed it as a community law for Akwesasne. Nothing to do with Canada or the United States, but it's a nation law on conservation and environment. So when the two conservation guys got home they had a law and at the same time we developed our Mohawk court.

Now we had judges under the Indian Act, very limited authority, but they were already in place. So we again started adding more, giving them more authority to hear cases higher, 'cause all they were doing is dog catcher's law, little municipal type things, so everybody was ready for it and they says, "˜Do it.' Well, it all fell into place. Community had watched the way the direction this activity was going to go. When they got home, we had bought them a boat and they started patrolling our waters, start advising our residents safety measures and there was hunting and fishing licenses by the Mohawk Nation. They went out, started telling the non-Natives who were fishing in our territory that "˜You need to have a Mohawk Nation fishing license if you're going to fish in our waters.' Well, that started an avalanche of protests, members of parliament in Ottawa start calling the Department of Indian Affairs, "˜They can't do this.' And our two young conservation officers wouldn't take no for an answer, "˜cause if you didn't have one, you were arrested and brought to our court and that's what they were doing. They were just bringing people in and our court got very active.

When they came in they said that, "˜This is a kangaroo court. It has no authority. It has no recognition.' And one of the things I had done in dressing up our courtroom, making the changes, is that we had a Mohawk community flag and we had a Iroquois Nation flag in the backdrop. Carpenters had done some work setting up -- you know how the judges kind of sit in a high place -- and they did some woodwork and got a principal's desk. I used to like to take my kids to flea market and I found some church pews, about half a dozen of them. So by the time they walk in there they saw an official courtroom and our lawyers that were acting for our land claims and adjudicating outside, brought them home and said, "˜This is your court now. This is where you enforce our law.' So there was a prosecutor and there was also a lawyer to represent them. So all this they saw when they walked in the courtroom and it dawned on them, "˜There's laws here.' There's a courtroom, the charges were read and they paid the fine. And on their way out, if they didn't have a fishing license from the Nation, they bought one. Two years passed. We knew at some point we would have to fight this in the Canadian court and as much as they were kicking and screaming, nobody ever challenged us because they knew that everything was done in proper order.

Well, anyway, the conservation officers made quite a name for themselves in the community. They were champions because things are now changing and I looked at our police force and realized they also had to change, first their attitude. They were referred to by the outside police forces as "˜window dressing cops.' "˜You look like a policeman but you don't act like one. You only enforce their laws.' So we started making more laws by taking provincial highway traffic laws and then we adopted them and we modified them to fit our community. So these things were going on and the provincial police dressed a certain way, so do the Mounties, and so our police force were dressed the same way as the Ontario Provincial Police. So I asked them, "˜Why don't we change that?' So we did a few more consultation meetings in the community with elders and with families and they gave us a lot of good ideas.

As it turned out, the community wanted them to be their police force but they saw them as, excuse the expression, "˜scouts for the cavalry,' spies for the outside police. They just were not theirs. So we were talking about what would it take to be a Mohawk police force? They had a lot of discussion, they made up a list. The style of dress, the police cars, the laws they would enforce, let them know that they're working for community. And when they changed that Ontario Provincial Police headgear, they ordered all their equipment from the United States and so they got themselves nice Stetson hats, shoulder flashes that says Akwesasne, emblems, badges that were their own, cars were set up a certain way. So it was distinctively for the territory. This was all going up very fast, changes were going and while all this was going on, community activity, we were changing that election code through our surveys, we were getting more ideas coming back. Anyway, at the end of the activity, we had encounters with the provincial police because they were saying, "˜We tell you what to do not...don't listen to that chief, he's got no authority.' I said, "˜It's not my authority, it's the community's authority. This is where they want to go.' So we had a few clashes along the way. The OPP [Ontario Provincial Police] arrested the conservation officers and confiscated their guns, so we went to court and we showed them everything that they had been trained for. The judge looked at it and he said, "˜They're well-qualified to enforce their laws because they trained for it. Give them back their guns.' So sometimes you have to fight through the system, through the courts or direct confrontation to keep advancing, so we were doing all this pretty active. And the Ontario Provincial Police appealed to a higher court. We won that one, too. So they says, "˜Well, here's your guns.'

Anyhow, the police started their program and they had their uniform changes and they started showing the community that they were community police, serving the nation, and the whole attitude started to change and that flag that I was telling you about started hanging out in the schools and in public places and in our institutions. And then I went to the Canadian Customs Building and I says, "˜Put this flag right next to your Canadian and American flag.' They weren't going to do it the first time around, so we went and put it up there. Then we went to the Seaway Building and said, "˜Put up this flag to fly alongside the Canadian flag.' They weren't going to do it, so we bought our own and put it next to theirs and dared them to try to take it down. It was Mohawk diplomacy more or less. So those changes were going on, but the community could see, they could see these changes were going on and it was for the better -- confidence building. So people had a different attitude and it didn't take long before they reflected in that law for elections because this went very fast.

Two years was up. I figured that's all I had to do was change the course because they had asked me, "˜We only want you to run one term.' And the strange part about it was, although I was from the traditional side, they don't vote in elections. So in order for me to become chief I had to be voted by the elective Christian side. For some reason they did because I was well known in the community to begin with and knowing that I would be very active in things and so they wanted to see what was going to happen. It was an interest thing for them, but they started liking when they see all these changes coming about.

The attitude changed in the community and they put that election code through with a lot of input. It became an Akwesasne election code. If you wanted to oppose or take action, you didn't like the way the turnout, you had a chance to appeal, but you appeal to our Mohawk court, not to a Canadian court or Canadian government or an institution out there, it was all settled inside. All this time the Minister of Indian Affairs was watching the way things were going and of all the skirmishes and things that would happen, he was happy because we were running our community by ourselves, we took responsibility for our finances, the administration, our programs and had a transparent operation. We started reporting to community by way of annual, semi-annual, quarterly reports, releasing minutes, giving an activity report of where monies were being spent, how they had...how they were coming in. And while this was going on I knew we needed more dollars. So I applied other skills, in this case it was lobbying skills, looking for the dollars and so we set up a portfolio system. I says, "˜this council has to change. The head chief should not be the one who is going to run everything. The head chief is the facilitator; he's a servant of the community. So the rest of you chiefs have to take far greater responsibility, because I'm going to go and start looking for opportunities out there, I'm going to do the fights out there, you look after the community.' So we decided to develop a portfolio system. This chief took care of the justice, education, health; everybody had responsibilities, and the community started to understand that they no longer had to wait to talk to the head chief. They talked to any of those chiefs, whatever problem you had you could see them and he will know and act on and convene meetings and try to solve any problems. So it took on a greater interest and a greater authority. Now prior to that, chiefs that served on council they called them councilors; we changed that. I says, "˜You're not councilors, you're chiefs. You're elected by the community. You're chief for your district.' So other than just the word, we gave them a higher level of importance and with that a job description of what they will do when they're on council and that was incorporated into the election code, Code of Conduct for Chiefs -- that was in there. If he done something wrong, you could take a chief out of office, if he violated the code of ethics -- that was borrowed from the traditional side.

We changed the name. We didn't like the name St. Regis Band. As a matter of fact I hated that because there was a band program, band council, band administrator, everything was "˜band.' I know the Canadian government had this as a mindset for us, to think of ourselves as a lesser people, because we don't mention anything about 'nation' anymore. The only ones that were always saying "˜nation' were on the traditional side and they had... they were in the minority, the government didn't pay any attention to them. So this whole idea of changing, we got rid of the word 'reserve.' You've got 'reservation' on the American side, but you've got 'reserve' on the Canadian side, and I didn't like either term so we said, "˜We're a territory. This is a Mohawk Nation Territory. We're not St. Regis, we're Akwesasne.' So again, we had a pooling of ideas, got feedback and started passing council resolution saying, "˜We're no longer going to refer ourselves as the St. Regis Band. So we became the Mohawk Council of Akwesasne. We became the Mohawk Territory of Akwesasne. There's no more band office; it's administration. And all those administration offices became Administration 1, Administration 2 and that language fit well in the community. And around the council table, some of these chiefs had been in office maybe two or three terms, four terms, some of them maybe even 10 terms, two-year terms. That new election code that we were now discussing says we needed three years because if you're making promises on your second year, you're up for election, chances are you're never going to control the deficit, you're never going to deal with it because you're forever spending more money. Took it to the community, they said, "˜That makes a lot of sense,' and so we revised it.

As far as those chiefs that were on council, sometimes they would say "˜band council' inadvertently. I said, "˜We've got to cut this out because we have to show an example to the community how we're going to refer ourselves and if we're going to change our attitude we have to change the way we refer to each other. You're a chief and we don't want to mention this band word anymore.' So I says, "˜Here's what we're going to do. I put a coffee cup in our meetings and anybody that says band for any purpose will have to donate a quarter into our coffee fund.' Again, it was non-threatening. It became a game and they all looked at each other, laughed and says, "˜Okay.' So, yeah, every other meeting somebody would get caught and put a quarter in there; pretty soon, we had a big jug and it caught on with the stuff. This is a whole different idea, it don't cost a lot of money, but to have you think of yourselves differently, to have you think of your community differently, your people differently we had to incorporate some things like that. So now you had the flag, you have a new council name, your community is under a different mentality. To get back to the election code now. We had finished it, we had a model and the community voted on it. Well, the government came back and said, "˜Geez, you need 51 percent of your total membership.' Mind you, families are out working in different places; we're never going to reach that. So I went back to the Minister and I says, "˜Well, I'll tell you what, would you be satisfied with a letter from the nation council because they don't vote, they don't get involved in these things and you're counting their numbers. So if they give you a letter saying we represent 800 people, that's traditional and we like what the Mohawk Council is doing, we like the idea that they bring their election law back to their community, would that be enough?' And he said, "˜Yeah. I could see that.' And that's how we got around it, just a little bit of innovative thinking. Next election it was under the control of the Mohawk community.

I thought my job was finished back then because I had started these things. They said, "˜No, now you have to run because it's no longer the Head Chief, it's no longer the St. Regis Band Council, it's now the Grand Chief...' And the idea, the first time, the first week I went around when the community people were telling me, "˜We didn't elect you,' I pulled that Grand Chief position, I says, "˜The Grand Chief is now going to be elected by the community at-large, not by these 12 district chiefs or councilors.' That was the one significant thing and that's how the community know that we're going in the right direction. We empowered them. Anybody could run from the community for Grand Chief, but you had to be elected by the community. Well, my opposition, 'That man's crazy. He's from the traditional side, "˜They're not going to vote.'' So we had another one of those famous runoffs and I ran and I won again and council was strengthened even more.

