sovereignty

Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule

Year

The last three decades have witnessed a remarkable resurgence of the American Indian nations in the United States. The foundation of this resurgence has been the exercise of self-government (sovereignty) by the more than 560 federally- recognized tribes in the U.S. In this study, we explore legal and economic dimensions of current perceptions of and debates over the nature and extent of tribal self-rule in the United States. Our objective is to clarify and illuminate by distinguishing between myth and reality. We address key threads of thought and assumption that pervade, accurately or inaccurately, discussions in the public policy arena. What emerges is a picture in which tribes do exercise substantial, albeit limited, sovereignty. This sovereignty is not a set of special rights. Rather, its roots lie in the fact that Indian nations pre-exist the United States and their sovereignty has been diminished, but not terminated. Tribal sovereignty is recognized and protected by the U.S. Constitution, legal precedent, and treaties, as well as applicable principles of human rights.

Resource Type
Topics
Citation

Kalt, Joseph P., Joseph William Singer. "Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule". Joint Occasional Papers on Native Affairs No. 2004-03, The Harvard Project on American Indian Economic Development, Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. 2004. JOPNA.

Good Native Governance Plenary 3: Innovative Research in Education: Educating Tomorrow's Tribal Leaders

Producer
UCLA School of Law
Year

UCLA School of Law "Good Native Governance" conference presenters, panelists and participants Tiffany S. Lee, Sheilah E. Nicholas, and Tarajean Yazzie-Mintz focus on the process of educating tribal leaders, youth, and entire communities through relationships and collaborations. 

This video resource is featured on the Indigenous Governance Database with the permission of the UCLA American Indian Studies Center.

Native Nations
Resource Type
Citation

Lee, Tiffany S. "Innovative Research in Education: Educating Tomorrow’s Tribal Leaders." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Nicholas, Sheilah E. "Innovative Research in Education: Educating Tomorrow’s Tribal Leaders." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Yazzie-Mintz, Tarajean. "Innovative Research in Education: Educating Tomorrow’s Tribal Leaders." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Good Native Governance: Lunchtime Keynote Address

Producer
UCLA School of Law
Year

UCLA School of Law "Good Native Governance" conference lunchtime keynote speaker, Joseph P. Kalt discusses research in the areas of good Native governance. 

This video resource is featured on the Indigenous Governance Database with the permission of the UCLA American Indian Studies Center.

Native Nations
Resource Type
Citation

Kalt, Joseph P. "Lunchtime Keynote Address." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Good Native Governance Plenary 1: Innovations in Law

Producer
UCLA School of Law
Year

UCLA School of Law "Good Native Governance" conference presenters, panelists and participants Carole E. Goldberg, Matthew L.M. Fletcher, and Kristen A. Carpenter discuss law and the issues that Native nations deal with. Goldberg explains the recommendations of the Indian Law and Order Commission and the implications for good Native governance. Matthew talks about tribal disruption in the United States as a good thing. Discussing her work with Angela Riley, Carpenter presents on international human rights and the indigenous rights movement. 

This video resource is featured on the Indigenous Governance Database with the permission of the UCLA American Indian Studies Center.

Native Nations
Resource Type
Citation

Goldberg, Carole. "Innovations in Law." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.  

Fletcher, Matthew. "Innovations in Law." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Carpenter, Kristen A. "Innovations in Law." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Sharon Day, Shawn Frank and Deborah Locke: Disenrollment (Q&A)

Producer
William Mitchell College of Law
Year

Panelists Sharon Day, Shawn Frank, and Deborah Locke field questions from the audience and a few participants offer their closing thoughts on the question of tribal citizenship and identity. 

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Resource Type
Citation

Day, Sharon. "Disenrollment (Q&A)." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Frank, Shawn. "Disenrollment (Q&A)." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Locke, Deborah. "Disenrollment (Q&A)." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Matthew Fletcher:

"My wife, Wenona Singel, wrote a paper where I think I've learned more from this paper than anything else I've read and she...two points about the paper I think that are important. The first is...the paper's called "Indian Tribes and Human Rights Accountability" and it seems to me that there is a -- seems to her and I agree -- that there's a gap in human rights coverage and the gap applies to Indian tribes. International law obligates nations to guarantee minimal human rights and there are things in the United Nations Declaration [on the Rights of Indigenous Peoples], for example, that include these kind of principles, but they don't apply to sub-nations like Indian tribes and so tribes ostensibly have no outside accountability for some of the things they do. That's one of the reasons we have the lack of federal court jurisdiction over things like tribal membership issues is an issue. The other thing is the question of sovereignty and Indian tribes assert sovereignty over tribal membership decisions and if you think about sovereignty, the same kind of arguments that tribes are asserting now when they're defending themselves from challenges on questions of disenrollment are exactly the same things that the southern states made when they were challenged over slavery prior to the Civil War. And if you read the Dred Scott case, there's a long rambling dissertation in there about sovereignty, how internal governance matters should be left to the states alone and outsiders shouldn't have anything to say over that. So I just wondered if you wanted to... if that inspired any commentary from anybody."

Shawn Frank:

"I just think in terms of the sovereignty issue -- maybe I shouldn't answer this since it's framed versus an exercise tantamount to endorsing slavery -- but I think the tribes do have that authority and they can take actions pursuant to that authority. I think the question becomes of whether or not they should, but I certainly...one of the things I do believe is that tribes have to exercise their sovereignty in certain regards because what good is being a sovereign nation with independent authority in certain instances if you're not willing to exercise it? And I think that in issues of membership, that's an important exercise of a tribe's sovereign authority. And I think kind of getting back a little bit to kind of one of the themes of Sharon's [Day] presentation was I think Indian nations are in an interesting position because you have these traditional notions -- not notions, that makes it sound quaint -- these traditions of clans and kinship and where things were really fluid and loose, but as tribes became more like western governments and they adopted constitutions and laws, the tribes now are required to follow those constitutions and laws and sometimes they don't allow this sort of traditional healing, community togetherness concept because there are specific criteria in the specific things that tribes have adopted. So it's kind of a desire sometimes to get back to more kinship and inclusive thing, but the tribes by their own adoption of some constitutions and some other ordinances have really prevented that from being able to happen."

Sharon Day:

"But sovereignty also means that they could do that as well, they could move in the direction that I was referring to if they so choose. That's sovereignty, that's exercising sovereignty."

Audience member:

"After hearing everything that was presented today, I often wonder what the 570-some tribes throughout the United States that are going through enrollment issues, that if there could ever be a conference or a reunification of Indigenous tribes here, not just the continental United States, but the South American, Canadian come together and look at what has...so that there'd [be] a standardization hopefully maybe within the tribes, so that we'd send a message say to the federal government, to the Department of the Interior that we all have the same standards, that's what we're going to abide by. I think we're all going through the decolonization as Sharon was saying and we're still gun shy in what we do. Why? Because we're only one tribe amongst nations of many others and to set a precedence, not just for our tribe, but other tribes here have different things. For instance, they were talking about citizenship and that presentation. Well, if you don't reside on a reservation you don't get any of the benefits. And there again the question was, well, you get benefits, but you have pride in being a tribal member. And often we all say that what's good enough for one tribal member is good for all whether it be the benefiter or etc.

And so I think as a short-term goal probably within say even a year is try to get the message out to all the tribes in the United States, come together somewhere say centrally located, Oklahoma, Nebraska, whatever, come together and have a large summit. That would be a dream and if we go with the clan systems or a way of life, which our people followed many years ago that...whatever, it'd work out to be the best because...me and Willard went to Las Vegas for an enrollment issue and listened to that and we hear different perspectives on enrollment; you hear good stories, you hear sad stories, you hear pondering stories. You're like, 'Okay, I've got my head scratching, I'm thinking,' but you have to know your people also. Ms. [Deborah] Locke was talking about what happened to her and that could very easily fit a lot of tribes throughout the United States and nobody likes to open up Pandora's box to what legalities would come out of that. But the big thing is I'd love to see a summit because if we make these changes today, we're going to leave a legacy for our children and I still think that our children will still be looking at this issue down the line going into the 22nd century. [Anishinaabe language]."

Sarah Deer:

"Any other questions or comments for the panel? I guess we have a lot to think about. Well, let's thank our panel for speaking...for joining us today."

Audience member:

"Well, actually before we clap I guess, we're hoping to get a copy of your article because we'd like to..."

Sharon Day:

"I'll send it to Colette [Routel] and she can send it."

Audience member:

"...Because we'd like to include that into our newsletter and I think...I really enjoyed your presentation..."

Sharon Day:

"Thank you."

Audience member:

"...As a member of the lodge, it's good to have our grandmothers stand up and remind us of the different things that we have. And it's...one of the things I've always enjoyed about when I worked at White Earth is that even though it's a different place there's the common teachings that exist and it's good to know that, John Borrows talked about when you identify your clan you have that connection, so for us in the lodge is that understanding because one of the things that they teach us is the unconditional love, it's to be able to accept them as they are and respect all ways. I guess I do have a comment.

So one of the things I hope that...I hope for not just as a tribal attorney, but as a tribal member is that there is an effort to try to educate our tribal members to understand...someone presented about tribal civics and we talked about this in some of the council meetings, we've talked about this on the reservation about having an opportunity to teach ourselves what our government is like, because there's such a distrust that's come from this federal model and that people who are afraid of trusting authority automatically attack our tribal model and that undermines us because it's...but for the fact that we have these treaties that exist because there's no such thing as an individual sovereign, there's the idea of tribal sovereignty. People will attack our governments because they don't like to be told 'no,' but they don't know what to do to try to get to 'yes.'

I think sitting at this table...I try to remind our council...because I studied this when I was a kid growing up. My dad was someone who was very vocal and involved in this type of work and then when I went to college and I went to the Marine Corps, I went to law school, you keep the sense of identity of who you are and it attaches to your tribe, but more for me it was attaching to who my family was. I'm a junior so I carry myself in the way that knowing that my actions reflect on my dad, but they also reflect on my family and that's a teaching that we have in our lodge and that. So for me citizenship is kind of really difficult for me to understand because I'm always going to be a member of my family and [Anishinaabe language], means 'all my relations.'

And so when one of our family members walks on in our lodge, and I know this is taught in other lodges, someone else needs to stand up and do their work because that work needs to get done. And so that's what I envision and that's what I've seen growing up on the reservation, me and Willard. We've kind of been joking with him the whole day about trying to get him to speak, but I grew up with Willard and as we get older we take more of these responsibilities and among the people that I grew up with we say, 'It's our time. It's our time to do this work now. It's our time to look to our elders like Gordon and Rusty and the ones who've opened up this path for us. It's time for us to pick up that...' Well, they probably don't want to drop it right now, but they're ready for us to start doing this work and helping them carry it that much farther so that our children have an idea of where they come from. But we have to start...I think we need to do more to trust the governments that we have and trusting them by understanding what their role is, understanding where the root of the idea of sovereignty comes from, understanding what the role of the government is supposed to be so that just because you get a negative decision, and I don't mean that in reflection of anything that's been said today, but you understand the purpose of what it is. You have to protect the identity and the protection that we have as a collective group because for every negative instance we have there's a positive instance of a negative action from a government. And I say that as a lawyer.

But people...some tribes sell their memberships and they sell it to people who can pay whoever is on council to do that or they sell the right to go hunt and fish and those are things that are not intended as those treaties were done. My dad used to...my dad told me, 'One of the major things about the treaties was Article 5 of the '37 Treaty.' He said,  ''42 was the best one negotiated for the Ojibwe's, but Article 5 is the one that encompassed us the right to hunt, fish and gather as the way we understood that because hunting, fishing and gathering was the instrument and the means for us to get the deer, the wild rice, the fish and the plants and the medicines for us to have our ceremonies. And for us to have our ceremonies allowed us to go from birth to passing with all the ceremonies that go on in between there and that allowed us to keep our connection between our ancestors and we have something to give to our grandchildren. And that maintains our identity as Ojibwe and as Anishinaabe.' And so when I get an opportunity to teach in the schools I talk about that, but I try to put a face on that.

Gordon was the chairman for our tribe when we had the void litigation that opened up this idea of reaffirming our rights in the 7th Circuit and also in the Western District of Wisconsin. Rusty has been a 20-year veteran in the Army. And so we need to do more to recognize the contribution of our individual members and when they sit on council it's not just 'f*in' council did this' or 'f*in' council did that.' What it means is that we have people who have made a sacrifice of their personal selves to put themselves in a leadership position to take the responsibility of what happens and then respect them for their contribution instead of saying, 'Well, their family did this or their family did that.'

When I took the job as the tribal attorney, I stood in front of the council and said, 'I will let go of my responsibilities as my family and not carry the grudges going forward and I will serve my council to the best of my ability to carry that forward,' and I've tried my best to do that. You've got pressures that come all the time, but I think if we're going to really have a serious conversation about what citizenship is, whether it's the political discourse or membership, whether it's belonging to that group, you have to have an idea of what is your responsibility to contribute and not just expect something in return, not just to say, 'Well, I get to go hunting and fishing because that's my treaty right.' That treaty right came at the sacrifice of thousands of people who had to sneak in the woods at night because there was people who were trying to take that away from them. I read the BIA [Bureau of Indian Affairs] reports, I've seen the game warden reports from like 1910 when they confiscated the fish and the deer from this old elderly couple from Lac du Flambeau and the father...the male died in custody and they made the mother walk home from the lake that she was at. You would never even think about doing that now. You would never, ever contemplate doing that, but that's a sacrifice that they did so that...we need to remember those stories and they did that because...they did that to survive, but I bet you their children knew how to hunt, fish and gather and they knew how to speak their language and they understood those seven principles that come from your teaching in the lodge and they understand what the seven fires are.

