traditional governance systems

Terry Janis: The White Earth Nation Constitutional Reform Process

Producer
Native Nations Institute
Year

In this lively and far-reaching discussion with NNI's Ian Record, Terry Janis (Oglala Lakota), former project manager of the White Earth Nation Constitution Reform Project, provides an overview of the citizen education and engagement campaign that preceded White Earth's historic vote to ratify a new constitution in November 2013, and specifically the role he played in that process.  

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

People
Resource Type
Citation

Janis, Terry. "The White Earth Nation Constitutional Reform Process." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. St. Paul, Minnesota, February 6, 2014. Interview.

Ian Record:

“Welcome to Leading Native Nations. I’m your host, Ian Record. On today’s program we are honored to have with us Terry Janis. Terry is a citizen of the Oglala Sioux Tribe in South Dakota and for the past year he has served as project manager for the constitutional reform process of the White Earth Nation in Minnesota. Terry, welcome and good to have you with us today.”

Terry Janis:

“Thanks, man. It’s nice to be here.”

Ian Record:

“Yeah, it’s good to see you again.”

Terry Janis:

“Yeah, yeah.”

Ian Record:

“So I’ve shared a few highlights of your personal biography, but I’m sure I left some pertinent things out. So why don’t you just tell us a little bit more about yourself.”

Terry Janis:

“From Pine Ridge, came over here to Minnesota, went to McAllister. From there went to Harvard for a master’s in education, University of Arizona for my law degree and several jobs since then -- kind of a balance between international Indigenous rights, land rights issues and broader national policy issues as well. So that kind of education -- law, law reform, policy development -- was a good fit for this particular job.”

Ian Record:

“So we’re here today to discuss constitutional reform”

Terry Janis:

“Right.”

Ian Record:

“a big topic across Indian Country and specifically, the work you’ve done on behalf of the White Earth Nation over the past year or so. As the White Earth Nation has worked to develop and then ratify, recently ratified, a new constitution, but the process has been underway there at White Earth for quite awhile.”

Terry Janis:

“Yeah.”

Ian Record:

“And can you sort of talk aboutcan you begin by talking about where White Earth was in the process when you came on board because as I mentioned, this thing had been underway for quite awhile before you joined the nation and its effort.”

Terry Janis:

“Yeah, they really started this effort of drafting a constitution in 2007 and it took them a couple of years. By 2009, they had had four constitutional conventions and came up with this draft. The number of delegates that participated in that process, voted on itthe idea was to approve a draft of this constitution that would then be moved to a referendum. That drafting process was completed in 2009 and it kind of sat there for a bit; I think part of the dynamics are complex. It’s difficult to move a constitutional reform process forward. The drafting process is critical and very difficult, but every stage subsequent to that is equally difficult and part of the issue was funding. And so a grant from the Bush Foundation helped them to move it to the next phase of really engaging in active community education process, move it then to a referendum, and then start to think, after that referendum depending upon the outcome -- and this one was positive -- to then look at the implementation process.”

Ian Record:

“Based on your understanding, of someone who is charged with helping to lead and implement that community education effort, what prompted the nation to go down the reform road to begin with?”

Terry Janis:

“I’m not from there, and because of that I don’t have the kind of personal insights or the personal biases that a person that’s from there would have. What I observed and the stories that I’ve been told is, like a lot of tribes, they went through a governmental crisis, a profound foundational crisis in the ‘90s with the 'Chip' Wadena administration; his conviction of embezzlement and how broad that was throughout their whole governance system. In reacting to that, not only did the people stand up in order to reassert an effective governance, but they really looked at the genesis of that: how did it get to that stage? And they immediately turned to the constitution.

And the conversations that you heard from that period of time, that were told to me when I got there, was how the constitution is so centralized in its power structure -- that the people, in power, can be dominated by a single person. And that kind of absolute power, in their experience, did corrupt absolutely. And so without any kind of way of balancing that they, as a reaction to that, they immediately moved to this kind of conversation of, ‘What can the constitution do to create checks and balances, to really have an independent judiciary and do those kinds of things?’ But I think that was the genesis of it.

So they actually started a constitutional reform process in ‘94, ‘95, ‘96. They drafted a constitution at that time as well and attempted to take that out into the communities. The stories that I’ve heard, both from the people that were doing it and the community members themselves, is there was just way too much tension still. They had gone through this amazing crisis. The communities were divided -- not just in two factions, but multiple factions -- so every time they brought this idea of a new constitution out into the communities, those factions and emotions really dominated the story line and it was just too premature. So they waited the 10 years. In 2007, brought it again and that’s where we stand.”

Ian Record:

“So you mentioned there was this profound governance crisis, if you will, that culminated in this high profile scandal. So they go down this reform road and in developing and ratifying, now ratifying, this new constitution system of government. What are some of the main things the nation is hoping to address? You’ve made quick allusions to them but”

Terry Janis:

“And I think that comes out of those crisis points. And what you see in this new constitution is a very clear separation of powers: a legislative body, an executive body and a judiciary. They clearly put a lot of time into that. Also the value of me not being in that drafting process, I wasn’t there, but you can see from the text itself that those parts of the constitution are clear, clean, deliberate and well drafted; that’s what they put their heart and mind and time and energy into. So there’s a very clear separation of powers, there’s clear establishment of an independent judiciary, they also put a lot of time into thinking about what it means to have a traditional government, something that’sin looking at separation of powers, you really harken back to the U.S. Constitution, which hearkens back to the Haudenosaunee constitutional form of government, but what you really get caught up in is it’s an American style of constitutional government -- the separation of powers, how they frame it, how they reference it -- but the way they do it is quite unique in the way of establishing mechanisms with language that tie it back to Anishinaabe traditions -- using Ojibwe language as a part of the constitution preamble and frame of governance, making sure that their judicial system isn’t just about punishment, but really emphasizes restorative justice -- engages the kind of most foundational aspect of the constitution in a way that depends on the people themselves to organize governance. So a range of different things that are quite unique that is really, I think, less controversial and more easily understood.

They also took on this huge issue of defining membership, citizenship. We all know or we should know about the way the federal government used blood quantum as a part of a military and colonial strategy to subjugate us. The ultimate result of that was our disappearance and that’s still on the books. And so they tackled that though with a very broad and dynamic rejection of blood quantum and move to lineal descendency. And that was a thing that came out of those conversations in 2007, 2008 and 2009. It’s part and parcel, very simple, very straightforward in the way the constitution defines it and it ended up being one of the most controversial aspects of their conversation.”

Ian Record:

“I think you’ve touched on some of these already, but from your vantage point, what do you see as some of the fundamental differences between the old constitution system of government, basically an IRA [Indian Reorganization Act] model, and this new creation?”

Terry Janis:

“I’ve talked about this new one. You got -- in order to make a comparison -- you’ve got to read their oldall of the IRA constitutions, but the MCT [Minnesota Chippewa Tribe] Constitution is even worse. And I’m not knocking MCT; they’re some good people, they’re trying to do good work with a bad system. But you’ve got to understand the history of the Indian Reorganization Act, its shift away from allotment; it ended the allotment process, which on its face is a very positive thing, but what this country was at that period of time, after the Great Depression, just before World War II, was all about assimilation. It wasn’t about recognizing the strength and sovereignty of Indian nations, it was about making Indian people white.

And the constitutions that came out of the Indian Reorganization Act, this model constitution that they had, the primary purpose of that was to make things easier for the Bureau of Indian Affairs -- their colonial objectives, their oversight, their kind of attitudes of superiority in having a trust responsibility towards Indian people actually owning Indian land, and Indian people having to ask for permission for using everything. These constitutions have at least a dozen, the MCT constitution has almost 30 specific places where before the tribe can do anything, they have to ask for permission from the Bureau of Indian Affairs and it’s in their constitution. And so that’s their starting point.

And it establishes a mechanism where, for example, even though White Earth has the majority of the population, they’ve set up a governance structure in the Minnesota Chippewa Tribe where each of the separate bands is represented by two individuals on their governance structure. And so White Earth has over 50 percent of the population almost; they only have two votes out of 12. It is completely unrepresentative. There is no government in the world that would allow that kind of unrepresentative form of government and they accept it. It’s what they were forced to take up. The Bureau of Indian Affairs wrote their constitution for them. There’s no story or history or genesis of the language of this constitution coming out of Indian minds. It was the Bureau of Indian Affairs that wrote it, put all of these tribes together under one body so they didn’t have to build relationships with six separate tribes. They only had to deal with one entity.

So this is as colonial a system as you can imagine and me coming from the outside, I’m shocked honestly that they find a way to make it work, every day. But that’s where it’s coming from and having that conversation, and engaging that conversation as a part of this conversation, was a part of everything that we put together as well.”

Ian Record:

“Let me follow up on that. This is not part of our original questions, but this is something that I see come up in so many tribes I work with on the issue of constitutions and constitutional reform is...you’ve just shared with us a pretty deep knowledge of the genesis of, until recently, what was the law of the land for the White Earth people. And so often when these tribes struggle with this issue of, ‘Our constitution is inadequate. We pretty much understand we need to change it.’ It’s a whole other question of, ‘How do we do it?’ But a lot of folks contemplate reform without a full working knowledge of, ‘Where did our specific constitution come from? Did our own people have any meaningful say in its creation? Did they have any meaningful sense of ownership in this apparatus that they now use to make decisions and try to live as a nation?’ And how important is it for other tribes -- if people are going to look at White Earth as an example -- how important is it for other tribes to understand that historical context when they tackle the question of, ‘Do we need to change our current constitution and how?’”

Terry Janis:

“Honestly, I don’t think it’s all that important. At the end of the day, it’s relatively irrelevant because when you get to this scale of change, what you really have to have a deep understanding of is politics, power and change.

Politics is important. Who has what political source, where does it come from, how did they engage and develop it? In order to engage at this scale, you have to have a deep respect for politics, you have to understand the politics that’s happening in that community at the local level and a broader level that affects it. When you look at process of change, you’re going to recognize that some people are gaining, are benefiting from the current system and other people will gain or benefit from the change. And so you have to recognize where those tensions are going to come from, where’s the push-back going to come from, and you have to respect that and honor that and deal with it in a very real and dynamic sort of way.

And then that’s the process of change, the engagement of it. Whenever there is a compelling reason for change, like in White Earth -- the constitutional crisis in the ‘90s, history of where the constitution that they’re working under comes from, and how it contributed to the disaster that they just went through -- is an important part of what pushes and sustains. And that’s important, that has to be there, but in order to actually for change to actually occur, you’ve got to deal with the reality of politics and power and that is all a part of the conversation. Some of it is one-to-one information sharing education process, others are very practical sitting down and trading realities. ‘You’re going to lose this. Your people are going to gain that. How important is it that your people gain even though you may personally lose in certain ways?’ And you just deal with that in a very real sort of way.

The leadership at White Earth, at Bois Forte, at all of the MCT bands, are the same as the leadership in any other Indian nations; they’re practical, they’re very realistic and they’re in it as a life issue. And I didn’t say life and death. They’re in it as a life issue. Our leaders are politicians from that life perspective, but whenever you start to challenge them to give up, or this is going to be taken away -- this thing that has benefited you and your family -- that has to be an open conversation. It has to be a real conversation and you have to honor their integrity, their respect, and their ability to come to a decision that not only helps them to deal with the practical realities, but also fits with their integrity.”

Ian Record:

“In the point you just made, doesn’t that argue for tribes ensuring that they develop a reform process that is distinctly theirs and that distinctly attends to their own local dynamics, as you laid out?”

Terry Janis:

“Absolutely. You cannot do it any other way. And there’sin this situation -- having me as an outsider come in -- there’s value in me being able to say, ‘I don’t care what you do. I didn’t draft this thing. I have noof my own self into it at all. What matters to me is you, as the people, make your own choice. Do you realize the power that you have? That’s what matters to me.’ So me coming in with that kind of outsider perspective, and also coming in with the history of really fighting for and having some losses and successes in supporting tribal sovereignty, that was the base. And we can have those conversations, and they could insult Erma Vizenor or the elected leadership and everybody else, and I’ll sit there and I’ll nod my head and I’ll let them give voice to that, and then we’ll try to turn to a deeper understanding of what this constitution says and the changes that it incurs. And without that conversation, without having the ability to sit through the emotions, and the local history that’s there, and understand it and take it in, and then incorporate that into a conversation about, ‘Look at the text of this language.’ And so all of those things are local, they’re about that local community, they’re about the people that are there and their personal histories and stories.”

Ian Record:

“I want to follow up a bit on this issue of power and politics that you mentioned. My sense in working with a number of tribes on reform is that yes, that is a huge dynamic that you have to wrestle with and that the approach that you develop in response to that has to be local, it has to be unique to that tribe, and it has to attend to those unique circumstances, but isn’t part of it also dealing with the reality and developing a process that deals with the reality? That, in many times when you’re dealing with fundamental sort of foundational change like constitutional reform, often entailsif you’re going beyond pro forma type amendments and really dealing with substantive constitutional change, you’re often asking the people of the nation to put up a mirror in front, and [to] look in the mirror not just as an individual citizen, but as a collective group and say, ‘Who are we, how do we want to govern, and what do we want our future to look like?’ And often that involves confronting a lot of colonial trauma, a lot of historical trauma, and that tends to contribute to a very organic and sort of messy process that you have to be ready for, does it not?”

Terry Janis:

“Right, absolutely, absolutely. And the fact that I can tell you with some of the folks that I’ve had conversations, how far spittle travels between you and that other person because that’s how pissed off they are and emotional, and that kind of anger and anguish and frustration and fear is very real. Me coming into this as an outsider with absolute respect for the sovereignty of an Indian nation -- and when you’re dealing with the fact that this constitution is going to move to a referendum vote -- that sovereignty lies within each individual. And so my job is to absolutely respect where that person is and where that person can move to. I can have a conversation with somebody about the colonial dynamics of the MCT constitution. If they say, ‘I cannot accept the idea of defining me as a 'citizen' or defining the White Earth Tribe as a 'nation,' we are a 'band,' I am a 'member,'‘ they insist on that over and over and over, my job is not, as an academic, to know better than them and say, ‘You’re wrong.’ My job is to say, ‘Okay. This is your choice. You are the sovereign here. Your vote is all that matters. Your decision and your opinion is all that matters. I respect that a hundred percent.’”

Ian Record:

“So then didn’t your challenge then become, in respecting their ability to choose, and that’s ultimately what self determination’s all about, that your job then became, ‘how do I make sure that they, when they do choose, that they’re making as an informed choice as possible in that they understand fully what this constitution says and more importantly what this constitution will do in terms of structuring how the government actually works and how it makes decisions, how it carries out decisions, etc.’?”

Terry Janis:

“Yeah, yeah. If you think about how Indian people come together and we talk, we learn things as much from laughter as from serious conversation. We learn things as much from getting into a fight and getting a bloody nose as we do by reading a text together side by side. And so that is a multi-faceted dynamic of the process, Indian people coming together and learning this kind of document, this kind of resource materials, this kind of system, systemic construct, it’s really complex.

The White Earth constitution is amazingly complex, how they all fit together and flow together; you are not going to achieve full understanding, period. What I realized is that each person is going to need a certain level of understanding in order to come to their own decision point and that’s my job, is they know how much they need to understand and I’m going to keep pushing everything at them with every vehicle and mechanism that I can. Whenever we came in and designed the educational strategy, there wasn’t going to be just one event in every community and the national symposium. We were going to have dozens. We ended up having over 50 across every single community, a national symposium, multi-media resources, videos, radio turned out to be incredibly important with Niijii Radio and other radio interviews and individual conversations, follow up with thousands of individuals, taking the time to have all of those conversations in as many ways as possible, talking with folks over dinner, over breakfast, in their houses, on the street, wherever. And so that’s just how we are. We as Indian people, we learn in a certain way and if you’re comfortable with that, if you can engage that, if you can get with that, then there’s the potential that you’re going to make the offerings and people are going to come at them in the way that they can come at them.

I never expected to find perfect understanding. The more I got into it, the more I realized I don’t have perfect understanding. There are so many nuances to this stuff that a relationship between this person and that person as a drafter, as an editor, as a voter was a much more complex and real sort of dynamic as well, but having respect for the sovereignty of the individual to make this decision because that’s where it really lies in a referendum, as well as the learning process of us as Indian people. It’s personal and being able to do that and willing to do that and enjoying doing that.”

Ian Record:

“Was part of your challenge trying to sit down in a community session or via multi-media and the many different tools and strategies and approaches you took, but was part of the challenge getting people to care about the role of the constitution in their lives? To say, ‘Okay, basically this current constitution we have, this is how it impacts you as a citizen. This new constitution we’ve drafted, this is how it will change the nation, this is how it will change the, potentially change the community, this is how it will change the role that you can play in the governance of the nation.’ And you talked about making it personal -- is that not part of the challenge?”

Terry Janis:

It’s definitely part of it. It’s not so much how do you get them to care. Again, it’swe’re Indian people, and in my experience, we care deeply; we just do. The question is, ‘What do we care about?’ And so that was the issue, trying to figure out what this person cares about or if it’s a group of five or 20 or 100 or 200, what is the sense of what they care about and then how do you take that and share the information about the text of this constitution, how it changes things and what it will mean? How do you then tie that into what they care about because it is tribal politics, and so much of that is personal? It’s going to be, ‘This person is an elected leader and I hate him or her. She did this or he did that,’ and that is a very real sense of care and is very personal and it’s got nothing to do with me, but it has everything to do with this educational process on this constitution. And so people that are working within their own tribal communities and try to engage an educational process about constitutional reform, you have to respect that, that somebody cares about this thing and that does tie into their ability to learn about the constitution. And as an educator, that’s what makes a quality teacher is finding a way to tie that in so that you’re using that person’s energy, what they care about, to help learn about this thing. Every teacher, every quality teacher that is perceived of as being a good teacher, that’s what makes them good. It’s just normal education. This is not new stuff. This is not unique stuff. In order to do this well, you need good educators and you need people that are grounded in tribal sovereignty.”

Ian Record:

“And ideally grounded or at least understanding of the community, right? As you mentioned and sort of the dynamics and the”

Terry Janis:

“Absolutely, absolutely.”

