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Ned Norris, Jr.: Strengthening Governance at Tohono O'odham

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Native Nations Institute
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Tohono O'odham Nation Chairman Ned Norris, Jr. discusses how his nation has systematically worked to strengthen its system of governance, from creating an independent, effective judiciary to developing an innovative, culturally appropriate approach to caring for the nation's elders.

Native Nations
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Norris, Jr., Ned. "Strengthening Governance at Tohono O'odham." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. February 16, 2012. Interview.

Ian Record:

“Welcome to Leading Native Nations. I’m your host, Ian Record. On today’s program we are honored to have with us Ned Norris, Jr. Since 2007, Ned has served as chairman of his nation, the Tohono O’odham Nation, winning re-election to a second four-year term in 2011. He has worked for his nation for the past 35 years, serving in a variety of capacities, from Vice Chairman of his nation to Director of Tribal Governmental Operations to Chief Judge of the Tohono O’odham Judicial Branch. Chairman, welcome, good to have you with us today.”

Ned Norris:

“Thank you very much. It’s good to be here.”

Ian Record:

“I’ve shared a few highlights of your very impressive personal biography, but why don’t you start by telling us a little bit more about yourself?”

Ned Norris:

“Well, I’ve… born and raised here in Tucson, born at San Xavier when it was a hospital in 1955, and pretty much grew up here and spent all of my life here in Tucson, and got married to my wife Janice in 1973. And actually Friday, February 17th will be 39 years that she’s put up with me.”

Ian Record:

“Congratulations.”

Ned Norris:

“So I really appreciate that. We have children, we have grandchildren, and it’s great seeing them, and seeing how our kids have developed over the years and seeing how our grandchildren are coming along.”

Ian Record:

“Well, we’re here today to tap into your knowledge, your wisdom and experience regarding a wide range of critical Native nation building and governance topics and I’d like to start with tribal justice systems. You’ve taken on many different roles in your nation’s justice system including court advocate, child welfare specialist, and judge. And so I’m curious, generally speaking from your experience and your perspective, what role do tribal justice systems play in the exercise of tribal sovereignty?”

Ned Norris:

“As I was thinking about this, I was thinking about where we were as early as the late 1970s. For some people that’s not early, for some people that’s a long time, but when we think about where our tribal system, judicial system has developed since ’79 and forward, we have really come a long way in realizing that the court system itself plays a significant role in ensuring or demonstrating our ability to be a sovereign tribal entity. Obviously the tribal legislature’s going to make the laws and the executive side of the tribal government is going to implement those laws, but the court system really has a key, significant role in determining, in how those laws are going to be interpreted and how those laws are going to be applied. And for me that’s really a significant role in the tribal judicial system ensuring that whatever we’re doing internally with regards to applying the law as it is written by the legislature and implemented by the executive branch that it is ensuring that sovereignty is intact, that it’s ensuring that we have the capabilities of making the decisions that we need to make in order to govern our nation.”

Ian Record:

“A law professor here at the University of Arizona who you know very well, Robert Williams, who serves as a pro tem judge for your nation’s judicial branch describes this systematic effort your nation has engaged in over the past three decades or so to build an effective, efficient, tribal justice system from the ground up. Why has the nation engaged in that effort and why is that important?”

Ned Norris:

“I think that it has a lot to do with the fact that we’ve got tribal legislators over the years that have really began to take a holistic look at the tribal government as a whole and realizing that for the most part as late as the 1970s, early 1970s, our tribal judicial system was really what I would refer to as a BIA [Bureau of Indian Affairs]-type system. Tribal codes were developed, but they were really taken off of boilerplates of BIA codes and so on and so forth. So I think that our leadership, our tribal council began to realize that these laws don’t always have the kind of impact that we would like them to have. And so in order for us to be able to govern ourselves and to determine our own destiny as it relates to [the] tribal court system, we’ve got to begin the process of changing the system and bringing it more up to speed, so to speak.”

Ian Record:

“And part of that I guess, regaining control of the justice function of the nation, things like making sure that you are charge of law and order, that you’re in charge of dispute resolution, that when you have a young person who has a substance abuse problem that they’re being taken care of, that issue is being taken care of internally versus them being shipped off the reservation, making the system more culturally appropriate, where the people in the community feel like this makes sense to us. Can you talk about that dynamic in the work that the nation has been doing in that regard to, I guess, make the justice system their own?”

Ned Norris:

“Well historically, I think it’s unfortunate that back then, and even to some extent even today, tribes do not have the level of resources available to address the more intricate needs of a substance abuser, an alcoholic, whatever the case may be, and so even today there are needs. There is a need to identify resources, whether it’s on or off the reservation to address that, but I think most importantly is the idea that we would be able to create the kinds of services that we’re using off reservation and bringing those services on the reservation where we’re playing a more direct role in that person’s treatment, in their rehabilitation and really looking at it like…from the perspective that this is family, this is part of our family. This individual isn’t just a member or a citizen of our nation, they are a citizen of our nation that we should take more of a responsibility to try and help within the confines of our own tribal nation, our people. And so I think when we think about it from that perspective, we begin to realize that maybe the services that we have are not as adequate or not as resourceful as we would like them to be. So we’ve got to be able to identify that and be able to identify where those voids are and bring those services into that program or create the program that…where those voids exist.”

Ian Record:

“It really boils down to the nation itself best knowing its own needs, its own challenges versus somebody from the outside that is simply just bringing in something from the outside that may not…”

Ned Norris:

“Not only that, Ian, I think that in addition to understanding that we have…we as the nation membership have a good understanding of what those needs are and what those resources are or aren’t, but also really realizing that if we’re going to bring or utilize outside resources to do this, those resources aren’t always going to be there. We’re going to be there, we’re going to continue to be there, our members are going to continue to be there and what makes more sense to us is to be able to take control and bring those services, develop those services where they lack and provide the services more directly by the nation’s leadership itself.”

Ian Record:

“One of the things that Professor Williams points to in this effort that the nation’s been engaged in around the justice system for the past 30 years is how the nation has invested in its own people, how it’s worked to build the capacity, internal capacity of its own people to provide justice to the community. Can you talk a little bit more about that? You’re a byproduct of that effort.”

Ned Norris:

“Well, I think that when we talk about investing in our own people, over the years in a more significant sense we’re…we’ve been able to establish our gaming operation. That operation has played a significant role in our ability to bring the kinds of services that aren’t there, that haven’t been there, or those kinds of services that we would for many years just dream about having and even to the extent that we’re developing our tribal members. I think, just to give you an example, pre-gaming we probably had less than 500, 600 employees that worked with the tribe and now we’ve got well over, I think it’s about 1,400 tribal employees and we’ve got a varied amount of programs that have been developed that are really beginning to address a lot of the needs that we’ve been having over the years. And not even that, the ability to develop our own tribal citizens in providing them an opportunity to train academically, whether it’s a vocational program, whether it’s a two-year or four-year college, whether it’s earning a bachelor’s degrees, master’s degree, doctorate degree, whatever the case may be. We’ve been able to provide that kind of an opportunity for our members to be able to acquire the kinds of skills that they lack academically and bring those skills back to the nation and apply those skills.”

Ian Record:

“Yeah, and I think what you’ve addressed is there’s a major obstacle for many tribes in that they’ll invest in their people, they’ll send them off to get a good education, but then it’s really critical that there’s a welcoming environment for those college graduates to say, ‘We’re sending you off to get a skill to come back and apply that skill here on behalf of the nation.’”

Ned Norris:

“Exactly, and part of our challenge as tribal leaders is making sure that we create the ability for those members to be able to come back. Too many times I’ve shared with different audiences over the years that we’re graduating more O’odham with bachelor's, master's and doctorate degrees than in the history of the whole tribe, however, where we may lack in the ability to create the kinds of jobs that those individuals trained for. And so we need to prepare ourselves to be able to receive those tribal members back and provide them the kinds of job opportunities that they’ve spent four, six year, eight years in college acquiring, but also not only be able to do that, but to be able to pay a comparable salary for the kinds of positions that they’ve trained for.”

Ian Record:

“I’d like you, if you wouldn’t mind, to paint a picture. Before we went on air you were describing a little bit about what the nation’s justice system looked like when you came on board and started working within that system. Can you compare and contrast what the justice system and what the justice function looked like back in the early 1970s or mid 1970s, to what it looks like now?”

Ned Norris:

“Wow. It’s a night-and-day comparison really, because just physically we didn’t have the kinds of facilities necessary to really do… provide the kinds of justice services that our people should be afforded and we…when we talk about facilities, we talk about staffing, we talk about laws in themselves or codes, back in the late ‘70s, the early ‘80s, there was a time there that our law and order code was a boilerplate from the BIA code and I think that it took some years and some education and some effort to begin the process of understanding that this boilerplate code is obsolete in our mind and we need to begin the process of developing our own tribal codes. And so we began that process in writing our own tribal code, our law and order code, our criminal code, our civil codes and other codes and that took a process, but once we’ve done that and the tribal council adopted those codes, we started to apply them in the tribal judicial system. And so I think that when we compare where we were in the late 1970s to where we are now, the only… the concern that I have is, being a former judge -- I spent 14 years as one of our tribal judges and from ’79 to ’93 --and I’ve seen the court system develop over those years and seen how obsolete the laws were back in the late 1970s to where we were able to develop those laws. But also realize that back then in the early 1990s, I began to think about realizing the time that the court system is no longer processing and dealing with human beings, but they’re dealing with numbers. You become a number at some point, a case number or whatever because early on we came into this with the perspective that we’ve got this tribal member that is maybe committing crime, but there are a lot of factors that are contributing to why that tribal member has committed that particular crime and that we, the court system, although it has the law before it and the law may provide a jail sentence and/or a fine, the idea wasn’t always to throw this person in jail because of the crime they did, but to try and dig a little deeper into what’s really going on within that individual’s situation. Is it the home situation? Is it…was the person an abused person over a time of their life, was that person a victim of incest that just was never dealt with? And so we came to this with the perspective that the court system enforces the laws, applies the law and issues sentences, but some of that sentence has to take into consideration how can we help, how can we help this individual, how can we help the family address those issues that are impacting or having an influence in them committing the crimes that they’re committing?”

Ian Record:

“You mentioned that for several years you were a judge and so you’ve seen firsthand how the court system works and you’ve been a part of that court system. There’s an issue…there’s a major infrastructure challenge for a lot of justice systems across Indian Country. Can you talk a bit about what Native nation governments can do to ensure that their justice systems have the support they need to administer justice effectively?”