And I hope that if there's some day that we have that conversation so there is a thread that connects us so that we never forget the sacrifice of who we are and what's been done to give us that chance. And I hope that we are able to make that same sacrifice so that our grandchildren can look back and say, 'Well, there was this fat guy at a conference one time who said...kept jabbering on, everybody wanted to go home...' but at least we keep that connection alive. So that's what I would say. And I say [Anishinaabe language] for your teaching."

Sharon Day:

"[Anishinaabe language]."

Sarah Deer:

"Thank you." 

John Borrows and Stephen Cornell: Citizenship: Culture, Language and Law (Q&A)

Producer
William Mitchell College of Law
Year

Professors John Borrows and Stephen Cornell field questions from conference participants about a number of topics surrounding Indigenous notions of citizenship and membership. In addition, some participants provide brief commentaries about how their particular Native nations are wrestling with this issue internally.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Resource Type
Citation

Borrows, John. "Citizenship: Culture, Language and Law (Q&A)." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Cornell, Stephen. "Citizenship: Culture, Language and Law (Q&A)." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Sarah Deer:

"I want to thank this incredible panel -- great way to start the day. And at this point we have about 15 minutes for questions and comments for our panelists. Of course, Professor Berger had to leave to go back to teach, but Professor Borrows and Professor Cornell are still here, so open it up for questions or comments."

Audience member:

"So I have question for both professors. [Anishinaabe language] is the word that Mr. Borrows had offered out and for Ojibwe that's the way that we say, 'All our relations.' And that hits on a couple different scales, a couple different levels because the way my grandmother taught me is you say that because when you speak Ojibwe all your relatives hear you and they come to listen to what you have to say. And sometimes they're here and sometimes they're in the next place and they want to come back and here the voice of their grandchild speaking the language because that's the gift that we have from the Creator. But one of the things that we have a difficulty with among...I'm going to only speak from Lac Courte Oreilles' perspective, is the definition of 'citizenship' because for us that's almost an offensive word because 'citizen' -- and I mean no disrespect to your presentation -- citizenship seems to create this, kind of like this foreign concept because 'citizenship' doesn't translate in Ojibwe. It doesn't...there is no distinction between how someone is a part of something. And so the best that we have is 'member of.' So [Anishinaabe language] and my other relatives here, they know their clans and so we're a part of that group, that functioning -- I guess we use 'nation' now -- but it's our functioning tribe or our family. So how do you reconcile citizenship under an English term that's been kind of forced on tribes throughout the United States and how do you reconcile that with the words that we have as...that we were taught that is our responsibility to know, when that word doesn't translate into that?"

Stephen Cornell:

"My only advice would be go with the words that are yours. Even if...I really like what Oren Lyons had to say about 'member' and 'citizen,' but he was really speaking about what those words mean to an English-speaking audience because they have certain connotations. And I think what's much more important is what your people think the word means in your own language and it may be that you can't find an English word that adequately captures that. I think that's very likely that you have a conception of what those things mean, that it's very hard to express in English, it's very hard to capture the full sense of what you're talking about. But it's much more important that your people share an understanding of that than that they pick a particular word. If 'member' is the English word that comes closest in the way you think about it to what you mean, then you have to use that word. These are the limitations of language. I think there are a lot of concepts in Indigenous languages in the United States, in North America, which it's very hard to capture in English because English arises out of very different traditions and is much more removed from its own Indigenous origins. So it's very hard to make that transition and I just think it's much more important to try to be true to your own understanding and then you're stuck with what...if you've got to talk about it in English, you're stuck with what the English language has to offer. I'm not sure of a better way to deal with it than that."

John Borrows:

"Just my thought is too to draw on [Anishinaabe language] and talk about [Anishinaabe language] and what that could mean to Lac Courte Orielles or [Anishinaabe language], whatever community you're a part of, and then to think about giving that concept meaning by the stories that your grandmothers and grandfathers have told you. That when we identify a concept we then have to look to a place for understanding its meaning, and if the meaning is drawn from that beautiful teaching that you just shared with us, that can be a part of understanding being [Anishinaabe language]. If you need then to be able to talk to the other system about what this word might require...again, I draw on a New Zealand example. In the Natural Resources Act that's been passed by the New Zealand Parliament, they have a list of English words that correlate with some concepts of environmental stewardship, but then they have a list of Maori words that also correlate with ideas of stewardship, and they say the meaning of this legislation will be worked out in conversation between these two words. They don't provide a definition that's determinative; they say the meaning is triangulated. And so that's a possibility as well that some Indigenous peoples choose to do, they say, 'This is what it means to us. That's what it means to you. If you want then to enter into discussion with us, both are helpful by way of analogy.' Neither are completely determinative because you're in a relationship, and that is again, looking to a backdrop of understanding. The final thing I would say is we have our [Anishinaabe language] and the stories illustrate...they're like common law, they're like cases. There's past examples of what it meant to cut someone in or out of a relationship and the [Anishinaabe language] can interpret [Anishinaabe language]."

Gordon Thayer:

"My name's Gordon Thayer, from Lac Courte Oreilles (Ojibwe), with my other folks here. I was looking at what you presented today in this...looking at the historical roots of our communities, our tribes. It was a concept that did not need fixing. It's not broke, don't fix it. But we've got a membership based on what I was writing in my notes here that blood quantum is focused on the eligibility of goods and services and in a sense that's created some...perhaps some greed: who's a member, who's not a member. It's created a lot of turmoil and battle in our tribe, as with other tribes determining that based on that hierarchical model, and I'm wondering if...can we ever get to the point where we were people, in our case Anishinaabe people? Can we ever get to the point where we are back to recognize that members or citizenship is really the core of our strength and sovereignty? I don't know if we can get there because of the...let me go back, back in the '60s.

Prior to the '60s, Lac Courte Oreilles was impoverished in a lot of ways but rich, rich without the casinos in another way. We did have the spirit of entrepreneurship. We have a history of most tribes of being barterers and traders. They survived that way. And as you begin to see the evolution of tribal government, the growth of tribal government, goods and services, you have a dependency on...you're hanging around the fort for your blanket. So you're getting this dependency on that, and we have a lot of entitlement thinking and nowhere near going back to that entrepreneurial spirit of surviving and recognizing. We put together -- I should say I put together -- an urban office down here in Minneapolis when I was chair here last year -- it was two years ago I was chair of the tribe -- following other tribes who recognize their members who are off the reservation. Over 65 percent of Native people live off the reservations in America today. But we took so much heat for having that office based on money should be going here, that should not be used there. The Mille Lacs Band had that, White Earth, Red Lake, all these tribes have their...but we took so much heat that one director of that could not take it anymore -- on Facebook, in general membership meetings. And I feel the strength of your tribal government and your sovereignty is based on your membership wherever they may be.

So I guess what I'm saying, to make a long story short here is, can we ever get back to that place, the historical strength? Lac Courte Oreilles now we're starting with [Anishinaabe language], a language immersion school we have there, proud of that. Let's bring our young people up. But as that brings them up, they have the language, but do they still have that spirit, can they still obtain that spirit that we're talking about of membership or citizenship, whatever you want to call that? Can we engrain that into them at the same time they're learning the language? We've got people calling all the time for, 'What can the tribe do?' I always use that thing that [John F.] Kennedy said, 'Ask not...what you can do for your country...but what your country can do for you, but what you can do for your country.' The same thing, bringing it back to the tribal place. So I don't know if we can ever get back there at this day and age unless we do some critical thinking and teaching that. In our college, I don't know if we're teaching the history of Lac Courte Oreilles, even the contemporary history, what took place. I don't know if that's being done the way it should be. I just looked at that. I think everything's based on this economy and the economic model and it's taught us how not to be who we really were designed to be."

John Borrows:

"Two comments: one in relationship to getting back, I do believe there are many amazing traditions that are in time of memory that you and I have experienced where people don't always calibrate what they do based on economics. There are those experiences in our past. At the same time, we have to recognize in our past that we had conflict then as well. In fact, many of our stories demonstrate great conflict and some of them are the more recent stories about our conflict with our neighbors, be it the Haudenosaunee where I live, or Lakota and Dakota people and Anishinaabe people in this area. And we had processes for dealing with that conflict. And so when we think about getting back, part of getting back is getting back to a recognition that conflict has always been a part of our lives, is a part of our lives today and will be in the future, and that's why we have laws, that's why we have teachings, that's why we have stories because there wasn't an idyllic past. So then what can we take from that that allows us to deal with the conflict today and into the future? And I think that we see examples around in people who are generous with their time, who are in the [Anishinaabe language] school, people who are generous in serving on elders and youth committees, mothers and fathers, grandmas and grandpas who raise children who might not be their own, and identifying all of those elements of civics that are currently in place and celebrating that. And then there's a great role for a leader to be able to step forward and pull forward the things that we're talking about. That's the first comment.

The second comment is probably controversial, but there's lots of those 65 percent of the people that live off the reservation that earn a comfortable middle-class salary. What I would love to see, and this would require a lot of negotiation and conversation is, when I'm earning a salary, to be able to take that tax that results from that income and have that directed back to my own reservation. So when I'm in Canada and I'm earning a good amount, why couldn't there be negotiations to be able to have what is significant in the range of what the community's living on today. Then when I feel like there's this opportunity, then when you create an urban office off the reserve, there's this sense of it's not just drawing away from the reserve, but the people off the reserve are also contributing their resources to things that are happening off and on the reserve. This is hypothetical.

The point I'm making is how can we take all the resources that we're marshalling off the reservations and start to think about ways of flowing those resources back to the reservation? It may be money, it may be fiscal policy and that could be significant. It could also just be human capital. I like what the Zuni Pueblo did with their settlement in relationship to their lands that were damaged through erosion is they invite all their students home to be able to work on the reservation from the trust funds that have been set up. Those people then get connected with the community, they go back to the universities, they develop further skills and there's this then flow that starts to occur. It's a seasonal round. We did that as Anishinaabe people, had this huge seasonal round. Maybe we can think about our territories and our seasonal round not just being based with the [Anishinaabe language], which is the leftovers, but the entire territory is our territory and from that territory of the United States, resources can start to flow back to the community, through our own members. Other people are smarter than me to be able to work out what all of those components of that flow back might be both fiscal and human resources, but I think it's a great conversation to have and I think we would have many people living off the reservation that would be willing to be involved in that because they regard their own self as being connected. Even though it seems intangible, it's a very tangible thing for people."

Rusty Barber:

"My name is Rusty Barber. I'm on the tribal council of Lac Courte Oreilles and this is just the first session here and it gets the blood kind of...the blood level going up, the pulse starts to quicken a little bit, but going back to the first presentation there, the presenter in regards to the Cherokees. In their constitution, back when [U.S. Supreme Court Justice John] Marshall, the philosophy was, 'Let's show the white man that we can create our own laws and we're just equivalent to them.' And then they came down and made that ordinance saying this is what our citizenship and the right to vote, etc., I think that set the tone for what the United States took to heart then is how to kill the Indian and make them model citizens. And throughout the morning here, we look at a pedigree amongst the nations here in the United States where we were once a proud people, that we all had definitive roles in tribes and where we were coming from. Now the United States even has a book that they go...a 25 CFR, this is who the Indians are. Okay, a federally recognized tribe.

I've been to meetings throughout the United States where blood quantum was an issue, citizenship was an issue for a lot of tribes, and I know that some in the northeast that try to regain recognition were refused based upon they no longer believe, they no longer practice their culture, they no longer speak their language. But still they regarded themselves as a tribal nation and they still attend Housing and Urban Development meetings, WETA meetings, everything throughout the United States, even though they don't have their recognition, but they have a hope that some day that they will regain that recognition as a tribe. And I think that's a big thing that we have to base who we are as a people is that the culture and the language and our beliefs is a must be for who we are, because once that's gone then you're mainstreamed, we then become that melting pot of the United States and immigration.

Lac Courte Oreilles didn't sign on to our constitution until 1966 and from there it was a hasty drawn up constitution with a lot of mettled words such as 'inclusion' -- inclusion to the tribe based upon this -- and there was a lot of interpretative language that hurts us today and causes turmoil. I know as a young man when I was growing up, this is your relative, this is your cousin. Some didn't look Indian, but it was never in our mind...it was our cousin. And all of a sudden after awhile it was like, 'Well, I'm from Lac Courte Oreilles.' 'Oh, you are? Nah, no, you're not.' 'I've got an ID card. I'll dig in my pocket, I've got an ID card.' So now that we are tribal members of a federally recognized tribe, we come down to the concept of proof of identification. Here, in a land that we once owned and lived on and to prove to other people that we are who we are. Anishinaabe, Ojibwe, Lakota, whatever, what nation we come from to prove that. And so when it comes down to it, and I've got a little [Anishinaabe language], a little upset and angry that it's up to us now to determine who our people are.

My good friend Will here had a baby. 'Ah, another Anishinaabe, ah.' My father says, 'More Indians. More Indians, good.' There was no question that that child was Ojibwe and so...and I often hear of a tribal elder that's long gone now that said as long as that child had a drop of Indian blood they're Ojibwe. I see this as a systemic problem that'll continue for not just the 21st century because your ordinances and your codes are going to change and change and change until finally you're looking at lineal descent because the laws of average to be an eighth, how many generations of eighth blood do you have? How many generations of sixteenth blood do you have? At some point that blood's going to run out and then it'll be lineal descents and so that is the...from my perspective is the end result is that...and is that the intent of the United States government when they did the Dawes Act and the IRA and many other things that came into play? So I just wanted to express my point."