Ian Record:

“So you made reference to this a little bit earlier in discussing the new constitution and how different it is from its predecessor and how different it is from anything that the United States government would ever conceive of. From your perspective as an outsider, can you share with us some of the things that are contained in this new constitution that are distinctly Anishinaabe, that advance Anishinaabe values, that reflect Anishinaabe culture, governance principles? For instance, you made reference to restorative justice and the use of language and things like that.”

Terry Janis:

“I’m not Anishinaabe and I can’tI cannot communicate that from that perspective. What I can do is say that the preamble uses Anishinaabe language and that is referenced throughout the constitution. The judicial system places a very real emphasis on restorative justice rather than the punishment model of a judiciary. That language ‘restorative justice’ is not in Indian language, but the heart of it, the substance of it, that is all Indian, whether it’s Anishinaabe or Lakota or whatever, that is about that community and the way they’re going to implement it is going to be all Anishinaabe, it’s going to be all Ojibwe.

Whenever you look at...the constitution allows or provides for, requires, three advisory bodies, formal advisory bodies that have direct advisory responsibility to the legislative council and the office of the president, an elder’s council, a youth council and a community council. The constitution establishes them specifically and it states specifically certain aspects of Anishinaabe culture and tradition that that elder council is responsible to give advice to the legislative body and the president on. You don’t see that in other constitutions, period. So it structurally establishes a mechanism for that to be in there, but it also, at the same time, is an advisory body. So it’s not a full shift over to a traditional model of governance where the chiefs are making decisions in that process. It’s a unique sort of mechanism in that regard.

The last one that I think is most unique is if you think about a governance, you’re really talking about the ability of a representative to truly represent their community. That’s where so much of the gap is. In this country, what is the percentage of American population, voting age population that actually votes? It’s a huge gap because the representatives that we can vote on to represent us don’t represent us. Here, in this constitution, the people themselves organize their own voting districts. They are responsible for organizing those voting districts and if they’re the ones that have to carry that burden, there’s a greater potential that they’re going to organize the voting districts that actually mean something to them and if it does, then they’re going to select a person to represent them and then there’s that connect. That is f*cking awesome. It really is. And it is so problematic. How do you actually implement that? Nobody’s ever done that before.”

Ian Record:

“But I would argue that that is righting one of the greatest wrongs of, in particular, the IRA system, which”

Terry Janis:

“Absolutely, absolutely.”

Ian Record:

“It either corrupted, or displaced entirely, these traditional governance systems that, as you mentioned earlier, centralized power. And really what are you talking about when you talk about power? You’re talking about decision-making responsibility and basically where in most, if not all, traditional Indigenous societies everyone had a valued role to play, everyone was expected to contribute to the governance of the nation in some respect, and it wasn’t called the governance of the nation back then, it was called something else, but basically that’s what it was: young people, old people, elders, everyone had a role. And now from what you’re saying is that White Earth has made a conscious decision to return some of that decision-making authority directly to the people so that they can once again have a valued role.”

Terry Janis:

“I think that if you really apply this accurately, this is the whole ball of wax. If this constitution is going to be effectively implemented, the people themselves are going to organize their own voting districts. That’s the only way it’s going to move forward. And in order for that to succeed, they have to be engaged much more broadly, much more actively, much more dynamically than they have now. The strategy for full ground up, bottom up community development to implement this, requires that kind of engagement for them to really understand that and to organize their own voting districts so that it means something to them. And the constitution provides that they can organize it based upon population centers, historic associations, clan systems and their understanding of that, ‘What does that mean?’ is what defines it. The constitution uses these broad, open words. They have to be defined and the only one that can define them under this constitutional form of government is the people of White Earth and that’s just exciting.”

Ian Record:

“That’s cool. So I want to turn now to the process and that’syou were involved with the process because, as you mentioned, you came on board after the constitution had been drafted, and your job in part was to work with citizens that had been designated by the tribe, employees, etc. to figure out what’s the best approach to actually teaching the people about what this constitution says, what it does. Can you give us a brief overview of the campaign, the comprehensive citizen engagement, citizen education campaign that you guys launched and continue to implement?”

Terry Janis:

“Yeah. We went over it just in the fundamental way. On a most basic level it has to be personal. In order for it to be personal, you have to engage in multiple venues, multiple formats, multiple times. And so small gatherings, unique gatherings, having as active and dynamic a calendar that if they miss this one, there’s going to be another opportunity and another and another. And so really playing that out so that it’s personal in that regard.

Secondly, if you’re going to do this, it really has to engage multiple medias. The majority of the population does not live on the reservation and so we had events not only on reservation, but in the Twin Cities, in Cass Lakes, on the Iron Range and other places where major populations are, but we didn’t go outside of the State of Minnesota, and there’s a huge White Earth population outside of Minnesota as well. And so having the website, having different resources and materials on the website, videos. We did the whole training, a whole two-hour session over each article of the constitution and posted that on the website as well, and then having a symposium that was live streamed on the website; accepting the offer of another entity, Truth to Tell, to host an event on the reservation. The chairperson, the primary drafters of the constitution, all came together and participated on that and had a raucuous good time. It was like really intense.”

Ian Record:

“I watched it -- very intense. I’ll ask you a follow-up question about that.”

Terry Janis:

“And it was real. And so just multiple mechanisms for doing that and making sure that number one, it was personal. Number two, that there were multiple mechanisms for doing that. And then number three, there was absolute certainty that we were neutral, that we presented the materials with, as best as I could, with no offer of an opinion one way or another, good or bad, up or down, a complete respect for the sovereignty of that nation, which in this process meant the sovereignty of the individual to come to their own decision, to make up their own mind with their own process. And my job was to provide as much resources for them to do that as possible.”

Ian Record:

“That Truth to Tell forum, which was live streamed, that was quite athat was on our ‘Must See TV’ list for quite a while. I remember watching it and then saying, ‘You guys got to watch this, you got to watch this.’ And they hadI know they posted the first part first and then there was a little lag and then the second part and we were all waiting with baited breath. And it was interesting the conversation that we had internally because some folks among us said, ‘Oh, man, look how crazy this was. Look howlook how ugly it got at times with people beingraising their voice and calling people out.’ And I made the point, I said, ‘Having watched enough tribes struggle through constitutional reform, seeing some succeed and some fail, that this to methe beauty of this forum that you guys had and the way you did it and the fact that it was so open and it was so transparent,’ I said, ‘to me, that is the most important thing is because --aside from what’s being shared in that forum -- the nation and the project in particular are sending a message to the White Earth people that ‘we want to be transparent in this process, we are doing our part to make sure that everyone’s voice is heard.’' And isn’t that the most important thing, is that you’re giving everyone in the community every possible opportunity to make sure that their voices are heard so at the end of the day nobody can say, ‘I didn’t have a chance.’”

Terry Janis:

“And the reality is, whenever you get to learn of a community, after you’re there for a while, you realize people gather at this one place on a regular basis. If I had known that, I would have incorporated it into our strategy and done that. So being very open to the possibility that somebody else is going to come. This was not organized by me, or the tribe, or anybody else. This was organized by Niijii Radio with Truth to Tell and TPT; they did all the structuring of it, they paid for it, they put it all together, they decided on the format. I contributed a lot in conversations with them about the participants and everything else, but to accomplish their goal, having a balance between people that were supportive of it and people that were opposed with strong voices on both sides, even though we didn’t necessarily have strong voices in every situation. Some people didn’t feel comfortable in that environment, but it was their agenda and their show and their program and that kind of transparency is what the tribal council and Chairperson [Erma] Vizenor and Secretary Treasurer Robert Durant committed themselves to. They never interfered with our process at all and were very supportive of that.”

Ian Record:

“I’m glad you bring that up because with another nation we worked with over the past decade or so, they went through constitutional reform about seven or eight years ago now, and they attribute the success of their reform effort to, first and foremost, the fact that they went to great lengths to ensure that the process maintained what was termed an ‘aura of independence.’ Meaning that yes, the politicians, the elected leadership have a role to play and whether it’s funding the process, setting up the body that will lead the process to see it through, but once that’s done, it’s imperative that the politicians take a back seat, that they don’t come to dominate the process, or at least appear to be dominating the process, because it’s imperative that the process itself espouses the kind of principles that you’ve been talking about, which is, ‘It’s not my job to take sides, it’s not my job to champion this, it’s my job to make sure you understand what’s in it.’”

Terry Janis:

“There were people thinking about that in the hiring process. And as many times as I was attacked for not being Ojibwe, this outside guy -- especially a Lakota guy, we’re enemies -- coming in and taking one of their jobs, as many times as I was attacked there was somebody in the audience always who said, ‘This is the best way to do this. There’s no other way we’re going to have an objective look at this and give at least that a chance.’ And so even for the people in the hiring process and the selection committee -- you have to ask them what they were thinking exactly -- but I heard it over and over and over in the community as well.”

Ian Record:

“You talked about some of the strategies that you guys implemented in making sure that you were generating broad community awareness of not just what was in the constitution, but the choice that was before the people about this process, you talked about some of the strategies that you guys implemented in making sure that you were generating broad community awareness of not just what was in the constitution, but the choice that was before the people, individually and collectively. I’m sure not everything went according to plan. You’ve talked about some of the things that you didn’t anticipate when you first set out. Can you share what, from your view, were and are some of the biggest challenges to both, I guess, the process leading up to the vote and then now? And then, what did you do or what are you doing to overcome those?”

Terry Janis:

“On the one hand, you deal with the situation that you have and you create the best strategy you can realizing that you’re going to change it as you get into it. So all that being said, they finished the drafting in 2009 and had quite a few years of not a lot happening. If they could have done a level of this kind of process starting in 2009 leading to a referendum vote on November 19, 2013, that would have been awesome, but they didn’t. And so havingnot having that gap in time -- because you have to make up a lot -- the kind of impetus of coming together and drafting a constitution and then nothing happens and people forget, you lose momentum, you lose context, you lose memory, you lose priority. And so that had to be dealt with and energy created and generated in order to get interest and get everybody back on the same page as far as, ‘This is a priority,’ and ideas and tactics for doing that. That’s what we had to deal with. If something could have been done differently, it would have been changed in the past and have some process engaging from 2009 to the referendum vote.

It also is a really complex document and we put a lot of energy into reading it, working with educators, curriculum developers, the education department at White Earth, Joan Timeche who is the director [of the Native Nations Institute] -- she was really helpful in all of this -- my experience with curriculum development, etc. and thinking through, as adults, what sort of resources and tools can we bring to the table to help somebody work through a hugely complex document. And so reorganizing it, simplifying the language, creating summaries, creating a workbook, getting the text out, really emphasizing the text itself that even though this summary is a summary it’s in a useful way of introducing yourself to it, really being willing to sit down there and go through it word by word as well.

If there was something that we could have taken from that and learned from that, I think it might have been a broader range of stuff. Where if there was more time, really do a pre-K through full adult, develop an educational resource mechanism and tools and strategies to cover that whole broad range because developing a coloring book for a pre-K kid is going to help an adult with that education process as well. And because you’re doing it for a pre-K kid, it’s not insulting to that adult that is actually going to benefit from that. You see what I’m saying? But because we didn’t have that much time, we didn’t develop that full scope and full range of educational resources and tools and have the time to implement it at that scale.

But dealing with a very complex document that is the genesis or basis of a very complex system really would have benefited from more time, a broader-scale approach that engaged non-voting age members and voting age members in an equal sort of basis because everybody votes frombenefits from all of those resources being available to them. That’s just the reality of it. We didn’t have that time. We didn’t scoperamp it up to that scale and that scope of it right away just because of the timing issues. But if we were going to do it over again with more time, especially not losing momentum from the initial 2009 completion of the draft drafting process, I think that’s how it would have gone.”

Ian Record:

“Isn’t that couldn’t you argue that that’s the challenge now before the White Earth Nation is, ‘How do we now actually live this new constitution?’ And isn’t part of that challenge, of figuring how to live it, is this tribal civics challenge?”

Terry Janis:

“Oh, absolutely.”

Ian Record:

“of engraining in our people young, old”

Terry Janis:

“Absolutely.”

Ian Record:

“of all ages not only what the constitution says, but this is who we are, this is how we govern, this is how we make decisions, this is the future we seek for ourselves?”

Terry Janis:

“Yeah, and whenever people think about this kind of constitutional change, one of the easiest things to think about is, if you understand what an IRA council is, an IRA constitution and the tribal council and business committee that comes out of it, their kind of authority to make decisions into the most minute things. ‘Oh, you can’t fire that secretary’ or ‘cut their pay,’ or whatever. The council is integrating themselves in every single decision because that is the scope of power that they have; there is no limits on authority or separation of powers. And so for the new legislative council, once it gets organized, to really learn what it means to legislate, to legislate; for the office of the president to really know what an executive authority and role is, the limits and scope of that; for the judiciary to really believe that they’re fully independent. In order for that to happen, the training and education process have to happen from today. As we get resources and tools out there or White Earth gets resources and tools out there to help the people organize their communities, their voting districts, that education process has to happen at that scale.”

Ian Record:

“And doesn’t it also have to be. you mentioned. White Earth has to be sure that the chief executive, whoever that may be, whether Erma or someone else, that they fully understand”

Terry Janis:

“Exactly.”

Ian Record:

“what their role is under this new constitution. The constitution and the limits of that role, where it begins to get into thatoverlaps into someone else’s role and where they need to think twice and vice versa the legislative side.”

Terry Janis:

“And whenever the kids in the community and the people that aren’t going to run for those elected offices, if they understand it.”

Ian Record:

“Well, I was just going to say, that’s critical because they’re the ones that apply pressure, healthy or unhealthy, on those people”

Terry Janis:

“And who are organizing those voting districts and the representative that comes out of those voting districts is going to be one of them. And so they’re going to be selecting somebody based upon an understanding that they have. It’s a true ground-up, building-a-nation process that depends upon education at that broad scale.”

Ian Record:

“I want to switch to one of the strategies that you guys employed and, I think, were more aggressive, I would say, than we’ve seen with other nations that have gone down the reform road and that’s the use of multimedia. And you mentioned that you guys -- and I’ve seen the videos you’ve done. The website is very robust. It has a series of videos featuring you and some other folks talking, sort of, as you mentioned, breaking down the constitution, making it accessible, talking about constitutional, often very legalese-style language and breaking it down and talking about it in very accessible, laymen’s terms for somebody with a 10th-grade education, for instance, trying to make it make sense to them. How did the community respond to that, to that particular strategy of, ‘Here, we’re going to tell you a story about this particular aspect of the constitution and we’re going to use this visual media to do it’?”

Terry Janis:

“The only way that I can really respond to that is the few positive responses that we got. ‘I watched it. It was great.’ All of that was good. I think more importantly though is we put a lot of energy and thought into not just having a strategy and design for doing it, but doing it, constantly, persistently and not only in creating these multimedia things and getting them out there, but doing the community events, but also being absolutely responsive to everybody that called, everybody that walked up, everybody that wanted to talk, that responsiveness -- so returning 20 phone calls a day and having 40 -- and so that kind of response. I think it was the whole thing. And so from day one, building that on an increasing basis, feeling the tension ramp up because there was a growing interest and a growing desire for more information, a growing process of people actually making up their mind and caring about it and getting aggressive about it, and trying to convince their friends and their relatives and other people about their position, that’s all we wanted, that’s all we pushed for. And the only way that I definitively noticed success is when I felt people get more impassioned, more opinionated, and more aggressive about it. The more fights we had, the more I was excited.”

Ian Record:

It’s interesting you bring that up because on one hand you would think, ‘Oh, going into this, I want to avoid anxiety, I want to avoid tension,’ but”

Terry Janis:

It’s just the opposite actually.”

Ian Record:

“You want the opposite.”

Terry Janis:

“It has to build.”

Ian Record:

“Because you want passion and interest and you don’t want apathy.”

Terry Janis:

“Exactly. Exactly. And that’s how we knew we were being successful is because it did grow. And by the time it came to the referendum vote itself, it was a crescendo. It was so intense. It was like, ‘Ah!’”

Ian Record:

“So where does constitutional reform at White Earth stand today, if you can just give a quick snapshot?”

Terry Janis:

“A quick snapshot is passed in the referendum vote; the current process of deciding what the relationship is between White Earth and the Minnesota Chippewa Tribe. So what the elected leadership at White Earth decided from day one of my participation there, my contract there, was that they want to remain a part of MCT, if at all possible, to organize under this new constitution, if it gets approved, and negotiate with MCT to remain part of MCT. So that’s what they’re doing right now, a good-faith effort on their part to have conversations with MCT. And because the changes in this new constitution compared to the MCT constitution are quite profound, and how that’s really going to happen, one of the initial thoughts is to request from MCT to sponsor a secretarial election that would change the MCT constitution that would allow each Band to establish their own constitutional form of government, and there’s other options for negotiating that as well. So those things are happening right now. They’re pretty tough; MCT doesn’t want to change. I described to you a completely unrepresentative form of government. The smaller bands that are benefiting from that, why would they want to change? They’ve got their own issues internally within their own governance. The system that they have benefits their current leadership. There’s going to be changes, etc. So it’s a broad dynamic. Whether that succeeds or not and how long White Earth commits to those negotiations is a decision of the elected leadership at White Earth right now, and they haven’t given up yet.

If it moves away from that, then you’re really talking about withdrawing from MCT and issues of secession. One of the issue points with the Bureau of Indian Affairs is this is their baby –- MCT -- and they set up this broad infrastructure to maintain and sustain this thing that they created. BIA initially doesn’t want to see this thing changed as well. They can see the arguments for it and against it, etc. There’s a very clear sort of distinction. One of the concerns that the Bureau of Indian Affairs is naturally going to have, as a broad bureaucracy, federal bureaucracy is, what is the ripple effect? So if White Earth withdraws from MCT, the federal government is supportive and recognizes their right to do so and establish their own form of government. Does that open the door for another entity to do the same thing?

San Xavier as a district on the Tohono O’odham Nation, Sandy Lake at Mille Lacs, situations where there isn’t the history of treaty recognition and treaty establishment, for example, White Earth and the federal government. San Xavier necessarily doesn’t have that kind of relationship, or maybe they do, I don’t know their story that well, but there are some things about this that distinguish it in a very real sort of way, not only the treaty relationship between White Earth and the federal government, but at every level, legislative, judicial, executive that recognizes White Earth as a distinct, federally recognized tribe independent of MCT and treats them that way and operates that way. So that kind of historical and practical federal recognition that exists in MCT and doesn’t exist in other places can argue or should argue that there’s not going to be the slippery slope sort of situation that is going to cause a problem to the Bureau of Indian Affairs, but the reality is, it will and those are very practical realities for the Bureau of Indian Affairs. So that’s the other thing.