We kept on the path for governance, for representation, for change. A lot of the changes that were going on were really back to our traditions, not necessarily changing so much on the outside. The Department of Indian Affairs stopped being my enemies because now they're taking lessons on accountability, transparency and they would come back and I noticed that every time we had a representative from Indian Affairs, he would try to sneak out our reports to the community, put them in their briefcase. Finally I just asked them, "˜Why don't you just ask us, we'll give you a whole batch,' because now they're taking it to other reservations, showing them, "˜See what they're doing over there, they're giving reports to their community membership.' And so they stopped fighting with me and we became partners in governance. I would give them ideas and say, "˜This is what we want to do.' And most of that time, mind you there were a few other bad apples over there, but for most of that time they knew that we were trying to survive in a community that's divided up into jurisdictions, into puzzles and it was hard to bring it back together. So that was a little adventure into Mohawk politics. It's still on a course, sometimes it slows down, sometimes it's on a crash course somewhere. I shut down ships because we're right on the St. Lawrence river, when I didn't like something that was going on or shut down the bridge, international bridge traffic, and pretty soon I didn't have to do those things. And I'm getting a little older now and people say, "˜You mellowed, you're not a militant anymore.' But all these things, when you have respect, you can sit at a table and negotiate solutions. The challenge doesn't stop. We did a lot of other things that brought us up, but the idea was for most of the leaders, have respect for the culture and tradition of your people, have respect for the language. When we were small, we all spoke the language and as we had children and they grew up, the mentality was if you're going to succeed get an education. That language is not going to help you out there, nobody speaks Mohawk in the States or in Canada. So that was the mindset. In the "˜80s we turned that around and said, "˜Our culture and language is important.'

And for all the hard time that I had coming from the traditional side, something had happened in my second term in 1984 when I became Grand Chief. The Pope came to Canada and he wanted to experience a Native ceremony. I don't know what he was thinking, but he had asked the bishops in Canada, the Catholic Church of Canada to say, "˜This is what I want to experience.' And years before that he had already known that the churches would bring out so many Indians and they would dress them up, put the western war bonnet on a Mi'kmaq or a Mohawk out east, put them on horses, dress them up the way you would see a Native American on cowboy and Indian and the Pope was, he says, "˜I know all that. And I know if I'm going to go to eastern Canada I don't want to see you dress up your Natives that way. I want to see what they're really like. I want to see the spiritual side and I want you to organize it.' So the priests from our territory wrote back, says, "˜Well, they just elected a traditional...' well, they referred to me as a pagan, but more diplomatic is, "˜There's a traditional Mohawk here, he's now the Grand Chief and he goes to the Longhouse, he goes to ceremonies, he's a faith keeper in that Longhouse.' So it didn't take long before they wrote back. They says, "˜Would you put on a ceremony for the Pope?' And I had a lot of difficulty from the very strong Christian side of the community. It was always a test. So I went back to the Longhouse and I told them, I says, "˜Listen, this has been an offer, an invitation has been given to me to do this and do you think it's a good idea?' They talked about it and the conclusion of their discussion was this, "˜Maybe it would lead to better relations between ourselves, us traditionals and Christians. So we're going to send you, but we're going to send a clan mother, an elder and singers to help you.' So that's how...this was 1984, kind of still fairly new back then and given a hard time by the Christian side and often be referred to as a pagan, the attitude was, "˜You look down on your traditional brother.' The Pope came to Canada, we put him through that ceremony, and he was so affected by it because I work with Ojibwe and Cree nations to put this on, but a healing ceremony consisted of smudging, they use sage and sweetgrass. I brought my sacred tobacco and put everything together, put him through the ceremony. One of our elders did the blessing with the eagle. But all along there they explained to him what we were doing and when the words and the songs were put to him as he was going through, I could see a tear coming down and he was totally committed to this experience.

Anyway, when it was over and he read his prepared speech, that man can say greetings in about 20 different languages so that took a bit of time and then he gave his address. It was broadcast all over the world. There was probably an audience of about 80,000 in this...if you can think about what a Woodstock concert would have been like, it was pretty well the same set-up; speakers all over, screens so that they would project all over the field. And then he digressed from his prepared text and from here he told them, he says, "˜The Church assumed when we came to the Americas that the Native Americans were godless and soulless people.' He said, "˜That's wrong. They have a very beautiful culture and traditions and thanks to us we've taken that away from them.' He says, "˜What I've experienced today, I will remember it and I want to thank the elders and the people who put this ceremony together and my message to all of you is I want to apologize on behalf of the church for what we've done, the damage that we have done.' So his message to his followers was, "˜Don't be ashamed of who you are. Don't be ashamed of your tradition, your culture, your traditional beliefs. Incorporate them into your church activities.' That was a big turnaround. It certainly led to my being more accepted in the total community and within a short while after this was all over we had all been home, my community, in the church they started burning sweetgrass and offering traditional chants, singing and dancing, even dress. And so they saw themselves as [Mohawk language] Mohawks and they were proud of it whereas before they had been taught to be ashamed of it. That was a stark difference. So situations happened in my early term that helped the path that I was pursuing. It was well appreciated. I was invited to speak to other churches. I went and spoke in their churches, something that was very new for me and it helped with a lot of the changes that were coming about."

Ian Record:

"You talked about the laws and the codes and the court system that you set up, and early on you found yourself right in the middle of it because one of your family members was one of the first violators of I believe it was your conservation code or one of those, right? I wonder if you'd tell us that story."

Michael K. Mitchell:

"Man, I went all the way around not to go near that story. Yeah. The conservation officers, as new as they were, but the uniform was very distinctive, their presence was distinctive and the support of the community, they were champions because now they're out there exercising authority on behalf of the community. So everywhere they went the elders singled them out, shook their hand. So one day I'm meeting in the village with elders, we're talking about building a new nursing home and they walk in. This is just probably a few weeks after they had come from their training in Albany. And they said, "˜Chief, we need to speak with you,' and they got cut off. The elders just got all around them and they give them coffee and tea and cookies and all, made a...so they had to make a little speech and they were just adored by the elders.

So when they got a chance one of them cut away and he says, "˜We're here on official business. We need to talk to you, Grand Chief.' I says, "˜Really? What's it about?' He said, "˜There's been a murder on the island and your...somebody in your family might be involved in it.' Well, it hits you right here, huh? I says, "˜Well, excuse me.' I took them outside for a briefing. At their suggestion went outside and with stern faces they looked at me and looked at their report and they said, "˜There's been a murder up the hill where you live.' And I'm studying their face to see if this is some kind of a trick or humor. I couldn't find anything. Then I started getting scared. I says, "˜Well, what happened? Does it involve my family?' He said, "˜Yes, it does.' They looked at each other and then they said, "˜A pig was killed up the hill, farmer called in and it had piglets and they were all killed, too. And those piglets were traced down the hill to your farm. So the murderer, the culprit of this murder, is your dog, your Alaskan Malamute.' Well, then it started...I didn't feel as bad, because now I knew that this is their way of impressing how important their work is and their investigation. So I challenged them. I said, "˜Well, how do you know it's my dog? There's about three or four other houses that have Alaskan Malamutes.' They were just waiting for that. They pulled pictures out. "˜Behind your barn there's a whole, there's piglet parts in there. There's your dog, blood stains on his face and on his chest, and there's a trail down the hill, and so we know, we have proof, everything's documented. Grand Chief, you're under arrest.'

Now they scared me. I didn't know how to react so I went with them and they charged me. I'm the first one to get charged on a conservation law that our people put together and in the authority they carry, they singled the Grand Chief. So this created a lot of discussion in the community because I didn't have to go to court for two weeks and to prepare whether I'm going to argue it or offer a plea. So anyway, the charge was given to me. People either laughed about it or there certainly was a lot of discussion. To the elders they said, "˜Well, it's the Grand Chief's the one that's trying to find the money for this program. He sent them to school, he found a place for them to be trained.' Pigs die, even the farmer up the hill when he found out it was my dog he was trying to drop the charge. It was going both ways. My opposition says, "˜Well, is he going to pull strings and get out of this?' Two weeks came up, I went to court. I paid the fine. And people wondered, 'What was the result, what happened?' And I said, "˜I paid it.' And I guess it tells me that we all have to follow the law, and I just want to say the conservation officers did a thorough job investigating the murder on Cornwall Island.

And that was the result of the story. But weeks later, then I started getting some feedback. Apparently a lot of people in our community were watching to see how this was going to turn out and are we going to have respect for our own nation law. And if the Grand Chief is the highest authority, is he going to pull some kind of strings to get out of this or have the case dismissed or find a technical way to deal with it? And I didn't realize that there was such an interest in how this was going to turn out. But the law, the nation law applies to everybody and it all turned out well. It was a little embarrassing for me. I had to swallow a few times, too, but the bottom line is if you make a nation law, you better abide by it. It's not just for the non-Natives; it's also for us, too. And that was a little story about how the law applies and how you treat and respect the enforcement of law and justice in your community."

Ian Record:

"It's an interesting story. I think leadership is in many ways leading by example and that citizens of a nation are going to take their cues about what's going to be tolerated and what's not going to be tolerated in terms of behavior by how their own leaders behave."

Michael K. Mitchell:

"It was an example to the degree that there was interest generated and people knew that I could have it dismissed like that and it was just a thing that they were saying, "˜Well, how is this going to...?' And it led to everybody having respect for our program, respect for the nation law, respect for the police authorities, because it wasn't just the conservation. It applied to police in general and so it became a healthier thing. It was a good example to everyone and it taught us a lesson, because there were times when you had to stand up to the authorities on the outside, you might even have to disagree with them about how law is applied. That's how I looked at it. If you have to stack that up against your own laws or your own beliefs, if you violated a custom, tradition, that you want to defend it, sometimes you go to jail on principle. And it was those principles that became very important in our community. But at the same time, in your traditions there's also law, there's also justice and you better respect it. It doesn't mean that we can just do anything. That border that we lived on was inviting for a lot of criminal organizations and in my time, two or three elections later, it became a thing for smuggling of contraband going back across.