Chris McGeshick:

"[Anishinaabe language]. Chris McGeshick, I'm the tribal chairman from the Sokaogon Chippewa community in what's now northeastern Wisconsin, part of the lCO tribal treaty right recognition. I also wanted to talk...when we look at this from the tribal side and we discuss membership at every council meeting that we had, it always comes down to it's a form of what we view as assimilation, the assimilation process is still there. It's still being forced upon us by the Bureau of Indian Affairs, the Department of Interior, the federal governments, the state governments, but now that we've lived with it for a number of years we have this process where we go out, we become educated, we come back to the community and now we're seeing the greed factor. We're seeing, 'All right, I have this knowledge, but now I see what it can do for me, what it can...' Rather than worry about money, we need to worry about our language, our culture, our history and exercise what we feel as a people that we need to accomplish certain things to further our population within our communities or our reserves. We're always being held back though by government and money and business outside of our tribal communities. So we're always fighting that.

And I look at our constitution and it doesn't have a blood quantum there. However, a blood quantum was established in our base roll, which they say we have to go by because it's a part of our constitution that we look at and we can interpret 20 different ways and it's just not the way we do things. But we have these internal arguments all the time and it's always based on what another tribe -- whether it's out west -- may have done or what the federal government feels is the correct ruling in a court system. We talk about citizenship. We don't talk that way within the community. We're not 'citizens.' We are 'members' of our tribe and...but we're also members of a greater nation and that nation isn't just within what's called the United States or Canada. It's across those boundaries and both governments still tend to keep their foot on top of us to keep us down and have us be good little Natives, but what we want to do is we want to...we all have ideas, each tribe, each band's going to have their different idea, but we're believers of that if you have a drop of blood in you, you're part of this community.

It's the individuals that we have to battle back that are the ones that are thinking about the money and what they can get. 'You owe me this. The government owes us this.' The government don't owe me anything. I don't want anything from the government. I just want to be able to lead my people down the right path and allow that for all Anishinaabe people, not just our band or our community. And whether it's in Canada or the United States, we have the ability to do that and it's individuals like William Mitchell Law School where we may have to look to the legal mind to get some of this established and we shouldn't have to fight those battles. And why do we fight this blood quantum battle all the time? Every month, it takes probably about 20 hours of my time every month to decide whether or not this individual's a member of our community and we just say, 'Hey, yep, you're one of ours. You've shown that.' Even if we have somebody on the committee that says, 'No, we need a DNA test.' Really? We're going to sit here and say now we're going to require DNA testing? It's not something we do, but yet it feels like there's being pressure put on us by other communities throughout the nation that say, 'We want that. We want DNA testing. We want this technology to help us establish our boundaries and pass on our cultures and traditions.' I'm not one of those believers, but I'll listen to them and I'll take what I can from that. How do we get away from that whole...who made this initial base roll and put blood quantums on our tribal members? 15/16ths back in 1937? Somebody from...some non-tribal member from some government agency had the ability to come in and do that and we still have to abide by that blood quantum today? I find that ridiculous, but that was my comment."

Sarah Deer:

"I want to be really cautious of the time because we're over. You should have been done with your break by now. So maybe we could have a couple closing comments for the panel and then take our break. And I just want to again emphasize that our position here is not to take a position. Our position as William Mitchell and funding from the Bush Foundation is to provide this forum. So we expect that there will be disagreement and agreement about various issues and I really want to encourage that discussion and dialogue. So I really appreciate the tribal leaders who've spoken out. So I'll turn it over to..."

Robert Durant:

"I want to make a comment. My name's Robert Durant and I'm secretary/treasurer for council at White Earth. All the words we've said, I'm feeling a sense of one direction as far as the enrollment process is and the descendencies and there's many visits with historians and other peoples in the communities, the studies...I'm going to say that, I want to mention that White Earth is going through a constitutional reform vote. It's wonderful Bush Foundation came along and helped fund some of the studies, but in some of those studies also, what is the other side of the stories, too? Where's the funding when there's people who not agree with diluting the blood quantum because there's a reason we believe some of the historians and friends, old people I visited with, there's a reason there was an agreement. Is it to stop the volunteering or to stop your...did we have a choice? We do have a choice to keep our bloodlines going. We have that choice. Is there permission to make it so that in the future we get rid of ourselves, without consciously thinking of this. We think of that because...we were thinking of talking that because of like White Earth Nation. It's like the White Earth experiment, pulling the bands together on White Earth and the treaty was with the Mississippi. There's a lot of issues that were talked about on it. So are we looking at giving permission to go head let's drop the blood quantum so we don't have to...I've spoken with tribes in Southern California where they had to pass resolutions to not marry any closer than second cousin because they found a way. We need to survive as people, our language, our cultures. Now that's really...that's the power to this. So when it came to Bush helping to create the statistics and when we disappear, where was the other side of it and what are the statistics on how are we going to survive? I just wanted to bring that out there because there's other side of what we're talking about today."

Sarah Deer:

"Absolutely. A couple comments and then we'll take a break."

Stephen Cornell:

"Well, thanks to those who've spoken. I really appreciate what you've had to say and you're the ones who have to deal with this and I realize it is an extraordinarily difficult issue that raises the temperature I think for all of you are members, citizens, whoever they are. I think the key point is you have the opportunity to actually have that discussion. Who knows what will happen at the federal scene, but right now you have the power to say, 'This is how we are going to define this.' You have the power to do that and so that discussion can happen. You can escape from some of these outside intrusions if you wish. You can invent what you want. You can struggle to figure out, 'How do we survive as peoples?' And to me that's the only bottom line. There's no direction here except to take advantage of that opportunity to have that discussion and think through what to you is the most important thing in order to still be here 50 years down the road."

John Borrows:

"There was mention made of Justice Marshall and those seminal cases in Indian law and one of the principles that flowed from those cases was that Indians could not engage in intercourse with foreign nations in terms of having them now be independent in relationship to foreign nations. Justice Marshall also said that Indians could no longer have trade and intercourse with local traders to sell their land, it had to be with the United States. And I think that's an interesting choice of words that he put into play when he was talking about the limitations of Indian rights because what he said was that the United States will control the intercourse of Indian people. Now you can see where this is going, right? If our intercourse -- when we think about forming family relationships and passing on our love and our cherished relationships with our children -- is controlled by the United States and not ourselves, then we buy into that vision of Justice Marshall, which is a doctrine of discovery that limits us in the world and I think that even if we never can quite pull this together as tribal groups, and I think we can, but even if you're doubtful that this could be done as tribal groups, individually we have the power to be loving and to strengthen families and to be good and to look for sustenance and to offer healing and to create ways of being free in our nations. Right? That's the power of our traditions and if we don't get it together, you and I can still be loving and I'm grateful that this is part of our traditions. [Anishinaabe language]."

Sarah Deer:

"So again please join me in thanking our panel this morning. I thought it was a great way to start the conference." 

Jim Gray: The Role of Citizen Engagement in Nation Building: The Osage Story

Producer
National Congress of American Indians
Year

Jim Gray, former Principal Chief of the Osage Nation, provides an overview of how the Osage Nation completely overhauled its constitution and system of governance, sharing the strategies that Osage used to educate and engage its citizens in order to ensure that their new government reflected the will of the people.

This video resource is featured on the Indigenous Governance Database with the permission of the National Congress of American IndiansThe short film shown in this video resource is featured on the Indigenous Governance Database with the permission of the Osage Nation.

Native Nations
Resource Type
Citation

Gray, Jim. "The Role of Citizen Engagement in Nation Building: The Osage Story." 70th Annual Convention & Marketplace, National Congress of American Indians. Tulsa, Oklahoma. October 15, 2013. Presentation.

Ian Record:

"And at this point I wanted to turn the floor over to Jim Gray. I mentioned, for those of you who are just joining us, former principal chief of the Osage Nation, that is here to tell the Osage story in terms of how they’ve approached this challenge of citizen engagement, citizen education. Jim, if you wanted to stand and perhaps just say a few words about the video that you want to lead off your presentation with.”

James R. Gray:

“Good afternoon, everybody. The video that we’re going to see is one that was produced by the Harvard Project’s Honoring Nations group. A few years ago we received one of those honors and in order to help inform everybody about what we actually did to earn it they produced this video and I think it captures some of the things that we’ve already started talking about, Ian, so go ahead and roll.”

[VIDEO]

Narrator:

“One of the boldest acts any tribal government can take is to initiate a wholesale reform process that puts their office and voting base at risk. The 31st Osage Tribal Council did just that when they set in motion the Osage Government Reform Initiative.”

The Problem:

Narrator:

“For almost 100 years, the federal government had dictated that the only recognized Osages were those listed on a 1906 roll. Only those Osages who had inherited a share in the mineral estate from someone on this roll could vote in tribal elections. This alienated 12,000 of the roughly 16,000 Osage descendants from their own political process.”

Corgus Bear:

“My father, he passed away when he was 52 and he never got to vote. My mother votes and she has multiple head rights so she has more than one vote. She has several votes. So unlike me, I’ve been registered to vote since I was 18, but I’ve never been able to vote in my own tribe’s...any election process or be any part of it, and on paper I was not considered Osage.”

Joe Conner:

“If you’re going to have a government where half, three-fourths of your citizens are speechless in terms of the official operation of the government, then you don’t have a government.”

Jaime Butler:

“There are so many smart people out there that aren’t head right...don’t have a head right and are Osage that I think would be...benefit our government.”

Narrator:

“Citizenship however was not the only way in which the federal government had limited the possibilities for the Osage people.”

Charles Red Corn:

“As much as we revere the 1906 Act, it did not give a clue about how you’re supposed to run a government and it resulted in an organism of personalities where whichever personality was the most persuasive or came up with the best game or whatever could control the council.”

Mark Freeman:

“As far as the form of government, this resolution form of government is good for one thing, you can pass a resolution one day and then do away with it the next. That’s not too good a way of running a business."

Jim Gray:

“We needed to get our sovereign rights back. That was the big issue. It became more than just a membership criteria, it became...why should we go ask permission to exercise our sovereign rights? And that’s what we’ve always done in the past and because we...after a good look around, we realized we’re the only tribe in the country that was set up this way."

The Process:

Narrator:

“In December of 2004, the Osage Tribal Council sponsored federal legislation that lifted 98 years of direct colonial control, allowing the Osage people to once again determine their own citizenship and form of government. The federal government was no longer going to hold the Osage people under a resolution style government with its 4,000 shareholders, but what instead would take its place? Because they were already occupied with the general operations of the tribe, the Osage tribal council decided to create the Osage Government Reform Commission to oversee the reform process. The first step in the process was education for the reform commissioners.”

Joseph P. Kalt:

“The first thing that emerged was, well it really wasn’t economic development, it was really social development. How do you build a healthy society?”

Kathy Supernaw:

“You might have a recommendation but you set forth all the possibilities. [Audience member: We represent what the people have told us.] Yeah. You’re taking...you’re going out and doing all these public hearings and you’re getting peoples’ opinions and then you collect all those opinions and you try to get them all in groups.”

Narrator:

“And then education for the Osage people.”

Leonard Maker:

“And in 1906, the United States imposed allotment on the Osage and imposed a government and membership standards on the Osage people.”

Narrator:

“The second step involved the collection of Osage opinions from 42 community meetings, a questionnaire, a phone survey and a referendum vote." [Voice: We’re here to figure out what the Osage people want in a constitution.]

Linda Lazelle:

“This one particular child -- although all of his ancestors was full blood Indian -- couldn’t qualify to go to a clinic or to get any social services because the government is pushing for blood quantum. That could happen to any of our children, any of them.”

Frank Oberly:

“We do need a legislative branch, we need an administrative or executive branch and we need a judicial branch because a lot of the tribes today, whenever they have troubles, it’s because they cannot enforce a law or an ordinance that they passed because the tribal council has precedence so then it just...it ends up being just a political mess.”

Narrator:

“Then the reform commission set out on the challenging task of using these opinions to write a constitution."

[Discussion]

Narrator:

“On March 11th, 2006, a vote was held to ratify the constitution."

[Discussion]

James R. Gray:

“And it’s my honor and my duty and certainly my pleasure to report the results of the referendum question. Shall the constitution be approved? Yes, 1,454. No, 728.”

[Cheering]

The Payoff:

Corgus Bear:

“Today, I’m an Osage finally.”

Joe Conner:

“Now the citizens are important.”

Jackie Butler:

“And no longer will it be a minimal council government but a government of the people.”

Hepsi Barnett:

“Research will bear out that that’s a system that will create the stability needed for a nation to prosper.”

Gregory Clavier:

“And I think you’ll see more participation, you’ll see more people getting involved and people that have a lot to offer. Osage people are all over the world basically and by doing this I think it pulls the whole tribe back together again, so I think this is a very important day.”

[END]

Jim Gray:

“There’s a lot to be said about that video because it captures a lot of what I think Ian [Record] was trying to set this...tee up this part of the presentation for me at least. But let me just start with a couple of things. One was the Government Reform Commission itself. One of the most interesting aspects of this is that when you start looking at the personality dynamics of the 31st Council, clearly I was the youngest person in the room. I was I think in my early 40s at the time and the ages ranged from...I think we had one councilman that was in her mid 30s and we had one councilman that was in his mid 80s and then we had everyone else in between, and all these different personalities and different backgrounds and different perspectives as shareholders, as someone who like our eldest person on there was 85. You saw him, Mark Freeman. He was all the way up into his mid-to-late 70s before he actually inherited a head right because his mom lived until she was in her 90s, so we’re talking about a system of government that created scenarios where the oldest person in the room was actually the youngest tribal member in the room, as bizarre as that sounds. Is there a question?