A bottom line for the elected leadership at White Earth right now is they are not going to do anything that jeopardizes the relationship, the federal recognition relationship between White Earth and the federal government. They are not going to do anything that would jeopardize their funding, their relationship, or their status. So that’s got to be resolved before they actually withdraw from MCT. That’s a pretty sticky situation.”

Ian Record:

“Yeah, it’s uncharted waters. It’s hard to find another parallel in the United States.”

Terry Janis:

“There’s none. MCT has no parallel in the country, period. And you can make an argument for that and I can call youI can describe 10 times as many reasons why it’s distinct because it is.”

Ian Record:

“So let’s turn to your own tribe for a second. As I mentioned at the outset, you’re a citizen of the Oglala Sioux Tribe, often cited as one of the poster children, if you will, of IRA, the Indian Reorganization Act in that”

Terry Janis:

“I thought you were going to say something else, but I actually”

Ian Record:

“Well, no, in that there’s been a lot ofthere’s been books written about IRA formation at Pine Ridge and the process and you’re quite passionate about IRA, a lot of people are, and I’m wondering, you’ve beenyou’re working with a nation that just basically jettisoned -- or you could argue based on what you just said is still in the process of trying to jettison -- their IRA system, and your own nation still operates with one.”

Terry Janis:

“Yeah.”

Ian Record:

“And being that you’re sort of in this unique position, in that you’re sort of a student of your own nation and its governance system and then you’ve come to learn so much about another nation and their governance system and how they’ve changed it, I guess, if you can sort of try to meld those together and, I guess, what does the White Earth experience say to you about Oglala Sioux and its own governance system and potentially what the future of that could hold?”

Terry Janis:

“The political history of Pine Ridge has had a fairly consistent policy of holding the Bureau of Indian Affairs accountable for its trust obligations. That’s a stronger way of framing this idea and that has been the position of Pine Ridge virtually my whole life. I have argued with them about this a lot, that Pine Ridge should be contracting every function that we can...taking over all obligations, responsibilities, and if it costs us more money, we’re going to do it 10 times better than the federal government will. But the policy position of Pine Ridge is to not let them get away with doing a bad job, to hold them responsible to their trust obligation. That’s how their positioning it. I’m hoping that if they continue with that position that will actually change the Bureau of Indian Affairs and the federal government because that’s what it’s going to require. In order for Pine Ridge to succeed with that, they’re going to have to change the Bureau of Indian Affairs and move it away from a colonial, paternalistic structure to a service entity. That change is not coming any time soon that I’m aware of.”

Ian Record:

“I would agree and looking more internally though, because basically what you’re getting at is that they’ve taken a very staunch position, and I agree with you based on my work with them that that’s my impression as well, but looking internally, this sort of deep self examination that White Earth has gone through in terms of looking at their own governance system, do you feel inspired or encouraged by the White Earth experience to think that Oglala Sioux will engage in that full examination of their own governance system and perhaps identify a better way?”

Terry Janis:

“No, only because Pine Ridge is Pine Ridge and White Earth is White Earth. We as Oglalas are going to chart our own course. For me it goes back to, ‘Do I respect tribal sovereignty or not?’ And I do. And Pine Ridge, Standing Rock, any other reservation has an obligation to assert their sovereignty and make that decision for themselves. I think that Pine Ridge is wrong in that position in regards to the trust obligation and their ability to really change the federal government. I think it’s a lack of recognition of what the federal government is vis-á-vis Indian nations and that relationship, but given that that has been their position and the strength of it -- that’s why I don’t speak in weak terms in that regard and I speak in strong terms -- that it is the policy of the Oglala Sioux Tribe to require the federal government to live up to its trust obligations, period. That is a strong statement, an assertion of tribal sovereignty and it puts the obligation for improvement and reform on the federal government and the Bureau of Indian Affairs in particular. And that’s the best I can do with that.”

Ian Record:

“Final question. You’ve been immersed in the White Earth constitutional reform process for about a year. What, and I understand your point that every tribe is distinct in the way it chooses to express its sovereignty is unique, but aren’t there lessons from the path that White Earth has traveled and is traveling right now that other nations who are feeling like their constitutions and their system of government aren’t up to par, that aren’t reflective of who they are, aren’t there lessons that they can learn from the White Earth experience?”

Terry Janis:

“Absolutely. The bottom line is, White Earth is doing it. You saw the Truth to Tell; you saw the level of opposition to this thing. White Earth is doing it and the vote that the referendumI was sitting there when the count came in. I was completely shocked. We had a registration process that had a larger percentage of registering voters than has ever turned up to an election before, over double the normal turnout and of that, 80 percent of them voted for it. I was stunned. I didn’t expect it to be that large. Given thatand one of the things that you, if you have a conversation with the folks at Osage, for example, the kind of opposition that you saw in Truth to Tell that I saw every day out there, that they saw at Osage as well, whenever you’re thinking of a fundamental and profound change like this, there is going to be opposition. There has to be. You have to accept the reality of this colonial history and that people actually benefited from it and they’re not going to give that up without a fight, period. And that fight is going to be intense and you’ve got to stick with it and you’ve got to make it happen and see it through and let the people decide in as full and honest as a vote as you can get. And if they reject it, that’s great because that then leads you to another conversation and to draft a constitution that they really do want. That’s all that means.”

Ian Record:

“I’m glad you brought that up because I’ve heard a number of folks who’ve been directly engaged in constitutional reform say, ‘There’s no such thing,’ or something along these lines, ‘there’s no such thing as a failed reform effort.’”

Terry Janis:

“Exactly.”

Ian Record:

“For instance, Lac du Flambeau just went through a referendum vote on some pretty important amendments and they were voted down. And I think that if you talk to the people that led that effort, they might be discouraged a little bit, but they’re not giving up and I bet you they would say that, ‘We came out of this process with a greater understanding of what’s at stake and what the role of the constitution is in the life of the nation than we did before and that’s a good thing.’”

Terry Janis:

“And that’s the bottom line that I take from this experience. White Earth is doing it, an Indian nation, a tribe that wants to define their own governmental system. You don’t accomplish that without doing it. Whether it succeeds the first time or the 20th time, it doesn’t matter because each time you do it, you’re informing your population, you’re engaging the conversation and you’re building that base and that is nation building.”

Ian Record:

“Great way to end. Well, Terry, we really appreciate you taking some time to share your thoughts, experience and wisdom with us.”

Terry Janis:

“It was a pleasure. It was good seeing you again, too.”

Ian Record:

“Yeah, good seeing you. That’s all the time we have today for Leading Native Nations, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at nni.arizona.edu. Thank you for joining us."

 

Deborah Locke: Disenrollment: My Personal Story

Producer
Tribal Citizenship Conference
Year

Deborah Locke, adopted by a Fond du Lac Band of Lake Superior Chippewa couple when she was a small child, shares her heartbreaking story of how she and her adopted siblings were disenrolled by the Band decades later because they were not the biological descendants of Fond du Lac Band members and also because they did not meet the minimum blood quantum requirement as established by the Minnesota Chippewa Tribe constitution.

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

People
Resource Type
Citation

Locke, Deborah. "Disenrollment: My Personal Story." 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:

"Our final panel today is looking at the question of disenrollment. So we have a number...we have three speakers who are going to each discuss one angle or one facet of the controversial issue of disenrollment. So we have legal, personal, and traditional perspectives on this question. We have three speakers.

I'm going to start with Deborah Locke from Turtle Mountain. She is a former editorial board member for the St. Paul Pioneer Press and a former reporter for the Milwaukee Journal. She also edited and wrote for the newspaper of the Fond du Lac Reservation, worked for almost three years on a legacy amendment funded project on the 1862 U.S.-Dakota War at the Minnesota Historical Society and she is currently a freelance writer for the Mille Lacs Band.

Shawn Frank from the Jacobson Law Group is a member of the Seneca Nation of Indians, joined Jacobson Law Group in 2002, has substantial experience representing Indian tribes, tribal organizations and entities that do business with tribes. He became a shareholder in 2003. Mr. Frank does speak regularly at lawyer's seminars on the subjects of tribal sovereignty, doing business in Indian Country, the Freedom of Information Act and the administrative appeals through the Department of Interior.

And finally Sharon Day, Executive Director of the Indigenous Peoples Task Force from Bois Forte Band [of Chippewa]. Ms. Day is one of the founders of the Indigenous Peoples Task Force, formerly known as the Minnesota American Indian AIDS Task Force. It began as a volunteer organization with all of the work performed by the board of directors. They hired their first staff, Ms. Day, in 1988 and she has served in this capacity since that time. Ms. Day has received numerous awards including the Resourceful Woman Award, BIHA's Woman of Color Award, the National Native American AIDS Prevention Resource Center's Red Ribbon Award, and most recently the Alston Bannerman Sabbatical Award. She also is an editor of an anthology and a lead walker who carries the water from the Gulf of Mexico to Lake Superior with the Mother Earth Water Walk. I'm looking forward to all their presentations, so please join me in welcoming our panel."

[Applause]

Deborah Locke:

"Hi, I'm Deborah. It's nice to be here today. I hope you can hear me. I received this letter dated January 6th from the Fond du Lac [Band of Lake Superior Chippewa] Reservation Business Committee:

Ms. Locke,

It's come to the attention of the Fond du Lac Reservation Business Committee that you are not the biological daughter of Frederick and Anna Marie Locke and that you were in fact adopted by Mr. and Mrs. Locke. Under Article 2, Section 1c of the Minnesota [Chippewa] Tribe Constitution, only the biological children of members of the Minnesota Chippewa Tribe are eligible for membership in the tribe and if born after July 3rd, 1961, must also possess one-fourth degree MCT blood quantum.

There's a lot of lawyers in this room. I think most of you know that by heart.

The Reservation Business Committee has accordingly directed that disenrollment proceedings be initiated against you in accordance with MCT Ordinance #9. You have 30 days from the date of this letter to request a hearing before the Fond du Lac Tribal Court to provide evidence and argument as to why you should not be disenrolled.

Think about that.

In addition, per capita payments from the Band are being immediately suspended pending the final outcome of this matter.

Sincerely,
Linda J. Nelson
Enrollment Officer

I was standing outside the Rosedale Target when I read that letter one cold day and I cannot even explain to you how weird I felt. I felt damn weird. The day before I was identifying with Pocahontas, today I'm a white girl. The day before I was a Band member. I had family at Fond du Lac. Today I'm cut free. I'm a white girl. I tell you, that felt a little bit weird and it also felt embarrassing. More than anything else it felt embarrassing. I thought, ‘What did I do to bring this on? I was born and I was adopted. That's all that I ever did. What...they've got Band members that shoot each other, that use drugs, that steal, that...the list goes on and on and they're getting rid of me?' I tell you, I was totally perplexed. I called my mother from my cell phone in the parking lot and told her what I'd received. She was absolutely incensed. She was very, very upset and bewildered and she started calling relatives after we hung up. So let me tell you a little bit more about my mother and my dad.

They adopted four American Indian kids in the 1950s and they had always...they wanted children. They went to Catholic Charities in Duluth. A social worker asked them if it was okay if the children were Indian. My mother is a Band member at Fond du Lac and she said, ‘Are you serious? We don't care what color they are.' Dad said the same thing and so four children came fairly quickly after that. I was the first and when I was a little girl my parents had a book that they read to all of us starting with me that was called The Chosen Baby and it was about two kids named Peter and Mary. And Peter and Mary were adopted, and what I took from that book starting when I was three years old is that being adopted is really special. Being adopted means that you are a gift to someone and being adopted means that you were chosen for a very special reason. And so I lived with that magic for a long time and most of my life believing that adoption is a good thing.

So that's my family background a little bit, and I'll tell you that the Fond du Lac Band was also interested in that family background starting with this letter dated July 22, 2009. The Band had sent a letter to the Minnesota Chippewa Tribe asking for assistance in getting my adoption records from the state. So a letter went to the Minnesota Department of Human Services and I'm going to read a little bit about this. ‘The Minnesota Chippewa Tribe branch of Tribal Operations is inquiring of the circumstances of the adoption of...' and then it lists the four Locke children and it's signed by Brian Brunelle, Director of Administration for the Minnesota Chippewa Tribe. And that was followed by an affidavit dated December 23, 2009 from a Jamie Lee with the Department of Human Services at the state and she's responsible for maintaining the adoption records and in this document, in this affidavit she ensured everybody that I was indeed adopted. Here's the date I was adopted, when it was finalized, here's the case number and my name was changed from whatever to Deborah Locke on this date.

Also within these papers that the tribe had was a resolution from the Minnesota Chippewa Tribe dated 1978 wherein I and my brothers and sisters were enrolled with the Band. We were enrolled with the Band because my uncle, Peter DeFoe, Sr., had gone to my mother one day and said, ‘You should have the children enrolled. They're all Indian. They're my nieces and my nephews. I recognize them as such and they should be enrolled.' And mom said, ‘All right.' So she went through with it and apparently that went without a hitch. All I know is that one day in my 20s I was told that I was enrolled. Well, I thought that was pretty cool, but I didn't really fully understand it quite honestly.

You might wonder, where did this all start at Fond du Lac? And from what I can tell it began maybe at least five years earlier, maybe longer, with a family that had adopted two non-Indian children. The woman, Roberta Smith Poloski was a Band member. Her husband was not. He's not American Indian. And they adopted these two girls and had them enrolled in 1982 and there were Band members who very much resented that. The little girls grew up with their Indian relatives, identified with American Indian culture, and were pretty much accepted as far as I knew. We were good friends with them; they lived just down the street.

So the Poloski girls were later identified as non-Indians with Band benefits and there were complaints about that that were registered with the RBC [Reservation Business Committee] starting again minimally five years before this and it might have even been 10 years. I can...I'll read this to you, this is the RBC open meeting minutes from the Brookston Community Center dated November 19, 2009.

Geraldine Savage asked, ‘What is going on with the disenrollment issue?'

Chairman Karen Diver said, ‘There has been a hearing and we're just waiting to hear on the judge's decision.'

Ms. Savage asked, ‘Why is the RBC waiting for the judge to decide?'

Mr. Ferdinand Martineau said, ‘We are following the ordinance that was done in 1988.'

Ms. Savage said, ‘It should be the RBC making the decision.'

Mr. Martineau said, ‘This is the way the ordinance is set up.'

Ms. Joyce LaPorte asked if this is going to cause a backlash.

Mr. Ferdinand Martineau said, ‘It may.'

Mr. Martineau said, ‘The individuals were enrolled under a different council.'

Ms. Geraldine Savage asked, ‘How long will it take for a decision?'

Mr. Martineau said, ‘The enrollment issue should have been easy to decide.'

Mr. Martineau said, ‘Conflict would come if the tribal court said to leave them enrolled.'

Ms. Savage said, ‘This would be a conflict then.'

Mr. Martino said, ‘But we have brothers and sisters and some of them are enrolled and some of them are not enrolled.'

Ms. Nancy Sepala asked if we are going to lose Band members because of the blood quantums.

That last question was never addressed. They went on to talk about elderly housing. I think that last question is really a key one, and that was a question that a lot more people than Ms. Nancy Sepala was wondering at that time. What would be the ultimate outcome of these disenrollments that we're starting?

So anyway, the Poloski girls had their day in court and the tribal judge ruled against them. They decided to come down to St. Paul and present their arguments to the Court of Appeals, the Minnesota Chippewa Tribe Court of Appeals, and that court gave them a decision dated March 30, 2010 that said, ‘We affirm the Fond du Lac Tribal Court decision and their justification was that all children of at least one-quarter degree Minnesota Chippewa Indian blood born after July 3, 1961 to a member...' and then there's that language. So apparently the girls didn't fill that criteria. And then there's reference to the fact that ‘the constitution is unambiguous and that the children must possess a direct biological link to members of the tribe and that at least one-quarter of the applicant's biological lineage must trace to Minnesota Chippewa Indians. Applying this clear requirement to the facts at issue in the appeal is a straightforward task, but it's a task that we do with sadness.'

So Renee and Robin were disenrolled and they complained to the RBC that there were other people who were still enrolled who were also adopted including those Locke kids who were just down the street. And so the RBC took that charge pretty seriously and started its investigation, and I've just read to you some of the documentation that they were working with. What happened to me? Well, after that very fateful day when I received the letter, I was working as their editor and I went to work and made a couple of calls and discovered that not everybody agreed that that disenrollment action was a good idea and that made me feel pretty good. In fact, there were a few people who were rather upset at the Fond du Lac Band when the news of this got out. I don't think it was a groundswell. I don't think that...nothing like that happened, but there were a few key people who mean something to me who didn't like what happened and they had some good advice, including names of attorneys throughout the state who I should contact to get some advice from and so I did. I made phone calls and discovered that I should request a petition date. I'm sorry I'm not a lawyer, I can't get into too many of the legalities, but I do know that it wasn't long after that before we did set...we sent documentation and asked for a hearing. And then I had to wait quite awhile before that hearing date actually came up.

But in the meantime, again I was in this odd rather limbo-like state. I knew some details of my adoption. I knew that my biological mother was from Turtle Mountain. I had seen documentation from the county, St. Louis County, which said that my...the name of my father had never been released. There was no reason for us to presume he was not Fund du Lac. The only description and information I ever learned about my father was that he was tall and he liked to hunt and fish. Well, now that covers about 98 percent of the men at Fond du Lac, although not all of them are that tall, but there could be a tall one out there somewhere. So they all like to hunt and fish and he was athletic, so that was all very interesting, but it didn't tell me a whole lot. It didn't tell me whether or not he was in fact a Band member.