Ned Norris:

“One is, there was a period of time where the tribal legislature was what I refer to as the supreme authority on the O’odham Nation, at that time the Papago Tribe of Arizona. And as that supreme authority, there was really not a separation of powers between a three-branch system. And so, over the course of those years, early on the tribal supreme authority, the legislative authority really infringed on or encroached on what should have been an independent judicial system. And so I think, in answer to your question, tribal governments, tribal leadership should realize that it is imperative to the success of a tribal governmental entity that an independent system of judicial…a system to dispense justice is not having the kinds of influence by the other two branches of government that would impede its ability to deliver that justice. And I think that once we begin to understand that and realize that and realize that that not only does that involve the legislature not meddling into the judicial process, but it also has to involve an understanding that because in many tribal governmental entities the tribal legislator controls the purse, controls the funding, that they not use that as a basis to not fund the needs of the tribal judiciary. And I think that because the council has the authority to disperse funding resources that the courts still have to go to the council and ask and present their budget and ask for funding for infrastructure, for whatever the case may be. That there still has to be a relationship there, but I think that the tribal legislature needs to understand too that they shouldn’t use their role as a tribal legislator to deny the kinds of resources that the court system needs.”

Ian Record:

“You mentioned this issue of political interference and this is something that comes up in virtually every interview I do with folks on this topic of tribal justice systems and they all…almost all of them mention this issue of funding and how that can be rather than direct interference in a particular court case, but this kind of more subtle, insidious process of denying funding or reducing funding or holding funding hostage to…in exchange for certain considerations -- that that sends real messages and others have talked about how this issue of political interference can be a very slippery slope. That if a chair or a legislator, once they do it once for one person, word’s going to get around that, ‘You just need to go to this council person and they’ll get involved with the court case on your behalf.’ And in many respects doesn’t that distract the executive…the chief executive of the nation, the legislators from focusing on what they really should be focusing on?”

Ned Norris:

“Yeah, if we’re taking so much of our time and energy dealing with a relative’s court case and not allowing the court to apply justice to that situation, then obviously it’s taking us away from our real role, which is to provide the kinds of leadership and direction that we need to provide to run our government. So yeah, political influence, I think early on was an issue. Now, I think it’s rare. I think that we’ve educated our leadership to the extent that they understand the concept of separation of powers, that they understand that they shouldn’t use their position to try and influence a decision that the court is going to make. We’re not 100 percent, but we’re far less than what we were in the late 1970s and I think that that whole process just took a series of education and in fact, in some cases, some case law that’s already been established where the legislative branch was trying to encroach on the powers of the executive branch, we’ve had those cases in our tribal court system and those decisions are the law at this point.”

Ian Record:

“This wasn’t originally in my list of questions, but since you brought it up, I’d like to talk about the role of justice systems and the judicial branch, particularly your nation, in essentially being a fair umpire when there are conflicts between the executive function -- whether it’s a separate branch or not -- but the executive function of the nation and the legislative function. How important is it to have somebody, whether it’s your courts or an elders body or somebody, some entity that can, when there is conflict between those two functions to say, ‘Okay, let’s take a look at this and let’s be the fair arbiter here.’?”

Ned Norris:

“I think that it’s critical. I think it’s critical to be able to understand at some point in that particular dispute process that we’ve got to sit back and we’ve got to realize that as the two branches that are in dispute, is this an issue that we really want the courts to have a major role in deciding or do we want to come to terms or come to some level of understanding, try and resolve the matter before it ends up in court? I think that we should look at those kinds of issues from that perspective because once you get the court involved, the court is going to make its decisions based on the law, and the law is not necessarily always going to be the way to resolve or the way that you may… either side may want this particular issue resolved, and I think for the most part too, the court itself should realize if there’s an opportunity to resolve the dispute outside of the court, laying down the gavel and saying, ‘I hereby order…,’ that giving the parties an opportunity to resolve this dispute, whether it’s an encroachment by either branch, executive to legislative or vice versa, that we always have the opportunity to try and come to terms on resolution even if it means calling, I don’t know, I don’t want…I guess we could call him an arbitrator or mediator or a council of elders, to come in and provide some level of traditional means of resolving the dispute. I think that that’s important, but it’s important for the parties to make that decision. I’m not always open to the idea that court systems will order you to call in a council of elders or a medicine person to come help resolve this issue. I really think that that’s got to be the tribe themselves to make that decision. Over the years, the court has issued those kinds of orders and I think that they’ve worked, but for the most part I think that it’s the parties themselves need to make that determination and that decision.”

Ian Record:

“I would like to jump forward basically because of what we’ve been discussing and talk about the fact that virtually every tribe that I've worked with there’s always going to be some level of friction between the nation’s executive function and the legislative function. It’s just the nature of politics; it’s the nature of governance. And you being in that role of chairman now for multiple terms, I’m sure you know exactly what I’m talking about that despite your best efforts, there are times when you come to an impasse or there’s a conflict that emerges. Can you talk about how do you build constructive working relationships -- as a chair -- with the legislative branch, the legislative function of government to try to make that relationship as productive and as seamless as possible?”

Ned Norris:

“Well, I have to say that I’m proud of what my first four years of leadership has done to do exactly what you’re asking because I felt and I sensed and I heard from many council members that there was really a breakdown in the relationship between the branches. And we knew then, Vice Chairman Isidro Lopez and I, and now even Vice Chairwoman Wavalene Romero and I realize, that it’s got to be a continuous effort to build that relationship, still maintain and understand there are certain constitutional authorities and powers that each individual branch has, that we need to understand what those constitutional powers are and that we don’t encroach our authority and violate what those powers are, because once you start doing that then you begin the resistance between the two and it doesn’t make for a good working relationship. We knew coming into office four years ago, and even continuing in my second term, that we’re going to need to continue to develop that relationship and I’m comfortable that where we’re at some, almost six years, five years later that we’ve been able to have a level of understanding that decisions are going to need to be made, that decisions that even though I have authority to veto decisions of our legislature, it’s been...in four years I think I’ve exercised that power twice and -- actually three times and -- both of those times those issues have been resolved. One issue is still pending in court, but I think that in itself speaks for the fact that we have a very understanding working relationship between the executive branch and the legislature and it’s really a continuous level of communication, it’s a continuous level to understand where they’re coming from on that particular issue, where you think you’re coming from and how do you work together to resolve your differences and how and at what point do you want to compromise in order to be able to accomplish what it is you want to accomplish. I think for the most part all of us want what’s best for the people of our nation. How do we get there from here to there, we may have some differences. And it’s discussing, resolving those differences to hopefully come to a positive outcome for providing the leadership that our people need.”

Ian Record:

“I’d like to switch gears now and talk about tribal bureaucracies. In addition to serving as your nation’s Director of Tribal Governmental Operations -- as I mentioned at the beginning -- you also have served as its Assistant Director of Tribal Social Services and as a former Commissioner for its Tribal Employment Rights Office, its TERO office. What do you feel from your diverse array of experiences, what do you feel tribal bureaucracies need to be effective?”

Ned Norris:

“Well one, I think clearly the individual that has a level of authority in that bureaucracy needs to understand themselves what…where do their powers derive from and to what extent do I have any power at all? And I think the individual then taking that in the whole from let’s say the tribal legislature or… I’m constantly having to make the kinds of decisions, leadership decisions that I need to make, but I’m constantly asking myself in my own mind, ‘Do I have the authority to do this?’ And I think that that’s the kind of understanding in our own minds that we need to continue to ask ourselves, ‘Do we have the authority to do this? What does the constitution say on this particular issue? What have the courts said on this particular issue? What has tradition said on this particular issue?’ And being able to understand that in all those perspectives I think is really where we need to…it’s going to help in the bureaucracy that’s created, because to me 'bureaucracy' isn’t a positive word in my opinion.”

Ian Record:

“Tribal administration.”

Ned Norris:

“Tribal administration, there you go. The Bureau [of Indian Affairs]’s a bureaucracy, but in tribal administration, I think that if we’re going to be able to…the end result is how do we get to be able to provide the kinds of needs that our people deserve and are entitled to? And are we going to create the kinds of roadblocks…and if there are roadblocks, then how do we break down those barriers, how do we break down those roadblocks, how do we begin to sit at the table with each other? I’ll tell you, there was a point in time where -- and I think it’s with any government -- but there’s mistrust, there’s a certain level of mistrust between the tribal branches or the governmental branches and it’s needing to understand that regardless of what I do there’s still going to be some level of trust. I’ve got 22 tribal council members. I still have to accept the fact that I know there’s at least one, maybe more, of those 22 council members that don’t want to see me where I’m at today and accept that. I accept that, but that doesn’t mean that I not continue to do what I think I need to do in working with my supporters and my non-supporters. They’re still a council member, I still have to work with them, I still need a majority of council to get the kinds of approvals or decisions to do things that I need. We need each other. The council needs the executive branch and the executive branch needs the council.”

Ian Record:

“You mentioned at the beginning of your response about the importance of every individual that works within the nation and for the nation understanding what their role is and what their authority is. Isn’t that absolutely critical when you talk about say, for instance, the nation’s elected leadership versus say your department heads, your program managers and things like that? That there’s a common understanding of, ‘Okay, when it comes to the day-to-day management,’ for instance, ‘of this program, that’s not my job as an elected official. That’s the job of the department head and the staff below them.' Because that’s a major issue that we’ve encountered across Indian Country, where there’s this constant overlapping of role boundaries if you will.”

Ned Norris:

“Micromanaging.”

Ian Record:

“Yes, that’s another way of putting it.”

Ned Norris:

“Yeah, micromanagement. I think for the idea or the idea of overstepping one’s authority where it appears, or at least you’re experiencing micromanagement, I think that for some time there was even a certain level of micromanaging that was going on and attempted to be going on from tribal council members or council committees on executive branch programs and we even see a certain level of that even today, this many years later. But I think how we handled those situations really has an impact, because I think for some time, we’ve got to realize that I’m not going to disallow my department directors, my department heads or anybody in those departments to not take a meeting with the tribal council committee if the council committee wants them to be there. That wasn’t always the situation in previous administrations, but for me, the council needs to be as informed on those issues in their role as a tribal council member. I think that when we think about micromanaging, again I think that it’s really a level of communication as to how you’re going to deliver. I’m not going to sit there and say, ‘Council member, you’re micromanaging my programs and that’s…I have an issue with that.’ I think that how we explain to them that we’re going to provide you the kinds of information that you need, but as the Chief Executive Officer under the constitution I have a certain level of responsibility to make sure that these programs are doing what they’re intended to do and I will assume that [responsibility]…I will exercise that responsibility, but we’re going to keep you informed, we’re going to keep…and if it’s personnel issues, that’s a different story. That’s clearly…we’ve got to protect the employee and the employer, but I think that for the most part we…how you communicate -- I’m trying to explain this. I’m not sure I’m doing a good job of it -- but how you explain without offending is critical to the outcome. And I don’t want our council to think that I’m prohibiting our departments to communicate issues with the council, because once we start doing that then you start to create barriers there and I don’t want those barriers, but at the same time the council needs to understand that if it’s an administrative issue that is clearly within my authority as the Chief Executive Officer for my nation. I have directors, I have people that are…that I hold accountable to make sure that those issues are addressed.”