The head right is like a corporate share and the share was a piece of the Osage mineral estate, it was 1.5 million acres, still is, and it was divided up between all the original allottees that were signed up on the rolls in 1906. Each one of those allottees were given one corporate share or a head right of an interest of the royalties of the oil and gas development that occurred there. Unfortunately, one of the things that they did when they did that was that they closed the rolls. So there wasn’t going to be any more Osages because they were tying property interest in the mineral estate to political rights within the tribe. So we went all the way up until 2002, when I got elected and the council came in, we were faced with a dilemma. There was nine original allottees still alive. Our senior planner at the time, Leonard Maker, had [written] to the solicitor in D.C., asked them a question as a citizen, ‘What happens when the last original allottee passes away?’ And I think his name was...gosh, I can’t think of it now. It’ll come to me at some point during this session here. But he wrote back and said that...Verdon, Terry Verdon, that was his name. He said, ‘When the last original allottee passes away, there won’t be a federal trust responsibility with the Osage Tribe because the Osage Tribe won’t exist any more in the eyes of federal law.’

So we didn’t need any more motivation than that. We decided to go get federal legislation passed, which happened in two years, from 2002 to 2004. So once President [George W.] Bush signed the bill into law, it became law, we called a big celebration, called it Osage Sovereignty and Celebration Day and that was in 2005. In 2005 we set up the commission and as I was getting into the discussion of the dynamics of the personalities involved, the commission was selected by members of the council. We got together and we said, ‘Okay, we’re going to do a secret ballot.’ We want four people picked by each one of us and each one of us would turn in our names of people that we want to sit on that commission and they wanted them to be people with good reputations in the community, good education, good cultural backgrounds, basically model citizens that would reflect the best in all of us, and that’s kind of the way we went into it. And so the people that you saw and some of them were interviewed in that video, were the ones that did the primary work of holding the meetings, getting citizen input and trying to consolidate the broadest consensus they could to make up the constitution, the key elements that they heard from the citizens and what they wanted in it.

As an elected official who was in charge of the day-to-day operations of the tribe, we were certainly of...well, let’s say from a political standpoint as [an] elected official, I think Congressman [Tom] Cole asked me the right question at the time we were holding committee meetings on our legislation. He said, ‘Chief Gray, why would any elected official change the constituency that put him in office?’ He was bewildered by that. He says, ‘I’ve never heard of a politician do that.’ And I told him, I said, ‘The mandate for change was in the election in 2002 when basically everybody who was running ran on that issue and those that ran on that issue got elected and all those that were opposed to it got thrown out.’ And it was the biggest wipeout in 90 years of Osage elections. Didn’t think we needed much more in a mandate than that. But after the meeting was over and they turned the cameras off and the Congressional Record was over, I walked up to him and I said, ‘You really want to know why I did that?’ And he said, ‘Yeah, I really do.’ And I told him that my...I was watching the news one day, they were showing scenes from the period of time when the Soviet Union collapsed and I realized I had a choice because I was watching two different scenes on the screen. It was a split screen. One of them was Mikhail Gorbachev under house arrest by his own government and the other one was Boris Yeltsin holding the Russian flag sitting on a tank. And I really pretty much had my choice. Do I really want to be under house arrest or do I want to be on top of that tank with the flag. And I said, ‘But at a congressional hearing, that’s the last thing you want to put on the record about how the Russians came into power.’ We got a big laugh out of that, but the reason I bring this up is that when they counted up those secret ballots and each one of them, if there was more than one person picked, they got two votes and we just developed a consensus based without actually having to lobby or nudge or twist arms or anything like that. It was all a very personal decision among each one of us, and as a result we ended up getting the group that we did.

So as we turned them loose onto the Osage public, part of our biggest thing to overcome is, as you saw on there, there was 100 years of paternalism that was imposed on the tribe that basically split us in two. So it was not hard at all to get the shareholders or head right owners within the tribe to show up for meetings. The difficult thing was to get the non-shareholders to show up for meetings because they had any interest of expressing a political voice pretty much beat out of them as a child. And so it has taken us all these years to still, it’s still a trouble that I think still exists out there, that at a time when we really needed to hear them it was very difficult to get them to come out. And we had individual events that was targeted just towards the youth, we had big dinners, invited everyone to come, bring their families. We gave the employees that were working for the tribe special presentations. We tried every way we could think of to get them engaged. Social media didn’t exist really at that time, so we relied mostly on emails, that kind of correspondence, we used our tribal newspaper. We had to get people to update their addresses to us. It was a very, very challenging thing to do but during the process we were able to get a lot of feedback because once the momentum started, the buzz was starting and people were making phone calls, ‘Oh, so I hear they’re coming out to California.’ ‘Oh, I hear they’re coming out to Denver,’ or ‘They’re coming out to Dallas,’ and ‘They’re going to be in your...the commission is going to be in your town soon.’ So, as the word started to get out, you saw a lot more interest in participation and each week they would have regular business meetings and citizens locally would come in and express their concerns for the record. So there was never...I’d say the last six months it just took off, things were just moving really fast. They were getting a lot of good data in and they realized they hit a wall and part of it was that there was conflicts among the commissioners as to what certain fundamental issues they couldn’t achieve a consensus on.

So we backed up, instead of doing one referendum on the constitution, we basically had a mini referendum then the big one on the constitution. The mini one was a series of questions of things that there was not a consensus among the commission on; things like, how strong was the old minerals council going to be in the new form of government? Was it going to be a stand alone, was it going to be just a board within the tribe, was it going to have any other governmental functions beyond just approving oil and gas leases? Because if you read the 1906 Act, that’s all the government gave that minerals council. But as time went on, for lack of any other reason, they just became the de facto government of the tribe with all its imperfections of isolating three-fourths of the tribal members from participation as well. So we knew that that was unsustainable as an option. So as we went through that process of trying to figure that out, we had to put that back to the people and when I say to the people I meant everybody. Everyone got to participate on both of those referendums. I caught some crap for that. I’m sorry, I didn’t mean to use that word, but there was just a lot of reasons for people wanting to keep it just with the head right owners. And at that point, I just realized it was -- I don’t know if you call it leadership or impatience or just determination--  that somehow we were going to allow the Osage people, all the Osage people, by lineal descendency participate in forming their own government and as many of you here probably think that, ‘Well, of course, that’s exactly what you would do,’ you would be surprised how outrageous and controversial and divisive that notion became because there were people that said, ‘Only shareholders can do the government reform.’ ‘Only shareholders can participate in the reform itself.’ ‘Only shareholders will have a say in drafting the constitution.’ And as that process seemed to permeate within the most politically organized group of the tribe, while being a minority, never really had any big answers for how and when and in what manner were the non-shareholders ever going to be a part of the tribe.

And those were the two competing issues that really was the theme that ran through the Government Reform Commission’s work. And as somebody who was in part a participate as an Osage citizen and a shareholder myself, but also as an elected official under the old form of government and as somebody who’s an advocate for change as was my colleagues on the council, you could see the obvious dynamics even within that small group. We’re like, ‘Well, maybe we should wait on this, maybe we should wait 10 years and just ease into it.’ Like I said, I snapped. I could be a next episode of that movie, that show 'Snapped,' because I just said, ‘We’ve waited 100 years for this. The United States government says, 'It’s your decision now. It’s not ours, we’re not imposing this on you anymore. It is your responsibility.'‘ So our response to getting this responsibility given to us is to give it right back or to ignore it? I just wasn’t going to accept that and I just...they were wanting to put off the referendum, they wanted to put off the vote, they wanted to keep the government in two pieces, they wanted...there were some that were advocating, ‘Maybe we need two Osage tribes.’ Because all the other options were comfortable because it didn’t require them to deal with the heavy matters of bringing some unity within the tribe, realizing that even though this was an imposed designed structure that was never meant to last more than 20 years. And by federal law we were able to get extension and extension and extension, but it was never designed to last more than a generation.

And so beholden to a structure that was never designed to last very long seemed like a dangerous option and the only way out of the mess was to continue going forward and the citizen outreach began to pay off towards the end. People started to get it, it started to click and they were starting to embrace it and they were starting to see elements of that constitution appear in early drafts that were being sent out to everybody in the mail. And once people started to get the taste for what those words coming to life actually would look like in a new Osage government, it gave you a sense of hope and inspiration and a feeling that, 'This is ours.' We had the hardest time letting go of the idea of being able to blame the Bureau [of Indian Affairs] for all the problems at the Osage Tribe, and we had to come to grips with the fact like my old friend Mark Freeman said, ‘Well, this thing lives or dies, it ain’t gonna be nobody’s fault but our own. We did this to ourselves and by god it’s a long time coming. The days of blaming the BIA for our sorry lot in life are over. We’ve got to grow up and grow out of that.’ And in a way, he couldn’t have said it better. This came from a man who by federal law and Bureau interpretation was never given his head right in restricted status. It was immediately decided that he was going to be a competent and he had to pay taxes on all the royalty that he got and he had to wait 77 years before he even got on. Well, you saw Curtis Bear up there. He got one the second he turned 18. Unfortunately, it was because he inherited his because his parents died and what a morbid way to run a government anyway. Your parents have to die before you inherit any part of the political franchise of the Osage Tribe. Like I said, there wasn’t any other tribe set up this way and at some point along the way like some victim of a hostage crisis, we didn’t...at some point after about four generations we didn’t realize that what we were living with wasn’t right. It became normal.

So when I advocated the fact that, ‘No, everyone gets to vote on a referendum, that everyone gets to participate in the government reform process.’ To try to explain the heresy of those words to a group like yourself who maybe are not even familiar with such a thing, back home it was crazy. And at that point, you just tried to do the best you could and just say, ‘Look, the only way this government’s ever going to reflect the will of the Osage people is that the Osage people participate in voting for it or voting it down. That’s the only way it’s going to last,’ because at that point we were no longer defined by our property possessions, we were defined by what was in here and that our connections were all related to the same rolls and it became something bigger than that. All of a sudden, it became a matter of people issues and not necessarily property.

And so as we got through that referendum process and the commission finished its work and submitted it for the council for final approval to be put before the voters, there was a 'cold feet' for lack of a better term of the councilmen because they had been hearing the voices of the concerned that, ‘We aren’t ready for this, we don’t need to be doing this. We need to wait, we need to wait, we need to wait.’ And because by federal law the United States government says, ‘From this point forward, August 4th, 2004, whatever you...however the Osage Nation is going to govern itself is up to the Osages.' They are recognizing the Osage Nation’s inherent right of self-determination, of what form of government they’re going to have and who are their members going to be as long, as those that were receiving an interest in the mineral estate are not affected by it.’ And that was the compromise that was made at that time because it was a Fifth Amendment issue, there was a property right interest. ‘You inherited that, that’s yours. The Constitution can’t take that away from you.’

And as the Government Reform Commission went about doing its business, according to them, that issue alone -- that was already decided when Congress passed the law, that issue was already decided before we even started the Government Reform Commission -- that nothing this new government can do can take away that head right that belongs to you. But unfortunately in all the meetings, that issue took up probably 80 percent of their time and only 20 percent of the time was spent on all these other matters. At one point, when we videotaped all these meetings, one individual citizen was beating this table and screaming as loud as he could, ‘It’s mine. It’s mine. It’s mine.’ With every ounce of energy he had, he’s beating that table. The passion of the fear that an Osage government will take away your head right was so deep and so pervasive throughout the communities of our nation, it dominated the politics of the government reform process, it dominated the process, it dominated the conversations, it dominated the agenda. And the sad part of it was is that that issue was already decided in D.C. when Bush signed that bill into law. So we had a communications issue that went far beyond the constitution.

And so when I try to explain the chronology of how we got through this process -- and as chief at the time I was looking at the end of my term -- they voted on the constitution in March of 2006. My term ended in July of that year. We had an election in June and there was a big debate as to whether or not we needed to have the election with everybody participating, so we had a communications issue there. ‘Well, of course.’ And they said, ‘Well, when does this constitution go into effect?’ It went into effect when the people voted for it. But what parts? The parts that call for a three-branch government or the part that calls for an election at the end of our terms. There was all these other little questions. Do elected officials, can they continue to serve on the gaming enterprise board? We had a corporate entity that did non-gaming businesses and there was elected officials on that board. Well, the constitution that was just passed by referendum says explicitly, ‘No elected official will serve on enterprise board.’ So what parts are in effect and which parts aren’t? And so the elected officials who were thinking about running for re-election under the new government had enormous things on their plate of having to grapple with while they’re even thinking about whether they wanted to run again. I was one of them. And so I just kept moving forward.

I use this quote because in this case it definitely applies. You know the movie John Candy was in called 'Canadian Bacon'? Ya’ll remember that? He had this great line in that movie. A group of United States citizens decide to invade Canada and that’s the comedy. He gets out, he’s got this stupid little hat on, he’s got his gun and he says, ‘There’s a time for thinkin’ and there’s a time for action and this is no time for thinkin’.’ As only John Candy can deliver a line and I was laughing to myself because I thought, ‘Osages have been thinking about this for 100 years. If there was ever a time you go for it on fourth down, this is it. This is the time you make your move.' And I had to do some subtle diplomacy with my councilmen and I had to create a boogey man of sorts.

The commission was worried. They were legitimately worried that the council was not going to allow that vote to go forward. There were two members of the council that got up and made very passionate statements that the tribe was not ready for this, ‘We want to...let’s go ahead and do another shareholder vote and another minerals council for another four years. Maybe we’ll do it after that, but definitely not now.’ And I was the only one who spoke on that council at the time saying, ‘No, we have to do it.’ And the only reason I had to do it was...the only reason I had that I think resonated was the fact that under the Public Law 091430...I can’t remember exactly what the public law was, but the government’s no longer in charge of telling the Osages how to run their tribe, their government. It’s our job now, and if you don’t like what the Government Reform Commission produced, vote it down, but if you’re going to use your position to stop the vote from even taking place, then I enjoy a certain degree of power under this constitution too, as now the executive branch. ‘I’m going to call a constitutional convention next month and whoever shows up at Wakon Iron Hall is going to decide how the government’s going to go.’ Well, the prospect of a mob deciding how the constitution was going to look like resulted in a quick vote of approval and submit it to the people and let’s get it over with. And that’s...you saw how relieved I looked when I did those results, because I didn’t know whether this was going to work. Nobody knew how this was going to work.