Let me try to see if I can demonstrate something here. There's three islands here: Barnhart Island, Cornwall Island and St. Regis Island. Here's the St. Lawrence River. Whoever set the boundary line back in the 1700s and 1812 must have been drinking somewhere because here's how it goes. Barnhart Island, New York State, it goes around this way and then there's Cornwall Island, Ontario and then it goes around, St. Regis Island, Quebec. You would think they would just go one way. Of course the water goes straight down. That's why I said one minute you're in Canada, the next minute you're in the state, you're in New York, you're in Quebec, you're in Ontario because that's how the international boundary line was zigzagging. And so the FBI [Federal Bureau of Investigations] and the state troopers and the Canadian Mounted Police and the Provincial Police all said, "˜We'll never get a conviction on the water, so we'll just stay on the mainland and we'll catch whoever we catch on the mainland.' So this whole area became this, what they call this gray zone, and it didn't take long for criminal organizations to hear about Akwesasne, how it's easier to transport stuff back across. And it became very hard because they were enticing a lot of our people to say, "˜Run this across the river for me, boxes.' Well, it didn't take long for those cigarettes to turn into drugs, guns and when 9/11 happened, on CNN and NBC, ABC, CBS, we were watching and they had a map of Akwesasne and the first few weeks they were looking at saying, "˜Those terrorists must have had... come through Akwesasne.' We're getting to be famous for the wrong reason, but that's the scenario and that's what they thought happened. It took a couple of weeks to kind of find out that they didn't come through Akwesasne, that they were already in the country, but who do you blame first when something like this happens? Who do you point fingers to when criminal activities are going on? Both sides, they were blaming the people who live there and the customs security cracked down. They were checking every car, but they were checking the cars of the grandmother and the mother trying to get her kids to school going back and forth so they were very hard times for us.

There was another thing that I was instructed to do was challenge Canada on our border crossing rights. They loaded up my truck with food and furniture, household goods, stacked them way high and I came across the international bridge. Everybody walked with me alongside the truck, about 1,000 of our community residents, got through Canadian Customs and I declared everything that I had with me and then I says, "˜I want to exercise my aboriginal right, I'm not paying the duties and the taxes,' which amounted up to maybe $370 some dollars. They wanted to arrest me right then and there and they...Customs verbally arrested me, but I kept going. Second line was the RCMP [Royal Canadian Mounted Police] and they pulled me out, put me in their car and the women of our community went over there and pulled me back out, put me back in the truck and said, "˜Keep driving.' So somehow or another we got on this 401 that went to [Mohawk language], which is another Mohawk community further west and we gave the goods to them as a historic right of trade. And it went to court, it went all the way to the Supreme Court, because I was told in these meetings by high level government authorities, "˜Chief, if you believe your people have a treaty right, an aboriginal right to cross the border with your own proper goods, you have to win in a Canadian court. If you win in Canadian court, we will be prepared to negotiate how to implement, how to exercise that right.' So this was a test case that I was invited to participate. When I came home and I reported that, they said, "˜Let's do it.' And so this was the whole precedent setting thing that occurred.

Years later we finally hear the case and I win everything. So Canada was totally unprepared for how it was going to be done and the people that made those promises that I had to win in a Canadian court were no longer there, it was a new government there. They said, "˜We didn't make those promises, so we're going to appeal.' So it went to a higher level, they lost again. So a different Minister now getting really concerned because now their federal prosecutors are telling them, "˜You know, the Mohawks could bankrupt the financial institutions of this country, they could threaten the sovereignty of this country. Look at the decision what was awarded to them.' And we weren't asking for a lot, just to bring across our own community goods, our food, products, furniture, anything for the nation and to trade with another nation. That was the other thing that we had invoked. Anyhow, what happened was they said, "˜We're going to go to the Supreme Court.' I says, "˜You didn't say that. You said we would negotiate how to implement this right.' Anyway, they went to the Supreme Court and the Supreme Court heard the case and they altered the argument, restructured it and gave a decision, a 'no' decision.

So after all that time, this is about 10 years for this battle of recognition of inherent right, aboriginal right, treaty right. I wasn't satisfied the way we had been treated. The lawyers in Canada started holding sessions on how this was played with and there's a code...there's a code of honor among lawyers and legal institutions that there's some things you don't do, and this is what happened because they were so paranoid. I got home and I thought, "˜Well, I've been to the highest court of this country, it wasn't exactly...turned out the way I wanted to see it turn out, gave it my best shot and I was just going to proceed to do other things. And then somebody came to see me and they said, "˜You should try to take Canada to the International Court because what they done to you should have never happened and if that's the last resort, that's the last course, then you should submit it to the Human Rights Commission. There's no guarantee they're going to hear it though.' So that's the next thing that we did is we submitted to them and we asked for more documentation, they looked at it and here's a team of lawyers from Canada saying, "˜Don't hear it. It's been settled.' They examined everything and they said, "˜We're going to hear it.' It was heard last February and we expect a decision sometime in the next few months. It'll be the first of its kind, but when Canada holds itself up as a defender of justice, of human rights, this happened in their backyard and so I didn't want to do this, but you forced the issue; you're promised something and then they take it away. So that was one of the last things that I was...challenges that I faced because by now those two years turned into 25 years on council. I would take a break, but always the next term they say, "˜We want to bring you back.' So that was one of the last fights I had with Canada."

Ian Record:

"What I've been hearing a lot in your discussion thus far is essentially you moved, Akwesasne moved from a position under the Indian Act where your system of government really had no transparency and no accountability to a system where you're striving very hard towards and you're institutionally building towards a system predicated on transparency and accountability, not only within the government but also accountability of the citizens to the nation. I was wondering if you'd talk a little bit about that."

Michael K. Mitchell:

"In the early "˜80s, middle "˜80s, when the government controlled the purse, we were barely getting by with the monies we had to service the community. When we took over and we had a better grasp of what's needed, we were able to lobby for more dollars and by reporting the results of the expenditures and the programs that we had implemented we also had our own actual figures of what's needed. I'll give you an example in health. We took everything over -- the administration of it, started putting some policies of our own, hired our own people in-house -- it became a big regime. And so much so that Canada started referring to it as a living example of what would happen if First Nations took over like taking it from a self-governing position. I never lost sight of the fact that the only thing that we were doing is removing those government people away and putting our own people, designing our health schemes, putting accountability factors, implementing programs and services in the community the way they want to see it and then built in involvement from the community to give direction where the health programs will go and as a result we qualified for more dollars. The institutions that were built is the same for education, it's the same thing for other programs, and pretty soon when we started from $5 million, when I left in 2006 they had a budget of $76 million to administer and service the community. In between that, people had a chance to return home, have a skill and bring it home and find employment. But that wasn't the end all. There were other factors now that were available so it was more promising than from the time of the Indian agent or when the council was controlled by the Department of Indian Affairs. So the movement...what's indicative was the attitude change in the community. When you think better of yourself, you're more aware of your nation culture and traditions, you take pride in your community. Those are all factors that were crucial. They didn't cost a whole lot of money, because at the time when we were in a deficit I laid these things down and had a path to pursue. We didn't have a whole lot of money to spend, we couldn't make a whole lot of promises, "˜I'm going to do this,' but we did some confidence building, pride development and slowly the attitude started to fall in.

The elders provided the greatest support. They knew that this was their community and wanted to see a strong, healthy community. Now mind you, that didn't mean that we didn't get hit with a lot of modern problems. I mentioned smuggling a while ago. A lot of things that were going in and out would also stay. So drugs became prevalent, social issues became very prominent and hard to deal with, but we set ourselves with a way to deal with it because our programs were there and we could add anything that came, but we're able to deal with modern-day problems. Now that generation from the "˜80s and into now, the product, language has become very important, the curriculum in education systems have become very important, more involvement and teaching of Native culture and history and traditions, more language programs. We have some schools that are total immersion, Mohawk and all the subjects. Nobody would have thought back then that we could have done and built institutions like that. Our relations with the tribe, that had been our enemies in the past, now they sit together in council. They now recognize the Mohawk Nation "˜cause very early in my term, probably within the second year, we passed a resolution recognizing the Mohawk Nation council as our historic national government. We're a community government; they're a nation government. So now we're trying to find our way, how do we get everybody working together. The mindset was, and the trick from the outside is, get people fighting amongst themselves, make one side seem lower in stature than the other. You're the good guy, they're the bad guy, they're the pagans, you're this and that. Well, now everybody's saying, "˜Wait a minute. We're all traditional now and we're all proud to be Mohawks and that's going to affect the next generation. So we can withstand all the modern problems and difficulties that will come, we'll try to find a way to resolve them because those problems are great, they're coming at you from all directions. But now you've built your institutions, you've built your programs to service your people, you've also developed a character that will withstand all the negative, and also from the outside governments that try to influence them so you don't have that. You have it in your heart and your spirit to fight for those things. Your children will grow up fighting for the same thing. So it's been a worthwhile experience. I look back now and I say, "˜That was a good term. You learned something.'"

Ian Record:

"The last question I have is this issue of governing institutions, which you've talked about in detail. The extensive research of both the Native Nations Institute and also the Harvard Project on American Indian Economic Development have showed that across Indian Country in the United States, across Canada, Native nations are aggressively pushing for sovereignty, for self-governance, but has chronicled case after case where when nations do not back up that assertion of sovereignty with the building of capable governing institutions, they really can find themselves in the sorts of battles that they can't afford to lose. And I was wondering if you could just comment in maybe more general terms about the importance of reinforcing that push for sovereignty with those capable governing institutions."

Michael K. Mitchell:

"There's a very historic wampum belt that we all grew up with in all our Iroquois communities that we're taught, and this belt has two lines, two purple lines. And one line they say is a ship and on the other line is a canoe and the blue line represents a body of water. And they said on that ship is the non-Natives, the European newcomers, settlers and in 1664 they sat down in Albany and they talked about this, making an agreement. And from that experience between the Dutch and the Iroquois, later the English and the Iroquois, they had this discussion and on a piece of paper when they said, "˜My king will be your father and we're going to have a relationship here and we're going to do business in this manner,' is that they left that day and the Iroquois said, "˜We're going to come back the next day with our response.'

The next day they came back, they said, "˜We have made this belt. First our answer to you is we can't have a relationship because you're telling us the king will be the father and we're going to be the children. A father will always tell his son what to do. Our answer is we'll be brothers, equal.' And so they come to these two rows. They says, "˜On this one row will be your ship that you came from across the salt waters and from what you're telling us, you couldn't practice your religion over there. You didn't have a fair system of government over there. You get penalized for doing these little things and so you want to be free over here. On this ship we're going to allow you to have your own government. You're going to have your traditions, your culture, your language, your governance. It'll all be on this ship. In our canoe, we're going to maintain our traditions, our culture, our language, our governance, our jurisdiction. And we're going to go down the river of life together. Whenever you need help, we'll come over and help you, but we'll never interfere in internal relations of your people.'