Ian Record:

“You mentioned a term that I think is really interesting, I’d like to get you to talk a bit more about it. You said, ‘It’s critical to explain without offending.’ And we’ve heard other tribal leaders and people that work within tribal government talk about the fact that the impulse to micromanage, the impulse to, for instance, interfere, for an elected official to interfere on behalf of a constituent, for instance -- it’s always going to be there. The question’s how do you explain to that person that wants to interfere, that wants to micromanage, that this is not the way we do things because we have processes in place, we have policies in place that prohibit me from doing that? That’s not to say, as you said, that we can’t have a communication, that you can’t understand what’s going on and why, or why a certain decision’s been made the way it’s been made, but we have processes in place. How critical is that to have that…I guess to have that basis upon which you can explain without offending? That there’s these processes in place that are critical to the nation functioning well?”

Ned Norris:

“Sure. I think that it’s extremely critical to be able to have a level of understanding, but a certain level of trust. I think follow-up is key. I think if you’re going to have a council member or a council committee that is raising issues that are clearly an administrative function of one of my departments, then I’m not going to leave them out of that issue because they have a reason, they have an importance, they have a constituent out there that brought the issue before them. They need to know, they need to understand and so I’m going to make…I’m going to give them the assurance that as the chief administrator, I’m going to make sure that my people are going to follow up on that issue, but I’m also going to make sure you know what we’ve done. Not necessarily what disciplinary actions might have been imposed, but how are we going to address that issue? And make sure that I get back to them and tell them, ‘Here’s where we’re at with this issue, here’s what we’ve done. I want the program director to come and explain to you where we’re at on this as well.’”

Ian Record:

“You mentioned this issue of personnel issues, which are inevitable. They always arise -- whether it’s a hiring and firing dispute, whatever it might be -- and you mentioned it’s a whole different ballgame, that that really is critical that that’s insulated from any sort of political influence whatsoever. And we’ve heard others talk about how important that is to achieving fairness within the tribal administration, achieving fairness within how the nation operates, how it delivers programs and services. Can you talk a little bit about how your nation has addressed this issue of personnel disputes?”

Ned Norris:

“Well, I have to say that I…we have a lot yet to develop. We have a system to grieve, there’s a policy, personnel policies are in place, there’s the policies outline as to how individuals grieve an employee-employer situation. And I’m not…I haven’t always been 100 percent satisfied with the system itself. And so we’re currently going through a rewrite or a restructuring of what that system should be and really all in the interest of facilitating the process in making sure the process is more friendly to both sides, the grievant and the grievee and so on and so forth, because I think that our process involves a panel of individuals that may not necessarily have the level of training or understanding of what their duty and responsibility is as a panel member hearing that grievance. And so we have a panel and an individual or individuals on that panel that may think their authority is much bigger than what is really outlined or that they may need to make decisions that aren’t necessarily related to the grievance itself and those kinds of decisions have come out and our current policy provides that as chair of the nation, the chair has the final decision over a grievance that hasn’t been resolved at any one of the lower levels. And it’s by that experience that I realize we’ve got to change the process; the process needs to be more equitable I think to not only the process, but to the grievant, the person grieving it themselves. So I think that you want to make sure, you’ve got to make sure…you’ve got to ensure to your employees that we have a system to grieve that is fair, that they have confidence in, that they have the comfort that they’re going to…they know that when they get to the process, that that process is going to move along as fast as possible, but that their issue is going to be resolved. And I think too many times we don’t get to that point, but I think it’s the process itself that needs to be looked at, but we need to develop a process that is fair.”

Ian Record:

“I’d like to talk now about a symbol of pride for your nation, and that’s the Archie Hendricks Sr. Skilled Nursing Facility and Tohono O’odham Hospice. What prompted the nation to develop this amazing, what’s turned out to be this amazing success story and what has it meant for the Tohono O’odham people and in particular, its elders?”

Ned Norris:

“Archie Hendricks Nursing Care facility was a dream for many years. I was in tribal social services when, not long after the tribe contracted [Public Law 93-] 638, those social services from the Bureau. And it was really unfortunate that too many times when our elders needed nursing care that those elders were, as a figure of speech, shipped to some nursing facility in Casa Grande, in Phoenix, in other areas of the state and literally taken away from their home, taken away from their family. And too many times, the only time that those elders came back was in a box, when they’d deceased at that facility. And too many times having our elders placed in off-reservation facilities limited or to some…and in some cases prohibited family members to participate in their care in that off-reservation facility. And it just made sense that we begin the process of creating a facility on the nation where our elders can stay home at a location that we think is kind of central to where members, family members can commute, have more easily the ability to commute to that facility and visit. Too many times…a lot of our folks don’t have vehicles. A lot of our folks pay somebody else who has a vehicle to take them to the post office, take them to Basha’s or take them to somewhere, in a lot of cases drive them to Phoenix to visit their elder in the nursing home. And even though that still is the situation today with many of our members, the drive is a lot shorter than it is just to go to the Archie Hendricks facility. But also not only to be able to bring our elders home and have that service here on the nation, but also to…it’s an opportunity to instill tradition and instill who we are as O’odham into the care of our elders and in doing that, also having the opportunity to train tribal members in that particular service. We have a number of tribal members that have gone on to earn academic programs that are now applying those skills in the nursing home. So it had a win-win situation all the way around, not only bringing our elders, but a job opportunity; an opportunity to create a program that wasn’t there.”

Ian Record:

“Obviously that success story has addressed a particular need and as you’ve shared, a very dire need. But I guess on a larger overall level, doesn’t it send a very powerful message to your nation’s citizens that if we have a challenge, if we have a need, we can do this ourselves?”

Ned Norris:

“Oh, I think that’s true. I think that that’s maybe one of the bigger messages that we’re demonstrating because even today we think about…in fact, I had some, a family member come into my office that were concerned about their child or their nephew that was in an off-reservation youth home placement and that individual turned 18 years of age and was released from the facility. Well, the concern was there was really no services that was provided to him while in that facility and so in their own words they says, ‘Why can’t we build the kinds of facilities that we did for our elders for our youth? Why can’t we bring our youth home into a facility that can provide the kinds of services that they need?’ And why can’t we? We should. We should move in that direction. There was a time when the nation operated a couple of youth homes, a girl’s home and a boy’s home. I’m not sure right now what the history is as to why that doesn’t happen anymore, but I think the bureaucracy is what I remember, was the bureaucracy got hold of the situation. It was probably a licensing issue that the Bureau required that we weren’t able to comply with and so on and so forth, but I’m not suggesting we want to run off, run facilities without being accredited in some way or certified or licensed in some way, but I think that we need to understand that if we’re going to move in that direction…and I totally agree that we need to begin developing those kinds of services on the nation, but we also have to realize do we have the capability to do that? Do we have…? We can build a house, we can build the home, we can build the facility, but do we have the resources to run the kinds of programs that it’s going to require, do we have the trained personnel, do we have the…all the requirements that you need in order to run a sound helpful service to these youth -- can we do that? I think we need to do an assessment ourselves and if we feel we’re ready to make that move, then by all means let’s start putting the…making those facilities available.”

Ian Record:

“It’s interesting you mentioned that your citizens are now thinking, ‘Why can’t we?’ and that’s a very important shift in mindset, is it not? To where…from where in many Native communities 20-30 years ago, it was always, ‘Let the Bureau take care of it. We don’t need to deal with it.’ To now, ‘Why can’t we do it ourselves?’ That speaks to this larger shift that we’re talking about, the message that it sends to the people, does it not?”

Ned Norris:

“Well, it’s…I think about former leadership and I think about leaders that have had an impact in my life and I always share this story about…you remember the TV commercial, ‘Be like Mike,’ Jordan’s Shoes, ‘Be like Mike, play the game like Mike’ and all this and that? And I have my own ‘Be like Mike’ people out there myself. I think about the late Josiah Moore, an educator, a leader, a tribal chairman, former tribal chairman of our nation. I think about a Mescalero Apache leader by the name of Wendell Chino and think about other leaders that have gone on, but have demonstrated their leadership over the years. And I think to myself that those are the kinds of leaders that have vision, those are the kinds of leaders that have fought for sovereignty, that have fought for rights of tribal governments and those are the kinds of values as a leader that I think we need to bring to our leadership. Is, how do we protect the sovereignty of our sovereign nations? And it’s really unfortunate because somebody asked me, ‘Well, what is tribal sovereignty?’ And I says, ‘Well, I don’t agree with this, but too many times, tribal sovereignty is what the United States Supreme Court decides it’s going to be in a case or the federal government,’ and we can’t accept that. We shouldn’t accept that. We don’t want to accept that. We may not be a true sovereign, but we have certain sovereign authorities that we need to protect and we need to continuously exercise and whatever rights we have as a people, we need to exercise those rights, we need to understand what those rights are, we need to protect those rights just as well as protecting our tribal sovereignty.”

Ian Record:

“Isn’t part of that process… and you’ve mentioned this term a lot, assessing, assessing, assessing, assessing. Isn’t part of that process assessing where your nation could be exercising sovereignty or where it needs to exercise sovereignty, but currently isn’t and saying, ‘Let’s push the envelope here?’”

Ned Norris:

“Sure. I think that is. I think that…I like to do assessments, I like to do that mainly because you think you might understand what the situation is and you think you might have the right answer as to how you’re going to attack that situation or address that situation, but too many times we go into a situation not realizing what the impacts of your addressing that issue is going to be and so for me, I like to, ‘Okay, I agree with you, let’s address that issue, but let’s make sure we understand what it is we’re dealing with and whether or not we have the ability to address that issue,’ because to me to do something with half of an understanding really creates, to some extent, false hope because people are going to see that you’re moving in that direction. And if you’re not able to fulfill that movement, you’re going to stop and people may have liked to have seen what you were moving on, but don’t understand, ‘Why did you stop? We had hope in that. We thought you were going to address that issue.’ ‘Well, you know what, we didn’t do our homework and we couldn’t move it any further. That’s why.’ I think that we need to be, if we’re going to make a decision as a tribal leader, we need to fully understand the ramifications of what that decision is and to the best of our ability make informed decisions about the decisions we need to make and then move forward.”

Ian Record:

“I’d like to wrap up with…I’d like to wrap up on a final topic of constitutional reform. And as you well know, there’s been a groundswell of constitutional reform activity taking place across Indian Country over the past 30 years, in particular in the wake of the Indian Self-Determination and Education Assistance Act of 1975. And back in the mid-1980s, your nation, the Tohono O’odham Nation, completely overhauled its constitution and system of government. And I’m curious to learn from you, what did the nation change and why and what did it create and why?”