What happened from there is this. I was urged to find an attorney, I couldn't. I called everywhere I could think of to get someone to take the case. Finally, Tim Aldridge did and he was an attorney at Bemidji all the time, had done some work for a couple of bands and Tim agreed to take on the case. The reason these lawyers said 'no' was because there was no precedent. They didn't know what they were getting into and they weren't quite sure how to win it. I'm sure the list goes on and on and on. But my mother went into her savings to pay for the retainer, which absolutely broke my heart, but I didn't have many choices at the time and I think this is true of a lot of people who are included with me. What I heard is from 20 to 40 people at Fond du Lac got that letter and I was the first one to go through with a trial or a court hearing, which says that I was the only one who paid the money that it required. That's an advantage tribal courts have. They know that the people who they represent often don't have the money to pay for an attorney. I think that's one of the worst tragedies of this story.

Anyway, I went ahead, I had this great lawyer and when we got the hearing date, he and a couple of other...quite a few people were sort of involved with this and giving me various kinds of advice. They put together a summons and complaint and I filed it and things were quiet for awhile and then we had our...and I hired the attorney and we had our initial hearing. That went okay. I'm not even quite sure...that was just to see what information...discovery, that was discovery. And then we set the date or the hearing date in the tribal court offices or the tribal courtroom, whatever that's called. And I argued that or my attorney argued with me a number of things and here's what I can tell you from the complaint.

He cited the Indian Civil Rights Act and he said that that states that, ‘No Indian tribe in exercising powers of self-government shall deny to any person within this jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.' Again you're wondering, property, yeah, that little $400 a month payment that I was getting was very useful. That was cut off with absolutely no notice whatsoever. That's just the beginning of what was cut off. I was informed of a -- this goes on -- now this is my voice. ‘I was informed of a pre-hearing conference set for May 18, 2010, but have not received the documents that will be used against me. I request...' and here's B, ‘I request the honorable court to scrutinize the purpose of the disenrollment attempt as to procedural and substantive due process. The January 6th letter sets forth vague information that an adoption is used as the basis for the disenrollment. I may be entitled to enrollment apart from the adoption allegation moreover admitting tribes have the right to determine membership.' Those were the two strongest arguments I think from this document. It also says, ‘My specific allegations alleging lack of due process justifying injunctive relief are as follows...' I was told and I remember this phone call, I was told in a telephone call by a court employee that I would only be allowed to look at the evidence against me at the time of the hearing without prior notice of what may be used against me and B, the pre-trial hearing was set prematurely without a scheduling hearing, a discovery period and without adequate time to be allowed for me to prepare a meaningful case based on the merits. Defendants failed to give a fair warning of the nature of the case. This goes on for maybe another couple of pages. It's signed and dated May 17, 2010.

So, we waited again and it wasn't until I'm thinking, yeah, by late December I was really wondering when are we going to be getting some sort of a decision from the judge and an order arrived or was sent to my attorney on January 22, 2011 and it said this, it said, ‘The issue was whether the petitioner met the tribe's membership requirements when the decision to enroll was first made.' In other words, did that initial RBC and did the officials with MCT just make a simple mistake back in 1978 when they permitted this to go through. And the judge's order also said this, ‘Petitioner's request for hearing did not set out the reason she believed she should not be disenrolled, but stated that she understood the fact that she was adopted was the reason for her disenrollment. She requested documents leading to the decision to proceed with the disenrollment.' The order also said that I provided a document from my biological mother that showed I had enough Indian blood to be enrolled and it also said the Band argued that an enrolled adoptee must be born to a member of the MCT. The judge also referred to the letter from the St. Louis County Adoptive Services that stated my biological parents were each American Indian and although the judge did say the document named my father, it didn't. His name...that name has never surfaced. The order says that, ‘Though I am perhaps of Chippewa descent...' That's the word she used -- 'perhaps.' ‘Perhaps she's of Chippewa descent, it's not enough information to conclude that I met the requirement of MCT membership.' And consequently the disenrollment was approved.

So I received that information, my attorney and I talked a little bit about it. I talked with these other attorneys who had been involved and they all said that, ‘You cannot give up at this point. You have to appeal this. You've got to go to St. Paul to Bandana Square and talk to these judges,' and that means of course I need to hire another attorney because by this time Tim Aldridge had left his practice in Bemidji. I thought, ‘What's this going to take? I have to go to my mother again and borrow from her savings for what may be another losing case and I have to try and find an attorney, most of whom don't even want to come anywhere near me. And what else do I have to...I have to get up in the morning for how many months ahead, each morning, and deal with this thing.' I cannot even begin to describe how this weighs on a person. I can't even tell you how it just turns you upside down, not only me, my siblings, my mom who was elderly to begin with, my extended family and friends. And I didn't realize how much it had affected them until I had heard a rumor through my brother that we were suddenly all to be reinstated. And I told one of my friends whose husband is a Band member and she started crying and so I realized that this is something that is really touching a lot of people in a lot of different ways.

What I heard from one of the attorneys is this, he said, ‘Membership is a right. If you are born to an MCT parent...' and no one proved that Deb was not born to an MCT parent... ‘Fond du Lac and MCT shifted the burden of proof to me after more than 30 years following an open enrollment process.' Those were the words I heard from one of the attorneys. In the meantime, personally what was going on, my youngest brother David has Fetal Alcohol Syndrome. He is living in Tucson right now. He has been for quite a few years. The $400...he cannot work. He can't. He has a...he's got a disability that will not permit him to function very well. He's about 12 or 13 years old emotionally and in every other way. So he's in Tucson and he gets the same letter that I did. He goes to my mother and he's crying on the phone. He's already torn up his ID and all of his papers and anything that ever had anything to do with Fond du Lac. He's very distressed about this thing and my mom of course is very distressed about it and what are we going to do about David now -- because that piece...that puny little $400 a month was basically all he had and some food stamps. So my mom and I started paying his bills that year and he's...my heart goes out to him because he lives in like this world of confusion. There's so much he doesn't understand and it is not his fault that he doesn't understand it. Anyway, in December of 2010, David got a letter that he would receive a check for $4,800, which is a year of casino dividend payments. The letter said he was getting a lump sum because he filled the annual dividend form incorrectly in January. He never got one. What he got in January was the same letter that I got. I reminded my brother that I got the same letter he did in January a year earlier about disenrollment proceedings.

So where does this leave us and where does it leave me? It leaves me with a lot of confusion about what I call 'cultural competency,' because in the course of that year and a half of trauma, one of the first things I was told was that in Ojibwe history and culture adoptees have the same status as biological children, that it had been that way for hundreds of years and that you truly were a chosen baby. I was also told that the tradition of adoption...that adoption meant that children were called to the Band for a very special role and that included the Poloski girls, excuse me, but it did. The Poloski girls as well as me and my three siblings all fell under that blanket. For some special reason, the Creator placed us with this Band. We were babies, we didn't have much say about it, but that's what happened and what I learned from these attorneys, who actually were culturally competent and kindhearted and everything else you would look for in an attorney, and I'd never met people like this in my life, but wow they were good. Anyway, a sidebar.

What I had hoped for through this proceeding and somewhere buried in the Minnesota Chippewa Tribe constitution was something that said that traditions matter and that the fate of children matters and that when you get to be in your 50s and 60s, people don't pull the rug out from under you the way they pulled the rug out from under me and my family. My mother had a good solution early on. She said, ‘If the Band wanted to change something, they could have grandfathered all of you in and said, 'From this point forward this is the way it's going to be.'' And I think that would have been a good solution, but of course they didn't think of that. It was just too easy to say, ‘Well, maybe Renee or Robin are making a point.' I don't even...I can't even speculate where they were coming from on that. I don't... was it a cost savings? I don't think it was that great a cost savings, 20 to 40 people. I still see myself as a 'chosen child' and I really wish the Fond du Lac Band was Ojibwe enough to understand what that means. Thank you."

Sharon Day: Disenrollment: Contemplating A More Inclusive Approach

Producer
William Mitchell College of Law
Year

Sharon Day (Bois Forte Band of Chippewa) makes a compelling case for Native nations to abandon externally imposed criteria for citizenship that continue to cause internal divisions within Native nations and communities and instead return to Indigenous cultural values and teachings predicated on unity, inclusion and love.

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

People
Resource Type
Citation

Day, Sharon. "Disenrollment: Contemplating A More Inclusive Approach." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"[Anishinaabe language]. So I just want to start by telling you a little story.

In 1984 or 1985 -- I'm not exactly sure when -- I went to Nicaragua as a member of a LGBT work study brigade. There was about four of us, we went to Nicaragua and we stayed with families in León and we took medical supplies because of course there was a U.S. embargo against Nicaragua. And so they couldn't get medical supplies or if they had a John Deere tractor that needed parts they couldn't get parts and none of those kinds of things. And it was actually the sixth anniversary of the revolution there. One of the towns that was near León was a little place called Subtiava and Subtiava was the birthplace of [Augusto César] Sandino who was...the Sandinista pattern themselves after Sandino and that was the beginning of the revolution.

So when I went to Subtiava, they had a cultural center, a museum and it was the only cultural museum in Nicaragua. And so I asked the people there, ‘Who...' because I was trying to figure out like how are they Indian, because they said Sandino was an Indian. So, ‘Who lived in Subtiava?' ‘Anybody who wanted to.' ‘Well, how do you govern yourself?' ‘Well, we have a council.' ‘Well, who can vote for the council?' ‘Whoever lives in Subtiava.' And this was like, what? Like how can this be because of course in our reservation systems who can live on the reservation, who can vote in the election, all of that's very tightly regulated, right? And so here's this community, an Indigenous community, in Central America where everything was just so open.

And so I was still having a...'Well, maybe they're not Indian after all.' And so I asked them, ‘Well, what do you do in terms of like...do you use like traditional medicine?' ‘Oh, yeah.' And so they showed me some of their medicines and they said, ‘In fact, right down on the beach a little ways up the coast we had a medical school where we train traditional practitioners in how to heal people before the Spaniards came and there was maybe...it was a school and we had 100 people there.' And one of the first things that the Spaniards did was burnt down that traditional medical facility. So then they pulled out all their land claims maps, like that I could understand. Same as us, right? But it was...this was 1985 and this is very...this changed a lot of the way that I thought about Indigenous people.

So I'm not a lawyer, I worked for the state for a number of years and had to deal with some state-tribal law for about 10 years and had some many good discussions there with especially the Mille Lacs Band of Ojibwe, and who as a result the tribe...the state had to change their contracts with tribes, all their language. But you know what, as tribal people, we had a governance system prior to 1492. We had a system of governing ourselves and this system of governance really for the Ojibwe people involved our clan system. And so there were clans and myself, I already told you I'm [Anishinaabe language], and where we sit in the lodge is in the western doorway and our job is to protect the people. And so ever since I was a little child I could hear my dad saying, ‘Your job is to take care of your family, your clan, your band, the tribe, all Indigenous people and ultimately all of humanity.' Now I've been lucky all my life to be able to work in positions that have enabled me to do that.

We all have clans and there's sub-clans, but these are the major clans that governed, took care of things and some years ago we started a small charter school in Minneapolis. It was called Native Arts High School and it operated for about three years and we couldn't make it go financially, but the way that we planned everything was that we had the students broken up into clans and if there was a dispute, the clans got together and they made a decision. And if they couldn't decide then we went to the Fish Clan because they were the philosophers and they ultimately made the final decision. When that decision was made, that was it. So I guess they were sort of like the Supreme Court.

And so we also have these seven grandfather teachings, and I know among the Lakota and Dakota they also had a system. They had these very same values with the addition of fortitude because life out there on the plains is a little more difficult and so fortitude is something that is one of their values. And so you can't practice...you can't choose which of these values you're going to practice, which of these values you're gong to incorporate in your life because if you don't practice one of these, you're practicing the opposite.

I know it's the end of the day and there's...just to make it short and sweet, we had laws before 1492, we had ways of governing ourself. It was based on inclusion as opposed to exclusion. Everybody had a job to do. When I was a little kid, I was telling somebody at lunch, my...I was one of 13 children and I was smart. And so when my parents would get up at 5:00 in the morning, if I did all my work the day before, I got up with them at 5:00 and my dad would...I'd get to eat with my daddy, eggs and bacon and things like that. And he would tell my mother in Ojibwe what a wonderful child I was, what a wonderful child I was because I'd done all my work and I understood all of this that he was saying in Ojibwe, and it was my time to be with my parents. When I didn't do my job, I stayed in bed.

So we practiced these, we were taught these things, and in my work now at the Indigenous Peoples Task Force we have a youth theater program that's been in existence since 1990 and we have a cessation program for young people and when the kids come in every day, the first thing they do is they have tobacco ceremony. They say this is the favorite part of the program because they sit in a circle and they talk about who they are. And when they come in, they grab a little name badge like this and it has one of these words on it, one of these values and they put that on and in all the rest of the day there that is how they're going to respond to everything. And so we learn these values through practice and if we could begin to develop some of our programs on the reservations beginning in Head Start, pre-school, incorporating these values, we would be about being including people because the more people we have, the more power we have.

Right now, we're only one percent of the population or something like that and so we need to...we've lost so many people and so we need to become larger, to become stronger, and it's not just about those immediate resources. We need to think about how do we do this? We do this through...all of our children should know where did they come from, how did they come into the world. They should know their name. My name [Anishinaabe language], that means something to me. In my clan...next week I'm meeting with five young women who want to be put on their berry fast. These are the things that we're doing, teaching these young people these kinds of things.

The effects of colonization: none of us have, no matter what, I don't care if you're a lawyer, if you sit on the Supreme Court or if you're an elected tribal official, none of us have escaped the effects of colonization. We all have felt anxiety and depression, some of us more so than others and this is a picture that many of you have seen and it's actually Spaniards setting the dogs on people that they considered to be so different from them that they weren't quite human and these were...LGBT native population, we...many of us have self medicated, we've become addicted, and we've lost more than 50 percent of our gifts because we only come into the world with gifts and we have to get those back. And so how do we go through this process of de-colonization?

We're introducing these teachings into our community, hold community gatherings where we invite everybody, where...one of my cousins, she was on tribal, she was tribal chair for a couple of terms up at my reservation and one day she said to me, ‘Why is it that...you moved away from home when you were young and I stayed here and lived on the reservation all my life and why is it that you know so much more of the cultural teachings?' Well, partly it was because I sobered up when I was 21 years old. Between the time I was 14 and 21 I used up my quota of alcohol and drugs and the first thing I did was I learned how to meditate, and then gradually I found my way to the Midewin Lodge and began to learn some of these teachings.

Somebody else I was talking to a little while ago, Mr. Barber there, he said, ‘Some of those folks back in the ‘60s and the ‘70s, we were the old St. Paul families, the Indian families, and we clung together. We clung together because we were all that we had and nobody missed that Saturday night powwow at 475 Cedar St. where the Indian Center was.' And so we had those kind of community gatherings where people participated and we need to include everyone and we need to reorganize these kinds of community events in our...and I think we need to change our way of thinking. Instead of thinking about the glass being half full, we need to think about how do we fill up that glass so everybody gets a drink of that water? How do we build those kinds of homes? In our own community, my grandfather built many of the homes at Bois Forte and I tell you those houses were far better than those HUD homes that they came along in the ‘60s. But they did it together, my grandfather and my uncles -- they did that work together and that's what we need to do.

My mother was born in Canada, three generations ago. Her mother lived in Canada, my great-grandfather came from Leech Lake, but I'm full blood and I'm from Bois Forte, but you go back three generations and these boundaries that we have today did not exist 200 years ago. So why are we so intent on upholding these practices that tear us apart? In this room, you are the brightest people, you are the leaders, we've got to put our minds together and our hearts and come up with a new way of being, because this is the seventh generation and they said that if we are to ignite that light of the eighth fire that leads to peace and harmony, that we need to do it from a spiritual frame of view and to move forward that way.

So today, I will choose love and I hope that you do too because who are we if we are not...if we do not choose love. So it makes me really sad to think about some of the things that happen in our communities today -- some of the things that that we heard about this afternoon -- to many people, and if we're to survive and light that eighth fire, we need to move in that direction and if we're to not only survive as a people, but we have to make some different choices in terms of all humanity, all the people who currently live on Turtle Island, we need to bring them together. When they said, a new people will emerge in the time of the seventh fire, they meant we are all of that new people. We are all of those people and so it takes all the people on Turtle Island if we're going to survive as a species because certainly we know that the Creator has cleansed the earth before and there are many things that are going on today. We need to look at our resources and what are we doing to those.

On my reservation, I wrote an article about the water and they chose not to print it and they said because the mining companies might not like that. I said, 'But it's not about the mining companies, I'm not talking about the mining,' although we should be very careful about that because the sulfide mines that they're proposing are nothing like the mining that is taking place on the Iron Range near where I live. They said, ‘Well, but if we print it then the mining companies might want to have equal space.' And I said, ‘But you're the editor, you can choose.' So anyhow, they didn't and I went on and published it on a place called Alternate, which was then picked up in Canada and in many places and the article was about what I just said: today, I choose love. [Anishinaabe language]."

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." 

Ian Record: Citizen Engagement: The Key to Establishing and Sustaining Good Governance

Producer
National Congress of American Indians
Year

For Native nations, establishing and sustaining the good governance necessary to determine and then achieve their strategic priorities hinges on citizen engagement: the ability of a nation and its government to consult and educate its citizens about the major decisions it makes and implements in order to move the nation forward. This panel session explores examples of successful, innovative approaches to citizen engagement, and discusses the transferrable lessons other Native nations can learn from as they work to enhance their ability to effectively engage their citizens.

This video resource is featured on the Indigenous Governance Database with the permission of the National Congress of American Indians.

People
Resource Type
Citation

Record, Ian. "Citizen Engagement: The Key to Establishing and Sustaining Good Governance." 70th Annual Convention & Marketplace. National Congress of American Indians. Tulsa, Oklahoma. October 15, 2013. Presentation.

Ian Record:

“As some of you may know, the Native Nations Institute for Leadership, Management and Policy at the University of Arizona is the partner organization with the Harvard Project on American Indian Economic Development. So for instance, my boss Steven Cornell is also the co-founder of the Harvard Project on American Indian Economic Development. We share a lot of staff, we work on a lot of projects together, and we both continue this research that began in the mid to late 1980s that’s come to be called 'nation building.' How many of you are familiar with that term 'nation building' in the context of Native nations and sovereignty? Okay, some of you. So basically just to give you a quick nutshell before I sort of dive into the content of this particular session, what began this research was Drs. Cornell and Joseph Kalt -- who were joined shortly thereafter by a Navajo educator named Dr. Manley Begay -- were looking at data that was coming out of Indian Country -- socioeconomic data, a lot of the data that all of you are probably well familiar with: poverty, social ills, employment, unemployment, things like that. And what they were finding was that if you took the whole picture, Indian Country was pretty poor, but when you look reservation to reservation, there was great variety in terms of economic performance and in some of those indicators that I referred to and they wanted to figure out why. So that began this long line of ongoing research into, what is it that tribes are doing that determines whether or not they are successful, and not just with their economic development priorities, but with any of their priorities, be those culture, political, social, etc.?