So that was a solemn pledge they made to each other and they did help each other down the course, because when the settler governments first got to the Americas, everything was new for them. They weren't knowledgeable of the medicines that the Native people knew. They knew nothing of corn and beans and squash, pumpkin, maple syrup and the list goes on that we take for granted every day now as edible foods. That was all new, even tomatoes, beans. So in helping them with the foods that were grown in this world, Turtle Island, when I said they helped each other along the way, this is how they would help each other. We also were not privy to a lot of the diseases that Europeans brought over so they would help us in the other way. That was the relationship. My point is sovereignty began with us from day one when a clear line of understanding in the relationship the way it was supposed to go. And it's in our heart, it's in our spirit as we look after our people. Unfortunately, that was a traditional practice. So when they brainwash you into a modern elected system, you didn't believe any of that stuff anymore. One of our jobs was to go back to our traditional ways and bring that out and say, "˜Listen, we're Mohawks, we're Iroquois and that is our belief, that is our principles.' So now both...everyone adheres and abides by these principles whenever we talk to outside authorities and governments. That's the basis.

Now I'll tell you one thing in Canada, you can't say sovereignty. They just freak out when we talk about our sovereignty. Not that we don't ever stop. We just listen with interest because they're so concerned about Quebec separating from Canada and they call it separatists. And the Quebec people start talking about their sovereignty of their nation, which is Quebec. And so they've had a couple of showdowns, referendums. One time they come by one percent that they were going to leave. We never really concerned ourselves with it because three quarters of Quebec is Cree and the other part is Iroquois and so we would have just had a referendum of our own and say, "˜We're going to separate from Quebec,' and come back to our own nation. At least that's what we told them and they always freaked out when we told them more or less embarrassing them.

The idea of nationhood is now growing, finding it's way back to the nations in Canada, and I know as I travel around in the States they're always talking about sovereignty. As a matter of fact, I kind of get disillusioned at times because I see so many of our leaders go to a national chiefs' convention, stand up there, talk about sovereignty then go home and do their due diligence with programs and services that are administered from the outside, the social conditions are bad, they haven't moved their community, so it has become rhetoric more or less. So you see when people are really strong it's not particularly the leaders, it's the community that has to grow. They have to have the confidence and they have to have the ability to say, "˜We are who we are. We are a nation. We want to do this. We're strong in our traditions, in our culture, in our language.' And when you're strong there, you become strong in other areas because now you're not afraid to get an education, you're not afraid to get an occupation or train for something because you know who you are. That's the result of the residential schools, that's the result of the churches, it's the result of people that have changed our minds. So we want to go home. So my interpretation of sovereignty is strictly being...knowing who you are, what nation you belong to, the roots that you have, that's your tradition and culture, and you'll be a strong nation. The problem is that many of us have been educated to the degree then admitting to something else that we believe that we no longer have those roots of our nations. And back home that root took place and embedded. So I feel kind of confident in the next generation that we'll continue to have the fighters going in the same direction. I didn't quite answer you the same way as you'd expect somebody to talk about sovereignty in that way, but that's how we look at it." 

Honoring Nations: Miriam Jorgensen: Achieving Good Governance: Cross-Cutting Themes

Producer
Harvard Project on American Indian Economic Development
Year

Miriam Jorgensen, Director of Research for the Native Nations Institute and the Harvard Project on American Indian Economic Development, shares the cross-cutting themes of good governance that exist among the Honoring Nations award-winning programs.

Resource Type
Citation

Jorgensen, Miriam. "Achieving Good Governance: Cross-Cutting Themes." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Sante Fe, New Mexico. February 7, 2002. Presentation.

Andrew Lee:

"Now I'd like to introduce my colleague Miriam Jorgensen, who's going to talk about some cross cutting themes of Honoring Nations winners. I think one of the unique things that's happened in this room that I'm not sure if any of you have had the chance to afford to do is sit next to somebody who's work is just entirely different than yours but you share some things in common. And we want to use this opportunity to talk about some of those things that you do share in common and Miriam Jorgensen has thought quite a bit about this issue. She's actually so well liked, so well respected that she splits her time. She lives in St. Louis, Missouri. Harvard University is in Cambridge, Massachusetts, the University of Arizona is in Arizona, obviously, and she has an appointment with both of us. And we just think the world of her and I'm looking forward to hearing some of what these great Honoring Nations winners have in common. Miriam, the microphone is yours and after this we can go upstairs and there's a reception that we're going to end on."

Miriam Jorgensen:

"I appreciated getting to be a fly on the wall during the discussions that took place earlier today when you broke out into groups. And I think that most of you probably hit on a lot of the themes that I'm going to talk about today. And in fact, I probably won't get to all the different ways that these programs have themes in common. But what I wanted to talk about a little bit are, what are some of the underlying elements that show how winning programs have achieved their success? What are those cross-cutting elements? What approaches underlie their positive progress that are shared across programs? And turn that also into, what are some of the lessons that all of this universe of 32 winners from the two years of the program, so far? What are the lessons that they bring to Indian Country and really to the rest of the world, to governments around the world? And what are some of those lessons?

I think one of the first and really outstanding lessons to all this is that programs that have achieved good governance have an ability to measure and track their progress. I think it's certainly clear that we look, as an evaluating team and as the advisory board looks at things, they look for evidence of success and progress but it's... I want to take this farther and say it's not just evidence of your success but looking at measures of progress, looking at measures of success, assessing programs is part of what actually makes programs better. And I think as you think about the work that you do and the work that you've heard your colleagues in excellence do, you see that one of the things they're doing is figuring out how to see that they're meeting their goals and that they're using that information to become even better programs. Let me give you a couple of examples that come from the winners in this room and potentially from some who weren't able to be with us today.

On the purely numeric side -- and you can imagine that there are ways of tracking progress that are quantitative and qualitative and I'll try to give some examples of each -- but on the purely numeric side, I will give you the example of the White Earth Suicide Intervention Team. Now, they are very consciously a suicide intervention team. They don't put the goal out there to prevent suicide, even though they have managed probably to prevent quite a few, but they look for data that says, ‘How is it that we can measure how well we're moving toward this goal of suicide intervention,' and they look for something that would be appropriate that would say, ‘What is it that's really telling us that we're going out there, meeting that mark that we care about of suicide intervention?' Well, it turns out that one of the things they decided to track was 72-hour holds. In the early 1990s, as the team was just forming and beginning its work, about six percent of the individuals who had attempted suicide and they were rushed to emergency rooms or hospital, only six percent were held in the hospital for 72 hours for observation and holding. This is a common intervention procedure, a prevention procedure but only six percent of the members of the White Earth Tribe who had attempted suicide were being held. As the team began its work and tracked its innovations, it tracked its progress on trying to increase the number of 72-hour holds. This was really fantastic progress because you have to understand, White Earth doesn't have a hospital. All the hospitals that it's dealing with are non-native hospitals, off reservation or within the reservation but are not controlled by the tribe. So it's working with outside entities to make them live up to their responsibility to their native patients. By the late 1990s over 70 percent, up to about 77 percent of the individuals from White Earth who had attempted suicide and were then placed in emergency rooms in hospitals were on 72-hour holds. So they used this data as a tool, they said, ‘Here's something that's going to track our progress, that can measure our success, that shows us where we're going,' and they used it to set the bar and to set the mark and track their progress in that way. And their goal of course is to try to have 100 percent. So you can see how they used data to measure their success, move toward it and to challenge themselves to do even better.

Now it doesn't have to be that it's just numeric data that is the kind of assessment tool that you can use to measure progress. I think a number of the programs in this room are looking at what they do and they say, ‘Look, yeah, we also use information and data to assess our progress that's not necessarily quantitative. It can be more qualitative.' One example is the Grand Traverse Planning and Development Department. One of the things that they've done is say, ‘Hey, are we doing what we said we'd do? Are we making progress? Are we achieving our goals?' Let's create a list of very achievable goals, much of it generated from community input in a very innovative way, and they sit down and they deliberately track their progress toward meeting those goals. So that's a more qualitative approach of using information and data, of improving their programs. So those are just a couple of examples to show you that one of the cross-cutting themes, one of the things that we see all successful programs doing, all the winners sitting in this room is that they use assessment information to track their progress, measure their progress toward their goals and to challenge themselves to do better and I think that's something that all the programs do.

Another thing that I think all the programs do is that they've achieved good governance oftentimes by tackling really hard problems, and using those hard programs as motivators, and using their success with having tackled those programs or problems as further motivation. Now what do I mean by this? What are some examples we see out there? Think to yourself about all the situations you see in Indian Country and beyond where governments and citizens allow themselves to be sort of beat down by how hard the problems are that they face, whether or not it's like a White Earth suicide problem or the challenges of implementing technology that can help them or the negotiation kinds of problems that we've heard about. Those can be really difficult problems to face. They can be immobilizing in the face of that difficulty. But one thing we see across all the winning programs, a common strand, is a willingness to take up those challenges, to not see a hard problem as something to just bend over in front of but rather to say, ‘What can we do about this?' and then to use that as motivation.

One of the really exciting and incredible hard problems that one of our winners has tackled was the Louden Tribe of Alaska and their Yukaana Development Corporation. Now Yukaana doesn't have a lot of control over the land that the U.S. Air Force had polluted, but they decided that because it was their traditional territory they really wanted to do something about it and this was a mandate from the community that they try to do something about it. They said, ‘Look, this is a huge challenge. It's something that in a sense we don't even have authority and control over but we're going to use that as motivation to try to do something about it.' And they did, with the formation of YDC, the Yukaana Development Corporation, they were able to clean up over 12,000 50-gallon drums of petroleum waste and 3,200 barrels of tar out of that area. They trained hundreds of people in their workforce to solve problems in their area and beyond. They were able to take this really hard challenge and say, ‘We can do something about it.' And in fact, in reflecting on their success with that, it's also been a motivator to even greater work for that organization. So that's one of the things I mean about when you look across these programs, one of the things that they evidence is an ability to take up those hard challenges, to not just say, ‘We can't do something about it,' but to use the difficulty as a motivator to move forward and then also to use the success, once they've achieved that, as further motivation. So good government is achieved as leaders and program directors accept big challenges and use them for inspiration.

I think it's also clear again, as we look across the universe of programs, that programs that have achieved good governance as were spoken about in the presentations earlier as well, they create distinctly Native approaches for local solutions and by doing so this has distinct benefits. What do I mean? Well, I think that it's important to understand that, for instance, self-determination, that's just not about Indian people managing programs for other Indian people. It's about creating special programs that are uniquely native that have uniquely local approaches embedded in them and that definitely has benefits. One of the benefits that we see is that by creating programs of this sort, it's often the case that those solutions are much more workable, are better solutions than externally imposed style solutions.