Ned Norris:

“Well, I had the experience of being involved in my tribal government under the old 1937 constitution and then the new 1986 constitution, and although I wasn’t as involved in the development of the 1986 constitution, I understand some of the history and that it took, and as I understand it, that whole process took some 10 years to accomplish, to be able to…there were several drafts of our 1986 constitution. The constitution committee had understandings and misunderstandings and decisions that they couldn’t come to terms on amongst themselves. So it was just a long, drawn-out process, but I think a 10-year process that was well worth it. And I say that mainly because I saw the government under the old constitution and I see it now under the ’86 and realize that even under the ’86 I don’t think that we fulfilled the possibilities under the current 1986 constitution. Going back to what I said earlier about that supreme authority under the old constitution, in many ways the council was the legislature, the executive and the judicial. And for me, you had that supreme authority under the constitution in 22 members of their tribal council. And so there were…because of that I think there were times as tribal judges or as…well, yeah, as tribal judges where we may have sat back and thought to ourselves, ‘Oh, I’ve got council person’s son or daughter in front of me in this courtroom, I better be careful on what I decide here.’ That consciousness or sub-consciousness about the fact that you’ve got a council member’s relative in front of you that you’re either going to throw in jail or you’re not going to throw in jail: ‘If I throw them in jail, then the council member’s going to come after me.’ I think there were those kinds of influences that the old 1937 constitution brought about and in different ways. That was just an example, but in different ways. And so when we…when the development of the 1986 constitution really brought on the whole concept of a government that is separated by three branches and three branches that are equal in power and authority and three branches that are clearly defined as to what that power and authority is in the constitution itself. I support that and I continue to support that. We’re going through a process now because over the last…since ’86 there have been some things that different districts and different and even I think need to be changed in the constitution. Literally, just take a look at our 1986, our current constitution and you’ve got more pages that cover the powers and authorities of the legislature than you do four or five pages under the executive branch. And so even on paper, is that truly a system that affords the level of powers and authorities that should be granted to each branch respectively. And so I think that constitution reform is good. I think that though there are still things in the constitution today that we don’t understand, that may not have been fully implemented or implemented at all, but I think that…and even educating our members on the constitution, I think, hasn’t been as adequate as it should have been. Because you look at the constitution, the constitution, the powers and authorities of the constitution is derived by the people. The people themselves need to understand the enormous power and authority they have under the constitution and they, under that power and authority, need to hold us leaders accountable for ensuring that we’re protecting not only the provisions of the constitution but protecting them as well.”

Ian Record:

“It’s interesting you bring this up. We’ve heard so many other leaders of other nations whose nations have engaged in reform, either successfully or unsuccessfully, and particularly among those who’ve engaged in reform successfully, in that they’ve implemented certain changes, they’ve had the citizen referendum and it’s passed and all that sort of thing, they’ve all discussed this sort of critical moment where you overhaul your constitution, it becomes law and everyone kind of sits back and goes, ‘Whew, that’s done.’ But it’s really not done because you’ve eluded to this challenge of not just changing what’s on paper, but changing the political culture, changing citizen’s expectations of their government, educating the people about, ‘This constitution has a very direct impact on your daily life and here’s how.’ Is that something that… a dynamic that you’ve seen in your nation in terms of the challenge that it continues to face?”

Ned Norris:

“I think that everything that you’ve just mentioned as a leader whether you’re chair, vice chair, council, whatever the case may be, we need to understand that. We need to understand that simply amending, changing, instituting a brand-new constitution on paper doesn’t solve the problem, doesn’t resolve whatever issues. Yes, it may be a better constitution in your opinion or a group of people’s opinion, but how we apply that, how we interpret that, how we educate the authorities to the people that the constitution is going to impact is a whole new process. And it’s a responsibility that we should take on as leaders to make sure that our people are… have at least an understanding of the constitution, but and I think to some extent have a working knowledge of what that constitution has to offer.”

Ian Record:

“You’ve mentioned vision and the importance of leaders having vision and you mentioned Wendell Chino and Josiah Moore. What’s your vision? What’s your personal vision for the future of your nation? And how are you working to make that vision a reality?”

Ned Norris:

“Vision, you’ve got to have visions in all aspects of leadership. What is the vision for the health area? What is your vision for the continuation of your economic development? What is your vision for the services that are delivered or that lack or that you dream about? What is your vision? And I think that one, the vision really has to take into consideration, where do you want to see your people, where are your people at now, where do you want to see your people five years from now, where do you want to see them 10 years from now? And we want to continue to educate, we want to continue to develop, we want to continue to be able to address the kinds of issues that are impacting, whether it’s a positive or negative impact on our people. We want to be able to identify a continuous identification of needs that our people have and how do we begin the process of addressing those issues, those needs, those whatever the case may be. I think that vision involves all of that and it’s not simply saying, ‘Well, my vision is that we’re going to rid the Tohono O’odham Nation of unemployment.’ That is a vision, but how do you get there? What do you…you have to…in order to have vision, you’ve got to be able to understand that there are things that are going on now that are going to impact your ability to apply that vision; and unless you understand what those issues are here, your vision isn’t going to mean anything. And so the vision might be big and it might have a bigger perspective, you want to address the health needs of…our vision is to eliminate diabetes amongst the O’odham. Great! I think all of us that have those kinds of problems on our nation want that as a vision, but how do you get there? What do you have to do now in order to address those issues? I want our kids to be positive, productive citizens of not only themselves and their families and their extended family and their communities and their nation, but I also want…I realize that there are things that are impacting our kids now that are going to have an impact on whether or not they’re going to be a productive individual. Too many times we take, we accept things, we accept things as the norm. Too many times, we accept alcoholism as the norm. Too many times, we accept drug trafficking or human cargo trafficking as the norm. That is not who we are. That is not the norm, and we need to impress on our people that those things are having negative impacts on us as a people as a whole and those things are going to have those negative impacts and are impacting our future, are impacting our ability to be the people who we are. And so the vision is being able to realize and understand those issues and make the kinds of changes in order to have a productive nation.”

Ian Record:

“Well, Chairman Norris, I really appreciate your thoughts and wisdom and sharing that with us. Unfortunately we’re out of time. There’s a lot more I’d like to talk about and I think we’ve just scratched the surface here, but I really appreciate you spending the time with us today.”

Ned Norris:

“I really appreciate the opportunity. Thank you.”

Ian Record:

“Well, that’s all the time we have on today’s program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at www.nni.arizona.edu. Thank you for joining us. Copyright 2012 Arizona Board of Regents.”

Cynthia Manuel: What I Wish I Knew Before I Took Office

Producer
Native Nations Institute
Year

Tohono O'odham Nation Legislative Council Member Cynthia Manuel discusses some of the challenges she has faced as an elected leader of her nation, and stresses the importance of leaders taking care of themselves physically, emotionally and spiritually.

Native Nations
Resource Type
Topics
Citation

Manuel, Cynthia. "What I Wish I Knew Before I Took Office." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 20, 2012. Presentation.

"Good morning. My name is Cynthia Manuel and I'm from the Tohono O'odham Nation. I live in Santa Rosa, which is the Gu Achi District and that's who I represent on the Legislative Council. Our tribe has a three-branch government: the legislative, the executive and the judicial. The executive has the tribal chairman and the executive department. And we're legislative and we have 22 members. We have 11 districts within the nation and we have 22 members, two representatives from each district. And we serve four years when we get elected and then every two years we have an election. So every two years -- it's staggered. And that's really good for me because we learn from the ones that were there before. And I want to recognize two of our members that are here, is Edward Manuel who is Vice Chair of our Legislative Council and he's sitting over here. He represents the Pisinemo District. And we also have Pamela Anghill over here, who represents Gu Vo District. And as I said, I represent Gu Achi and this is my second term. I've been there six years now and it seems like forever. I'm okay with it. This is our full-time position so we're paid to be on council. We have a salary, an annual salary, and this is what we do daily. Within the legislative branch, we have our staff and our chairman who wasn't able to be here. That's why I'm here [because] he couldn't make it and so he asked me and I said, ‘Yeah, I will do that.' His name is Timothy Joaquin and he comes from the same district I come from. He's taught me a lot.

Next May, we'll have our elections and my term will be up but he'll keep going, my colleague. And then two years after that his term will be up. So we have staggered terms and we each represent our own, we get elected by own people within our district. I ran in 2005. Before that I worked at the health department for 15 years. I did everything. I started what is our HOP program now, the Healthy O'odham Prevention program, which is a diabetes program. Me and my brother Isidro, he just got out of the service then, and he took the exercise portion of it and I took the diet portion of it. We started the program; now it's growing. We have a site almost in every district to work on our diabetes rates. Our diabetes rates are really high in the nation. So we started that and [I'm] glad it's still going. When we started it was just us two, the staff and now we have probably a staff of about 50 people.

Then I went to work at our nursing home. It was mentioned on the screen that we do have our skilled nursing facility. We have...long ago, we always talked about as far as I can remember that our elders want to come home and recuperate on the reservation. So when they started the nursing facility we do our own traditional foods, we do our own activities, whether it be our traditional dancing or just the modern exercise. And a lot of the staff that are there, I believe 95 percent, are tribal members and then they serve the elders there. So they speak the language and can communicate. They like to sit outside and outside the backyard is the desert, so they really like it there. We have, I believe, it's 63 beds and right now we're starting to build housing for those that can be on their own and they just need a little help. The groundbreaking was last Sunday to start that [because] we would like to take a lot more elders in that are in the hospitals here in Tucson and in Phoenix, because a lot of times they don't, some of the care facilities here, they don't understand our O'odham when they speak [because] some don't speak no English. So it's really good that we do have it. But they also take others that are younger that need help in whatever they're going through.

I worked there as the activities manager and then I decided to run for council in '05 and I won my seat. I won my opponent by 65 percent. It was really good and before then I looked at the constitution and what a legislative department and what our jobs will be and I liked what it said and that's what I recommend. If you have a constitution or whatever your job description is [because] that's our job description, what it says on there, that's what we do. But I first talked to my family. I have a family of eight brothers and sisters, my mom and my dad and my aunts. I always say that I was raised by a village or by a community, because that's how it was within my own community, my aunts and my uncles, my grandparents. So I talked with them and I think that's the most important [thing] because you have to have the family support in that, whether it be your sister, your brother, your uncles. You have to have that support. My own family, my husband, my son -- I have one child, my son. He's 18. Well, he just turned 19 and I have a grandson who is two years old. I talked to them and what I think this job will mean, a lot of time away from home. And because when I worked with the health department, I also went to a lot of the diabetes workshops all over and I remember I used to call home and my son would say, ‘Mom, just come through the phone, come home.' So I had to tell him this is how it's going to be, but by then he was older so he was okay with it. So I had to talk to them and my mom and my brothers and my sister and tell them what I was going to do and they supported me. So I did that and I won my seat then.