If you’re waiting for a roadmap to tell you exactly how everything is supposed to happen, it ain’t never going to happen in politics. Maybe you take calculated risks, you push it as far as you can, but at the end of the day, it’s all about a process, a process that involves a commitment from the governed and a commitment from the citizens. And those that are participating in carrying out the will of the people have all got to realize that this was a window of opportunity that was very unique in Osage history, that the timing, all the right people were in the right places at the time. Had this thing waited another four years, I don’t know, I don’t know.

My worry was that the day President Bush signed that bill into law in 2004 we were down to one original allottee and I did not want to wait to find out whether or not we could fight this in the federal courts and have our recognition restored, not while we had a chance to do it ourselves. And so I have enormous amount of respect for my colleagues who were just people living in a very unique period of time in tribal history to be able to build a process that would last, and realize that the 1906 Act was never meant to be a government for the Osage people. It was meant to be a way to extricate the Osages from their land and their property and their citizenship within 20 years. That’s what it was designed to do. The allotment acts that occurred at that period of time were designed to only do one thing -- to separate Indians from their land, Indians from their tribes, destabilize everything about them that was Indian. Boarding schools, all these programs came out of that era.

So it’s not so unique of a situation the Osages were in, it’s just that because of the oil and gas industry needed to have one entity they could work with that would approve their oil and gas leases so the drilling can go unabated and only have one entity to deal with probably was our saving grace. We also paid for our reservation with our sale of our lands in Kansas which gave us some property right interest even though there was some debate of whether or not Indians were human at the time I think and eligible for Fifth Amendment protections. A lot of uncertainty in the air. If you wanted to make a change for yourself and realize that this uncertainty is not satisfactory for you or succeeding generations, if you take the chance and realize the time is right and you have the people with you, you don’t need any more ammunition, you just go. You just go as far as you can and for me, I went as far as 2010 and I got thrown out of office.

I will say this though, Steve Cornell was interviewed after I left office and I really appreciated what he said because...at first I wasn’t quite sure how to take it, but after reflecting on that quote I realized that it was a very, very nice thing to say, because you’re not defined by how long you serve in office, at least I hope not. But I think you’re defined by what you get done while you’re in office, because in some ways that lasts and...because it’s not just about holding office, it’s about doing something, doing something important that you’re proud of that you can always look back and fondly remember the days that you were engaged in something important and realize that there’s...I don’t have any reason to regret any of this and I don’t, but when Steve Cornell was asked by a reporter about my experience as chief, because it made news of sorts at the statewide level that I lost and when you lose third place, you don’t have any second thoughts about, ‘Wow, if I could have only done this or done that I could have won.’ No, I think it’s better to get blown out, that way you don’t have any second thoughts. When you think about it, it’s like, ‘Okay, I heard you.’ But Steve Cornell said, ‘The thing that you have to remember is that the strength of the Osage constitutional government, one of the big questions was answered already, was whether or not it would sustain itself or was it only there as long as Chief Gray was there.’ And it was perceived by many people, in my own tribe and even outside, that this was Chief Gray’s constitution and I argued passionately that it was never my constitution. If it was up to me to write it, I would have wrote it very differently. I probably would have done something different with the minerals council, but at the same time I think that there was reason to believe that somewhere along the line the Osage people took ownership over that governing document and demonstrating the first ability to show that ownership of that governing document was to ask me to move on to something else because they put in new leadership and that constitution is still there, it is still being used, the legislative branch...and I want to recognize Speaker Raymond Red Corn back there, he’s speaker of the Osage Congress, and I want to recognize Benny Polacca who enjoys a very comfortable life in Osage Country being a reporter for the Osage News, which is one of only three newspapers in Indian Country that has a free press act and freedom of speech is governed and protected under the Osage Constitution. There are certain things that I’m really still proud of in this constitution and these are two of them right there: a separation of powers and three branches of government, a free press and the ability to exercise jurisdiction. It is one of the most, well, certainly with the work that I’m doing now with the Delawares it’s something that I’ve come to appreciate more and more each day about our own tribe because not every tribe is that fortunate and the fact that we were able to get ahead of the problem before it blew us over is probably one of the luckiest things to happen to our tribe. But with that being said, Ian, thank you very much and I appreciate the time to be here.”

Native Leaders: The Purpose and Challenge of Redefining Citizenship

Producer
Native Nations Institute
Year

Several Native leaders share their thoughts on why their nations are deliberating potential changes to their citizenship criteria, and they discuss some of the many challenges that Native nations face in this complex area of governance. 

Citation

Beaulieu, Justin. "Constitutions and Constitutional Reform - Day 1 (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A session.

Hall, Chris. "Cultivating Constitutional Change at Crow Creek." Native Nations Institute for Leadership, Management, and Policy, The University of Arizona and the Bush Foundation. Spearfish, South Dakota. April 25, 2013. Interview.

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

Hill, Anthony. "Constitutional Reform on the Gila River Indian Community." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Presentation.

Wesley, Angela. "Constitutions and Constitutional Reform - Day 2 (Q&A)." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Q&A session.

Suzan Harjo:

"We have our rights of selecting citizens, setting citizenship criteria saying who we are and who we aren't, who is not part of us. That is an act of sovereignty. Citizenship is an act of sovereignty."

Justin Beaulieu:

"I did a research paper about blood quantum too because it was important to me. And one of the things that I identified was that the only people or the only things that are really identified by how much of something they are is some animals and Native Americans. That’s the only thing. So if we’re going to categorize ourselves into a category with animals because that…it’s always kind of been about resources. The federal government didn’t want to be babysitting a bunch of Indians so they said, ‘We’re going to make…if you have a kid with a white person, they’re half,’ and then eventually we’re going to be extinct before we’re dead. So that was good to them. That was good for them, and if that’s what we want to continue, that’s going to be our legacy, I guess that’s our choice.”

Anthony Hill:

"In our constitution, the blood quantum is in there and I’m sure many of you have blood quantum requirements for your membership. Despite all…there was a great emphasis on changing the blood quantum or addressing the blood quantum, but because we were so busy looking at everything else, at the end of this nearly five-year project we didn’t even touch blood quantum. And that was a great failure on our part because the membership of a community is the most important thing. It is literally the lifeblood of a community and if you can’t decide on who should be in your community, you’re not going to have a community in the future. So that was a failure on our part because we didn’t address that issue because we were so busy addressing the crisis that we…the time we were living in." 

Chris Hall:

“I think for me, philosophically, the government is a small supportive entity within a nation. I think the citizenry is the one who outwardly people see as the nation and they should be the ones that are producing. They should be the ones that are exercising that leadership, that autonomy that says that we’re standing on our own two feet. We are capable and we desire our future to be sustainable and we’re not going to give that over to a government institution and we’re not going to give that over to any large umbrella corporation that may or may not support our desires as citizens and define us differently than we choose to be defined. So yeah, it really comes down to the individual’s impetus of making the announcement and the statement, ‘This is who I am, this is what I stand for and this is what I’m willing to do to be a part of this nation.’ And you need people standing beside you that are like-minded.” 

Angela Wesley: 

"When we do go away and have regular meetings with our people who live away from home, that’s always the question is, 'How is this going to impact me?' It really comes down to the constitution gives us the ability to make decisions for ourselves and like this lady was saying, just because people live…our people have been forced to live away from home doesn’t mean they’re not a part of us anymore. But the way our funding structure was from the Department of Indian Affairs is we were only allowed to spend money for people who were living at home. So that was something that we thought was really critical to us governing ourselves is that we would be able then to earn some wealth with resources that we were getting through treaty and to develop our economy so that we could start to provide services to people who live away from home, whether that be housing, health, education, increased medical services or dental services, that kind of thing but we always said that’s up to us. So many of those things were up to us, and that we had to continue to have those conversations as we built our wealth so that the money is being put to where the people want it to be. In terms of reaching out to people and just talking to them and why we would do that, what they can bring, part of what we wanted to do -- with 85 percent of our people living away from home -- is to start to build that vision in our people that just because you live away from home doesn’t mean that your future generations aren’t going to come back. Like you said, those educated people that are out there that can come with different skills to bring into our community when we start to be able to rebuild our economy so we really wanted not just to make the linkage but also to encourage people to start thinking about coming home. Our vision talks about strengthening our culture, strengthening our language, trying to reincorporate our traditional way of governing ourselves. People have to be home for us to do a lot of those things, so we wanted to start to build that notion in people’s minds that yes, it will be possible. We don’t have schooling right now, we don’t have health care right in our community, but let’s work so that we can so that we can start to attract some of those people to come back home and live comfortably in our territories. That’s part of our vision is that our people are able to live at home. And we recognize that not everybody is going to do that but we want more people to be able to do it."

David Wilkins: Indigenous Governance Systems: Diversity, Colonization, Adaptation, and Resurgence

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, federal Indian law and policy scholar David Wilkins discusses the incredible diversity and sophistication of traditional Indigenous governance systems, the profound impacts colonial policies had on those systems, and how Native nations are working to aggressively to reclaim and reshape those systems to meet their contemporary challenges.

Resource Type
Citation

Wilkins, David. "Indigenous Governance Systems: Diversity, Colonization, Adaptation, and Resurgence." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. August 6, 2008. Interview.

Ian Record:

“Welcome to Leading Native Nations, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. I’m your host, Ian Record.

With us today is David Wilkins, a citizen of the Lumbee Nation. He holds the McKnight Presidential Professorship in American Indian Studies and has adjunct appointments in Political Science, Law and American Studies at the University of Minnesota. He is well published in the area of federal Indian policy and tribal governance and recently released a revised edition of American Indian Politics in the American Political System and an edited volume called On the Drafting of Tribal Constitutions by Felix S. Cohen.

David, we wanted to bring you in today to talk about a number of issues and really trace from the beginning tribal governing systems. So I think it’d be best to start at the beginning and talk about, for those people in Indian Country, for those people in mainstream American society who may not be aware, if you could paint a picture for us of the nature, the diversity and the sophistication of Indigenous governance systems in North America before Europeans.”

David Wilkins:

“Well, that’s a very complicated question given the amount of diversity that was evident in what we now know as North America. They estimate over 600 distinctive Native peoples, whether we call them tribes or nations, or increasingly I’m hearing the word bandied about of referring to tribes as 'states,' but the amount of diversity was just tremendous from sophisticated confederacies like the Iroquois Confederacy, the Haudenosaunee, to the Creek peoples of the southeast with their red and white towns spread out over thousands of miles. You had hunting communities, small fishing villages in the Great Lakes area in the northwest, you had the California communities who lived out in the deserts, the many tribes here in Arizona, from the Navajo Nation to the Tohono O’odham peoples and all the peoples throughout the great heartland of North America. And so it’s difficult, there’s no single model, there’s no single framework that can accurately describe this amount of diversity and the very concept of tribal governments itself is a bit of misnomer. In fact, the concept that is most really applicable to describe tribal peoples historically was the notion of tribes as kinship systems because you basically had Native communities who realized that they couldn’t govern themselves if they got too large demographically, so they intentionally kept a lid on their population and tried to maintain a relatively small community because they realized that as long as the kinship system was in place and that only worked when you could remember who your neighbors and your relatives were, that’s when you’re able to govern yourselves and maintain peace and stability and relative harmony. And so the idea of Native peoples and Native communities as governments is a bit of a problematic concept. Although increasingly we refer to Native governments today, there’s still a lot of discussion and debate. And when I’m teaching my classes, I often get my students to really think about this and ask them to consider whether the Navajo people spread out across four states basically over 30,000 square miles of land constituted an actual people or a large extended kinship system or did they in fact constitute a government since they never actually met as a collective body ever until they were essentially imprisoned at Fort Sumner in New Mexico. And so diversity and differentiation all tied into the various value systems of Native peoples and the geographic places where they inhabited and the kind of subsistence that they depended on. All that affected the kind of systems that were in place.”

Ian Record:

“The research is replete with example after example among these traditional governing systems of these various peoples of effective institutions that they had developed over long periods of time to resolve conflict, to advance their priorities as a community, to relate with other groups that were distinct from them. Could you talk about just briefly -- and perhaps provide a couple examples that maybe immediately come to mind -- about just how robust that was prior to colonization?”

David Wilkins:

“Well, my wife is Navajo and so when I married into the Navajo Nation and became an instructor at Navajo Community College, now Dine College, my background was in federal Indian policy and governance and I wanted to teach a course on Navajo history. So I immediately began to collect research about the Navajo people. There wasn’t a whole lot available at the time. There are a few historical studies, a few anthropological studies, but I eventually was able to cobble together enough information to construct a course. And what I learned about the Navajo is that given the breadth of their coverage and how much land they inhabited historically, ¦today the reservation’s 25,000 square miles. Historically, it was much broader than that, possibly twice as large as that. And given that, Navajos who lived around what is present day Tuba City never met Navajos who lived around Farmington, New Mexico. But what they had was a system of governance, and for them I would call it a governance system, which was the '[Navajo language],' which was a regional association, if you will, of extended families who would appoint or elect individual leaders. And every two to four years these 12 [Navajo language] families, extended families would gather together to discuss issues of security, discuss issues of farming, to discuss issues of harmony or whatever the issues were at the time. And the individuals who constituted the leaders of those [Navajo language] extended families were called '[Navajo language]' and they were very powerful individuals. But their power was not based on coercion, it wasn’t based on force, it was based on the art of persuasion, the art of being able to express orally what they wanted their community to do and if the community decided not to do that, they wouldn’t do that and there was no force. In fact, if you can, ¦when you think about a list of attributes or characteristics that could be used to describe tribal peoples generally and it’s not easy to do that, but as someone who teaches this I try to come up with a list of characteristics, but this idea of the lack of coercive power, a lack of authoritative force, because that just wasn’t the way tribal peoples operated. It really was historically a consensus-based system and it was based on this concept of kinship with everyone being related to one another either by blood or by marriage or by association. And so the Navajo, with that system, and it was a very effective system for them, so that when the Spaniards first arrived in the late 1500s and sought to impose their power and their force over the Navajo people, they might be able to militarily defeat this one extended family and then they would sometimes force a treaty negotiation to take place and a week later they would get attacked by another Navajo [Navajo language] realizing that they weren’t subject to the Spanish power or control. And so that’s one example.