One of the best examples of this I think from the universal winners is the Navajo Child Special Advocacy Project. This is a program that addresses again a really hard problem, child sexual abuse on the Navajo reservation and they've said, ‘We're not just going to do our therapy and our interventions in a western style. We're going to wholly integrate Navajo approaches into our treatment and into our program development.' And in so doing, they're able to create a more holistic program, a program that serves more of the child's needs to bring in both the western approaches and the Navajo approaches, to address it within the cultural context of harmony and critically they also then serve whole families which many programs of this sort do not do. So therefore they're able to be a more successful, better and improved program as a result of the fact that they've integrated these cultural approaches.

I think one of the other things that having a more cultural local approach does is that it actually generates positive results for Native culture as well. To me, one of the examples here is that it's frequent for us to hear, maybe it's not Indians, maybe it's even detractors within the Indian community saying, ‘Well, if you pursue that kind of highly high-tech solution or if you pursue that really highly institutionalized organized bureaucratic approach you're losing your 'Native-ness'; you're not going to be Indian anymore if you do it that way.' But I think there's strong evidence that says there are ways to do even really progressive, innovative, interesting modern programs that promote and preserve culture. A couple of examples of those are like the Mille Lacs and Ojibwe language programs, where they're using modern approaches like rap music and computer technology to promote and improve language learning within that culture. Here's a place where technology has been controlled by the tribe instead of having it denigrate culture it's building up culture.

Another thing is that it's also the case that it's possible to use highly organized, very capable institutions to promote culture and I think this is one of the examples that we see from one of the speakers this afternoon of the Poeh Culture Center. Here's a case where you've got this very technologically innovative advanced idea of saying, ‘Let's have our construction services firm support our artists and we're going to have a bureaucratic structure, which allows them to have a place to do their work and to sell their art.' Now that means we've got this highly capable institution, helping move forward the culture. It's not drawing the culture down. It's not eliminated the culture. It's moving it forward. So again, good government is achieved as tribal governments use and expand local and cultural knowledge as they carry out their programs because it makes the programs better and it also promotes the culture of that community.

I think the last thing I want to say, and this is really inspired. I thought about this one a little bit less but it's inspired by listening to the conversations this afternoon and talking to members of the advisory board who have been engaged on these issues as well. I think it's really clear that programs that have achieved good governance are administered in ways that promote sovereignty. I think that in a sense not enough can be said about this point. As we all reflect on the conversations of this afternoon and on the work that you've done, that you can see that the programs that you carry out have achieved good governance because they are promoting sovereignty. I think they do this in two different ways. One is through institutional capability. Charlie O'Hara mentioned this a little bit just a little bit ago where he talked about when you have the technical expertise, the institutional expertise, it's very hard for outsiders to look at you and say, ‘Hey, you can't do that. You're not capable of running that program.' So by having strong institutional capacity, as they do at the Swinomish Cooperative Land Use Program, as they do at the Jicarilla Fisheries and Wildlife Program at the White Mountain Outdoor Recreation Program. These have strong institutional capacity that prove to outsiders that native nations are highly capable of managing programs and taking control of that sovereignty.

I think one of the other ways they do it is that programs like yours have been very strategic in figuring out ways to promote sovereignty of the nation through programs operations. This is clear in the work that, say, Justin does at Grand Ronde through the Grand Ronde Intergovernmental Relations Department, strategically following paths that expand the sovereignty of the nation. So that would be the point on which I conclude, that I think as we look across the universal programs, one of the other things that's a common denominator and a common strand is that good governance is achieved as programs promote and underwrite the sovereignty of their nations.

So those are the reflections that I had as I thought about the work that you're doing. I didn't mention all 32 programs in the room, but I think these elements and strands are reflective of the work that you all do, which is commendable and I'm very pleased to have learned from you and I'm excited to share these lessons with other nations both Indian Country and beyond."

Robert A. Williams, Jr.: Law and Sovereignty: Putting Tribal Powers to Work

Producer
Native Nations Institute
Year

University of Arizona Professor of Law Robert A. Williams, Jr. provides an overview of the U.S. government's centuries-long assault on tribal sovereignty -- in particular the ability of Native nations to make and enforce law -- and stresses the importance of Native nations systematically building their capacity to exercise jurisdiction over their own land and affairs in this nation-building era.

Resource Type
Citation

Williams, Rob. "Law and Sovereignty: Putting Tribal Powers to Work." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 23, 2011. Presentation.

"I'm always humbled when I get to read through the list of folks who attend these events and you're all very busy and you're all doing very important things and good work. And it really is an honor to be able to address you, and that Steve [Cornell] and NNI are kind enough to sort of turn me loose for an hour and to see what damage I can do.

What I want to talk about today is 'Law and Sovereignty: Putting Tribal Powers to Work,' and I particularly want to focus on the role of tribal courts and tribal law making in that equation, those aspects of sovereignty. There's lots of different aspects of tribal sovereignty, self-determination, but this idea of law-making is an important one. Let me just throw a fancy legal word out there to you and you can really impress people back on the rez. It's Latin. It's called 'jurisgenesis.' Juris -- J-U-R-I-S -- is law, juridical, jurisdiction. Jurisgenesis. 'Genesis' -- you don't have to be Latin to know that. That comes from the Bible, the beginning, the beginning of law, the creation of law. Jurisgenesis is the creation of law, that we are law-making communities. Some of the examples are, for example, the Amish make their own law. They always argue to be exempt from Social Security and from sending their children to secular schools. We know that the group, a community of Hasidic Jews in New York, control a very ancient network of diamond trading and they have their own law. They don't use the courts of the United States. They have their own jurisdiction, they assert their own law. They engage in their own creation of law, their own acts of jurisgenesis. And that's what I want to talk about today.

The United States Supreme Court, in the most important case affirming tribal sovereignty over the legal affairs of the reservation, called Williams v. Lee in 1959...my colleague and co-author Charles Wilkinson says that Williams v. Lee really inaugurated the modern era of Indian rights, 1959, before the Supreme Court. And in that case a Navajo had bought goods on credit from the local Indian trader and that Indian trader then tried to sue her for defaulting on the contract for those goods in state courts. And up until 1959 that's what had always happened. In Arizona, in South Dakota, and many of the states you're from, everyone just assumed that if an Indian owed you money you sued them in state court. But in this case the Navajo re-established their own tribal legal system, their own tribal courts, an act of jurisgenesis. And the Supreme Court said that state jurisdiction over this contract, which took place on the reservation, would invade the sovereignty, would violate the sovereignty expressed through that strong, independent tribal judiciary. And really the birth of the modern tribal court system springs from Williams v. Lee and that affirmation of the jurisgenerative power, the law-creating power of Indian communities. And one of the things that Justice Douglas, one of the great justices...I mean when you go to law school, you learn about the all-star Supreme Court justices. Who are the great ones? John Marshall, Earl Warren, Louis Brandeis, William O. Douglas. And Douglas in Williams v. Lee makes one of the most famous pronouncements in all of Indian law. And he said, 'Here's the question of whether Arizona has jurisdiction over the Navajo reservation, absent governing acts of Congress or treaties that took it away.' The question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them; infringed on your sovereign right to make your own laws and be ruled by them. That affirmation of your jurisgenerative capacity to create law from your own customs and traditions is one of the most powerful sources of recognized sovereignty in the United States Constitution, and it's still alive in your own communities today.

So that's what I want to focus on. Before I do that -- because what I'm really talking about is the challenge you face -- how do you take up that challenge of becoming jurisgenerative communities that take responsibility for your own law over every aspect of life on the reservation -- whether it be child welfare, whether it be criminal jurisdiction over Indians and non-Indians, whether it be civil jurisdiction over contract disputes, jurisdiction over employment actions at the reservation -- all the different things you can and will assert jurisdiction over? How do you meet that incredibly important nation-building challenge? Because your ability to build your nations is really going to be directly related to your ability to build strong, independent judiciaries or legal systems or mediation systems. You're going to have to choose the model to recognize and empower your jurisgenerative capacity. It might be a system in which everybody walks in with black robes and bangs a gavel, it might be a system of peace makers, it might be a system of sentence and circles, but one way or another you're going to have to respond to the challenge of becoming jurisgenerative communities, because you're not sovereigns, you're wasting your sovereignty if you don't step up to that challenge. So to understand that challenge, no matter where you're from -- I do a lot of work all over the world with Indigenous communities -- and this desire, this aspiration to engage in law creation, to go back to the old ways and see what might fit to meet the challenges of the new, and a lot does for those communities that have engaged in this jurisgenerative act to recreate, to renew -- the renaissance of tribal law making that's going on around the world -- is what I want to talk about.

But before I can talk about that, I have to set the stage so you understand where you're coming from. Because where you're coming from in many ways informs, shapes, controls, threatens, complicates where you want to get to. We all know that. My tribe's the Lumbees. We have a saying, ‘If it wasn't for family, what else would hold you back?' You don't have that saying? Something like it, right? Something like it. And your history holds us back. We're fighting our history every day. We're colonized people; we're traumatized. We suffer the psychic harms. We have the generational trauma. This stuff has been confirmed by social science that this trauma is handed down generationally. You just don't wake up one day and say, ‘Oh, we've reformed our constitution and got a new one. Now we're just going to forget our history, forget our past.' So I think it's important to understand the history of federal Indian law and policy because we know Indian people, even the stereotypes. We always think ahead seven generations and we're tradition bound, so we always want to know what the elders did and what our traditions tell us to do, and we learn from the wisdom of how our elders responded to crises because we think life is a circle, it's going to come back. And so with that, I think it always helps -- many of you know pieces of this story, some of you may even know the whole story, I doubt it -- but in as short a time as possible, I'm going to try and at least give you an overview of the story of the history of federal Indian law and policy and help you understand some of the characteristics and challenges so you can sort of get a lay of how the land has laid out for your elders before. [Because] if you see the terrain and the paths that they took and the decisions they made -- some bad, some good -- you learn from that. That's what Native knowledge is all about. That's what common law is all about, right? If a decision worked before to facilitate contract exchange, let's keep doing it that way. There is value, there's knowledge in the past, and our job is to sort of pull that stuff into the present to understand how it might or might not apply. Sounds a lot like what we do as lawyers. That's what the challenge is.