Then when I started there it was kind of scary [because] you're just getting into like this whole world of, like it's a different, you're going to be representing the nation here. And when I first got on...we have in our legislative department we have 11 committees that we each serve on three of those committees except the chairman and the vice chair. So when I first got in, they put me on the Rules Committee, which oversees like the constitution and things that happen within; and the Domestic Affairs Committee, which is the law enforcement and the border issues; and the Health and Human Services Committee, which is health and human services. Those are some of the biggest committees and then they asked me, then they elected me to be chair on two of them and vice chair and I was like, ‘I don't know if I can do that. I just now got here. I don't even know what I'm supposed to do.' Then my brother, he was on council before and he was saying, ‘Don't say that, act like you know what you're doing.' I said, ‘Okay.' But I was real fortunate. I have an older brother who served in council for four years and he was the vice chair of council and then he became, right after he left his term there, he became the chairman of our district. Then I have another brother who is three years younger than me who also served after my oldest brother's four years; he served his four years but he had moved to another district so he was serving for that district. Then when he ended, a year later he became my vice chair of our nation. So I had those, they taught me a lot. I said, ‘Okay, I'll accept the chair's position and the vice chair.'

And it was really a lot, because at that time with domestic affairs we were going through the SORNA [Sex Offender Registration and Notification Act], it was a whole different change with the Adam Walsh [Act]. And we were going with the sex offender notification registry, the SORNA. And also the cards, I can't remember. I was trying to think of the cards, the tribal cards that we need to use like to cross over because, as our vice chair mentioned, we have membership on the Mexican side of the border and we have from what I understand last two years ago we had 11 communities that still have our membership in Mexico. And our land actually extended all the way to Mexico City and then this way to the ocean. And so we still have membership on that side. And so at the time that's what we were working on because we also have a big celebration on October 4th in Magdalena, Mexico and so we needed to make sure that our members were able to cross over and back. And so we were working on that at that time and so I knew that it was going to be a big challenge to be on the committee.

And then on the other committee that I served on at the time, the same time, was the Health and Human Services Committee and at that time we were working on the Indian Health Care Improvement Act and even that was a big issue. So I was really overwhelmed by so much but I just did my best. Also asking for like direct funding, that's what we pushed for instead of our funding going to the state and then down to the tribal level and then it ends up with us and it's nothing, hardly anything. And so we were working on direct funding.

So I was on those committees and it opened my eyes to a lot of things. I think I really learned fast. I remember when we were working on the Indian Health Care Improvement Act because when I got on health I was also selected by our tribe to sit on the National Indian Health Board. And then at the National Indian Health Board I was elected to serve as the secretary. So it was really an eye-opening [experience]. I remember when we were working on the Indian Health Care Improvement Act we were at the NIHB, National Indian Health Board office, and they called it the war room. And we were, as they were talking on the floor and trying to pass the Indian Health Care Improvement Act, we were sitting in this room and I think we sat in there for two days and as whatever was going to be passed. And if somebody spoke that we knew that we could reach the representatives, when they spoke and then we would call them and try to change their mind so they could vote for it or not change or add amendments that they were doing at the time. I remember they said, ‘Arizona, Arizona, Kyl and McCain, call them, call them and tell them why they should vote for that amendment.' And I was just like, ‘Wow, me?' ‘Yeah, call.' And so I did and then they, then Kyl wanted to meet -- I don't think he knew we were in D.C. -- and he wanted to meet face to face with me and ask me questions why he should vote for these amendments. And so at the time there was a youth group meeting at the Indian Museum, Native American Museum. And so one of the people there, anyway, she works part with NIHB. They were saying, we should go down there and get the youth and get to Kyl's office before he goes back on the floor. And so we walked. And at that time taxi cabs were on strike so we were walking. I had comfortable shoes, she had to take off her shoes, and we went and got the youth and within that time when we got there we had to educate them why, what we were going to talk to Senator Kyl about. And so we walked over there and we did what we needed to do and went back. And I was so happy that those youth were there and it really changed his mind I guess, Senator Kyl and how he was going to vote. So that was really an experience and I then I thought at the time, this is probably about three months into my, when I first got on council and I thought, ‘Wow, I think I'm going to like this after everything that just happened.' And I always tell my family, [because] they used to ask me, ‘How do you know all this?' -- my son. And I said, ‘Oh, I just wing it, I just wing it, I just get up there.' But I told him, ‘I pray about it, I pray every time, I'm always in prayer and whatever happens that's what is supposed to happen and I don't go back and say, 'Oh, I should have done this because you're going to be stuck back there.'' I always tell him that.

And even with our elders, whoever, I always feel that whoever voted you in, whether they voted for you or not but they're from your community, your district, that you listen to their needs. I know when I first got on council, one of my aunts came and she said, ‘I listened,' [because] we have a radio station too, KOHN 91.9 FM, the Voice of the Tohono O'odham Nation, that's the radio station. And she said, ‘I listen to you guys on the radio, but I don't even know what you guys are talking about.' And she didn't speak any English and so she said, ‘It would be really good if you guys talk in O'odham, our language.' And I said, ‘Okay.' So when we had session again the next time I spoke in O'odham [because] I am fluent and I spoke my language. And so now a lot of the elders will say, will ask me questions, ‘What was that about or what were you guys talking about?' And my aunt told me, she said, ‘Now I know what you guys are talking about and I'm really happy that you speak in O'odham when you sit there because then we can understand what you guys are talking about.' And so I try to listen in that way so they can understand them and get at their level, whoever it is, whether it's the youth or whomever, get at their level and speak their language. I know, there was a job announcement out for a youth advisor and so I put my name in it and I got an interview from our youth council and I got selected to be a youth advisor for our youth council. So I'm trying to teach them a lot on that, too, because they're upcoming leaders. We have two of our youth that are ambassadors at the national level and they go to meet with national leaders and so I'm trying to help them out.

But it's been, it's really been good. I learned from a lot of people. I think it was an eye-opening [experience] when I got on. But even though I knew, kind of knew before what it was all about. I had two of my grandparents who sat on council and kind of taught me back then, too. And I was like 18 when I was our tribal queen and I traveled and had to travel with a lot of the legislators; they were my chaperones. And then I thought, ‘Oh, some day I want to do this,' and so that was one of my goals. So I'm here. But one thing that I wanted to mention is be you, be yourself and also rest and relax [because] I know when you're a tribal leader everybody wants you here, there, even if it's at a dinner or a function, they always say to us, ‘Well, you weren't there. We had this and that and we didn't even see no tribal leaders there.' So you're just pulled every which way at the national level and in your own community. Even just at Head Start graduation they want you there, they want to see tribal leadership there, just everywhere, at elder's gathering, youth gathering. But it's okay to say ‘no' or ‘not yet' or ‘not today,' because sometimes it's really a lot to be everywhere. And I know that firsthand because you need to relax and rest.

On May 28 -- I remember this day -- I was the vice chair for the Budget and Finance Committee. We see over 136 budgets yearly that we go through. And so the chair, she wasn't going to be there so she asked me if I would do the meeting and I said, ‘Okay.' And I always try to do my homework ahead of time. I go through all that stuff so I know what questions to ask if I don't understand it. I start adding it to make sure everything comes out okay. So she said she wasn't going to be there and I said, ‘Okay, I can do it.' So I was really anxious. I got up early, I got up at...so for like the last two days before I was reading my stuff and so I got up early that morning at four. I told my husband, 'I'm going to be there early, set everything out and be ready for our meeting.' I got up at four. So I jumped out of bed when the alarm rang [because] I didn't want to be late. I jumped out and our meetings are not until nine but I wanted to be early. So I jumped out of bed, my side of the bed, the window's right there. So I stood up and I had my fingers there and I held on and then all of a sudden this side just gave in and I fell. And so my husband got out of bed and he got me and he set me on the bed and I laid down for awhile. And then I told him, ‘I'm going to get in the shower.' So I sat up and I fell again when I stood up and I was like... and he said, ‘Are you okay?' And I said, ‘I think so. I think I'm just nervous or anxious or something.' And so he said, ‘I'm going to call the ambulance.' And I said, ‘Wait, wait, wait, I'm going to go in the shower first.' So I went in the shower and I came back out and I was okay. And I sat on the bed and he said, ‘I already called the ambulance.' And I said, ‘Okay.' And so the ambulance came and they asked me, ‘Can you walk...' [because] we have steps. They said, ‘Can you walk out? Then, we'll put you on the stretcher.' And I said, ‘Okay.'

So I went out and they got me on the stretcher and went to Casa Grande Regional, which is about 45 miles. I got there and then we were in there and the doctor was talking to my husband. And then he came in and he said, ‘They're going to send you to Phoenix Heart Hospital.' And I was like, ‘Why?' And he said, ‘I don't know, they'll tell you and he's going to be in here to tell you.' And I said, ‘Okay.' And so I was laying there and then he came and he said, ‘We're going to send you to the Heart Hospital, they're going to need to do more tests.' And I said, ‘Okay.' And I said, ‘Was there something wrong with me ‘cause I don't feel any way right now?' And they said, ‘Well, they'll talk to you over there.' So I said, ‘Okay.' So when I got to the Heart Hospital, one of the doctors came in and he said, ‘Oh...' and I said, ‘What happened?' And he said, ‘Oh, did you know you had a stroke?' And I said, ‘No.' And he said, ‘It's all this...what do you do?' So he sat down and I went over my schedule, ‘I go in at five to work ‘cause I get like a stack this high of paper every day. I think we use like so many reams.' And so I said, ‘And I go through all my stuff, I get like over hundreds of emails. I sit down, I go through all them, delete and save what I need to. And then at  nine o'clock is our meeting and depends on how long it lasts and I stay there till like six, seven, eight, nine just to go through all that and fix everything and be ready for the next time ‘cause I'm not one to just not know the issue.' And so he said, ‘Well, that's what it is. You're too stressed out. You're really stressed out.' So he said, ‘I want you to slow down.' He said, ‘You have a clot in the back of your ear and...but we can't do anything right now. It's too hard to get into there so what we're going to do is try to flush it out, give you all these fluids and try to flush it out for it to move or go out.' And I said, ‘Okay.' And so I stayed there for like I think a month and they said it wouldn't move, it wouldn't do nothing, so they were going to let me go home but I had to promise them that I won't go into work at five, that I would wait till my meeting time, which is nine. And he said, ‘You can do stuff at your house. You can print it and bring it home so you can rest when you need to.' So I said, ‘Okay.'

And so since then, it's been, it's been kind of slow for me but I've learned to adjust. We have, I'm glad in our office we have, each of us have individual offices. I can close the door and now I lay down at noon and I rest. If I go in at five I take an hour break before my meeting at nine and I lay down. I have my blankets there, I have my cot there and I rest. And in the evening I rest before I go home because I have my grandson too and I play with him when I get home. So I think that it's really important that you rest. I know it's hard to do because you have so many, a tough schedule daily but I think you really need to rest because it's hard being in a position like that [because] having a stroke just slows you down. I'm still weak on my left side but I manage to do...I texted my husband this morning and I put, ‘I sure miss you,' [because] he helps me out in the morning. But it's okay. I get by. But it's just rest, rest and if you feel like you...only you know your body and what your body can take, nobody else knows your body, so when your body's telling you to rest, you rest. I try to use like the handicap door button because I can't...I don't like want to really push, push, push. And people look at me. And when I go shopping I use one of those carts [because] I know my body, only I know my body and how I feel. If I want to do that that day, then I will do that and it's okay because nobody else knows your story but you. That's okay to do that. Thank you."