And you have examples like the Iroquois Confederacy that I mentioned earlier, with their 50 chiefs with powers that were laid out in wampum belts historically. The earliest constitution in the world most people now acknowledge, even though people that write about U.S. constitutional history don’t quite want to acknowledge that just yet, but when their constitution was in fact written down and non-Iroquois began to study it and examine the kind of provisions that you see laid out in there, you see initiative, you see referendum, you see equality for women, you see equal suffrage, you see checks and balances and you see the amendment process and you see all these kind of provisions that many of which show up in the U.S. Constitution that was developed in the late 1700s. And so you have different, ¦with so many different tribes you have multiple possible governing arrangements that were out there, but many of them sharing again common values based on mutual respect that is the system of kinship, a system of shared spiritual values and traditions, a shared language, a shared history, sacred history and most importantly, a shared sacred landscape that constituted their original homeland. And so those were the major factors that I think you can say linked Indigenous peoples together historically. And while those were important, the distinctions and the differences were still rampant, which is one reason that you would have conflicts on occasion, which then led to early treaty-making processes. So by the time Europeans finally arrived and began to want to negotiate treaties with us, we knew all about the treaty process because we also had engaged in it because tribal nations were never the idealic, pristine communities that we’re sometimes depicted as. We were human collectivities and human beings by nature and by human nature are going to engage in conflict at times.”

Ian Record:

“You mentioned 'checks and balances,' which is a term that is -- if you spend a lot of time working with tribal governments, working with elected officials, spending time in tribal communities, particularly those that are kind of wrestling with this issue of governance and is their governing system effective or are there some shortcomings to it -- you hear it a lot as tribes work to reclaim their systems of government from colonial systems that were thrust upon them over the course of the decades and the centuries. Another term you hear a lot is 'separation of powers' and you’ll sometimes hear this refrain around those two critical issues that, ‘Oh, that’s the white man’s principles. That’s something that they have,’ but that’s really not the case. If you look back at traditional governance systems and the Oglala Lakota are a perfect example, they had checks and balances, they had separation of powers to ensure that there was a rule of law and that no one was above that rule of law.”

David Wilkins:

“Absolutely, and that’s something that tribes were never given credit for until very recently, and we’re still sometimes denied our legitimacy as governing systems because we’re ¦outsiders who look at our communities still don’t see us even when we have very clear separations of powers and checks and balances in our institutions of governance today. But historically when the first Europeans arrived and met the various Native nations that they did, they came in of course with preconceived ideas and only their own Euro, European mindset and cultural paradigm to draw from and so they couldn’t see any immediate resemblance in our societies to what they exhibited, coming from the very feudal system that they did. The kings and queens that governed their countries, you see certain tribal leaders in the East Coast named 'King Powhatan' and 'Prince So and So' when those simply did not exist. And yet, certainly as you were saying, there were inherent checks and balances that were laid out. They weren’t called legislative and executive and judicial, but the essence of them, of what those three different branches do and how they check one another to maintain some relative power was quite evident, and it’s especially true for a number of tribes where you had peace-making powers and war-making powers separated. You had that in Iroquois, you had that in the Creek, in the Cherokee, you had that in a number of tribal communities, because they understood that someone who’s skilled in the art of diplomacy would not necessarily be the individual that you’d want to lead a war party on and vice versa. Someone skilled in the art of taking a scalp wouldn’t be someone that you would want, or would have the skills necessary, to negotiate a treaty of alliance with a neighboring tribe. And so tribes had all sorts of these institutions of governance that were in place, although they were rarely articulated formally and they certainly weren’t articulated in writing, but they were articulated in the stories, in the origin account, in the creation accounts and had Europeans taken the time to listen to us, they would have heard this. Whether or not they would have respected it is another question and we’ll never know that, but it’s important for your listening audience to realize that checks and balances and separations of powers were clearly evident even when you would look at a community of say 300 members, 300 citizens or 300 clan beings and see, you wouldn’t be able to see a separation there and yet in the roles, in the responsibilities that were clearly articulated in the various customs and traditions and duties of both the elected officials and the officials who would be appointed, given their ceremonial knowledge, they were clearly present.”

Ian Record:

“That’s a good segue into my next question, which really delves into what happened to those traditional systems of government, governance that were so vibrant in these communities when Europeans came and just how profound was the transformation?”

David Wilkins:

“It was obviously profound. It had to be an absolutely devastating period of time, from the initial influenzas and waves of diseases that swept through Indigenous communities and just wiped out entire nations. The depopulation figure is roughly around between 80 to 90 percent, and so when you lose that many of your people in one fell swoop and sometimes it would be a swoop that would be a recurring kind of swoop because it takes generations for communities to build up any kind of immunity to diseases that they historically had not experienced. So that was the first devastating blow and so you lose your elders, you lose those individuals who had the weakest immune systems because of age and yet they’re the ones that were the repositories of all, of most of the knowledge, the traditional knowledge, the songs, the ceremonies, the tradition, the values in all of that. And so that was the first factor, and then of course with the conflict that then ensued as the various European powers competed for a permanent foothold here -- the Spanish and the French and English and the Dutch and the Swiss and the Russians and others. Those conflicts in which they would try to play off tribe against tribe, sometimes segments of tribes against other segments of tribes, caused additional severe problems. Trade goods and the items, the material goods that Europeans brought with them was another factor that affected how we operated amongst ourselves, how we governed amongst ourselves, and how we engaged in intergovernmental politics with other peoples.

Then, of course, you had the religious dimension, the missionaries, the Jesuits and the Franciscans and the Catholics and the Presbyterians and all the various Protestant denominations all competing for the souls of Indigenous peoples, because they thought that we were the peoples who were heathens and savages and who had no bona fide religions that they had to show any respect for. And so it was a combination of these factors and many others that weighed in. Boarding schools come in at a later date and the general assimilative process and the coercive power of that assimilative process, it really kicks into high gear in the 1870s when the federal government decides that they’re going to 'de-Indianize' us culturally speaking. They had given up on the extermination phase because it wasn’t economically sensible to them and it also violated and contradicted their own Christian and democratic heritage, and so they decided they would try to civilize us and Christianize us and Americanize us by allotting us and doing the various things. And so all of those forces weighed in variably on various tribes of course, but every tribe was impacted.

Some were just impacted to where we no longer know who they are anymore or the remnants of them would merge in with other tribes and so you have really a polyglot system that ensues and so tribes throughout all this period, this profound and very long transitional period, are finding, ‘How can we survive this, how do we weather this persistent storm that just doesn’t seem to cease?’ And what you find is tribes engaging in all sorts of strategic and innovative and desperate measures to try and still find some way to maintain some measure of self-governing capabilities and they did remarkable jobs of that. Even in facing the teeth of full coercive assimilation and full federal power, tribes were still relying upon traditional elements and traditional knowledge and vestiges of traditional thought and traditional systems and traditional institutions that still enabled them to remember who they were even when it was thought that they were no longer there and yet they were able to somehow weather most of that. Even though we are certainly not the people that we were in 1492, but then again, no people is the same. So yeah, we were devastated on all sorts of levels, but Indigenous peoples here and abroad are the most resilient of peoples and we found ways to survive, we found ways to manage, we found ways to cope and we did that by altering our traditions, by altering our languages, altering our institutions of governance and still coping.”

Ian Record:

“So I think a lot of historians would agree and scholars such as yourself would agree that that systematic dismantling of traditional governing systems on the part of the federal government in the United States and the Canadian government up in Canada for First Nations pretty much continued uninterrupted until about the 1930s, when there was this kind of -- and people may disagree about the extent to which this shift occurred -- but everyone acknowledges there was a shift in how the federal powers that be were going to treat tribes, the latitude they were going to afford them to make certain decisions about their own affairs, about their own lands, about their own peoples, and that in the United States took the form of the Indian Reorganization Act. Can you describe for us what that process entailed I guess for most tribes, the typical experience of the IRA in terms of its implementation and what that standard boilerplate system, as it’s so often called, looked like and how that perhaps didn’t jive with these traditional systems that we’ve been discussing.”

David Wilkins:

“That’s a very good question and it’s a very complicated question. And as you know, from the book that I just edited that Felix Cohen wrote, although he wrote it as a legal memorandum in 1934, the Indian Reorganization Act was drafted by Felix Cohen because he was hired specifically to write the initial draft of that, hired by John Collier and Nathan Margold, but first let me give you some context leading up to that because it’s important. As I was saying, with all these factors that had devastated tribes, even with all of that devastation and catastrophic loss of life and of institutions and so on, in 1929 [Indian Affairs] Commissioner Charles Burke issued a circular in which he asked every superintendent under his charge to describe what kind of business council or other governing system was in place on their reservation that they were overseeing. He sent it out to over 120 superintendents, 78 superintendents responded in writing, and I was able to secure a copy of their written responses. And as I read through them a couple years ago, I was absolutely flabbergasted at the diversity of governing arrangements that tribes had concocted, sometimes on their own, sometimes in conjunction with well-intentioned missionaries, sometimes through other entrepreneurs who would come in thinking that they had what it would take to help to save this particular tribe. But in many cases you had the agents responding to the commissioner’s call by saying, ‘They don’t have a business council, but they have some form of constitution and I don’t know how they got that, but they have that.’ Or they would say in the case of multiple, of many of the pueblo communities, ‘They have very traditional, very organic governments that I just can’t seem to dislodge despite my best efforts. And as long as they have those, they’re never going to be a civilized community even though they’ve very peaceful people of course.’ And you see all this frustration on the part of a lot of these agents describing the fact that there is still a lot of traditional knowledge, traditional institutions that were still in place in 1929.

Now this is just five years before John Collier comes on the scene to save us from ourselves ostensibly and from Christian missionaries and state officials and so on. But the presumption of a lot of federal policy makers by the time Collier comes on the scene under the [Indian] New Deal is that Indian tribes are essentially bereft of any kind of governance, least of all traditional governance. And yet when Cohen was hired, he also knew virtually nothing about Indians, but he began to travel almost immediately and began to learn, and during the summer months he and his wife bought a cabin in the Adirondack Mountains and he lived near Ray Fadden, who was a Mohawk traditional person who began to instruct Cohen on traditional knowledge, particularly among the Iroquois people. And Cohen began to learn and began to gather together all the evidence of existing constitutions that were still in play in Indian Country. And by 1934, Cohen issued a statement in the beginning of one of his books where he says, ‘There are some 60 tribes that have constitutions and there are lots of other tribes who still have remnants of traditional governance that has somehow survived this overwhelming force of coercive assimilation.’ And he was absolutely enthralled by that and as you read through his legal memorandum, you see him saying, ‘We want to find, I want to find a way to incorporate this traditional knowledge into these IRA constitutions.’

Now of course as you and I were talking earlier, that wasn’t always the case in specific tribal communities. But when Collier ultimately gets hold of the draft that Cohen had drafted in the IRA form, what Collier really had in mind was he envisioned tribes as municipal bodies basically, as 'mini cities' if you will. He had respect for tribal cultural sovereignty, he didn’t have a whole lot of respect for our political or legal sovereignty, even though he realized that treaties should be upheld, that the federal government had a trust responsibility to tribal peoples and tribal lands and resources and rights. And yet when you read through the IRA, a very comprehensive measure by the standards of that period, even though it had been whittled down from a 40-page bill to a four-page bill, by the fact that it stopped the allotment process, by the fact that it encouraged tribes to form a government, a government obviously that would be encouraged by federal officials to follow a constitutional framework, even though they didn’t have to do that. And a number of tribes rejected the IRA, which was in itself a new innovation under John Collier, because all the prior legislation dating back to the 1870s up to the IRA itself, they were unilaterally imposed on tribes, and [with] the IRA, tribes had an opportunity to choose whether or not to come under its rubric. So there were, it’s a very complicated and a very almost a schizophrenic piece of legislation, because you had John Collier and cohort saying, ‘We respect tribes. They should have the right to exhibit their cultural identities and exercise some measure of self-administration,’ really, I wouldn’t call it 'self-governance,' but it was really 'self-administration.' And yet when you read many of the IRA constitutions that were approved, many of the major decisions had to be approved by John Collier and his office and the Secretary of Interior. And so you had the federal government basically telling tribes two very different kinds of things: ‘We respect your right to have a measure of self-governance, and yet it still mush comport with our views on what that might look like.’