And so what I wanted to do today was focus on what we are encountering as we continue our on-the-ground work, working directly with Native nations. And I wanted to acknowledge a couple of my colleagues here in the audience today. We have Herminia Frias who is also with the Native Nations Institute. She’s a former chairwoman of the Pascua Yaqui Tribe, and I’m going to put her on the spot during the second half of our session today because she can speak firsthand to the great challenges that come into play when you think about citizen engagement. And then also Renée Goldtooth, who is the Manager of Leadership & Management Programs. And for those of you who are interested in the...are looking through these brochures that I’ve circulated, Rebuilding Native Nations online course series, Renée is the course guide. So if you really like Renée, if you think she’s got a great personality and you want to see more of her, I encourage you to check out those courses. Sherry [Salway Black] mentioned that in the back of the room we have a videographer and it has been our practice at the Native Nations Institute for the past several years is to always get tape. It’s one thing for all of you, all of you are very fortunate in respect that you can afford to come to this sort of session and learn what you’re going to learn from these esteemed panelists, but not all the folks from your nations have such an opportunity. And so what we’ve been working to do over the past several years is to make the perspectives about nation building, make the knowledge about nation building, the success stories that you heard about this morning more widely accessible to all of those that need to have a voice in the nation-building work of your nation moving forward. And so what we’re doing today is we’re going to be videotaping this session and at some point in the very near future this video will be featured...a video of this session will be featured on this Indigenous Governance Database. So you can go there and you can learn...if you say, ‘Wow, this Jim Gray was really saying some interesting stuff,' or 'I love what Ysleta del Sur Pueblo is doing around citizen engagement,’ you can share that link with your friends, your colleagues, your elected leadership and they can learn what you’ve learned today.

So just to give you a quick idea of what we’re going to do today over the next two hours or so, I’m going to go through a very quick framing piece to kind of get you guys thinking about some of the issues around citizen engagement and then I’m going to turn it over to our two panelists and I’ll do very short introductions of them right now. We’re going to ask that you hold your questions until after they’re done presenting and then we’ll engage in a lively question and answer and discussion. Does that sound good to everyone? Okay.

Well, first I’d like to introduce Jim Gray. Many of you know him or know the name at least. Jim is the former principal chief of the Osage Nation and served in that capacity until about four or five years ago. He was instrumental in the Osage Nation’s government reform process and basically what they did was they overhauled their entire constitution and system of government from the ground up and he’ll talk a lot about that during his presentation, in particular the citizen engagement challenges inherent in that process, and then what they did after that process was over, and how what they learned in terms of citizen engagement through the government reform process has benefited them in the years since.

And then second, I’d like to introduce Patricia Riggs. Patricia Riggs is Director of Economic Development with Ysleta del Sur Pueblo, a nation that also experienced some significant change over the past decade plus and really focused on educating and engaging their citizens as the way to move their nation forward and they’re doing a lot of amazing things. And what you’re going to hear from her is how they’ve taken citizen engagement as sort of the pivot upon which all of the foundational change and the achievement of their priorities is going to be determined moving forward. And so for instance, we’ve been working, the Native Nations Institute has been working with Ysleta del Sur on an ongoing basis and it’s really interesting to see how they continually fine-tune their approaches to citizen engagement and how they really focus on the particular audience they’re trying to reach. So for instance, if it’s youth that they’re trying to reach, they make sure that the messaging that they use and the way, the methods by which they inform those people is determined by the audience, that particular audience. The same thing with elders and so forth, and we’ll touch on that later.

But what I wanted to do right now is take about 10 to 15 minutes and talk about this issue of citizen engagement as we see it from our research lens and as we see it in terms of our on-the-ground work, working with tribes to strengthen their governments, to engage in some of this foundational reform that Jim and Pat are going to talk about and then talk about some of the challenges inherent to the citizen engagement question and then talk about what we’re seeing as some of the strategies that were working. And I’m sure Jim and Pat will pick up on some of this as we move forward.

As I mentioned, what we’re about is -- at the Native Nations Institute and the Harvard Project -- is nation building, or as Chief Oren Lyons always likes to remind us, ‘Nation rebuilding,’ because, as he says, ‘Tribes were once very powerful, vibrant, sophisticated native nations who had developed over centuries and millennia their own very complex and very thoughtful systems of government,’ and the question is, ‘how do we reclaim those and rebuild those?’ And really what it’s about, it’s about foundational change. It’s about foundational change. It’s about changing the status quo that has existed in some communities for entire people’s lifetimes, people’s entire lifetimes, right? If you think about the Indian Reorganization Act, most of those were instituted in the 1930s. There’s not many people in your communities -- if you have an IRA government -- that remember how you governed prior to that, what sort of system you had in place. And so really when you think about this, it’s foundational change that talks about completely recasting how the government serves the nation, how citizens interface with the government and so forth. And so it requires that everyone, leaders, leaders of that nation, employees, people that work for the government -- whether you’re a senior manager, a department head or just an entry-level employee -- and those citizens, where are they in the nation-building process? And my colleagues and I, we’ve seen this time and again: the leadership gets a great idea and they just run with it and they run out the door and they get that train moving down the tracks and they forgot that the people are still at the station. And so it’s critical that all of these folks are onboard that nation-building train before it leaves the station.

If you’re thinking about, 'How do we get this train moving and how do we keep it on course,' what we’ve seen in terms of nations much like these two that are represented here today, what we’ve seen that works is when nations take a thoughtful, multi-faceted -- that’s critical, multi-faceted -- approach to citizen engagement. Really it’s about the ability of a nation and its government to elicit their citizens’ participation, active participation in the decisions both big and small that the nation makes and then educating them about those decisions and why they were made. And so if you think about it as this ongoing cycle of listening, deliberating and educating -- and this is an ongoing process, it continues on, continues on -- and really this is the first and foremost job of leaders, if you think about it. And I think what we’ve witnessed in our work with so many tribes across Indian Country is the mindset and I think thankfully we’re seeing it less and less where the leader’s sort of tunnel vision is, ‘I’m a decision maker. I was elected to make decisions,’ when we’ve had many very wise leaders tell us, ‘My job is as much to be an educator as it is to be a decision maker. I’ve got to make sure our people understand what it is we’re doing and why, and not only that, but that I’m consulting them to get guidance on what decisions to make.’ Because that’s how Indigenous societies worked traditionally. And the question is, 'How do you get back to that if you don’t have it right now?' So there’s that ongoing cycle of listening, deliberating and educating that really needs to take place and I would remind folks that this may look very different from one nation to the next. It’s really up to you to determine what this looks like and what this involves and what sort of processes you need to put in place, what sort of mechanisms do you have to have that work? What sort of individuals need to be delegated certain responsibilities to make sure that this process continues to function, not just today, not just tomorrow, but permanently? I wanted to share a clip from our 'Leadership' online course. This is one of our video assignments that appears in our 'Leadership' course about the role of leaders as educators."

[Video]

Heather Kendall-Miller:

"Leadership goes beyond just having an active role in making things happen. It also requires the ability to inspire others to take action."

Joseph P. Kalt:

"There's one more thing, and it's leadership. When we say that, we don't mean necessarily leadership as decision-maker, we mean leader as educator. Someone carries into any community the ideas, the ways of doing things, the new ways of doing things, the old ways of doing things. And it's leaders that do that. Not just elected and appointed officials, but all the dimensions of leadership. And the challenge that you face -- you all are leaders. You got out of bed this morning, or yesterday you flew here. You're not here because you're crawling under a rock and hiding. You're here [because] you're leaders, and the challenge is to carry these messages of effective nation building into communities. And the more you do that, what we find, the more successful the leadership of a community is in getting on the same page and talking about the fundamental nature of these needs for running things ourselves, founding them on our own institutions that are culturally legitimate. Then suddenly, the community starts to stand behind you and then you get stability and then you build a community and then the kids stay home instead of moving away and you've rebuilt a nation."

Wilma Mankiller:

"But I do believe that an essential part of leadership is -- besides all the things like making sure you're working on legislative issues and legal issues and health and education and jobs and all that sort of thing -- is to try to help people understand their own history and understand where we are within the context of that history and to believe in ourselves; to look at our past and see what we've done as a people and to remind people that if they want to see our future they just simply need to look at our past to believe in ourselves, to believe in our intellectual ability, to believe in our skills, to believe in our ability to think up solutions to our own problems. I think that is critical to our survival."

Gerald Sherman:

"I think nation-building leaders need to first just start talking nation building and getting people to think about it a lot and trying to win other people over to get other people to understand what it's all about because what I've seen is you'll get one leader in and they'll understand some of these things but one leader it's hard to make a system change. I've seen it in like the Bureau of Indian Affairs, they pull in some good people to head the Bureau of Indian Affairs thinking that they can make a change but there's a very strong system that exists there and they just can't change it."

Jaime Pinkham:

"When you look at the issues facing tribal communities, issues about per capita distribution, blood quantum, constitutional reform and others, those are very difficult issues that are communities are facing and quite honestly they could be wedge issues that would eventually fractionate communities and so doing education within the community must come first to talk about nation building, to overcome these challenges. I think when there was a time when tribes looked at the greatest threats were from the Colonials and from the Cavalry, then it was from the states but really my fear is that the greatest threats because of these wedge issues that are really pressing on our communities, the greatest threats may come from the inside. And so if we don't do a good job of developing the sense of nationhood within our communities through education and empowerment that the challenges are going to come from the inside not from the outside."

Rebecca Miles:

"Engagement, getting engaged with your people frequently. A lot of times you see tribal council that the first time that they're chewed out they just, it's just now we're in this hole and we're not coming out. And that happens and it's really at no fault of a tribal leader because you can only get chewed out so many times, but instead you do have to have the courage, you chose to run, face your people, get them involved to the extent of, no, they're not micromanaging you as the government, but you've got to inform them and know what it is you need to inform them about. There's just some things that are not...you're wasting everybody's time. That's just not something you inform people about. There's other things that you want to hear from them about. If you want to change enrollment, you better talk to your people. If you're going to make a big decision like our water settlement, go out and get your input from your people and if they have the wrong perception, then whose job is it to change that or work to change it? It's yours, and a lot of times tribal leaders do not think it's their job to do, to be that public person and it very much is your job. You've got to get out there and talk to people and you have to be able to tell them things that they don't want to hear."

Robert McGhee:

"I do believe that at first you are an educator. You are educating your other general council members, well your other council members, especially if it's an idea that you're proposing, or if it's an issue or a concern that you have, you're educating them. But you're also educating your tribal members. Like I said before, in order to make, have a strong government and to have a government that's going to last and to have focus and change, you're going to need the support of the members. And I think if you have any opportunity that you can educate, I think you should, especially on the issue. However, I think the flip side of that is being the student. And there's a lot of times that it's the general council that can educate you, it can be your elders, it can be the youth, that can educate you as a tribal leader to say, 'This is the issue impacting us.' If it's youth it's usually drugs, alcohol, or social media issues, or bullying. And if it's the elders, it's like, 'How can you provide a sustainable, in our last years, how can you make these [years] a little bit better for us?' But also, let's tell you about why this didn't work in the past. So I think they're both valuable tools. I mean you have to be an educator, you have to be a student, but I think there's always being just willing to listen."

Ned Norris, Jr.:

"'You can accomplish anything in life provided that you do not mind who gets the credit.' As leaders -- and that quote is attributed to Harry Truman -- as leaders I like to think of myself in that way. That what I have to do -- the people have entrusted in me their trust to lead them and to guide them for the term that I have been elected. As a leader, I should not ever take advantage of that trust that the people have placed in me. I should never take the position that, 'That was my idea, not yours.' I should not take the position that, 'It's my way or the highway.' As a leader, that should not -- that's not something that we should be doing as tribal leaders. The [Tohono O'odham Nation] vice chairman and I -- Isidro Lopez -- when we ran for these offices, we ran on a campaign that we say in O'odham, it says [O'odham language], and [O'odham language] translates to 'All of us together.' And what we wanted to be able to do was to bring the people together, to bring our people together, to give our people the opportunity to actively participate in the decision-making process. Too many times, we get tribal leadership that think they are going to impose those decisions on the people. We can't accomplish that, we can't accomplish what we need to accomplish if we are going to dictate to our people. That's not our purpose. Our purpose is to lead, our purpose is to work together, and our purpose is to bring our people to the table so that we can hear what they have to say."

Luann Leonard, Stephen Roe Lewis and Walter Phelps: Bridging the Gap: How Native Culture Forges Native Leaders

Producer
Native American Student Affairs
Year

Luann Leonard (Hopi), Stephen Roe Lewis (Gila River Indian Community), and Walter Phelps (Navajo) discuss how their personal approaches to leadership have been and continue to be informed by their Native nations' distinct cultures and core values and those keepers of the culture in their communities. 

Resource Type
Citation

Leonard, Luann. "Bridging the Gap: How Native Culture Forges Native Leaders." Native American Student Affairs, University of Arizona. Tucson, Arizona. November 14, 2013. Panel discussion.

Lewis, Stephen Roe. "Bridging the Gap: How Native Culture Forges Native Leaders." Native American Student Affairs, University of Arizona. Tucson, Arizona. November 14, 2013. Panel discussion.

Phelps, Walter. "Bridging the Gap: How Native Culture Forges Native Leaders." Native American Student Affairs, University of Arizona. Tucson, Arizona. November 14, 2013. Panel discussion.

Aresta La Russo:

"So to begin the program the Native American Student Affairs of the University of Arizona, they're presenting "Bridging the Gap: How Native Culture Forges Native Leaders." Our panelists are Native leaders. What I will do is they will introduce themselves and then we will begin.

I want to introduce myself. My name is Aresta La Russo. I'm a member of the Navajo Nation and my clans are [Navajo language]. I am a student here at the University and I'm over in the American Indian Studies Program. I'm a Ph.D. student there. [Navajo language].

So today our speakers are Lieutenant Governor of Gila River Indian Community, Stephen Roe Lewis; Walter Phelps, Navajo Nation Council Delegate; LuAnn Leonard, Arizona Board of Regents and member of the Hopi Tribe. [Applause] So if you could introduce yourselves panelists, that would be great."

Walter Phelps:

"Good evening. It's an honor and a privilege to be here this evening to be with you. My name is Walter Phelps. [Navajo language]. I represent...out of 110 chapters on Navajo, I represent five chapters, which is Leupp Chapter, Birdsprings Chapter, Tolani Lake Chapter, Cameron Chapter and Coalmine Chapter, so those are the chapters I represent in Western Agency in Coconino County."

LuAnn Leonard:

"Thank you. It is also an honor to be here. My name is LuAnn Leonard. I'm a member of the Arizona Board of Regents and I'm also the Executive Director of the Hopi Education Endowment Fund. I'm Hopi and Tohono O'odham. My village is Sichomovi Village up on the Hopi Reservation and my father's from a little village on the T.O. Reservation of [village name], almost near the border of Mexico. But I was born and raised in Phoenix, Arizona, but I've been out on Hopi for about 29 years. And my daughter Nicole is here, she's up here in the front and I have a nephew who's also here. So U of A [University of Arizona] is a very special place.

Stephen Roe Lewis:

"[O'odham language]. My name is Lt. Governor Stephen Roe Lewis and I am from the Gila River Indian Community. We're over 20,000 members and we just...as you know, we're right off the I-10 just south of Phoenix and I grew up in Sacaton, pretty much the home spot and the seat of power for the Gila River Indian Community. We have seven districts and we have 17 council members. Please don't hold that against me, I graduated from ASU. I told my council I'm coming down to enemy territory and if I'm not back by midnight to send out a search party. But I'm really honored to be here, especially with this...real honorable fellow guests here as well, representing both the Hopi Tribe and the Navajo Tribe and as a tribal leader we work together, all the tribes in Arizona. Our paths cross and we work very respectfully as tribe to tribe, nation to nation tribes. Thank you."

Aresta La Russo:

"I want to say thank you for being here. Your presence here means a lot to our young students here who are getting their education to help their people back home. And I also want to say thank you...I want to acknowledge Karen Francis-Begay from the Office of the President, Tribal Relations for that office, and also our Native American Student Affairs Director Steve Martin -- thank you -- and also the students who have organized these events for the Native American Heritage Month, which is the month of November.

So to begin, we have 60 minutes allotted for the questions and they are structured and you have two minutes each to answer the questions. After the one-hour session for questioning, we're going to have questions and answers from the audience also. The first question: As a leader in the community, how have you handled times of criticism, opposition or failure? And give us examples of how well or not well you handled being in such situations. So if we could begin with Lieutenant Governor."

Stephen Roe Lewis:

"With a two-minute deadline I feel like I'm a pageant member or something. Thank you for that and as a...really as an elected tribal leader you really carry the hopes, dreams and values of your community, of your tribal community. We at Gila River, we're home to two tribes, both the Akimel O'odham and the Pee-Posh peoples. As tribal leaders, we are held to the highest standard and we are supposed to represent -- even though we're human beings -- in other words, we represent the best values of our community. And one of these values is that we respect the elders. That's a traditional teaching, a traditional behavioral control, societal, where the elders, their wisdom is something that you respect completely. And when you, if you're out during a tribal council meeting, you're out at a district meeting or any meeting or if an elder...with their teaching moments, when they lecture you...lecture, that also comes from our value, which is what the Akimel O'odham call our Himdag, which is our culture, our values, who we are. When those elders or who the society views as elders, when they lecture you, you take it, you listen and you respectfully take those words of wisdom. At times you're criticized and at times you may not even totally agree with them, but because of that value we place, because of those societal values that we place on our elders, you take that as a positive, you take that as a learning experience, especially as a leader. Even though you're a leader, you always have to respect your elders and there have been many times that I've been lectured and criticized and you take that in stride, you take that with dignity and then you...afterwards you try to understand why that occurred. So at least with that specific I'll lead off the discussion. Thank you."