Joseph P. Kalt: Sovereign Immunity: Walking the Walk of a Sovereign Nation

Producer
Native Nations Institute
Year

Harvard Project on American Indian Economic Development Co-Director Joseph Kalt discusses what sovereign immunity is and what it means to waive it, and share some smart strategies that real governments and nations use to waive sovereign immunity for the purposes of facilitating community and economic development. 

Native Nations
Resource Type
Citation

Kalt, Joseph P. "Sovereign Immunity: Walking the Walk of a Sovereign Nation." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 21, 2012. Presentation.

Stephen Cornell:

"Sovereign immunity: a topic that we run into constantly in Indian Country and something that Joe [Kalt] and others have thought a lot about. And so Professor Kalt, sovereign immunity."

Joseph P. Kalt:

"All right, Steve, thank you. Hi, everybody. Good to see you all. See some old friends, students and so forth here. I want to start out talking about sovereign immunity, which is a key issue of course for a lot of tribes, with a mock tribal council meeting. And here's the deal. You're a tribal council, you are nation builders and you've listened to these talks and you go home all excited. And in fact one of the things you're going to do is you're going to start an effort to try to keep the elders from having to move into the city when they get very old or ill. You're going to build an elder care facility right here at home. And it's going to cost you $10 million -- construction costs -- to build this elder care facility to take care of your own elders. By the way, this is based right down here just outside of town, Tohono O'odham has built the premiere elder care facility in Arizona, maybe in the nation. Not the premiere Indian elder care [facility], it's a world-class operation, right down here 50 miles away from us, absolutely phenomenal, expensive. It has those kind of rooms that are a mixture of...they look like homey, but they also have hospital capabilities. It's expensive. Ten million bucks and the construction company wants you to waive sovereign immunity on the construction contract. They want you to waive sovereign immunity. They're saying, ‘Look, we're going to go and do a bunch of construction for you. You're going to pay me $10 million.' And what is the waiver of sovereign immunity? What are they asking for? What do they want? Here's a construction company -- in fact, I'll be the evil construction company. 'Ten million bucks, willing to do a deal with you, but I want you to waive sovereign immunity.' What's the construction company asking for? Yeah, they want assurance that they'll get paid and when they say waive sovereign immunity...Oh, in fact I'll tell you what this construction guy wants. I want you to waive sovereign immunity, I want you to waive into State of Arizona courts. What does it mean? It means, 'I want you as a tribal government to waive your freedom from lawsuits so that if you don't pay me, I can come sue you and get my money ‘cause I'm going to put up...I like...I love this community. I want to help you, but also I'm going to spend ten million bucks.' So that's the proposal, is that I, the construction company, will have the right to sue you if we get in some kind of fight. You don't pay me, I don't know, maybe there's some worker insurance issues that come up, but I have the right to sue you in Arizona State court. You'll submit to Arizona law and that's my proposal.

Now I want us to have a little debate in the council, make this about even, starting here with my good friend Edward here. Everybody from you downward, you can only speak against this proposal to waive sovereign immunity. From here down you can only speak in favor of waiving sovereign immunity. So here's the proposal, I know because you all had me over for dinner last night that you're on my side, you support waiving sovereign immunity. Why? You can only speak in favor of it. That's true. I don't trust your tribal court. I just watched one of your former judges on video. He got booted out for some political reason. I don't trust your courts. I don't trust your courts...You're exactly right. Yes? Exactly. Gail's exactly right. This very wise council member recognizes that to get the deal done, I'm not trying to be a bad guy, but I'm not a charitable organization. I'm not going to give you ten million bucks and you have elders that need care, we're going to do this quickly. So thank you very much for your support. Any opposition to waiving sovereign immunity? Any proposals? Counterproposals? Yes, sir. With all due respect, council member, with all due respect, and you also won't have an elder care facility. Okay, go find another contractor. Okay, fffffff, here's your new contractor. Here's your new contractor. I'm sorry, I insist on a waiver of sovereign immunity as well. Yeah, I know. You ran on the same ticket together against my brother. What infrastructure are you talking about? Any responses? He says, well, what, I guess we'll put off building the elder care facility for 15-20 years. Is that enough? Remember, I want the construction job. Any response? He says, you'll go build your tribal courts, etcetera, etcetera. Okay, look guys. You can see what the fundamental issue is, right? You can see that there's this tension here and you said it very well, what's your name? You said it very well that...he said it very well. There's this tension. 'Wait a minute, I'm sovereign, if I waive my immunity and particularly if I waive it into like the State of Arizona courts, I'm submitting myself to the laws of another nation, another government,' and you've been fighting for decades, centuries, for sovereignty. On the other hand, you might have to wait 15 years. This is realistic, folks. This is the tension that tribes get themselves into.

Let's talk a little bit about sovereign immunity, and what I'm going to end up doing is looking at some of the clever things tribes are doing to try to essentially maintain their sovereignty and get that elder care facility built. They're trying to do both. First of all, where does this concept come from? What is sovereign immunity? Sovereign immunity, where did it come from? Should you ever waive it? What do real governments do out there in the world? Notice the start of this talk was something about walking the walk. How do real governments out there handle this issue? Because you know, by the way, this is an issue for basically every government out there from the State of Arizona to the country of Poland, to Tohono O'odham [Nation]. This is an issue for nations all over the world. What do rogue governments do who don't get the elder care facility built, etcetera, etcetera? And is there conflict? You know what these sessions are about -- they're talking about using your sovereignty right. That's what this whole exercise is about is building the nation, the sovereign nation. Is there a conflict between the message of NNI [Native Nations Institute] and this issue of sovereignty?

What is it? Sovereign immunity is limits on the ability of a government to be sued, for example, vis-í -vis its own citizens. Sovereign immunity, you can't sue me. You might be able to sue me as an individual depending on the way tribal law works, but you can't sue the government as an individual unless it's waived. Limits on the ability of a government to be sued by non-citizens including this construction company that was going to build the elder care facility or by other governments, being sued by other governments. Now, is it protection, is it an asset, or is it a burden?

Let me pause for a second. How do you guys think about waiving sovereign immunity or protecting sovereign immunity? Is it helping the nation to have sovereign immunity, is it hurting it? What's your sense? You guys deal with it. Yeah, it's interesting, and this will be the central theme here -- he's been looking at my notes -- this'll be the central theme. You're exactly right. It's an act of sovereignty to be able to waive sovereignty. That doesn't mean you should always waive it. The game is to do it smart, to be smart about it, both how you do it, when you do it -- and you'll see in a minute -- where you do it. Meaning when you're waiving immunity you're really submitting yourself to some other system of law enforcement essentially, judicial enforcement than solely your own government. Can you be smart about that?

I'm not a lawyer and I stole this slide from a very, very good attorney. He's on the board of NNI, Gabe Galanda. Gabe is one of the leading Indian attorneys up in the Pacific Northwest. The boundary, what is this sovereign immunity? It turns out that for tribes the law is pretty clear that a tribal entity, by that I mean the government, your housing department, your gaming operation, a tribally owned business, is subject to suit only if immunity is clearly waived. It's interesting, this is a case in which the law has tended to kind of support tribal sovereignty and unless that contract explicitly says, ‘We the tribe hereby waive our immunity,' the courts treat that as, ‘Well, the tribe is sovereign. It's immune from suit.' But that also means that when you waive sovereign immunity you've got to be real clear about how you do it and where you do it and when you do it and who does it, etcetera. It shields tribes from suit in federal, state or tribal court and for either monetary or equitable relief. Equitable relief would be like my housing department bought a truck from the Ford dealer here, didn't pay. Equitable relief would be they get the truck back. Well, you'd be surprised, those car dealers, if you don't waive sovereign immunity, they're real unlikely to sell you the truck. They're kind of that way, those car dealers. Immunity can protect tribal agencies, businesses and so forth on or off the reservation.

But you can also smell the other side of the coin in that it can be abused. It can be abused. Enter into that $10 million contract and then once the building's done say, ‘Sorry, Mr. Construction Guy.' We'll look at some of the consequences of that.

Where did sovereign immunity come from? Anybody have any idea? This guy. This is not an invention of even federal Indian law. It came from that era in which these guys, the kings of England and so forth, claimed...and importantly, and this is important, because if you think about you as leaders of your nations, your responsibilities, when you behave well, here's what they were arguing. It has its origins in something that's pretty distasteful. It said, ‘I am the King. I'm here by divine right. God made me king. The people don't have any authority over me.' And this was used by these European kings to create all kinds of atrocities over their own people. Essentially, 'I'm above the law, I want to steal your property. I am the king. I have sovereign immunity.' So there's something, you've got to be a little weary then that there's something about this sovereign immunity that actually doesn't fit. In my experience -- I'm from the White Yuppie tribe -- in my experience with working with so many Indian communities that I do, that actually isn't really deep in the culture of most tribes, the idea that you as a leader are above the law of people, that's not Native. Not in my experience. No, no, no. You serve, when you serve, the people. And you when you quit serving the people we get rid of you. And so there's a little bit of tension here that this whole idea of sovereign immunity, which has become in some ways quite sacred because it is protecting the nation's sovereignty, has this element of it that it can be abused. ‘Oh, I'm above the law,' says the tribal council, the tribal housing department or whatever.

Should the nation ever waive sovereign immunity? What do real governments do? And this is this walk the walk part of what I want to say. What do real governments do out there? All over the world, all over the world, governments eventually find it necessary, if they are going to get that elder care facility built, if they're going to get that new business to locate on the reservation, if they're going to get many things done, they find that they indeed do need to ‘waive sovereign immunity.' But how do they do it? Here's the story. Who wants to be West Virginia? What does that mean? We looked around, turns out in the United States, every state in the United States has various provisions for sovereign immunity. Sometimes it's in state constitutions. Many states, for example, will -- either by constitution or by law -- one of the 50 states will say the state will carry a huge insurance policy, $100 million insurance policy -- and they'll waive sovereign immunity so you could be sued in federal court as a state up to the level of their insurance policy. And they literally write their laws that way. The sovereign immunity is hereby waived up to the level of enumerated insurance amounts. Other states in the United States will waive sovereign immunity around specific things, for business transactions like a construction contract, and so forth. They'll waive sovereign immunity and they'll enumerate that in the law or even in their state constitutions.