And so...but the IRA is a piece of legislation that’s been written about a lot, but not enough people have really closely examined how it came to pass, what the actual mood of the country was at the time and more importantly, how the IRA was implemented on the reservations that did in fact adopt it, because it’s a much more variegated process than tribes are given credit for. And so this concept of the IRA and a model constitution that was a boilerplate that was simply thrust down the throats of tribes, my research of Felix Cohen’s papers disputes that entirely, as did Elmer Rusco’s wonderful book, A Fateful Time, that came out in 2000. And so we have a growing body of evidence, which suggests it’s much more complicated than that. Certainly there were some tribes that faced a tremendous amount of pressure from Collier and cohort to adopt the IRA, like the Navajo Nation, who ultimately still rejected the IRA and don’t have a constitution to this day, over Collier’s strenuous objections. And yet in other cases, you have situations in which the IRA was very quickly -- and very easily it seems -- adopted and it has become the basis of their governing system and they’re doing quite well with it. And so until we have much more detailed individual case studies of all, both the IRA and the non-IRA tribes and what was happening in the mid-1930s, we’re not going to know for sure, we’re not going to know definitively what really transpired.”

Ian Record:

“As with everything across Native nations, it’s very, very difficult to generalize or to oversimplify the complexity of experiences, of governing institutions, of expressions of sovereignty and the rest of it. There were across a number of IRA tribes these common provisions that were derived somewhere in Washington in some office. And one of those that you commonly see in numerous IRA constitutions is this question of judicial function and judicial authority, which more often, not more often than not, but oftentimes was neglected or was left up to the council to decide. And I was wondering if you could talk about some of those common provisions that are so often studied and researched in the context of IRA, particularly in the context of contemporary governing systems among Native nations and what some of those legacies are of some of those common provisions.”

David Wilkins:

“Well, when you look at constitutions of not only tribes, but of states, when you look at the U.S. Constitution, when you look at international states and their constitutions, you’re going to find common provisions. In almost all constitutions around the world you’re going to have an executive entity, you’re going to have something that performs legislative functions, in many you’re going to have something that performs a judicial function, you’re going to have in many cases an articulated Bill of Rights or something like that, you’re going to have something dealing with elections. So you’re going to find common provisions in constitutions no matter at what level of governance you’re looking at. But when you look at the IRA constitutions, certainly in the book that I edited of Cohen, I found a copy of a model constitution that he or someone on his staff, on a tribal organizing committee, had developed. Again, we don’t have any proof that all tribes received this. In fact, all we have is a bit of evidence that some tribes received it. In fact, Cohen himself goes out of the way on the first page of this legal memorandum to say, ‘I’m not going to, I don’t want this canned constitution sent out because many tribes will simply adopt it wholeheartedly.’ And so that didn’t take place to my knowledge, and I’ve researched his papers pretty darn thoroughly, but we do know that some tribes saw that model and we know that Cohen and his organizing committee staff held a number of congresses, 10 congresses throughout the country in which they explained the IRA, in which they explained the constitutional process and got a lot of feedback from tribes. Again, this was another major innovation from all the previous 50 years of legislation, tribes were given an opportunity to respond to this law and the law was in fact amended based on many of these tribal comments.

But for example, with the judicial branch, you’re right. If you look at many of the IRA constitutions that were in fact adopted, became law, most of them lack a separate judicial function. Cohen addressed that specifically in his legal memorandum. And his argument was that most tribes, at that time, he thought, were so cohesive, were small enough that basically a unitary government would suffice. He said it would be expensive, it would be duplicative and it would really cause problems if tribes that are very small tried to create three separate branches of government. He said historically, most tribes didn’t have that articulated clearly and that’s true. And I’ve heard someone as knowledgeable as Sam Deloria make a similar argument. ‘If you have a tribe that has less than 1,000 citizens and living on a very small patch of land, does it really make sense to have three separate branches of government and to try and, how do you staff those? Where do you get the actual human power to make that kind of thing happen?’ And so I think that’s one reason that most of the IRA constitutions don’t have judicial systems. They weren’t told they couldn’t have them and some in fact do incorporate them in their governing systems. And yet again, we need additional detailed case studies to really examine and articulate why some have them and some don’t.

But the idea of provisions and comprovisions is an important element. And the thing that’s always bothered me about the IRA, given John Collier’s obvious respect and support for tribal cultural sovereignty and cultural authority and identity, is the fact that before the IRA, tribes had to get the Secretary of Interior’s approval less than they did after the IRA was adopted. So that’s a telling statistic that Vine Deloria and Clifford Lytle revealed in their study of the IRA. And so in fact John Collier and the Secretary of Interior’s office had more discretionary power over tribes who adopted the IRA after that law became functional than they had over tribes before that. And so that’s a telling statistic and that’s one that always had rubbed me wrong and it’s always left me very concerned about John Collier’s real intention, because if he was really intent on supporting a measure of tribal self-governance or self-administration or self-rule, why would he require absolutely most tribes to consult with him or get his or his boss’s, the Secretary of Interior’s permission before they could sell land, buy land, do anything involving trust resources. It just doesn’t make any sense. And yet there’s that mindset of federal paternalism that was still very powerful, still very regnant in the 1930s that will continue to persist up into the present day, although it’s not quite as intense today as it was back then.”

Ian Record:

“I’m glad you just mentioned the present day, because that’s where I wanted to move next. I think it’s good to move now from essentially trying to read the tea leaves of what these architects of the IRA were thinking back then to what’s the legacy of IRA today? Again, it’s impossible to generalize, but one of the things I’ve been struck by in my work with the Native Nations Institute is, as you get past the mid-1970s and the passage of the Indian Self-Determination Act and you see tribes beginning to aggressively assert sovereignty and strategically think about how best to do that, how best to exercise that, you’re seeing a groundswell of constitutional reform, particularly among those tribes who had IRA systems of government essentially unchanged since the 1930s. What do you think really sparked, what was at the root of that? And have many tribes just simply outgrown the IRA governing system?”

David Wilkins:

“I think peoples do. Governments that don’t have amendment processes that allow their communities to mature and to grow and evolve don’t last. And I think as a part of sort of, as a part of that mindset of federal paternalism that even after the IRA and even after tribes had adopted a constitution -- and I think again this was over John Collier and Felix Cohen’s heads -- I think many local Indian superintendents still refused to recognize and respect the inherent sovereignty of those tribes, to respect their constitutional validity as valid governments. And so that was an ongoing problem. And so it really wasn’t until the 1950s in the wake of the termination era, which really galvanized Native peoples throughout the country, those that faced immediate termination and thought that they might be facing it somewhere down the road, that created a backlash and really fired up Indigenous peoples led by the small fishing tribal communities in Washington State, but that spread to the Iroquois of New York State and spread throughout the country. My own people, the Lumbee, routed the KKK [Ku Klux Klan] when they tried to come in there and burn a cross in the 1950s. And so you had this surge of, ‘We’re just not going to take this kind of racism and discrimination anymore.’ And so that begins to mount the relocation effort in which the federal government had tried to forcibly get many Native peoples to leave the reservation to go into urban areas, sort of the last systematic federal policy. That led to a major pan-Indian movement -- not unlike the boarding school period from earlier generations -- and so that also galvanized Indigenous peoples. And then comes the War on Poverty and the Office of Economic Opportunity and various federal programs that provide its funding to tribal leaders who began to take advantage of various media opportunities and various media venues in the urban areas. And so it was a combination of things, the environmental movement, the Black Power movement, the birth of the American Indian movement, the Alcatraz takeover in 1969.

So it was really a beautiful and powerful and completely unheard of confluence of events that just sort of coalesced and all of that, out of all that ferment, I think it convinced tribal politicians, tribal community activists, ‘We have the power to do more for ourselves if we’ll just do it.’ And so some tribal communities began to do that and many of them began to turn their attention to either their constitutions or to a desire to try and create or recreate traditional governing systems or to do something about their general council or whatever system they had, but it was this confluence of events that I think really encouraged tribes that, ‘Yes, you have the authority’, and then when Congress passes the Indian Self-Determination Act, when Richard Nixon issues his Indian policy statement, they then had federal support and federal recognition for these Indigenous self-determination efforts. And so all of that I think convinced tribes, ‘We need to take charge of our own governing systems and we need to do that by really closely examining what kind of governing systems we have in place. And we need to begin to fine tune it or throw it out and start over or do whatever we need to make it, to get it to match what our community’s needs are right now, rather than what they were looking like 40 or 50 years ago.’”

Ian Record:

“You talked about a lot of this movement kind of taking hold, I guess the realization setting in in the ‘50s, the movement really taking hold in the ‘60s and then crystallizing in the ‘70s with the Self-Determination Act. And you mentioned Richard Nixon’s statement and other events, but this movement is not slowing down, is it? It’s really gaining momentum, not slowing in momentum. Can you talk about, I guess, in broad terms how tribes are remaking their governing systems and reclaiming their governing systems and not only their systems, but maybe specific governing tools to better reflect their cultures, to better advance their priorities and essentially regain ownership in the decision making seat in their own communities.”

David Wilkins:

“Well with the Indian Self-Determination Act of 1975, that was the first major law. And so in addition to that, a couple years later you have several Supreme Court decisions come down the pipe, decisions like Santa Clara Pueblo vs. Martinez, which recognize that tribes have the right to decide who their citizens are and there were other decisions as well. Those were of course counterbalanced by negative decisions like, cases like Oliphant vs. Suquamish, whose tribe learned they no longer had criminal jurisdiction over non-Indians, which historically, we did in fact exercise, despite what the Chief Justice said at the time. But you really had this development taking place that really sort of started with Nixon and then it began to build through Congress with the Trail of Broken Treaties and some of the activism that took place. It sort of culminates with the ‘75 Indian Self-Determination Act and then some later Supreme Court decisions.

And so that combination of things takes place and then comes Ronald Reagan of course. Reagan comes in slashing everybody’s budget, but particularly the budget of vulnerable groups like tribal nations, and out of that, someone in Nixon’s camp encourages tribes, ‘You should look to gaming as an opportunity to do some kind of economic development.’ So the Seminole started a little bingo parlor and all of a sudden it explodes and other tribes say, ‘Hey, if they can do it, we can do that.’ And so the California tribes start theirs. They’re challenged of course by the State of California, it goes to the Supreme Court and the Supreme Court tells tribes in the state, ‘If you allow it, the tribes can do it.’ And so before you know it, tribes across the country are establishing casinos, which begin to bring in a steady stream of revenue, which we hadn’t seen the likes of ever really, dating back to the fur trade probably or the buffalo period.

And so that money and that stream of fairly secure income because Indian casinos continue to do very well compared to other casino operations, that has given a number of tribes a measure of economic flexibility. So they’ve been able to use that money to begin to rebuild their infrastructure, they’ve been able to use it to engage in language immersion programs and do all sorts of things culturally and with educations and with Head Starts and with all sorts of programs. It’s also taking us down a road, since we’ve never been on it before, we don’t know where that’s taking us. And so it’s also unleashed a backlash of course from envious state governors and envious state lawmakers and envious federal lawmakers who look to tribes now and their successful casino operations to bail them out of their economic problems. And so it’s created this backlash, and you’re always going to have legislators like the late Slade Gorton, who’s no longer in the Senate who was known as an Indian fighter and challenged any exercise of tribal sovereignty among the states in Washington or anywhere in the country. And so we’re going to have this constant sort of battle.

But the constitutional reform efforts that are taking place, I think, are really taking place now largely because of these stream of events we talked about, but also because gaming has accorded certain tribes the financial flexibility to be able to sit back and take a moment and think and ponder and reflect and to really look more closely at what their reservation or trust land or ranch area looks like and to decide, ‘Is the system that we have in place the best one? Can we do better? Do we need to look at revising or remaking or engaging in a revolution to come up with a newer or different system of government that might be more reflective of the way we historically governed ourselves or should we continue down the path of devising constitutions that begin to mimic more the state or the federal system?’ which has certain advantages and perks as well. And so I think tribes are having opportunities now to do things that they didn’t have before because of the economic flexibility that gaming and some other revenue streams has provided them.”

Ian Record:

“Part of your research focus in terms of contemporary tribal governance has examined the trends in terms of constitutional reform and how tribes are reclaiming their systems of governance, redesigning them to meet contemporary challenges while at the same time reflecting more appropriately their cultures and their identities and their core values and so on. Could you share maybe what you view as kind of the most bright lights out there from your experience, some of the tribes that are -- in your opinion -- are really seizing the day when it comes to regaining their governing systems, reclaiming those systems to better suit their own needs?”

David Wilkins:

“Well, that’s an area that I’m just now, I’ve collected with the help of a friend who’s a computer whiz, we’ve created a database of tribal constitutions and right now we’ve got about 318 and I’ve read a lot of these, but I haven’t begun yet to really closely examine what is happening on the ground right now with regards to specific tribes and their own constitutional efforts. I can only speak about my own tribe, the Lumbee. We’re not fully federally recognized, although in the process of pursuing that. We devised a constitution in the mid-1990s that was very contentious because there was another segment of the tribe that had been in power that had started during the War on Poverty and OEO [Office of Economic Opportunity] period and sort of thought of itself as the tribal government. And yet when the tribal community decided they wanted to create an actual constitution and began that very complex process, which took a number of years, that group ultimately was sort of squeezed out and it’s caused a bit of tension and yet the constitutional government is in place now and it seems to be working fairly well. Other tribes, a former student of mine, Deron Marquez, was the chairman of his small California rancheria, San Manuel Band of Serrano Indians. They don’t have a constitution. They have a simple plan of action that’s been in place for some time. They operate under a general council model because they’re such a small community, but they happen to have one of the most successful casino and gaming operations in California. And they’ve been able to parlay those revenues and they’ve become partners and now they are co-owners of a four-star hotel in Washington, D.C. with a couple of other tribes. They own a water bottling plant and they’ve diversified their economy tremendously, but the casino dollars were the basis of that. And so I’m looking forward to doing more in terms of the constitutional, contemporary constitutions to see what tribes are doing what, but I just haven’t got into that fully just yet.”

Ian Record:

“So Dave, let’s dive into a little bit more detail on two acts of legislation, federal acts of legislation that you’ve already touched upon, and the first is the Economic Opportunity Act of 1964 and the second is the Indian Self-Determination and Education Assistance Act of 1975. Could you delve into what impact those two acts of legislation had in terms of transforming the environment within which Native nations exercise sovereignty?”