So I always like to say before Europeans came here -- the pre-constitutional era, about 1532 to 1789 -- what's going on then is that Europeans are asserting their rights as superiors. Basically the theory comes from the Crusades. So Europe has been fighting tribal peoples and infidels and savages and barbarians ever since the Romans, we know that. The Romans went out and conquered the tribes of Western Europe; the Normans came in and conquered the tribes of England. The West has been -- don't take it personally -- it's not an American thing, it's not a Western hemisphere thing. The West has been persecuting tribes for 3,000 years. They just don't like you guys. In fact, it's so inbred that you can find it in the very first book of The Odyssey and The Iliad by Homer. How many people have heard of Homer fighting the Cyclops, the one-eyed man eating Cyclops? He says, ‘We came to the land of the lawless and inhuman Cyclops who neither plant nor plow but who rely on providence to provide them but their land is goodly abundant with grapes and wild things that grow.' Sound familiar? Uh oh. Boy, that's going to come back to haunt us, isn't it? They've been doing this for 3,000 years. So it's nothing personal. And so in the 15th century Columbus comes over here and he says, ‘You know, these people are just like all the other non-Christian savages and infidels that we claimed total sovereignty and control over in the Middle East or in the Crusades, Charlemagne, the Teutonic Knights.' The Teutonic Knights, they were just Christians empowered by the Pope to get on their horses and terrorize the pagan Lithuanians until they submitted to Catholicism. And of course the Lithuanians say, ‘Oh, yeah, we're Catholic.' And then the Lithuanian knights would leave and they'd go back to their pagan tribal ceremonies and the knights would have to come in again. Sound familiar? So essentially the Europeans are doing what they've always done. Wherever they find dark-skinned, different people who don't believe in God, they claim superior sovereignty over them. And that means everything.

There's this great case in England written by James Coke. And I mention that name because he not only was chief justice of England but he was the lawyer who advised the Jamestown Colony. Yeah, I know, conflict of interest but we didn't have the ABA [American Bar Association] code back then. And he actually drew up the charter, which James signed, authorizing the Virginia Company to go and bring the infidels and heathens living as savages to civility in the Christian gospel. Go conquer. So Coke also issues this case called Calvin's Case. And what he says is that when a Christian king invades the kingdom of an infidel, he doesn't have to pay any attention to their laws [because] they don't follow the Decalogue, the Ten Commandments. And so therefore their oath is no good, they can't swear to God. So therefore they can't have any rights that the king will recognize in an English court. That's the reasoning. ‘You're savages, how can you have rights against white people? How can you have superior rights to your land when you just roam and wander and hunt?' Ever see 'Monty Python'? When you hear people talk about wandering savages, just do the Monty Python routine [because] that's what they think. That's what their ancestors did. How many people honestly, you meet a white person, they say, ‘Okay, do you ride a horse?' Right. Yeah? I've had 60-year-old grandmothers tell me guys walk up in the airport and ask them that question, ‘You riding a horse?' ‘Oh, yeah, sure. I have to.' You know.

So essentially the precedents are all set. You've all been conquered or decimated by disease or lied to or had your land stolen or your women disempowered. Because many of the North American Indian tribes of the east coast, the women controlled the property and they controlled the naming of chiefs, and that was one of the first things that Europeans subverted through bribes and machinations and getting the chiefs to sign the treaties. Now it's amazing when you look at those treaties from the 1660s and 1700 [because] all the chiefs are signing the exact same name. I can't believe thousands of chiefs signing the exact...what's that name that they all sign? X. 'Zorro?' 'No, I'm an Indian, it's 'X.' Have my land, take Manhattan.' All right. So the formative years are when the U.S. comes in and they basically adopt the principles of the English. They assert the rights of discovery that whoever discovers Indians has jurisdiction and sovereignty over them. But they do some other important things that you need to know about.

They enact a constitution, and because their experience had been that the yahoos in the states were the Indians most deadliest enemies that they had to make Indians exclusively federal affairs, because the states were crazy. They would go out and form posses and militias and just engage in massacre. And then what would happen is the Indians would go up in rebellion or the states would totally ignore a treaty that had been negotiated to quiet the Indians down. And so then it would be the Indians go on the warpath and the states, they don't care. And it's the federal government that has to raise the army to go and quiet the frontier. So the [U.S.] Constitution is absolutely clear -- and think about this, I'm going to play a lawyer's trick -- it's absolutely clear that the Constitution comprehensively puts all of Indian affairs into Congress's power. And they do that by one simple statement. So think of the founders. These are the guys drafting the Constitution. And you're really trying to understand, what do they really think about Indians? And I'm not... just think about it. Have you ever wondered what the founders really thought about Indians? Well, I'm going to tell you because it's in their constitution. So what the Supreme Court says is that we know that the founders gave Congress all the power they needed over every aspect of Indian affairs. This power includes the power to take away their criminal jurisdiction, this power includes the power to destroy their religion, this power includes the power to break up their land and distribute it in allotments, this power includes the power to steal their kids out of their homes and send them to Indian boarding schools, this power includes the power to break treaties with them [because] they're savages. Now you would think that the Constitution would really spell that out. You would hope, right? [Because] that's a lot of power that the Court says Congress has under the Constitution. And you know how Congress took care to make sure that they got all that power? They said -- write this down [because] it's very long, I'll go very slow -- ‘Congress has power over Indian commerce.' That's the only time Indians are mentioned. Why? Because -- as I tell you -- you were basically a business proposition to the founders. And that's all they needed over you [because] the only business they cared about was getting your land, and everything else is immaterial. That's your legal status under the Constitution. But remember that. And the Supreme Court has consistently affirmed in the United States v. Kagama that the people of the states where the Indians are found are often their deadliest enemies. So the state has no jurisdiction on your land, over you or your people or your land, never has and continues to be the law of the United States.

We get treaty making. How many of you here come from treaty tribes either in Canada or the U.S.? Incredibly important documents; they're an Indian invention. Wampum belts, you know those things that savages carry around, the beads [because] we like beads. Those wampum, well, they're sacred treaty documents. And the English and the Dutch learned right away if you want to make treaties with an Indian, the 'X' stuff didn't work, when the Indians outnumbered the colonies very early on, that X stuff wasn't going to work. You put it down in a treaty belt [because] that was a sacred text that the sacred keeper of the belts would come out and interpret and remind William Penn and remind the governor of Montreal called Onontio. How many people here are from Canada? Onontio, Governor [Charles de] Montmagny, Onontio. What does Montmagny translate into? Great Mountain. Onontio is the Haudenosaunee word for 'big mountain.' He was adopted into the kinship system. Those treaty, what I call North American Indian diplomacy, those traditions go way back before Europeans. And when Indians were in a position of strength able to assert and exercise their sovereignty, Europeans negotiated according to those protocols and those traditions. And that's why the treaties, particularly the early treaties contained some pretty good language and some pretty good promises. They formed the legal basis of much of your sovereignty, but it's a recognition of what is inherent in you already, for U.S. Indian law recognizes that whatever hasn't been taken away remains. You're sovereigns only if Congress limits it.

Of course what begins to happen is that the United States goes through a Civil War, builds a railroad, acquires essentially what used to be Mexico -- we're standing on Mexican territory, O'odham territory -- the United States acquired this through the Mexican-American War and the Treaty of 1848 and that allowed them to build a railroad connecting the country. And so all those Indians we had put out in Oklahoma and were running around out there on the prairies and plains states that we never thought would be in the way, well, now we kind of need to build a railroad through there. And some of the best routes will be through where the Sioux are and the Cheyenne and the Comanche and the Navajos. So we better make some treaties with them and get those people rounded up and into control and on tighter, confined reservations. And so Congress in 1871 basically [because] the House is PO'd at the Senate for ratifying treaties that contained sweetheart deals for the railroad companies say, ‘You know what, we ain't going to appropriate any more money for your treaties.' What did I tell you? You're just a business proposition. ‘We're not going to appropriate any more money for your treaties and we're only going to break this stalemate if you promise never to make any more treaties with Indians again.' It's the only time -- are you listening to this? It's the only time in the history of the United States that both houses of Congress had voted to divest themselves of the constitutional power. Never happened before, never happened since. There is no other incident in history where Congress has said, ‘Oh, we have a power in the Constitution? No thanks. We don't want it. Okay, we promise never to touch it again.' It's that, Wow, it's mystical. Ooh, the treaty-making power. Put it away in a box. Lock it [because] we can't be doing that any more.' But nonetheless you have those treaties and they're recognized in the United States law -- know where they come from.

And of course what happens is that once the court says that, because you're savages and infidels and under our guardianship, we need to be able to administer your property in a way that you might not appreciate. We're going to pass the Allotment Act over your objections and we're going to allot all your entire reservations. But the problem is you have 144 million acres and we have lots of Irish immigrants and Eastern European immigrants who want to move out there and you've got the lands all tied up. So here's what we'll do, we'll divide up all your reservations into 160 acre allotments and what that'll do is reduce your 144 -- are you writing? -- your 144 million acres of land. If we divide it up into heads of households 160 acres each, that will reduce your 144 million acres of land under the treaties 90 million acres. So you'll get about 48 million acres, much of it marginal, much of it unwatered, much of it dirt and rocks, because the other 90 million acres we're going to give to homesteaders. And what will happen is, because they get all the lands that are around the rivers and the really good lands, you can watch how they grow crops and you can learn how to do it from them. They will civilize you. That was the idea behind the allotment. Courts of Indian Offenses. My god, we've broken up your land holding patterns, we've broken up your family patterns, we're sending your kids to boarding schools, we've divided up your clan and kin just purposely to disaggregate you through allotment. That was a purposeful policy, was disaggregating clan and kinship relations by placing brothers in different corners of the reservations with their individual allotments. And they even know if it was a matriarchal society to move the aunties around. They got really good at these sorts of practices of colonial governmentality.

And so of course what happens is a breakdown of law and order. And we know there's a breakdown of law and order [because] if you look at the Courts of Indian Offenses and their statutory authority, one of the first things they talk about is polygamy. We've got to cut down on polygamy. Well, you're killing off people left and right, you're killing off the men, you've taken away all the food. Have you ever thought about why there might be sisters, cousins, grandmothers, husbands, nephews moving in together into relationships you have no understanding about? But that gives you authority under the Courts of Indian Offenses to go and prosecute those crimes.

Then there's a big depression. It hits Indian Country incredibly hard. If you talk to your grandparents, ask them what it was like before the Wall Street crash. Indian Country was feeling it as were many of the more poor areas of the country. And when the depression hit it just devastated Indian Country. And the [Franklin Delano] Roosevelt administration comes in with a broad mandate to shake things up. And so what he decides to do is, as part of his New Deal, is reorganize Indian tribes and passes the Indian Reorganization Act along with those other famous reorganization acts establishing the Bureau of Irish Affairs, the Bureau of Jewish Affairs, the Bureau of Hispanic Affairs. We all know those great bureaus. You can go to Washington and see the big buildings and the huge bureaucracies built up around those different ethnic groups, who were all reorganized. No, you were the only people that needed to be reorganized [because] they'd screwed you up so much they had to start all over, is what they thought. So we're going to reorganize Indians and we're going to give you written constitutions and we're going to give you tribal councils. And literally, it's -- I'm not going to mention the name of this reservation but it's one I know very well -- when they asked the Indian agent, ‘Well, gosh, we established elective districts, 12 elective districts. And we've got to figure out how to divide that up? We don't gerrymander here.' And they said, ‘Well, do you have a cattle range map?' ‘Yeah.' ‘How many districts does that have?' ‘Twelve.' ‘Use that. That's how you select your political representatives through the way, the pass that the cattle roam.'