Now why pick on West Virginia? West Virginia has the strongest ‘never waive sovereign immunity' clauses of any ‘tribe' -- that is one of the 50 states -- in the United States. If you go look across all the states -- Rob Williams who you just saw in the video and I looked at this -- and you look at how different states handle sovereign immunity in the United States, West Virginia is the one who says, ‘We will never waive sovereign immunity.' And we don't think [that] the following two things are coincidental. Number one, want to guess what the poorest state is in the United States? West Virginia. There's a relationship there. Literally the poorest state in the United States has the strongest 'we'll never waive sovereign immunity' clauses. Secondly, you hear all the time back in that part of the country,  coal mine disasters. Funny, you know there are coal mines actually in a lot of states. Want to guess who leads the United States in coal mine disasters? In fact you're going to know it, right? You hear it on the news. West Virginia. Why? Because I can't go as the descendent or whatever of someone who just got [killed]...I can't go sue the state for having Harry as a mine inspector when you all know Harry couldn't do that job. My point being, you're insulating the system from its own people, you insulate the system from its own people. So I assert -- and despite the fact that my own father was born in West Virginia -- I don't want to be in West Virginia. And we don't think it's coincidence at all that you have the poorest place in the United States and some of the worst kind of public service like mine inspections, mine safety, in this particular state where you as a citizen can't get to them, I as a business guy can't get to them. They are protected. They've got the worst infrastructure, just horrible, West Virginia, the poorest place in the United States.

So what most states do, and governments around the world, is they have limited waivers of sovereign immunity, limiting up to a certain dollar amount, waiving up to...’We waive sovereign immunity up to $100,000 or we waive sovereign immunity on construction contracts.' They enumerate and have limited waivers of sovereign immunity and I'll show you some examples in a moment. The other thing that you see real nations doing is entering into investment treaties. When you waive sovereign immunity, you're waiving your jurisdiction into somebody else's jurisdiction. And a lot of what...wouldn't you feel more comfortable if you felt like you had to do that to get the elder care facility built, wouldn't you feel a little more comfortable doing that if there was a treaty between you and whomever you were dealing with that laid down the rules of how things will play out if we get in a fight, if we get in a dispute over that construction contract or something like that? And so all over the world what we see is real governments entering into, ‘I'll waive my sovereign immunity if you'll waive your sovereign immunity,' but we're not just going to use those words. We're going to sign a treaty that lays down essentially a law that we both agree to. Notice this is an act of a sovereign. A treaty is an agreement between nations, a treaty. And so what you see all over the world, and there is a whole, there's actually, it led...after World War II, all over the world, treaties like that, it led to a demand, ‘Well, I'm signing a treaty with your nation, I'm signing one with yours, you're doing one with hers, vice versa.' It's actually created a whole international court system now. The primary one is the London Court of International Arbitration where governments go into fights, that is they have courts, where the huge construction company is suing the Country of Poland or something like that but they've done it by the creation of treaties, which said, ‘We'll create this thing called the London Court of International Arbitration and we'll waive our immunity into that process.'

Now, in addition...what do rogue governments do? Here's the typical pattern. They sign one of these treaties. They sign one of these treaties. They then sign a contract like my build the elder care facility story. The second the building's done they breach the contract. This is what rogue governments do. They breach the contract. ‘Oh, sorry. You know, you installed those door jambs a little wrong and so we're never going to pay you your $10 million.' They've got all kinds of pre-textual things like that and they plead sovereignty, they plead sovereignty. They ignore the treaty -- and I'm going to show you a real-world case in one second -- they ignore the treaty and they say, ‘Well, yeah, we said we'd go into the London Court of International Arbitration but that was by a previous council,' tribal council or national legislature. ‘Oh, I'm a new government, I don't abide by the treaties of a previous government. I don't abide by tribal council decisions from the previous administration. That's why I'm here is ‘cause I voted this guy out.' And you ignore the treaties. ‘Oh, you want to take me to court? Fine. Go have your hearing and I won't show up.' And there'll be all these people dressed in suits -- I actually do some of these for a living -- that go to the courtroom in Paris, at the World Bank, and only one side will show up. The complainant shows up but the country who signed the treaty and said it would show up doesn't show up. What are the consequences?

This is a real-world case. I actually testified in this case in Paris. It was kind of cool. I got to see the French Open during the thing. It was cool. I don't even like tennis. Ecuador. Where's Ecuador? Down there in Central America or South America. Ecuador, they sign an international investment treaty with a whole bunch of nations. And you can imagine tribes doing this -- for example, among themselves -- and signing a set of treaties in which, or signing essentially a treaty by negotiating cross-recognition of jurisdiction with the state government. It's the same thing. Anyway, Ecuador signs one of these. They enter into like a $6 billion...actually they enter into like $50 billion of oil and gas contracts. They want to develop oil resources; reminds me of what's going on up in North Dakota now. They want to develop their oil and gas resources. They sign big contracts with construction companies basically, but these big oil companies that go build oil wells, pump the oil out of the ground and all that. The Occidental Petroleum and these companies, Exxon, they come in and they invest billions and billions of dollars. And essentially, this is a real-world story, Ecuador -- here comes the oil companies, they invest all that money -- almost the second they finish building the structures, putting in the oil wells and all that, Ecuador sends in the troops and kicks them out. In fact, the way they do it is a new president comes in -- a new council if you will -- and says, ‘Those big oil companies are ripping us off, taking away our national pride,' and uses this speech to justify literally flying in guys, soldiers in helicopters to take over the oil fields. Now remember, they've got a treaty. They go to court in this, not an Ecuador court, not a U.S. court; it's actually an international court. It's actually a court of arbitration. Ecuador picks a judge, the oil company at issue picks a judge, they've got $6 billion in the fight, and the two judges then pick a third neutral [judge]. That's kind of nice. They each got their shot. They're trying to share the power, not going into U.S. court, not going into Ecuador court, anywhere else. They create their own court with arbitration. And Ecuador loses in that international arbitration. And Ecuador loses in that international arbitration. And Ecuador says, ‘Yeah, we lost. We owe that company $6 billion. Ha, ha, ha, ha, ha.' And they literally just go, ‘La, la, la, see you later.' And they go out and party I guess and ignore, and ignore the arbitration result.

What do you think the consequences of this is? What do you think happens here? What do you think happens? Ecuador has stood up for its sovereignty. It's not going to let any group of these arbitrators rip them off. What do you think happens to Ecuador in this situation? Here's what happens. Almost immediately -- you are looking ahead, aren't you -- no one would loan Ecuador a penny. And immediately, those who would loan them, jacked up the interest rates to Ecuador -- this is all documented. Like overnight, Ecuador goes from being able to borrow money at eight percent interest to 28 percent interest. What's that cost Ecuador? Say they want to borrow $10 million; one year's interest at eight percent: $800,000. One year's interest once they raise those interest rates to you to 28 percent, $2.8 million. Suddenly doing any public effort -- build a new hospital, a new elder care facility, pave a road -- just skyrocketed in cost. Went from $800,000 a year basically to $2.8 million. And I could add as many zeroes as I wanted there. I could make these numbers...they are pretty large. But what happens in this situation with these rogue governments is in the short run you got the oil wells and in the long run you've basically made a situation where no one wants to deal with you. You are now West Virginia. Ecuador and West Virginia kind of sitting there together. And the investment in the public's interest -- the roads, the hospitals, whatever it is -- just went from 80 to 280, it's like a factor of almost three or I guess it is three. You tripled the cost of investing in this country.

So how do you waive sovereign immunity and how do you go about the process? Now we'll talk about smart and not smart, but you can sort of feel the message is smart governments figure out how to waive immunity while protecting their sovereignty. How do you just mechanically do it? And we see tribes doing three kinds of approaches. Some will write it into their tribal constitutions. So increasingly we're seeing some tribes, you had discussions here about constitutional reform. More and more, we're seeing tribes do what we see like U.S. states do. The tribe here can elect to waive sovereign immunity up to the amount of its insurance policies. It can elect the tribe, 'under duly passed ordinance by the tribal council says in the constitution...,' in other words you can waive for the following thing: physical infrastructure development, a business investment, something like that in the constitution. A lot of tribes do it by an ordinance. Rather than the constitution they pass a law. The tribal council passes a law and says, ‘Okay, we'll waive sovereign immunity on a case by case -- it doesn't mean like a blanket, but on a case-by-case basis we'll waive it up to the amount of our insurance policies, we'll waive it for construction projects, we'll waive it for infrastructure development, and things like that.' And often a tribal council, on a case-by-case basis, will do a council resolution that for this particular loan, the $10 million for the elder care facility, we'll waive immunity through an ordinance, a borrowing resolution.

Where do you get the authority to waive? That is, think about your own nation. You come back from this and say, ‘Okay, we don't want to be West Virginia. We don't want to be Ecuador. We've got to have a smart waiver of sovereign immunity policy.' Where do you get the authority to do that in your community? Just put it up to the council? What we see tribes doing is sometimes the whole tribe will make this decision. There's a cultural match issue here. What does your community want, what does it expect? And in some tribes that means, ‘No council member, you don't get to vote on waiving sovereign immunity. You've got to take it to all the people, and we're going to put it up for a referendum, essentially.' By the way, that's really messy, right? That's really messy [because] how do you convey to the man or woman on the street these kinds of issues? This is a little bit techy, a little bit law, and it can be demagogued by those demagogues who won't waive sovereign immunity because it's waiving our sovereignty. And so you end up with that challenge. But other tribes will do it by tribal council. It's just like passing another law that, 'Here's the speed limit in the town,' and ‘Oh, here's the next ordinance. We're going to have a waiver of sovereign immunity on all our loans.' Something like that.

And some tribes will delegate the power to sovereign immunity to things like the board of directors of their tribal development company or that tribal enterprise or the gaming enterprise, so the council, the politicians, are not involved in that. Is that smart or bad? What do you think? Should you take your development corporation and say to the board of directors, ‘You decide. Not the council, not the people, you decide when and where to waive sovereign immunity.' What do you think? Smart or not smart? And this is the game. That's exactly right. You can sort of feel -- two-edged sword -- on the one hand, it can be smart [because] you can take some of the politics out of it and make some of this like taking out the next loan or line of credit or something pretty straightforward. But you want to be specific about it and say you can waive sovereign immunity, but you can only waive it into federal court, or you can only waive it into this intertribal court, or you can only waive your sovereign immunity on certain dollar amounts, certain events -- those kinds of things. And so you see tribes be very inventive about this question by putting on -- as I just said -- specificity; dollar amounts, events, what kinds of things, what circumstances, how long, what jurisdiction. I work a lot up at Crow, for example. I've worked there for many, many years up in Montana. And the Crow and the State of Montana, the Crow would no more voluntarily -- without a gun to their head -- waive sovereign immunity into Montana state courts. They're much more willing to waive it into federal court, [because] they've just had this horrible relationship forever with the State of Montana. You can pre-specify these things at actually any of those levels.