David Wilkins:

“OEO was a major law. The Area Redevelopment Act was the first law in 1961. I don’t know a whole lot about that, but it was sort of an early forerunner to the OEO, but OEO is credited by most tribal people with being the first major piece of legislation that created an Indian desk in that particular office because there was clear, there was all sorts of empirical evidence that Indian Country was in the doldrums and had been for multiple generations from an economic development perspective. And so the federal government in creating the OEO staffed that, put an Indian desk there and other programs that were started, the Comprehensive Employment Training Act, CETA was an act that I got my first job in when I was still in college in 1973. But OEO and the legal services was another dimension of that. In fact, Peterson Zah was a recipient of that and he was able to take some of that money, get himself to law school, and use that to create the first legal services corporation on the Navajo Reservation that has done wonderful work and still is doing wonderful work.

And so it created a cadre of Native leaders who were able to gain particular jobs and get education, whether in law school or graduate school and they became the ones who went back to the reservation and either assumed political leadership positions or became the grant writers for their nations. And it was that grant-writing process that created a whole new generation, what Sam Deloria once called the 'managerial class of Indian elites,' who helped to sort of begin not to completely severe, but to begin to cut the umbilical cord between tribes and the Bureau of Indian Affairs. And that in itself was a major deal, because as long as tribes were absolutely beholden to the Bureau of Indian Affairs, the Bureau of Indian Affairs was in complete charge and had been for the previous century and a half.

But when the OEO and the other War on Poverty programs became available to tribes as granting agents, they began to receive money that didn’t have to go through the BIA, it went directly to them as sponsoring agencies and they were able to then use some of that money to do certain things. There was still all sorts of things attached to that and they still had to follow federal rules and regulations and it created additional problems because tribes under their treaty obligations were getting money as sovereign nations but in under the War on Poverty programs and Great Society programs, they were getting them as simply poverty-stricken groups. And so there were far more strings attached to what they could do with that money. But even within that constrained framework, tribes were able to do things and had a measure of flexibility that they hadn’t had for a very, very long time. And the Indian Self-Determination Act of 1975 really kicked that up a notch higher, and now tribes were able to contract directly and began to take over control of programs and to administer programs, still again attached to federal rules and regulations and stipulations and so on, but still they were gaining and additional measure of self-administration, if not complete self-determination because they’re still, the money is still coming from the federal government, but they now had a bit more flexibility in what they could do with the money and they could contract and still maintain their trust relationship to the federal government.

And then comes 1991, you have Self-Determination, which sort of morphs into the Indian Self-Governance Project and this was an initiative that was actually started by tribal leaders themselves. They took the idea to people in Washington, D.C. So Indians are the ones that got the Indian Self Governance process underway and they brought it to the attention of the people in Washington and said, ‘There are too many strings attached, too many, there are too many, we don’t have enough freedom and enough flexibility to do what we really want with either the OEO remnants or the Indian Self-Determination Act. We want to be self-governing, in which we just get a block of money directly from the federal government and then we just do what we want with that.’ And so you had a number of tribes, I’m not sure how many tribes. I know initially there were like 20 some odd tribes that were part of the original pool of self-governing tribes. I think their numbers now are up into the 40s, maybe even more now. And so you’ve got self-determined tribes, now you’ve got a body of self-governing tribes, and we’re still sort of in that sort of mode right now.

But then of course, once the gaming phenomenon just erupted, now you’ve got the casino tribes and they’re sort of a whole other thing, a whole other level. And yet because, if tribes were going to engage in class C gaming, which is the most lucrative, they are required under the federal law to negotiate a compact with the state and the Supreme Court, unfortunately, has interpreted that to mean that the state essentially has a veto power over tribal decisions. So even when tribes had the, what they think is their largest amount of leeway, federal lawmakers still find ways to give either themselves or to delegate to states a power that essentially amounts to a veto power. And so even there there are constraints. And yet you’re right, as you were saying a moment ago, tribes are having opportunities now to do things that a generation and certainly two or three ago weren’t even on the horizon.”

Ian Record:

“I had a colleague once describe the Indian Self-Determination Act of 1975 in this way, that ‘the federal government cracked the door on the ability of tribes to take over meaningful authority over their own affairs, and that some, not all, but some tribes drove a Mac Truck right through that door, that they kicked the door in essentially.' What do you think has been the difference between those tribes that have really been able to take full advantage of the new environment that...that act and its predecessors created and what has on the flip side held some other tribes back?”

David Wilkins:

“That’s a good question. And even with the Self-Determination Act, even with Self-Governance, I wouldn’t buy that analogy. I wish it were true. I think the door has been cracked and some tribes have widened it a bit and the self-governance tribes have widened it a bit further and casino tribes, the ones that are really doing well, have widened it a bit further, but there are still profound constraints on tribal economic and political and legal and cultural decision-making authorities that states don’t have to worry about, that individual citizens don’t have to worry about, but that we still do because of concepts like the doctrine of plenary power, the Doctrine of Discovery and various other legal ways in which the Supreme Court and the Congress and increasingly states are in positions in which they have the authority and have the power to restrict us, you see. And so while I think it would be nice to try and argue that we have essentially free reign, we don’t and haven’t had that since the John Marshall era in the 1820s, since Johnson v. McIntosh in 1823, where the Supreme Court said we don’t own our own land and the discoverer gained the superior title to that. That doctrine still governs. So Native peoples on reservation land -- even if it’s land that they’ve never left -- still don’t have a superior title to their own territory. And so, I want to see the glass as half full too, rather than being half empty, but as someone who studied federal politics and federal law and policy, I’m well aware of how quickly and how emphatically federal lawmakers can come in and can absolutely lock us down and we have no recourse because we’re still denied full admittance into the international community despite the draft declaration and despite the permanent forum and despite other things. And so we have more freedom today than we’ve enjoyed for a very long time, but we need to be realistic and realize that we still don’t have as much freedom as I think we are treaty and trust base entitled to. And so that’s the reality of that I think we have to be aware of, always cognizant of.”

Ian Record:

“So David, I wanted to finish up with a quote, and this is by a rather well-known Onondaga leader named Oren Lyons, whom you know, and he said once that ‘The best defense of sovereignty is to exercise it effectively.’ I was wondering if you could respond to that and how you see that from your perspective.”

David Wilkins:

“Absolutely. Vine [Deloria] was always saying just that in his many writings about tribal sovereignty, encouraging tribes all along -- dating back to Custer Died for Your Sins and even when he was executive director of NCAI [National Congress of American Indians] -- to quit talking and to get out there and start acting, to start exercising, to start wielding the residual, inherent sovereign powers that you still have. He said, ‘They’re all there and if you don’t wield them, if you don’t use them, in their dormant state they atrophy.’ And when something atrophies in this society, it eventually becomes brittle and it breaks away or someone from the outside swoops in and just takes it away because they say, ‘You’re not exercising it, you’re going to lose it.’ And it’s the old water law doctrine, ‘Either you use it or you lose it.’ And I think that’s what Vine and certainly what Oren Lyons is referencing there. And that’s where I think tribes today are really doing some wonderful things. I think sometimes they go a bit overboard in fact with engaging in certain activities and basing it on the doctrine of sovereignty.

So for example, I’ve been researching the disenrollment issue and the banishments that have really been increasing dramatically in the last dozen or so years, and I hear a number of tribal officials saying that they’re exercising their sovereignty when they act to kick out bona fide members, bona fide citizens of their nations. And they say, that’s not an act of sovereignty, that’s an act of desperation, I think, because historically we found ways as tribal nations through our various adjudicative ways and our various judicial ways to, if there was a conflict, we found ways to restore balance, to restore harmony, to bring people together to negotiate, to arbitrate, to solve the difference. You just didn’t willy-nilly tell someone, ‘You’re no longer one of us,’ because you’re related to those people. If we view tribal nations as extended families, as extended kinship networks, there’s no way that I would kick you out if you’re my brother, if you’re my relative. You don’t cut off your arm. And we were talking earlier today during our meeting about this concept of membership versus citizenship and as I’ve been doing my research on disenrollment and banishment I looked up those two words. And if you look at the etymology of the word membership, it dates back, its earliest meaning means an organ of the body and I think that’s the meaning that John Collier had in mind when he first coined the phrase tribal membership. He saw tribes as one living body of humanity in which all the people were related. That’s how Cohen understood us and that’s how historically we understood ourselves. And so if that’s the case, then that entire body is a sovereign body. And so you don’t act in a way to willy-nilly and arbitrarily cast off a portion of that body, because that’s who you are. And so I’m concerned when I see that kind of thing happening.

And yet as often as that’s happening, many other positive developments are also happening in which tribes are engaging in exercising sovereignty like the United Treaty that was negotiated just two summers ago up in Washington State between various Native nations and the United States and some Canadian First Nations, some Maori and some New Zealand, I mean some Australian Aborigines. And so that’s an act of sovereignty that Vine also encouraged our peoples to do a long time ago to engage in diplomacy amongst ourselves. We’re denied that under federal law currently, but there’s nothing under federal law or our treaties that say we can’t negotiate with one another. And so this is an example of tribes in a positive way exercising their sovereignty to engage in diplomatic relations with other Native powers. And so when I see something like that happen, I smile and so that replaces my frown from disenrollment to a smile with engaging in diplomacy.”

Ian Record:

“You mentioned the positive ways that -- and the strategically beneficial ways -- that tribes are exercising their sovereignty and the ways that those exercises in fact help tribes, empower tribes to defend that sovereignty. And then you also talked about ways that they’re perhaps not exercising it beneficially in terms of advancing their long-term interests. It may make sense now, but in the long run it’s going to be to their detriment. We also see some tribes exercising their sovereignty in ways that are going to invite responses from other entities, other governments, particularly the federal government, state governments, that are going to put them in the legal arena and as someone who’s a student of the U.S. Supreme Court and how it treats tribes in this day and age, that may not be the best place for tribes to try to have their rights recognized, is it?”

David Wilkins:

“Right. Exactly. Exactly. Yeah, my dissertation was on the Supreme Court and most of my first publications addressed how the Supreme Court engaged in and arrived at various opinions that have had a devastating status over tribal sovereignty. And increasingly, as the Supreme, once Ronald Reagan became president, through his two terms, he was able to really stack the federal courts with a number of conservative ideologues. Clinton came in and he obviously wasn’t as conservative as Reagan and yet, his appointees were larger fairly moderate as well. George Bush with his most two recent appointments of Alito and John Roberts, as soon as I heard about those appointments, I knew that we were going to be in for a much longer stretch of rulings that were going to really have negative repercussions.

A graduate student and I wrote a paper in which we examined the Supreme Court decisions from 1996 to about, 1995 to 2003 and we looked at all the major decisions. While there were a couple of decent rulings during that period, for the most part, most of the opinions, over 80 percent of them were negative. And even David Souter, who voted most often in favor of tribes, only supported tribes about 23 percent of the time. Clarence Thomas, of course, is the most radically anti-Indian Supreme Court justice, followed closely by Scalia and now Roberts and Alito and Kennedy and it goes on down the list. And so historically, at least until the 1970s, tribes could turn to that august body of nine individuals to sometimes get a fair shake, but that’s simply not the case now. And so you have a situation where when tribes have a conflict, say a state is attempting to extend their jurisdictional authority over an area that has historically been run and governed by tribes, if they turn to Congress, they’re going to find not a positive ally, if they turn to the president, they’re not going to find a positive ally and now they turn to the Supreme Court, which had historically been their one occasional ally, that’s certainly, that door has largely been closed to them.

And what bothered me most recently, the latest Supreme Court decision, the Plains Commerce decision, which was just handed down a month ago or two months ago, I had read the oral transcripts. And someone had notified me about those and I was able to track them down on the internet and Justices Scalia and Roberts raised questions of the Indians’ attorney in which they essentially were mocking the tribal corporation. And I knew based just on that language and the laughter that ensued, I said, ‘We’re going to lose this case.’ I read some other opinions by other people, other Indian legal scholars who felt that we were going to, that Natives were going to win the case, but I could tell by the tone and by the mocking derision that was exhibited by Roberts and Scalia, I said, ‘There’s no way.’ And sure enough, we wound up losing that in a quite powerful and very harsh decision just two months ago, and so that was a further blow to tribal court authority.

And so until tribal courts are going to be granted the comity, the respect that state courts take for granted and that certainly federal courts take for granted, it’s going to be difficult. So I wonder sometimes when I hear people say the tribes need to develop courts, well, to what end? If they’re not, if their verdicts aren’t going to be accorded any respect, if they’re not going to be granted the kind of recognition that state decisions and federal decisions are, then what is the point of having that? And I say it on my darker days, and I still want many tribes to have some kind of adjudicatory body, it may not necessarily have to be a court system, but we need something in place so that we can provide some balance to the executive power and the legislative power, but if we’re going to have a court system, we need to find some way to convince our neighboring polities, the states and the federal government that they need to show our judges and justices respect just like our justices show them respect.”

Ian Record:

“Well, we’d like to thank Professor Wilkins for being with us today on this edition of Leading Native Nations, a program of the Native Nations Institute. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at nni.arizona.edu. Thank you for joining us.”

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

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

Native Nations
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Citation

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

James Anaya:

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

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

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

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

[applause]

Walter Echo-Hawk:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[applause]

James Anaya:

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

Walter Echo-Hawk:

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

Audience member:

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

Walter Echo-Hawk:

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

Audience member:

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

Walter Echo-Hawk:

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

Audience member:

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

Walter Echo-Hawk:

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

Audience member:

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

Walter Echo-Hawk:

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