I'm going to give you the resume of the guy that Roosevelt picks to head up the Bureau of Indian Affairs: a Communist labor organizer in New York got his head beat in by the Pinkertons; left his wife and children and shacked up with a Broadway actress in a West Virginia river, lived the life of the wilderness; got bored with that, left her, moved to Santa Fe and shacked up with George O'Keefe and D.H. Lawrence and Isadora Duncan. And his first book on Indians, which qualified it [because] he was a born and bred Commie, was called Red Atlantis. John Collier, that was your Bureau of Indian Affairs director during the Roosevelt administration. Oh, I'm not going to tinker with these Indians am I? Gosh, what an interesting sociological experiment I've been given. Let's see what happens.

It starts getting better. Not really, because then Termination comes. Now Termination is like the height of the '50s. And if you read the Argo of -- sort of -- international foreign relations, the only other place you see the word being used is to describe the operations of CIA agents in foreign countries. So we're terminating dictators that we don't like and Indian tribes. And basically it just means end the treaty rights, end the constitutional status of Indian tribes [because] we're tired. And guess where we want to turn you over to? The states. That everybody's in the federal governments for hundreds of years has said [is] our deadliest enemies. Why would you do that? Because we want to promote your civil rights. That's how the Termination Era was used. It was, ‘Oh, blacks want to integrate. We'll try it with you Indians living in a communist society there on the reservation. We're going to turn you on to corporate shareholders and take Menominee's timber mill and turn it into MEI Enterprises; give you punch clocks and consultants and everything else. Then you'll be happy. Look what we did for the Native Alaskans, turned them all into corporations.' It's easy. Snap! Just like that [because] that's the power that Congress has. They can terminate you tomorrow if you piss them off enough. Don't say I didn't warn you. ‘Oh, gosh! Professor Williams told me this might happen. Why weren't you there at that NNI event, at that workshop? He told us. You didn't believe me.'

So Indians really did fight back. That's the birth of the NCAI, people like Vine Deloria. You start getting into the 60s and the Self-Determination Era, 1961. The [John F.] Kennedy administration repudiates Termination. Indians start joining the civil rights movement but they are trying to articulate their own unique voice. We don't want integration; we don't want assimilation. We want our treaties honored; we want the historic relationship between Congress and the tribes, that trust relationship enforced in a meaningful way consistent with emerging international human rights law principles of the state's duty of protection of Indigenous peoples. Isn't that what trust is? It's a duty of protection. And that's exactly what the International Human Rights Covenants say. The state has a duty of protection of all forms of culture, of all languages, of all religions. You can't go exterminating it because it happens to be economically inefficient. You can't go exterminating it because they happen to be a different race who you don't want to disrupt the purity of your own blood as in South Africa. People have fundamental human rights. And Indians start picking up on that discourse and begin to challenge many of the assumptions about what they wanted. And they begin to assert their jurisdiction.

I always love to tell this story cause I...so I was born in 1955. So like I was a teenager when my mother wouldn't let me go out to Alcatraz and join all the other Indians there. I swear since that time, everybody else went [because] everywhere I go there's like a million Indians who were at Alcatraz. ‘Yeah, I was there. Wounded Knee, too!' How many were there? Come on, look at the pictures, it's like eight guys and three women. Y'all hid if you were there. You were there at the BIA takeover? ‘Oh, yeah, I got mimeo copies. Look at that.' That's cred to me. If you've got the mimeo copies from the BIA records then you've got some cred but otherwise...But like Vine Deloria used to tell me, he says, ‘Man, it was great being an Indian leader back in the '60s. We'd go out there with Brando, we'd get shot at and he'd be ducking. We'd be going to fish-ins and we'd be trashing the BIA. Being a tribal leader today sucks. Man, sitting in budget meetings all the time, going to Washington, dealing with lobbyists, having to go in and talk to those idiot Congress people.' At that moment I swear to god, [Supreme Court Justice William] Rehnquist walked by. Rehnquist walked by, [because] we had him as a guest lecturer and Vine -- and he was old -- and Vine said, ‘Who is that, Williams?' I said, ‘Well, that's Chief Justice Rehnquist.' He said, ‘Man, he looks like S.' I remember that story very well.

But it's hard being a tribal chairperson today. It's hard being a tribal councilperson. It's hard running a tribal program. It ain't much fun. How many people had more fun days last week working than not so fun? How many fun days did y'all have? Give me one fun day that you had last week. [Sighs] Well, now you know why I do comedy [because] you guys need it. But I hope you understand there's a serious message here. Creating an independent tribal judiciary is hard work, because my uncle used to just pick up the phone and call the tribal judge when there was a problem. Why can't I do that? Or my aunt used to go attack the tribal budget when her nephew was in jail and she felt he didn't belong there. Or I remember the old council battles where they wouldn't fund the tribal defenders office [because' it just wasn't important enough. ‘Those kids were all guilty. Let them rot in jail without a lawyer.' I won't mention the community but I went up and gave... I used to give real fancy talks as a professor: 'This is why we need a juvenile justice system...' Until one day some of the aunties stand up and say, ‘We ought to go back to custom and tradition.' I go, 'Yeah, that's what I've been saying. Beat the hell out of them, then they're good.' ‘No, that's not the message. That's not what I meant by custom and tradition!' (That's just my first slide. Steve's getting really upset.)

So the good old days are over. It's hard work. You're in what I call the Nation-Building Era. I tell my students the good old days, the Self-Determination Era, in the sense that you all know what the boundaries of your self-determination are [because] you're pushing up against them every day, that's what the -- if you're a tribal leader -- the hard work of being a tribal leader is pushing those boundaries. But you know where they are [because] you get the AG upset or you get some judge sitting in Pima County ticked off or someone calls from the governor's office or something. So you're pushing those boundaries but you know what they are.

We know there hasn't been significant Indian legislation that tribes have aggressively pushed for that really created meaningful reform and recognition of rights since the Indian Child Welfare Act. It was that recognition of fundamental human rights, but we've been able to expand our jurisdiction over other Indians, right? The Duro Fix, the [U.S. v.] Lara case. Tribes were told, ‘We'll let you exercise criminal jurisdiction over other Indians as long as you don't even bring up Oliphant [v. Suquamish Indian Tribe] and the fact that case says you don't have it over non-Indians.' Okay. [Because] we'll get this and we'll prove we can do it and then things will, we'll see how it develops and see if we can mount that next challenge for that tribal [jurisdiction]. That's how we do things. It's hard work. We build step by step. And one of those important steps is putting the pieces in place to meet these challenges. And one of the most vital pieces is a strong tribal court [because] you've got limits on Indian self-determination defined by Congress and the courts, not tribes, the Indian Gaming Regulatory Act. And a lot of you are probably spending money on lobbyists beating back assaults on that.

Now you're dealing with labor unions. Okay, so, labor unions. We all know the stereotypes. I feel sorry, as someone who worries about Indian stereotypes, I feel sorry for people in labor unions and some of the stereotypes they have. But this is not something that you want to deal with. Labor relations are knock down, drag out. They come in, and let me tell you something, my father-in-law is in the labor movement. I have a tremendous respect for what these people do. Their ethic of belief in the labor movement is every bit as strong as your ethic of belief in tribal self-determination. And so if you're confronted, it's really hard work to sit down and work out common ground so that you can work together or maybe not work together. But at least do it in a way that's constructive and doesn't alienate all the employees in your establishment for example. So that's a challenge.

If I had told Billy Frank that you are fighting on the banks of the Columbia River for the right to avoid NLRB [National Labor Relations Board] certification, he wouldn't have believed it. No one knew where the struggle was going to develop. You don't know where it's coming next. You've got an incredibly hostile Supreme Court. Again, I love the people at NARF [Native American Rights Fund]. They're brilliant lawyers there. I've worked with them. And they and a bunch of other Indian lawyers said the best strategy now for Indian tribes before the Supreme Court is don't go, stay away. And it's hard work just to kind of get the cases through the circuit level in a way that the court won't pick them despite your desire not to have them go.

So you've got horrible cases coming out. You've got anti-Indian groups, anti-affirmative action. We just passed a proposition in this state that outlaws affirmative action in financial aid and in admissions. It's going to have a devastating impact, particularly on non-federally enrolled tribal kids. A lot of Indians can be full blood but they're not federally enrolled. And so since they're not federally enrolled, they're really a minority. And so you have these totally arbitrary distinctions where you have 100 percent Navajo and Pueblo kid where you have the flip on the matriarchal/patriarchal membership roll. And they're 100 percent, but they don't belong to the tribe. And under this bill, they're not entitled to affirmative action and financial aid or in admissions. They're in the pool with everybody else.

We've got shrinking federal budgets, rising health costs, No Child Left Behind, rising crime, unemployed youth, gangs, drugs, poor infrastructure. Let's throw some in. This is a cleansing ceremony. Anybody want to throw one in there? Come on, shout one out that I didn't include. Suicide -- oh, my god, yeah, good -- bad, horrible. Good in that, exactly. The voice coming from where it's happening at, you know. Domestic violence -- ah, good. I'm going to add the index of misery, the hard work. If you took one of these issues and made it your life's work and moved the ball ten yards down the field, you'd be Hercules, you'd be the new Amazon woman they're casting. To take all of them on at the same time with the resources you have, it's hard work. And your enterprises are competing inan increasingly multi-cultural, multi-global environment. [So where am I at on time [because] I want to leave time for questions? What time do I have here? Good, I'm going to wrap this up and then I'm going to let you fire away.]

So, here's where I kind of tie-in the nation-building stuff. We know that the real keys are practical self-rule. Well, think of what a tribal court does for you. It takes your tribal law and custom, its traditions, your constitution, the codes, the statues that you enact and apply them every day in a transparent, rational, non-political, non-partisan way so that everybody on the reservation -- Indian and non-Indian -- feels they are treated as equals with equal dignity and respect as human beings according to our tribal customs and traditions. A tribal court keeps you guys honest. You need that oversight, you need that accountability, you need somebody who has the final say on, ‘Just what the hell were you doing with this expense account report?'