Aresta La Russo:

"Thank you."

LuAnn Leonard:

"Thank you. Being a woman and working and living on the Hopi Reservation has been challenging. As I stated, I was born and raised in Phoenix, Arizona, so I'm an urban Indian by the way I grew up, but I'm a reverse transplant I always say, because usually the trend is you come from the reservation to the urban area and you stay, but I did the opposite, which is a little different. When I...in regards to the question, when I graduated from Northern Arizona University in 1983, I worked for the Phoenix Indian Center for a couple years and then I went to the Hopi Tribe, very young. I think I was 23 years old, bright-eyed, bushy-tailed, wanting to help my people. I got my first job as a college graduate and I believe I made $6.25 an hour, which was a lot at that time. So I'm working at the Hopi Tribe and I was working with parents and students and I'll give you this example of what can happen.

We had a situation with two students who -- it was during a summer program. So I sat them down, they were causing trouble because of their relationship, talked to them in a firm voice. Later that evening, one of the aunts of one of the students was very concerned and she was upset and so she called me. And I don't know if you've ever been on the phone with somebody who's yelling at you and you can't get a word in. All you can do is listen. But this woman was saying things like, "˜I know you're from the city. I know you're only going to be out here for one year, you're going to use our people and then you're going to leave. You're going to make money and make a name and then you're going to leave,' among many other things. And I was just this young kid about the age of some of you here, and all I could do was listen and at the end I was in tears, but all I could tell her was, "˜Thank you.' You grow really tough from things like that, but I see those as times when you grow. You have to accept that kind of criticism and thank them. It only makes you stronger and now, 29 years later, and I think I've done a lot of good things for not only our people, but people across Arizona. When I run into that woman, I always smile at her and she knows that what she said was wrong, but it only makes you stronger. And so I accept criticism, it's easier because of that; it's easier to accept criticism than it is to accept praise for me. It's kind of a little psychological thing."

Aresta La Russo:

"Thank you. Walter Phelps."

Walter Phelps:

"Thank you and thank you for that question. Recently I came across a comment by a lady who said that, "˜As leaders your destiny, you become your destiny and you become the backbone.' She said, "˜As a leader who has become a leader, you are the backbone.' And then she said, "˜But you also have to grow your own funny bone and your wishbone.' I thought that was a very insightful statement because I think that all of us have different backgrounds, all of us have different personalities and I get the privilege to watch my colleagues, to observe my colleagues. We have 24 council members on the Navajo Nation Council and I can see the unique personalities, the strengths and the unique personalities of each individual, each leader that's there. So it's really a privilege to see that and especially to observe that, this being my first term in office.

But I think that as a leader, you have constituents. Our people always say that we have 300,000 Navajo constituents and with the five chapters that I represent, we have a certain percentage of people and people come from all walks of life. You have to anticipate that you will get people that will support you and that will be there to cheer you on and to encourage you and tell you, "˜We're praying for you,' but on the other hand, you also will come across people that will just basically try to express their views or their issues to you in their own unique way, which may not seem like a very friendly way or a very diplomatic way, but at the same time, what I've learned to do is just try to listen, try to listen.

What is it that they are trying to say? What is it that they really are trying to express? And the other thing you have to also remember also is that voice that you're hearing, no matter how harsh and how unkind it may seem, it represents a percentage of your people. It represents a percentage of the views of certain peoples and what you try to do is you try to process that. What you don't do is take it personally and that can be a challenge. But I think that being able to listen, being able to treat them respectfully, that's all that they expect. That's all that's required."

Aresta La Russo:

"Thank you. And thank you for your leadership and thank you for all you do. The second question: I'm sure this second question -- it's about advice -- and I'm sure you have received many advice from elders, maybe your constituents. But the question is, what advice did an elder give to you to help you as a leader and probably maybe one that stands out the most? So if we could begin with Lieutenant Governor."

Stephen Roe Lewis:

"Thank you and this is my, going on my...well, I just completed my second year in my term, my three-year term. Shortly after I was elected, a veteran tribal leader from Arizona, we were talking and although he's retired now, but he...one of the words that or the pieces of wisdom that he passed on to me as a tribal leader, especially when you're in a position where you're faced with...you're always in an imperfect position where you don't have as much information as you might need or there's a lack of time where you're being pushed because of a certain issue that it appears or a situation that appears needs to have action. And what he told me is that there's no situation where you as a tribal leader, that you feel that you need to be pushed into making a decision right then and there. That's what he found in his many years as being a tribal leader. He said, "˜Never get pushed into or pressured into making a decision before you're ready.' He goes, "˜They can...most...99 percent of the situations that come up can at least be decided tomorrow, at least by the next day.' And so never...and I thought of that, too, and I've applied that as well because as a tribal leader, like I said, sometimes you...there are more than one side, two sides or three sides to an issue and I think that was probably...there's a reason why some of our most thoughtful tribal leaders thought about things. And although sometimes from the outside they're wondering, "˜How come they act so slow sometimes within the deliberative process of tribal governments?' But I think that was...from how...I've taken that and applied that from a day-to-day perspective as a tribal leader. I think that piece of wisdom that passed down to me, that's really served me well."

LuAnn Leonard:

"What I've learned or what I was told was in this day and age we want things instantly, especially the younger folks, but I've always been told by elders that there's a reason why things take time. And I know there's a lot of kidding about Indian time and all of that, but this really played out true and I'll give you an example.

I had a nonprofit where we...the Hopi Tribe gave us $10 million, which we have invested and it -- right now it's valued at about $21 million -- but we were changing investment houses around 2008 and what was going on around 2008? The big recession. And we were going to change from Charles Schwab to Merrill Lynch and Merrill Lynch is this giant and here we are the little Hopi Tribe. We were trying to get our agreement signed and it took months. It took months and the reason was Merrill Lynch wanted the Hopi Tribe to change our legislation, which meant changing a law which would allow them, if we went to court, we would go to state court versus tribal court and we stood our ground. And eventually after about six months, we came up with wording and we were able to -- that was agreeable to both sides. And so the Hopi Tribe, it was like David and Goliath or the giant and the little man, but we stuck with it and they...we didn't have to change our law and they accommodated us, which was great.

But the beauty of it was, all that time that...2008 hit, remember stocks plummeted, everyone was losing money. You hear about these big endowment funds that lost millions of dollars. Non-profits were hit hard, but all our money stayed in bonds, which did decent during that period. And so I've really learned from something like that. We survived that area without a big hit like a lot of these non-profits did. But it's true, there's a reason why things take time and I think something was watching over us at that period. It's really hard because, my daughter will tell you, I'm not the most patient person in the world, but there is a reason why things take time."

Walter Phelps:

"I spent about maybe a total of eight years in South Dakota. My wife and her family live near the Rosebud Reservation and we worked with this organization, basically a ministry organization and they...after several years, after a few years they wanted me to, I guess, learn the administrative part and also the leadership part. So they gave me a title, it said Learning Vice President and I liked that title. But anyway, one day, we had a big warehouse like this, it was about this, maybe a little bigger than this room here and one big garage door on one side. And we would have distributions come and people would unload stuff and when you stood in the front of that garage door there was piles of material and supplies all over. There was no organization. It was just completely packed and full.

One day, our president came and led us to that doorway and he wanted us to start organizing and cleaning it. We stood there and looked at that and just looking at it was discouraging and he said, "˜How do you eat an elephant?' I had never heard that before. And he said, "˜One bite at a time.' So I never forgot that because looking back on that, there's a lot of wisdom there because every challenge in life may seem overwhelming, it may seem very big, but you just take it a step at a time, a bite at a time and I think that there's a lot to be learned. There's patience there that can be learned. Through time you begin to understand certain things.

Recently, you'll hear this during election season. Next year is election season and I've already heard some individuals say that, "˜You know, we thought that these new leaders that came into office were going to really make some huge changes.' They said, "˜Nothing has changed. Nothing's changed. Everything's still the same.' But when you look at it from the governance level, governance is a huge ship. It doesn't alter course quickly. So once you begin to appreciate that, it's...creating systemic change, creating change that could be positive and noticeable, it comes...it'll come eventually. You have to lay the groundwork for it. I'll probably never forget that piece of wisdom that was given to me."

Aresta La Russo:

"Thank you. And so what I heard was, don't be easily persuaded when making big decisions, there's a reason why things take time and basically, one step at a time. So thank you. Your answers to these questions, for the students here, these are advices they are also taking, listening and taking with them throughout life. The third question: Being members of an Indian nation, give examples of how your cultural and traditional teachings have motivated your success. And if we could begin with Lieutenant Governor again."

Stephen Roe Lewis:

"Well, again, thank you for that question. And like I said in the beginning, as tribal leaders we are...we try to not necessarily epitomize, but we have to, at some point in our lives, demonstrate those values of what makes up our tribal communities.

For the Gila River Indian Community, and specifically the Akimel O'odham, we were historically agricultural. And when you live in the desert and you're agricultural, there's a way of cooperation, cooperation for the common good. And those...always cooperating with one another whether it's in your family, whether it's in your village, whether it's in your clan, your extended family, it's that respect, mutual respect and cooperation. And also because of our agricultural heritage, it's self-sufficiency, it's making sure that you're a productive part of your community and that you have a role to play. Because of that self-sufficiency, you have a responsibility and a role to give back and to enrich your community. And when you try to...it's good that Mr. Phelps, Councilman Phelps was talking about, "˜Come election time...' and again, election time always comes. And there's really, there's a big difference between governance and governments on a large level and especially as a leader, your leadership skills, you have to guide your people through...there are technical challenges and there are adaptive challenges. Technical challenges, those you can read a book, there are specific skill sets that you can bring in, you can look to financial advisers, you can look to public policy experts, you can look to economists, but it's those adaptive problems where your tribe, you're going on new ground, you're trying to bring your people along, slowly bring your people along to surface an issue, surface a problem.

With our community, we have...we're looking at exactly what does culture play in our community? We have a declining percentage of those people who speak, who are fluent speakers and so you have that criticism, "˜How come it's not being spoken? How come it's not being spoken in the family? How come it's not being taught more productively as part of cultural curriculums in our schools on the reservation?' And so you wonder why, you wonder why there's that gap between what those values are and what the reality really is and as a leader you've got to bridge those. You've got to look at exactly...as your people are adapting to these new changes, you've got to realize as a leader, what are the most important bedrock principles of what your culture is, what has sustained you, what has made you survive as a people all these years and use those. Use those as tools, use those as touchstones when you try to communicate to your people and you bring them along as a tribal leader. I think that's really what true leadership is.

And of course there's leadership versus authority. Your authority as a tribal leader, you have a role that's really demarcated whether it's in your bylaws or whether it's in your tribal constitution. Sometimes leadership though, sometimes you have to go beyond that role of your authority. You have to go beyond sometimes to really...if you want, if your people are stuck on some issue or stuck on some social problem, you're wondering why there are high incidences of drug abuse, those societal problems, those social problems, and how you can use those cultural touchstones, reach back into your culture, how you can use those tools to reawaken your people, to how you can use those tools as a call to action to start to focus on some of those issues. As a leader, you have to, at times, light the fire under the people. Sometimes...and you have to really gauge whether they're ready, you have to gauge how you're going to do it and in what type of a language and I'm not really necessarily talking about your traditional language or the English language, but the type of language, the type of words you use. Those can really...that's when you're really out there, when you're really, as what sometimes referred to as a leader, when you're on the line, when you're on the firing line there. You really are exercising leadership at that point. Thank you."

LuAnn Leonard:

"The Hopi Education Endowment Fund is a nonprofit of the Hopi Tribe that...where we raise money for the scholarships and grants for our Hopi students to go to schools across the United States. So some of the Hopi students here receive our money. When we created the fund, the tribe gave the first give of $10 million, which was huge because they really put their money where their mouth was. All tribal councils say education is important, but we were so proud the Hopi Tribe did that 11 years ago or 12 years ago.

So we had, I was...came in as the first director and I had an opportunity, I had $10 million, I had no staff, no office, no computer, anything at all, but I had this $10 million, which some of it I could use for a budget. And I could have put...created our office and opened it up here in Tucson, Washington D.C., someplace where rich people live and start our new office. But I felt strongly that this organization must be for Hopi, by Hopi. I wanted to create jobs on the reservation for staff, Hopi staff to run this office and be able to be productive, but also make a good wage and be able to participate in culture. And so I brought on three college-educated employees and we began the Hopi Education Endowment Fund.

We deal with culture every day as we run our non-profit. A non-profit like Make A Wish, Big Brothers Big Sisters, stuff like that, they all have different approaches toward fundraising and fundraising was a new concept for Hopi and I'm sure for Native people. But what we've done over the years, people call it, they say we 'Hopi-fy' it. For example, death is not a, not something that a lot of us talk about, but in fundraising people leave money in their wills and things like that. So what we did with us, we really don't...you don't plan for your death, but in our way and I'm sure some of you can relate is you plan your grandparent's and your parent's plan who's going to take over the house, who's going to take over the field, who's going to take over the cattle. They leave things like that and there's a concept called \ˈnō-ə\ in our traditions on Hopi. And so we created a \ˈnō-ə\ Society and we... so we use our culture, we kind of modernize it in different causes, but we...being Hopi and running a Hopi organization, we know how far we can go without abusing it and that's the beauty of that.

And I hope, as people, as you get educated and you go back to your reservations and start working for the people, you'll experience the same thing because it's great to be able to have a program like that that you can take great pride in. For example, we never use kachinas in any of our brochures and things like that because we know how far we can take it without being disrespectful. And our people are always there to police us. But one thing, just real quickly, that we ran across was people think philanthropy, fundraising, what is that? But when you think back, who were the first philanthropists, who were the...who was the ones who got those Pilgrims through that first hard winter? It was Native people and we all have this in each of our cultures. We all have different practices and it's our jobs as professionals to pull that out and be able to use that in a new concept. So that's how we use Hopi culture in the everyday workplace."

Walter Phelps:

"Again, thank you. I think this is a great question to try and provide examples that can help motivate...what motivated me, what could motivate maybe somebody else. I guess on one hand, when you're young, when I was young, I wanted to know what my future was, what was in store for my future, what was my purpose for being here. So I remember coming home from, after being away for several years, coming home to my community there at Luepp and we were in a meeting like this and one of our elders said, and he was talking and he said, and he was the leader, he was the council member, council member that represented our community in Window Rock and he was speaking to us and he...I don't remember what all the context of his subject was about, but one statement that he made stuck with my like an arrow. It just like pierced me like an arrow and I walked away with an arrow stuck in me for years to come. And that eventually, it eventually, those words of wisdom eventually brought me down.

But what he said was, '[Navajo language].' In other words, why should you be such a promising person, such a promising person, an individual with such potential and just be that way and not do anything with it? More or less, that was the context of that statement. And I think those words eventually made me realize that there is a purpose, there is a purpose. And if I'm going to succeed one way or another and contribute back to, as to why I'm here, I just have to say, not everybody can be a council member, not everybody is cut out to be a mechanic, not everybody can be a doctor, but if you search for it, if you search for it, pray for it, it'll come to you. I've seen people study for engineering. They spend years in the classrooms in their institutions of learning. They come back to the community. What are they doing? They're doing something totally different. They find their passion in something else.

So what you're doing today may not be what you're going to be doing maybe 20 years from now. It could be something totally different, but I guess the pursuit of that is our privilege as Americans to pursue where we find ourselves and what we find our passion to be and what brings happiness and joy to us. And to me, people ask me, "˜So what is it like? What is it like being a council member?' I said, "˜Well, I enjoy my work. I enjoy my work. It's a challenge to me. I get up every day and I want to get up and do what I'm supposed to do today. It's a joy. It's a joy to me.' I guess it's a path and it's a journey when you find...when you know that you're on the right path, you will find fulfillment and it will be a challenge and you will enjoy doing it."

Aresta La Russo:

"Thank you. [Navajo language]. I think from your speeches, from your comments, basically the principles of your culture of each tribe, we heard the words self-sufficiency, cooperation, philanthropy, giving and also the concept of \ˈnō-É™\ and we're here for a purpose. So that's to sum it up. So thank you. So we're going to go on to our fourth question and I'm sure you all have mentors. So who were your mentors that influenced you? But I guess here if you could mention a couple of them that would be great. And if we could continue on with the same line up with Lieutenant Governor."

Stephen Roe Lewis:

"Well, I think, as a leader and just as a human being, there's a process of growth, process of maturation and I've had the opportunity to go to school, to go to graduate school and you're exposed to a bunch of different...bunch of ideas, you're exposed to the great works, you're exposed to depending on your study. You can talk about Martin Luther King or Gandhi or Cesar Chavez or you start talking about even our great Native leaders in history and our great leaders within our individual respective tribes and then once you go back to your tribe, at least for me, and really take a leadership position and you start to reflect on your own personal journey.

And for me I guess I've always known this, when you start to think about those lifelong lessons and you start to reflect on, for me, on the people around you who raised you, your parents. I had the opportunity to not only spend some time with my father and my mother, but also my grandparents, your extended family. I know aunts and uncles are very important in tribal traditions as well. I know one of my uncles who was a -- and this is really kind of timely because we just had celebrated Veterans Day -- my uncle who was a Vietnam veteran and really had trouble adjusting always when he came back, but he was in the infantry, he was out there in Vietnam, out there really exposed to the horrors of war. But one thing I learned from him was that he, and from a leadership perspective, he walked point a lot for his infantry, for his platoon and he always surveyed the areas. He always...he listened, he used all of his faculties and smell, hearing, sight, just really developed those skills and tested an environment before you go in.

And I think I really want to apply that as well to leadership. You have to go in, you have to use all of your senses, you have to really understand exactly what the barometer of a situation is if you're going to go in and do problem solving, if you're going to go into a meeting and you have to reveal bad news or challenging news to your community members, to your tribal members, to tell them that there's a shortfall in funds, to tell them that the housing budget has been cut by the council, to tell them that so and so might have been terminated. And so you really...and before that, you have to, you're almost like a scout, which essentially was what my uncle was and you're always measuring what the winds of change or the winds of exactly what's going through your community. What is the pulse of your community out there, the pulse of your environment?