When are limited waivers of sovereign immunity smart? One is contractual waivers, particularly for loans, and other long-term contracts. One quick story. I work with a tribe up in the Pacific Northwest. This is kind of cool story. And here's how they waive sovereign immunity. They wanted to borrow I think, the dollar amount was like $110 million; it was a pretty big loan, a tribe up in the Pacific Northwest. The bank, Bank of America actually, says, ‘Sovereign immunity? I'm not giving you $110 million unless I have some recourse if we get in a fight and some hope of getting my money back if I give you this $110 million bucks.' So says Bank of America, ‘I want you to waive sovereign immunity into State of Washington courts.' The tribe says, ‘No way.' The tribe responds with a counter offer. ‘I'll waive sovereign immunity, first into arbitration, meaning if we're in a dispute we'll put arbitration clauses in these contracts. You pick a judge, I pick a judge the two judges pick a third; it's neutral, it's fair. And we'll operate under the London Court of International Arbitration rules and legal procedures. We'll waive into arbitration.' Is that the end of the story? Is that satisfactory do you think for Bank of America? Why?

Next problem. Arbitrators might have a very fair arbitration and might rule in favor of Bank of America. It's kind of like my story of Ecuador; you've got to get the arbitration award enforced. And so typically these waivers of sovereign immunity waive into arbitration, but then they'll have a clause about ‘any duly found arbitration award shall be enforceable under the laws of...' blank; State of Washington, federal, etcetera. 'So, okay, we'll go to arbitration,' but then Bank of America says, ‘That's not good enough for me.' They're about to lose their $110 million. The tribe says, ‘I've got an idea,' and this was kind of cool. Tribal council members like yourselves sitting around and they're talking about, ‘Well, let's waive it into tribal court,' meaning we'll allow ourselves to be sued, but any arbitration award will be enforceable in tribal court. What do you think Bank of America says? They used to say no. They're now more and more saying yes. They first say no. Bank of America says, ‘We're going to enforce the arbitration award in tribal court? No way.' So then the council has this very interesting discussion and it goes back to part of what you said, Joe, about building the tribal infrastructure and the tribal courts and so forth. The tribal council says, and this gentleman on the tribal council says, ‘Folks, I'll tell you what, if we don't trust our own tribal courts, we're not really a sovereign nation.' And so what they strike a deal with Bank of America is, ‘Okay, arbitration award enforceable in tribal court. If our tribal court will not enforce an arbitration award, then you can take us to State of Washington court.' What did Bank of America say? They said yes. Notice the gimmick. Partly it was a self-challenge. It was doing what you're implying. If we're going to walk the walk of a sovereign and our own tribal courts won't live up to a duly found arbitration award under a contract we voluntarily entered into, then we're not worth our sovereignty.

It was kind of an interesting thing. They end up, bottom line they waived into Washington court but they put a challenge to themselves and a line in the sand that said, ‘We want you to come to tribal court. If tribal court won't enforce the award, then take us to court.' Interestingly enough they said, Bank of America initially said no to tribal court. They're more and more, not just Bank of America, more and more contractors and so forth and banks and so forth are perfectly willing to go to tribal court. It's not as if the State of Washington courts are all that great. People think there's this -- I've talked to some of the guys at Bank of America -- they actually sometimes say, ‘Yeah, I'd much rather go to tribal court. They're much faster. Often their judges are better trained.' Do you realize in many states what's going on? State courts, they're buried in family issues, drug issues. Here in Arizona, you've got immigration issues, all of these things going on, and these judges in these state courts don't have any time to learn business law, to take these big dollar cases and so forth. And if Bank of America wants to take you to state court, it might take them seven years, where if I go to tribal court maybe I can get a judgment in two years or something like that, or one year. And so what you're finding is sort of Rob William's speech about building that good tribal judiciary, that speech about that. It turns out the market kind of likes that and more and more you're finding tribes...I literally had one guy say to me, ‘I'd much rather go to tribal court than to state court. State court is politicized, underfunded...,' meaning all the things you hear about Indian courts, politicized, underfunded, hacks, nobody's a good lawyer, blah, blah, blah. But if you build your judiciary the way that Rob Williams was talking about in the previous lecture -- nobody applauded his video by the way, for someone who's not really here, we don't applaud -- but you can hear the same theme here in other words. It's one of the comparative advantages of tribes because our, particularly in the United States, the state court systems are no great shakes. It's not like Bank of America trusts a state court much more than they trust a tribal court, but you've got to invest in it. And that story about Bank of America is one where they challenged themselves. ‘If our courts won't uphold a proper award, then take...' that's a challenge to each other in the council.

I've already touched on the way this often takes the form is you first go to arbitration but you still have what's called a choice of law question with respect to enforcement. You don't always waive sovereign immunity. When you can, you try to waive into your own courts and get the world to trust those courts. And you're not, tribes start out at a disadvantage because so many businesses, for example, are not used to dealing with tribal courts. Some of them are probably racist, but it's not like they like the other courts all that much either, folks. Talk to anybody in business, the last thing in the world they want to do is go to a jury. And I have tribes that have gotten very smart and they'll take business disputes not to a jury in their own tribal court but to a three-panel judge panel where two of the judges might be from a related but not my own tribe. What they're doing is they're saying to that bank of whatever, we know you hate those American juries [because] they're just whacko sometimes. We'll give you a system with people who are qualified by building a judicial system of our own that is better and faster and fairer than the state court system. Waive into arbitration, waive into international bodies. We're starting to hear some talk about this.

The Salish tribes, you may be aware there's this big effort going on trying to get the Salish tribes in the Pacific Northwest, Canada, U.S. talking now about things like, 'Let's create an international court, essentially, where we can draw upon judges from multiple tribes.' I work with one tribe, joins one of these intertribal appeals court systems. How many of you are in an intertribal appeals court system? Anybody? I'll describe one of them for you up in the Pacific Northwest. I get into a dispute with a tribe and I want to appeal it, I lose. We go to an intertribal appeals court, a three-panel judge court -- three panelists, three judges -- none of which are from the tribe I'm fighting with, but they're all tribal judges. Not State of Washington judges, State of Oregon judges or something like that. And you're essentially saying to the world, you'll get a fair shake. Oneida is, yeah. And then sometimes you waive into another government's courts. A lot of tribes are finding that for relatively small things, if it's literally a pickup truck you're worried about, you waive into the state court. You've got to know when to pick your fights in a sense. Now if you're talking about a major thing like hundreds of millions of dollars, a different story. And be clear and explicit, and I'll show you some examples.

Here's an example of a tribe handling sovereign immunity. This is from an actual charter of a tribal corporation says this tribal enterprise, tribal business, ‘The enterprise is an entity of the tribal nation and is established for the benefit of the nation. As such, it has the same immunity from suit as the nation does.' What you're watching the tribe do in this document is draw a line that says, ‘We have sovereign immunity, we are asserting that we are sovereign.' But then it goes on to say -- the stuff not in yellow -- 'notwithstanding the fact that the enterprise is immune from suit, the enterprise is hereby expressly granted to sue in its own name and a limited right to be sued in its own name as more fully set out below.' That phrase ‘a right to be sued,' that is a limited waiver of sovereign immunity and they go on, ‘...As more fully set out below. The enterprise is not immune from such suits, actions or proceedings initiated by the nation or its regulatory agencies and departments, nothing in this section or in this charter shall be construed as a waiver of or limitation on the sovereign immunity of the nation.' What you're watching a tribe do is set up a tribal corporation, tell the world, ‘Yeah, there's limited waiver of sovereign immunity, but you can only sue the enterprise, you can't sue the nation.' So you're not suing for example to get at the assets of the tribal council, of the tribal government. You may be suing to get that truck back from that company, but you don't have the right, that's what this is laying out as they set up in the charter of this corporation. This is the nation's law telling its corporation and hence telling the world when you can be sued and when not.

Here's another example: ‘The nation waives any doctrine that otherwise would require the exhaustion of remedies in the judicial court of the nation including any administrative remedies before proceeding with arbitration or litigation.' What is this clause saying? What they're saying here is, there's this notion of exhaustion of tribal remedy. This is saying, ‘waives any doctrine that would require.' It's saying, I'm setting up, you don't -- you the private investor with me -- don't have to necessarily exhaust all legal remedy through tribal court. We'll negotiate a limited waiver of sovereign immunity and the tribe is announcing to the world, ‘If you sue me, we'll go to arbitration like we agreed.' I won't come back and say to you, ‘Oh, no arbitration. You have to go through 19 years of tribal litigation.' No, no, no. We'll do straight arbitration. You're watching a tribe try to design that for itself.

Real quickly, a couple more: 'If there is no colorable...' -- this is again from a tribal contract -- ‘...if there's no colorable claim that the federal court has jurisdiction, if the federal court determines that it lacks jurisdiction or in the event of a challenge to the federal court's jurisdiction, then the nation consents to the enforcement of the gaming enterprise' -- this is for its casino -- ‘the enforcement of the gaming enterprise's agreement to arbitrate and the confirmation enforcement of any arbitration decision or awards in the judicial court of the tribal nation, Arizona Superior Court and any court to which the decisions of those courts can be appealed.' What you're watching here is the tribe say, with respect to our casino, 'We actually, we're agreeing kind of to stay out of federal court. You can come to tribal court or you can go to Arizona State Court, but we're not going to federal courts' is basically what they're trying to say.

These are just examples. There's zillions of these kinds of examples, each one tailored by the tribe in kind of an intelligent way to achieve the double objective. There are two objectives around sovereign immunity. One is to protect your sovereignty. The other is to not be West Virginia. If there's one lesson you want to leave this whole event from, it's to not be West Virginia. My point is, in other words, you're trying to achieve economic development or other infrastructure needs, that means you're probably going to have to waive sovereign immunity, but there are smart ways to do it: arbitration, waive into your own courts. Back that up if you have to by, after going to state court we'll go to federal court or whatever. But at the same time you want to do it very carefully so that you pre-specify. We're not giving up our sovereignty as a nation, we're only doing a limited waiver here for this particular loan, for this particular enterprise. And that's the challenge of sovereign immunity is to balance those two things, protect sovereignty but also not be West Virginia. So that's the lesson, don't be West Virginia. Thank you, guys."

Tohoho O'odham Nation Used as Model For Tribal Governance

Producer
Arizona Public Media
Year

The Tohono O'odham Nation, which is in Southern Arizona and northern Mexico, has a tribal governance structure that other Native nations can learn from, and that's why the Native Nations Institute at the University of Arizona is featuring the tribe in some of its courses about governance.

The institute is offering a series of online courses called Rebuilding Native Nations, and course series director Ian Record said he hopes they will help tribes achieve their goals and learn from others...

People
Native Nations
Citation

Kelly, Andrea. "Tohoho O'odham Nation Used as Model For Tribal Governance." Arizona Public Media. Tucson, Arizona. October 2, 2013. Video. (https://originals.azpm.org/s/16120-tohoho-oodham-nation-a-model-for-tribal-governance/, accessed October 4, 2013)