Strategic orientation and leadership -- we've been talking about that. But you need something else. You need a legal framework for nation building. Remember your tribal powers. Remember your tribal constitution. Some of them may date back even before the IRA. How suitable are they to your needs today? Think about the way you treat issues of waivers of sovereign immunity. Think about your criminal codes, your juvenile codes. What have you done to make your nation stronger in those areas during your tenure on the council, during your leadership of a tribal program, in the classroom?

I want to kind of give one test to ya'll. I'll leave you with this and then I'll open it up for questions 'cause this'll get you thinking. Hopefully, I've provoked you enough to kind of think about where you're at in meeting this challenge. But this is a university and we like instruments. We've got to have data. So I collect this data, I promise they're writing it down. If you want to be anonymous, okay, but I want you to take this quiz. This is the tribal leader's executive education test for whether your reservation has an independent judiciary. And this'll tell you whether or not you really need an independent judiciary as part of your major nation-building task. On my reservation, the chair is related to the chief justice, yes or no? Just mark it down. On my reservation, the chair is poker buddies with the chief justice? On my reservation, judicial review means the council can review any judge who makes an unpopular decision and fire him, yes or no? On my reservation, checks and balances are something the tribal finance office can't ever seem to keep track of, yes or no? This is serious. You're compromising the integrity of my study by laughing. On my reservation, separation of powers means the council doesn't ask questions about the judiciary's travel expenses and the judiciary doesn't ask questions about the council's? Oh, my god. I've had people pass out. So just let us know, raise your hand if you're feeling...I've given this test [at] hundreds of workshops. These are the oldest jokes in the world. Come on. Okay. On my reservation, the question of whether the tribe should ever waive its sovereign immunity is something that only a fool would bring up in council? Serious question.

Okay, so here's how you judge yourselves. Six to five no's, you have a very independent judiciary. You don't have any work to do in that area. One to two no's, it's kangaroo [court] city baby. So where are you at? Are you hopping up and down trying to figure out where you're out in this nation-building challenge? Are you going to tackle it head on? Well, let's talk about that. We have a few questions. Let's talk about that challenge in some of your questions about this need for an independent judiciary to really recognize all those things we're talking about gelling together, the synchronicity of the nation building model."

Q&A Session

Audience member:

"How do we fight as a collective body and as individual tribes those of us that are fighting that white man's colonial rule? We were in court a couple weeks ago and we're dealing with...we've had contact since 1640 when our tribal system was set up in the 1700s based upon that trusteeship of put three people in a, three men in water, they're going to control everything and we can control them. Give them a bottle, they can sign their X and we get their lands and all. And how we deal with their water rights and their land rights and who can do what on their land and...so you just don't have any rights anymore. How do we fight that, and what is our recourse for those things?"

Robert Williams:

"So do you hire outside law counsel to do this for you?"

Audience member:

"We have our own and we have outside law counsel. We have tribal lawyers."

Robert Williams:

"And how's that work divided?"

Audience member:

"Of course the white man is getting more and the tribal member lawyer gets this much..."

Robert Williams:

"And what do they bill you per hour?"

Audience member:

"Probably $700 and our trial lawyers maybe get $125. What did my sister say? She gets 38 cents per hour."

Robert Williams:

"It's a tribe around here. Because I've been associated with them so long and have been intimately involved with them for so long, some of the details I don't remember. So I'm just going to give you a basic narrative of what happened when I came here in 1987 and was asked to be a judge at the Tohono O'odham tribal court. There's a guy there named Ned Norris...I love Ned as a brother. And we used to sit in the trailer at Tohono O'odham court. I remember going down there -- they asked me to be judge -- and I'm looking for a building and I can't find it. And I call up and Ned says, ‘The trailer, dummy. What'd you think, we had our own building? This is tribal court.' So I go in the trailer. And the library is like 30-year-old volumes given out by the law school that were eaten away and it was just absolutely horrible. And Ned's sitting there thinking, ‘Rob, one day I'm going to run this place.' I go, ‘You can have it, man!' But Ned had vision, you know what I'm saying? Ned had vision.

And you know what I saw over the course of 25 years, I saw people like Ned and chief judges and tribal council members and great tribal leaders who started...They had an attorney general and they had like one lawyer and basically their job was to farm stuff out to the big firms in Phoenix and to Tucson and to New York on their water rights litigation and they were spending hundreds of thousands of dollars. It sort of constrained their ability to assert their sovereignty and it also constrained their ability to pick their battles and to strategize [because] they had this firm doing that and that firm doing this and you had two guys or women in there who just really didn't have control. They weren't having strategic control, they were like insurance adjustors. Don't answer, but if that sounds familiar you see where I'm going. And you can begin to see the lessons, because what I saw happen there was, they said, ‘We need to protect the rights of people here. We've got a crime problem, we're going to invest in our police, we're going to do community policing, we're going to build our own jail, we're going to stop sending our kids to Pima County where they hang themselves and nobody cares. We're going to provide alcohol counseling. We're not going to lock up people as a first resort; we're going to give people a second chance. And that's going to require investing in lawyers and tribal advocates and training and judges and that's going to cost money.'

But guess what? They started training their own lawyers. And some of those lawyers that started out as advocates went to law school and then went into the attorney general's office. Again, this is going to be a really radical proposal, but I bet you all agree. I would rather have a tribal attorney who understands the tribe really well than who understands a technical area of law really well. Sound familiar? These people -- whether they're your own tribe or other Indians or non-Indians -- who come and work in those entry level positions, they learn the community, they learn who to talk to, who not to talk to, keep your head straight, know how the community feels about certain things. They become valuable instruments. And they started moving into the AG's office and instead of paying Phoenix $500 an hour, they were paying those folks a salary of $80,000, but a lot less than $500 an hour -- do the math -- to work on their water rights case. And I've seen that legal department. And again, it's a feeder system. They're developing their own and you've created a legal system. Remember the requirements, the legal infrastructure? You've got a strong AG and they can take on your water rights cases and you've got a strong legislative legal counsel who can help you draft your codes and your ordinances. And what you find on very successful reservations is somebody's resume -- they've done three or four of those jobs -- and the good ones go in, get the office in order and are asked to take on a new challenge. And you're investing in people rather than in some stupid law firm's mahogany desk."

Audience member:

"We're at that point now. We just got our federal recognition after a 32-year fight. We've been a state-recognized tribe, so we have run our own things, but we are in the process of doing tribal courts grant so we can put our law enforcement and our tribal court in place. We are working on constitution, not ratifying what was drafted yet, but trying to look at it. And that's why we're here to help put our governance in place with that and all. But again, it's like we're fighting. You have the state attorney general...now we're in...we went for federal recognition so that the feds would take up our land claim case, which now with Carcieri [v. Salazar] and everything else, the game's changed. The rules changed."

Robert Williams:

"Strategic orientation. That sounds what's key for you guys is to keep your eye on the prize. You're fighting fires every day. Prioritize, strategize, learn, build resources as you go along, and pick your fights well. And you'll find out that one fight well fought teaches them a lesson. Let me tell you something that I learned. I've done some litigation with some very good litigators. And the first thing a good litigator told me was, focus on your opponent's greatest strength and turn it into a weakness. And in this area, I hate to say your law firms are your opponents, but when you look at those monthly billings sometimes, ‘What does this guy got against me?' But their greatest strength is their expertise and knowledge. If you build and invest in that expertise and knowledge as part of your strategic orientation, if you invest in judicial training, think about the cost that you save when you can bring cases in your own tribal courts. Imagine if you have a tribal contract and it gets flipped into state court. Then you don't have anybody who's ready to litigate that case. You're going to be paying $500-600 an hour for state litigation. Whereas if you were confident enough to waive your sovereign immunity into your own tribal courts and you had independent judges who could hear that case and the outside business community knew they would get a fair shake and your guy can walk out that trailer to the court next door and doesn't have to bill you to go into Pima County Courthouse, think of all the money you save."

Audience member:

"Or federal circuit court."

Robert Williams:

"Thank you. Boy. I would. No, I wouldn't want to see your billings but I bet you pay for Kleenex for these guys. If they pack Kleenex in their suitcase, they charge you. Other questions?"

Audience member:

"Can you comment a little more on waiving sovereign immunity for economic gains?"

Robert Williams:

"Yeah. Many tribes, I think, ‘the most successful tribes.' Now, what do I mean by successful tribes? There's lots of ways to measure success, but to me these are tribes that have healthy, vibrant communities. And you go there, you just feel things are moving forward, that people have a vision, that there's a shared sense of responsibility and reward that we're doing things the right way. What I find is those tribes have tackled the issue of their sovereign immunity. Twenty years ago, it was very rare to see tribes willing to address the issue of strategically choosing when to waive sovereign immunity for certain types of businesses and business entities. And there are still tribes and many of the old-line tribal council members who feel that a waiver of tribal sovereign immunity -- no matter how carefully crafted and strategically thought out -- is a surrender of sovereignty. It's not. It's using your sovereignty. It's a tool. It can be a bargaining tool. It can make you stronger. It can make you think about where you need to use it and where you don't. You can think about how it can leverage other investment opportunities.

For example, I've seen this at negotiations and the negotiations get hung up on choice of form. ‘Okay, well, we're going to...we want to put this contract dispute,' it goes into Oklahoma court. And the tribe sits there and says, ‘Well, we're not going to waive our sovereign immunity.' And that's it. The deal goes away. Think about the tribe saying, ‘Uh, we don't have anything in principle about defending our actions. We're entering into this in good faith. We know we're going to honor our obligations but contracts break. Sometimes there's problems, but we'll waive our sovereign immunity but we'll do it in our own courts. And we'll invite you to sit in on our courts and see how they work. And we'll show you, we'll introduce you to our judges and you can look at their resumes and you can see their training. And we can guarantee you a fair hearing and we can point to other litigants in our tribal court -- some of whom have won, some of whom have lost. We can refer you to outside attorneys who've been in our tribal court and you'll see if you're willing.' So at least it gets you to part two of the deal. Instead of the door closing, you've opened up another issue for negotiation and you've kept the deal rolling.

So I think that the tribes that I think have been kind of most thoughtful about how they use this tool and when they use this tool and the power it gives them have been the ones that I think have been able to do things economically. And both in terms of housing, community development -- there's a whole range of issues where tribal sovereignty can stand as a barrier to the hard work that needs to be done. And quite frankly, you can go and insure up to an amount. Again you can limit your liability under an insurance policy. You can make the Republican legislators happy by eliminating punitives in tort cases. They love that. That's what the whole fight over medical malpractice is. Many tribes have eliminated punitive damages in their own courts. And so the only people who are going to end up upset about that are trial lawyers."