You can't...as a tribal leader sometimes, and I've noticed this, is that when they obtain these positions and thereby the people who put them in there by they separate themselves from their community, they're in their tribal office and where before they might have gone out and were among the people, now they're in meetings in their office and they're traveling a lot, maybe traveling to Washington, D.C. -- and there's no criticism about tribal leaders who go to Washington, D.C., I've been to Washington, D.C. more times than I can remember in the past couple of years -- but you can't lose that tie to your tribal membership. You have to really...an old political axiom is "˜all politics is local' and that does go with tribal politics, at least in my experience. You really have to be attuned to what your tribal people are thinking about. You can't lock yourself up in your office once you get into office.

But I guess, going back to who really influenced me as mentors I would have to say my uncles, my aunts, of course my father and my mother. They were very instrumental. My father was one of the first...in fact, he was the first Native American to pass the bar in Arizona, first Native American to argue and to win a Supreme Court case and it was a tribal taxation case for our tribe back in 1980. And so public service does run in my family. So you have to really reflect what type of legacies run in your family. Of course, probably public service runs in everyone's family, public service extending to veterans. As we know, Native Americans, they've always served the highest percentage of any other group in the United States. Since the war on terror over 50,000 tribal members, 50,000 Native Americans have served and of course I think we all, of course, we have an illustrious history of Native Americans who've served. I think it's obvious for the tribes here represented; they can speak about their rich history. For Gila River, of course it's Ira Hayes. He was one of the flag raisers in Iwo Jima on Mt. Suribachi and really epitomized the sacrifice of all Native Americans. So as...when you're trying to find your way, you're trying to find your call to serve, what's very important and I think what really sustains you is, what is your...the legacies that you've...in your family, in your extended family. What are those legacies that you can continue on and you can bring with you as a leader in whatever position you choose to attain? Thank you."

LuAnn Leonard:

"You will each need a mentor to help you grow professionally. A mentor is not only a friend, but a colleague and a friend who will, who can be brutally honest with you to help you grow and I have two mentors. The first is a U of A grad. His name's Wayne Taylor, Jr., former Chairman of the Hopi Tribe. We were in tribal government about, gosh, 20 years ago when we first met and we had dreams for our people and we were both just younger professionals and we got along very well. And when election time came about, he was the one we wanted to get into office so that we can act on those dreams. And he was a one-term vice chairman, two-term chairman and has done so many successful things. So it's been great growing up with him.

My other mentor is Yoda. I call her Yoda. So picture this. I'm young; I just got my job as the Executive Director of the Hopi Education Endowment Fund. No experience in fundraising, philanthropy and that, but I had motivation and I had a good idea of what I wanted to do. There was this lady named Barbara Poley. She's the Director...she was the Executive Director of the Hopi Foundation, which has been on the Hopi Reservation for over 30 years. She's been through it all. She was a friend, but also she was a colleague, and so I call her Yoda because I see her as the Yoda, the master, like the Jedi master. Here I was young Luke Skywalker wanting to do great things and just charging forward. But then Yoda helped pull me back telling me, "˜LuAnn, you've got to hold on. Think about this, this, this before you do this.' We laugh about it nowadays because Yoda is so ugly and everything, but she really is a Yoda and I hope that each of you find that Yoda in your life because you will need it once you get your education and go out there and pursue your dreams."

Aresta La Russo:

"Thank you."

Walter Phelps:

"Thank you. I think the...my first mentor that will always be somebody that I will remember forever is my father-in-law. My father-in-law perhaps was one of those individuals that I will never forget. We were privileged to get to know him after I got married and not knowing that he had a short life span to live not too long after that because he got cancer and by the time they finally discovered it, it was too late. It had already pretty much eaten up his whole insides and it was too late for treatment. But the man was a leader. If there was a man among men, he was the man. The memories that I have of being with him, being around him, watching him being the leader that he was with all the people that he worked with, he was a leader. He was a great leader. And when he passed away, his funeral was just packed. People came from all over the country; from back east, from Canada, from the west, the east to the west and north to the south, they all came to his funeral. I remember one gentleman, one leader from the Sioux Nation came and he said, "˜He was a pillar. He was a pillar among us.' But when you knew him personally, he was a very humble man, very humble man. He spoke very few words. When he spoke, his words had depth and he did not waste his words. His words were...they were not fancy words or anything, but he was always to the point, very matter of fact, common sense, never an unkind word about anybody, always very respectful of all the people he worked with. It's not to say that he wasn't frustrated or perhaps angry, but he never showed it. He never showed it. And I feel like I have a long ways to go to be like the way he was. He was a very spiritual man and also he was a man who prayed. If there was someone that helped me to become the person that I am, he contributed a lot.

Today, I'm privileged to work not only with the leaders that I now work with, but I also work with former leaders, those that had those positions before me and also have worked with other leaders. And I can think of one gentleman, in fact this past Saturday I held a meeting way out in Black Falls and he just happened to come to the chapter house. He's an elderly now. He's retired and I invited him. I said, "˜Hey, would you like to attend that meeting with me and maybe...I'd be happy to drive you over.' So he said, "˜Oh, yeah. Sure. I'll...' He said, "˜Let me go talk to the war department first,' which was his wife. So he got permission and we left. But he to this day is a mentor. He has so much experience, so much experience in working with leaders, working with people at the community level and I can always rely on people like that that understand people. My father-in-law once told me, he said, "˜You'll find later on in life,' he said, "˜You'll find that it's easy to run heavy equipment, work with machines and equipment,' but he said, "˜the hardest thing to do is to work with people.' He was right. I have to say, he was absolutely right."

Aresta La Russo:

"Okay. Thank you. So the message to me, if I could reiterate, is having mentors and they guide you and as students academically and for your professionally development and someone who's brutally honest with you and who is a friend. Thank you. So we have a little bit of time. I have two more questions that I would like to ask and I believe these are questions that we as Native students have experience or know about or we wonder what are our leaders facing? So the question is, what do you feel or think are the biggest challenges facing Native American leaders?"

Stephen Roe Lewis:

"Well, I think for me as an elected leader and there's my...the governor of our tribe, in fact he's traveling back from Washington, D.C. right now. President Obama held the Tribal Leaders Summit with the White House and that's been going on for the past week and I'm sure all the tribal leaders were there. And of course I have to stay home and I have to make sure the tribe is still running.

But really what I've noticed, especially when we attend either tribal or national meetings like National Congress of American Indians and then you listen on like Indianz.com and you really see...this happened for Gila River, both myself and Governor [Gregory] Mendoza, we're one of the youngest to be elected to these positions. Usually you have senior members of our community who were elected, who served their professional career, who served our community and so really this is sort of a turning point among leadership among my tribal community. And then you start to see that really with other tribal communities as well. You see that up in the Plains, up in the Northwest coast and the Southern Plains, you see these tribal leaders who have...who were landmarks, who have really served in difficult times, in the "˜60s and "˜70s, '80s, and now you have this new generation of younger people, 50s and 40s and even 30s, who are being elected to tribal leadership among different tribes. And so you have this new generation that is slowly -- and it's only natural of course -- slowly assuming tribal leadership. There are new challenges, there are the...there are more sophisticated problems that you deal with. Keeping the pulse of your people is more difficult, making sure that you don't get alienated from your own constituency.

We're in the, really in the first wave of social networking. We have a lot of...I'm just constantly amazed at how many of our community members, how many tribal members, how many Native Americans who are on Facebook and all these other social networking sites. I'm sort of slow to adopt. My son who's just starting high school, he's an expert. In fact he kind of helps me with my own smart phone, making sure that I stay ahead or at least keep up with the technology. And then you...it's kind of interesting because then we even have some of...this really occurred during our last election, a lot of our young community members, tribal members are on Facebook, are on social networking sites and then you start to see a lot of our elder community members who might be homebound, they learn from their own grandchildren how to access those social networking sites too. So you have this virtual community on these social networking sites and so that creates a whole new different dimension to governance, a whole new different dimension to communication as well. So you have all these really...we're sort of really in this important transitional stage I think for tribal leadership.

Especially as well, I think from more of a formal governance perspective I know a lot of tribes are dealing with their constitutions. You have a lot of constitutional reform going on among different tribes as well and you have tribes grappling with do they want to keep their IRA [Indian Reorganization Act] form of government, do they want to reform it to a more progressive form or do they want to also make it hybrid models to incorporate their cultural values into their tribal government. Do you want to include...because most tribes are still on that tribal council, heavy tribal government where most of the express power is with the tribal council and there's not necessarily a separation of powers with the executive or with the judicial. So a lot of tribes are dealing with that, exactly how...making those...the tribal governments, making them accountable to the people, making them valid to the people and the process about going about that. Those are very important complex challenges that I see tribes, not only my tribe, but other tribal communities going through as well."

LuAnn Leonard:

"This one's kind of hard for me because I'm not an elected leader, but I've served elected leaders as staff, assistants and have worked with many of my chairmen of the Hopi people. But just watching them and knowing what they deal with, what I've seen them facing is, it's really hard to balance progress and tradition and this is coming from one of the most traditional people in the Southwest, the Hopi Tribe, where we still have our customs. You could look at the old Edward Curtis pictures and those things are still happening today because we protect them. And balancing how do you protect that without infringing on it, jeopardizing it? That's what I see them having to deal with. There are many opportunities out there for progress for our people. There's land leases with Peabody Coal Mine, just like the Navajo have, our neighbors next to us, power lines, all of this. How do you balance for example bringing a power line in and making sure that you're not near a cultural site that's significant to your people. So having that knowledge, but also having that authority and that power to be able to make the right choices, balancing that. I see them dealing with that.

I also see them dealing with, and we just dealt with this last week, with you students. What we're finding...we had a Laguna gentleman who did his Ph.D., he got his Ph.D. from U of A. He was...his Ph.D. was on how Laguna is using their students. What we're finding...what he found and what's similar with Hopi and probably with others is you're investing a lot of money into students, but what are we doing as a tribe to help bring you guys home? Are we creating jobs with decent wages? Do we have the housing? Do we have the medical facility? I joke, we don't have Starbucks and stuff, but we have so much more to offer and it's so fulfilling to work for your people, even if you have to sacrifice. But you shouldn't have to sacrifice having to live with three families in one home and so the...what we posed by bringing this gentleman in to start the discussion, the dialogue on the Hopi Nation, was what can we do as tribal employees, as leaders of non-profits and community members to make sure our students can come back because we are losing a lot of you and we do need you back. We do want that investment to pay off and I know I have full faith that it will, but we need to have people out there I guess like in the Hopi Education Endowment Fund who's willing to take that step and start that dialogue and get people thinking."

Walter Phelps:

"Again, this is a big question. What are the biggest challenges facing our leaders, our Native leaders? I think that the... what's happening today, what's happening...what started happening a year ago in regards to the sequestration and also the government shutdown, that has brought a lot of things to surface for us. It has, I guess, basically helped us to realize that we are in very unique times of leadership right now. In past administrations perhaps it may have been a lot easier to send more earmarks home to the communities, even from the congressional level. I used to be a congressional staffer so we succeeded with a lot of earmarks, even from the congressional level into our district. This was Congressional District 1. And health care, there's so much to talk about in terms of Obamacare [Affordable Care Act], but I think that...when I really think about this what perhaps is the biggest challenge for the Navajo Nation -- I really can't speak for the other nations, but perhaps this will go across the board as well -- is sustainability and independence. That's I think our biggest challenge. We have to start pushing and working so that we can stand on our own two feet.

I come from a rancher background. My dad had cows, horses, sheep. My brother back here drove me down here, he's been a bull rider and a calf roper, very successful one, and I remember riding my horse one day out there in the field and I came across three cows. The mama cow was standing right here and the other cow was standing right next to it and then another baby calf was standing on this side. The big, probably like a...I don't know if it was a two-year-old... the mama cow's in the middle nursing off of her own two year old cow and then the baby cow feeding off the other one. So in essence there was three cows feeding off of each other, nursing off of each other and when I remember that, I think about what are we doing as a nation?

We have the federal government, tribal government and the state government; each one has resources, very limited now, shrinking every day as we speak. We're trying to feed off of each other to sustain each other. We've got to find a way...we need to find a way so that we don't have to continue down that same road because at some point in time, I don't know when, how much longer it's going to be, but the U.S. government, the last time I knew was 16 and a half trillion dollars in debt, deficit. And so I think the biggest challenge for us is how do we move from here to the next point so that we can move our nation towards more stronger and sustainable nations so that we can truly be independent and exercise our sovereignty."

Aresta La Russo:

"Thank you. So what the challenge is, keeping balance in these transitional times whether it's with technology or within the governmental structure, and also another challenge is losing students not coming home, that's a challenge, and also having Indian nations, tribal nations be sustainable and independent in getting from Point A to Point B. Thank you. So the last question is, as leaders, as community members, as tribal members, what advice would you give to students in their future endeavors as leaders of all sorts, whether within their community, whether within their educational system, whether...? Yes, there's many ways to be leaders."

Stephen Roe Lewis:

"Well, thank you and I think this is a question that brings the discussion, the dialogue full circle. And this goes to being the essence of leadership and it doesn't have to be...we have three very important roles of leaders up here. You have an elected leader, you have a leader within a non-profit setting, and also you have also another elected leader as well. Leadership means going back in whatever capacity that...you could be a leader as an engineer; you can be a leader in the medical field. Leader means finding out exactly where your tribal community needs to either adapt to, to grow to. If there's some lack of capacity, as a leader, you could be that catalyst. You could be that catalyst to calling people to action on a certain issue whether it has to do with behavioral health, whether it has to do with diabetes, has to do with crime. There are so many ways that you can be a leader. It doesn't have to...leadership...and I think that's really...

When you talk about authority and leadership I think those are very non -- at least in my opinion -- non-Indian views. As a leader, you don't necessary have to have certain authority. You can go and you can make a change at any different part of your Indian society, of your tribal society. You don't have to be an elected leader, you don't have to be appointed, you don't have to be in a certain position. You can be an ordinary citizen, you can be in any capacity and you can exercise leadership. As students, you can...whatever gifts, natural, intrinsic gifts that you have proclivities to, whatever intellectual study that you're going to get your degree in, there are inherent opportunities to be leaders, to take that knowledge. Just like what was said, we have...and it's not just with the Hopi Tribe, it's with all tribes.

We're experiencing really a massive brain drain in Indian Country because there aren't those jobs for tribal members back home. If you're a molecular biologist, really what sort of job can you get as a molecular biologist back at Gila River, as a nuclear engineer or these very specialized fields? And I think that's why we really, as both as someone who's attaining those degrees, but also as tribal leaders, I think that's exactly where that gap is, where tribes who actually, at least for Gila River, when we are trying to educate our young people, we don't want to lose them to the outside world. We want them to come back, bring that knowledge back and what we found too is that most of our community members, if not all, they want to come back, they want to bring that knowledge back, bring those degrees back and put them to work in the community. So there are...so just...and I hope you just...you don't mix up authority with leadership. You can exercise and be a leader in any capacity within your tribal society."

Luann Leonard:

"I want all of you students to always remember this, that you are the lucky ones. You think about your reservations, you think about your people, you think about your high school classmates who are still there with a lot of kids, no jobs. On the Hopi Reservation, these guys are carving dolls, hoping to sell a doll to buy those diapers. You are lucky and you are privileged to have an opportunity to be at the U of A. Never take that for granted and do the best that you can so that you can use your skills to come back and help our people in some way. Some of you are going to come back and you're going to serve directly your people. Others, like he's talking about, a microbiologist who probably can't come back, but they can do research that can benefit diabetes or something that will help our people. Find a way that you can serve, find a way that you can give back because you are privileged and you are the lucky ones in this world, the reservations that we live in.

And the second thing is, I find it so amazing that in this whole world, the bahanas, white people, they...first man on the moon, first woman Supreme Court Justice, all of these...I call them the 'firsts.' They've been taken up. But in Indian Country, in your own communities, there are so many firsts left. When I was asked to be a Regent, I had to go through a Senate hearing at the State Capitol and they had to vote to allow me to become a Regent. Governor [Janet] Napolitano at that time is the one who appointed me and when they went in to make that vote, I was there and there was a bunch of people there and then they took the vote and the people left and I was thinking, I asked, "˜Why are there so many people here?' And they said, "˜You don't realize, you're the first Native American to ever serve on the Arizona Board of Regents and they have been around for 140 years. So that's...you just became a first.' And I say that with great pride, but I want you...I use it as an example because there are still firsts out there and each of you can find that First. Maybe you're going to be the first doctor in your community. Maybe you're going to be the first woman chairman or chairperson of your tribe. But there are still many firsts out there left for us and we should be thankful for that."

Walter Phelps:

"Again, I want to say thank you for the privilege to be here with you and spend this little quality time with you. I'm sure you have lots of questions as well. There was a statement by someone that said, "˜Why does the bird sing? Why does a bird sing? It's not because he has all the answers, but because he has a song, he has a song.' I think that if you pay attention to little details, it'll take you a long way. Just pay attention to little details. Tie your shoestring. Remember that? Button your shirt. Just do the little things, do the little things. Great people that have become great people paid attention to the little things and I think that that's very...probably the best instruction I was given. So if you see a trash can full of trash, take care of it. Don't let somebody else worry about it. If there's dirty laundry laying around, pick it up. Don't depend on somebody else to do it. That's the path towards greatness.

In my studies, I study some of the great leaders from way, way, way back. This is in the B.C.'s. Some of the greatest leaders that history talks about, you know what they were? They were shepherds, they were sheepherders. And my mom said one time, she said, "˜I used to be so embarrassed because we used to herd sheep with donkeys...' When she was young I guess they used to herd sheep with donkeys.' And she said -- my mom's a Christian -- she said, '...until one day I went to church and they said Jesus rode a donkey into Jerusalem.' And she said that totally changed her perspective. But what I've noticed is some of the greatest leaders were simply sheepherders and I think there's something magical in sheepherding. There's something magical in it. They're the stubbornest animals there are sometimes, but if you pay attention to them, take care of them, they'll take care of you. That's what we were told. [Navajo language]. It's your livelihood; it will take care of you. So I think that whatever it is, those little simple details in life that can really make a difference."

Eldena Bear Don't Walk: So What's So Important about Tribal Courts?

Producer
Native Nations Institute
Year

Eldena Bear Don't Walk, Chief Justice of the Confederated Salish and Kootenai Tribes, discusses some of the things that tribal justice systems need to have in place in order to be effective, and how important it is for Native nation governments and citizens to respect and support the decisions those systems make. She also reminds that people need to remember that many if not most tribal justice systems are in the early stages of development, and that their continued development must be cultivated.

Resource Type
Citation

Bear Don't Walk, Eldena. "So What's So Important About Tribal Courts?" Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. November 7, 2013. Presentation.

"I'm Eldena Bear Don't Walk and I'm going to tell you a little bit about myself before I get started. I am that kid who always planned to be an attorney. I either wanted to be an attorney or Loretta Lynn; I'm not quite Loretta Lynn, yet. My father is Urban Bear Don't Walk and my mother is Marjorie Mitchell-Bear Don't Walk. My father is one of the first American Indian attorneys in the United States. He's mentioned in In the Courts of the Conquerer. He is the second Crow to ever get a law degree and I am the second generation of Indian attorneys and we're very proud of that in that as Indian people we are developing, we are creating legacies. We now have not just a single generation, but generations of college graduates, we have generations of doctors, we have generations of attorneys, and I think that that can't be emphasized enough in that as we are developing as tribal people, our systems are developing.

How many of you don't have tribal courts? I think that there are several tribes who don't have tribal court systems yet, who might use inter-tribal court systems, whose court systems are fairly new. And I'm 40 and I tell you that because, for example, the Crow court system, in 1975 when my father was still in law school, he and my uncle developed the Crow Court. So the Crow Court is only 38 years old. It's like my little brother and in that, that means that it's still developing.

I became the first woman ever to be the chief justice of the Crow Tribe, but I like to tell people about that process. I got a phone call one day that said, ‘Hey, we really want you to do this; it's an appointment that you have to get through the chairman. He's interested in having you do that.' And so I called my parents because that's the way I was raised. I was raised that in the big decisions in your life there is a lot of consultation and it needs to be meaningful consultation. I call my grandparents, I call my parents, I call my brothers, I talk to my child, I talk to my partner. And I called my dad and he said, ‘Well, this is the third time they've asked for you, so I guess I'll say yes.' Apparently they had been asking him if I would do this and he had been saying no, for whatever the reason was, apparently maybe he didn't think I was ready yet, and I think that that's an important step sometimes in developing programs, are people ready? I don't think it's the best idea to throw a brand-new graduate into running a court system. I think experience is meaningful and powerful and valued in tribal systems. So I started that.

I've been an appellate judge for eight years for a variety of tribes. I worked for the Northern Cheyenne Tribe. I've served almost every tribe in Montana with the exception of Fort Peck and Blackfeet and I worked in Blackfeet Court as an attorney. I haven't served in Fort Peck because, man, it's far away from where I live. It's like 20 hours. It's practically in North Dakota. So I want to talk about that though.

When I was five, you know you have those career days, or maybe it wasn't five, it was like fifth grade and I wore my dad's judge's robes and everybody thought I wanted to be a nun. I am far from being a nun. The sad thing is I was looking for his judge's robes just recently and I can't find it. I swear I saw it because I wanted to wear it. That's what I wanted to wear in court. We all have things that are important to us and most importantly that judge's robe was important because my mom made it. My mom made it for my dad in a time when tribal courts were in the back of some building trailer in the middle of nowhere. Now you go to tribes and they have amazing courtrooms. We went to Pascua Yaqui while I was here. I've never had to go through security that tight. Pascua Yaqui has like TSA-quality security. You have to empty your pockets; they want to see what's in your bag. You'll plan ahead what you take with you before you go into their court system.

So now I work in two courts, three on occasion. I have written 70 appellate opinions in my career at this time, hopefully more to come, so I have a great value for tribal courts and I'm very passionate and enthusiastic, but I'm also very honest about tribal courts and their systems and what is helpful and what is not helpful. So I want you to keep in mind that while you hear a lot of complaints about tribal court systems, we're developing, we're young. Tribal courts are as young as some of your children, as young as some of you and in that, you know at this stage in your life you don't know everything, you don't have everything in perfection, and without that sense of humility about our court systems, it's difficult to drive them forward, it's difficult to make them into something better. You have to treat them sometimes not like a child, but as a developing progress. I like to tell people that our codes are living documents, just like anything else, just like the American constitution, just like the American code, our codes have to be refined, they have to be rewritten, they have to be addressed, because 30 years ago when the first code was written for your tribe or for my tribes nobody knew about meth, nobody knew about certain drug laws, nobody thought about writing a dog ordinance for all of the crazy dogs running around town. You didn't talk about seat belts; you didn't talk about housing issues in your codes.

I'm very excited about the Confederated Salish and Kootenai Tribes right now; they just developed their own Child Support Enforcement Code, instead of using Montana's, instead of using somebody else's we developed our own and why shouldn't we because tribes are best situated to determine for themselves what their needs are. That does not mean though that tribes should reinvent the wheel. There's lots of great code out there, there's lots of tribal courts doing amazing things. What an honor to sit here with Justice [Robert] Yazzie, knowing that the Navajo Court is one of the pinnacles of tribal courts in what they do in instilling cultural value in dictating to their tribal people what their law will look like, what they want their tribe to continue. Law and lawlessness in Indian Country is historical. We've always had laws. Maybe they weren't written down in a little code or on your computer or on the Internet, but we've always had laws and we've always had people who maintained them. We've always had mediators. We've always had people who needed that mediation and who needed some reminding that they need to follow the law and that their actions impact people.

So in talking about what's important in tribal courts, I once taught -- I'm an adjunct professor at the University of Montana School of Law -- and my father always says the most dangerous person in the room is a first-year law student because they know just enough and not enough. So in trying to teach federal Indian law, tribal law, why we should have those values to lots of non-tribal people you really have to focus on what is community development, what does it look like to non-Indian people. And I would tell you in going through Rae Nell's slides that what's important and the key components to justice systems are investment, whether it's personal investment, monetary investment, community investment and it's building laws. Either you are developing a court system or you're destroying a court system and your development or your destruction has a significant impact on the community that you live in.

I am not a member of the Confederated Salish and Kootenai Tribes as an enrolled member, but I am a member of that community. I live there, my kid goes to school there, I speak Salish, I go to those ceremonies. I'm a member of that community. While it might seem that I'm a member of the tribe -- I don't get to vote -- the decisions that tribal administrators make impact me. They impact me as a judge; they impact me as a community member. It is important to think as leaders that you have a duty to your tribe absolutely, but you also have a duty to the people who live in your community and as we become bigger tribes with more mixed people, you're going to have a lot of descendants and you may have jurisdiction over them or you may not.

One of the things that's important to note about the Confederated Salish and Kootenai Tribes is that we're a P.L. 280 [Public Law 280] reservation. So we have concurrent jurisdiction over Indian people with the State of Montana. So what does that mean? For me, that meant as a public defender that many of my clients were my cousins, many of my clients were people I had grown up with. That's investment in your community because you have to see their mom at a ceremony, you have to see their mom in the grocery store, but that also means, and it also means quite frankly that that particular county is one of the most prison-sentencing counties in the State of Montana. It means that there are many, many American Indian people in the Montana prison system. It is, I believe, six times higher, the percentage rate of our existence in the State of Montana. So there are lots of things to consider in tribal court systems. Our tribal courts are a reflection of our community. Again, either we're developing or we're destroying and we have to really make that commitment.

Again, your codes are developing. Some people have very basic codes that they adopted from somebody else. Codes are changeable; just because it's not in your code doesn't mean it can't be in your code. And I would tell you again as leaders -- we were talking about this earlier and I think I had talked to Ian about it on the phone -- the biggest threat to tribal courts are the tribal people themselves. And I will tell you that specifically in the framework of let's say you have an election and you're unhappy about the election and you take it to the tribal court and the tribal court does its job, the job you entrusted it to do, the job you wrote the constitution for them to follow, you wrote a code for us to uphold and we did our job and now you're unhappy. So what do you do? What do people do? They bash it. They go to the newspaper and talk about, 'What a kangaroo court this is, how the judges don't know what they're doing, the advocates don't know how to run the court, they interpreted the law wrong.' And I would tell you that that is not any different than anything that you can watch on CNN. Every court in America is terrible when somebody loses according to the person who lost. But what you're doing on a bigger scale is invalidating the work that generations of people have already done for you.

I take the work of working in a court system very seriously because I know the work that my father put into that court; I know the work that my parents put in just graduating from college. I think that we can't take in our own flippancy the seriousness of what comes out of our mouth; we cannot be harsh enough about some of those things because we have long-term effects. If people don't trust our court systems, they don't want to do business with you. If they don't think that they can get a fair shake in there because you're related to everybody, they don't want to come into your court system, they don't want to avail themselves, and so when they don't avail themselves to our court, what do they do, they want to go take it to a state court where they're more comfortable. Are you going to get a fair shake in state court? Probably. Maybe. Are you going to get a fair shake in tribal court? Maybe. It's all the same.

Now people talk about tribal courts saying, ‘Oh, you...that's your cousin.' You're right. I have 20 first cousins. My mother has 100 first cousins. My grandpa was the youngest of 11 kids and all those kids had seven kids and my grandma had...there were five of them and they all had a trillion kids and I'm related to almost everybody. It was hard to find somebody to marry on your reservation when you have that many first cousins and we actually have cousins in common. So when he's really mad he'll be like, ‘And your damn cousin...' But they're his cousins too, but we're not related. So back to my rant. Of course you're related to those people. My rule is, if I don't have to talk about it with you at Thanksgiving dinner, then I'm working on that case because if I had to recuse myself for everybody that I could show that I was related to, man, you'll never get anybody to be able to sit on those seats. But let's not fool ourselves. I walked into a justice of the peace court and the judge was talking to a man who was on a bond hearing and the judge said to the guy sitting at the bond hearing, ‘Well, I'm going to let you out on your own recognizance because I need you to finish my deck this weekend.' It happens everywhere. Don't fool yourselves to think that tribal courts are better or worse than anybody else, but I will tell you that there's a special investment made by people who are part of tribal courts that can be beneficial. Some people call it nepotism. I think nepotism is an idea that you got something because you didn't deserve it and somebody is allowing you to do that and maybe they're your mom, maybe they're not, whatever.

In reality, we're a community and our tribal communities are built of people who are related and sometimes that investment means that maybe because we understand where that kid is coming from, maybe we can better address their needs in juvenile court, maybe we can better deter them. Maybe what they need is to learn to go chop some wood for a lady for a couple days or to get something...CS&KT [Confederate Salish and Kootenai Tribes] has a grandparent program as a diversion tactic with its youth because we have generations of children who don't have grandparents who are actively involved in their lives. I hope to be the grandma that I was raised with. My grandmas are finger-shaking, chest-popping old ladies who will tell you to knock it off and behave and go wash your hands. Those are the kind of people that sometimes you need in a juvenile court. That's the investment that you want to make. That is about being familiar with your community. That is about being invested in your community. So yes, are we all related? Quite possibly. Does that mean that we're making the wrong decisions? Absolutely not.

So when I took an oath to be a judge, a justice. Let me clarify that. I am a justice. I'm not a judge, unless I'm sitting in the lower court. There is a chief judge for the Confederated Salish and Kootenai Tribe, Wynona Tanner, and then I'm the chief justice. And the only difference really is which court we oversee. But when I took an oath to be a justice, in the Crow code specifically... And again, if you don't like what's happening, write it in your code, fix it. Don't complain about it, do something about it and that means writing in your code. That doesn't mean going and firing all your judges because you're unhappy. If you don't like how your judges work, get them some training. If you don't like the timeline in your courts, fix it. It isn't an all or nothing deal. Every time we make things all or nothing, we again destroy our own credibility.

So again, when I took that oath, in the Crow code it says that I will act without fear or favor. I don't see that in many other codes and I am bound by the ABA Model Judicial Code. The ABA Model Judicial Code is like eight canons, but they're pretty important canons and if you translate them into tribal communities, they're even more important canons, for example, the appearance of impropriety. Some people think, ‘Well, this is my friend. He's a lower court judge, I'm going to go have lunch with him.' What do you think my clients think when they see prosecutors and defenders having lunch together and then my client doesn't get a great deal? They think I sold them out, they think that I'm not doing my job, they think that I'm lazy and that I am not doing the best that I possibly can for them. You have to think about that. Just like leaders in the community, if they see you glad-handing with somebody and then that person gets something over the other, we all can make the appearance of impropriety and you need to be conscious of that.

Quite honestly, being an attorney and a judge on the same reservation is kind of a lonely, solitary existence. One, because you're always getting hit up in the grocery store for free advice, and two, people do want to know what's going on, people do want to talk about their case with you and you can't do it. But even that moment, that moment where they're approaching you in the grocery store trying to talk to you about it, other people see it, it looks improper and it's important to try to not have that happen.

A strong, independent tribal court system will have trust and it's your job as leaders to build the trust in the court as much as it is my job as a judge to build trust in the court. Finances are important, but finances aren't the end-all be-all. I run my appellate court, we probably hear...we have five justices, two lay justices, three attorney justices and one clerk on $78,000 a year. We deal with probably 20 cases, which is a pretty big load for most appellate courts. It is not the load that say Navajo has or some of the Ojibwe nations have who have bigger court systems. Development -- again, we don't have bad court systems, we have developing court systems. We have places that need help. We have opportunities to help them. There are lots of us out there who work in tribal courts who consult on how to develop better code, how to develop better judges, who do a lot of training that we offer for free. Department of Justice right now is really hot on offering trainings. Not only will they offer it, but they will bring it to you.

So Owl's Nest Consulting, my friend Mato Standing High, who is also an attorney who was the AG [attorney general] for his tribe for many, many years. He'll bring you how to make better prosecutors, how to be a better trial court judge, how to write good opinions, and they'll bring it right to where you are. So courts can't say, ‘Well, we can't get anything. We can't do that.' As leaders, develop your court system. Make a commitment to developing your court system because as Rae Nell said, if your court system is strong people believe in you. If your court system is transparent, people believe in you, they want to do business with you, and if they don't believe in you and you have a great court system, that's not about your court system, that's not about their belief in your tribe, that's just them finding a reason not to do business with you.

Again, as I said, either you're building a court or you're destroying a court. A court should be extraordinary when you leave it. We are a transient population as judges. We come and go. Some places elect their judges, some places appoint their judges. Some places appoint their justices for life. My appointments are four years long, I can come and go at the whim of the administration if they like what I've done, if not, I don't have to. But when I leave a court system, I want it to be the best possible place that it can be. It should stand...your court system should stand alone. It should not need one particular judge. It helps if you have great clerks. I have a phenomenal clerk, Abby Dupuis, who has been the clerk of the appellate court since its inception, so for 14 years. She really runs the court. She knows every case. Be good to your staff. And any attorney will tell you, the best thing you can do is not to know the judges, it's to know the clerks, it's to know the people behind the scenes, it's to know the janitors in your building. Those are all good tidbits of information for people to know. It's the same in tribal courts.

I want to tell you quickly about what is so important about tribal courts, and one is about the idea that we are making some pretty new and exciting law. I can tell you that being a judge sometimes means that all I have to hear about is people's really unhappy divorces and that is no different than being an attorney and I promise you nobody's happy in a divorce. But recently the Confederated Salish and Kootenai Appellate Court made a decision about a First Amendment case, about a person's right to say what they want to say, free speech. Those are exciting cases and maybe only if you're kind of like a law nerd do you really think that that's exciting stuff, but it's exciting stuff. And I talk about it to everybody I possibly can because I want people to know not only are we making good law but we're making new...we're going into territories we've never gone into before. We're addressing issues in our code that again nobody thought about. We just did a case about particularized suspicion with a bad stop from a cop. Does that make me the most popular person? Probably not, but I wasn't the most popular person to begin with because I'm a defense attorney. I have to tell you when I became a public defender, my parents said, ‘I don't know if I really want you to do that. Don't people...isn't it unsafe to be a defense attorney?' I said, ‘No, mom. People kill their prosecutors, they don't kill their defense attorneys.' They buy their defense attorneys beers; their grandma makes them banana bread. There's a lot of perks to being in public defense. But we are making new and exciting law. We have great stuff on the best interest of the child. Tribes are incorporating their beliefs into best interest-of-the-child standards. We're incorporating our beliefs into First Amendment issues.

One of the other exciting things I know that's going on in Indian Country is the idea of holistic defense. I don't see American courts addressing holistic defense in a way that I think that tribal courts can. And what I mean by holistic defense is in Montana let's say -- we'll use something pretty vanilla -- if you don't have insurance on your car and you get pulled over for the third time, that is a mandatory seven days in jail for not having liability insurance in a place that there is no public transportation system. Our reservation is about 100 miles long; there's no public transit. So of course people...I'm not encouraging people to break the law, I'm encouraging people to prioritize, but I know that people drive to get to work, to feed their kids without liability insurance; it happens. I've been hit by one of those people. So here's my best legal advice to you right now, here's some free legal advice, write it down. Make sure that you get under-insured and uninsured motorists on your insurance. I see Renee writing it down. Good job. Uninsured, under-insured, because if you get hit by those people who don't have insurance, your insurance helps you cover it then, because I have been hit.

So this person is sitting in jail waiting to get out on bond or not getting bond because they can't make bond because obviously they couldn't even afford to get insurance. They have kids, maybe they're a single mom, there's a potential that their kids could get into the system because nobody's home watching their kids. There's a chance that if they sit in jail for seven days that they're going to lose their job, their car's already been impounded because they couldn't find any...they didn't pay their minutes and they couldn't find anybody to come get their car so they couldn't leave it on the side of the road. Snowball effects happen all the time. Holistic defense addresses those. We have defenders who now say, ‘Okay, what are the other issues? We don't want them to lose their housing, we don't want her to lose her kids, we don't want them to lose their job. How can we work with a prosecutor to make this all good and get it in front of the judge as quickly as we possibly can?'

We have incredible opportunities as tribal courts to mend our communities by being willing not just to say that crime is bad or that divorce is bad, but in addressing some of the other issues that will come with those things by being flexible, just and creative. I think that people who don't have much learn to be as creative as they possibly can. Like your grandma when she was poor and didn't have any money to feed you, she would still figure out how to feed you. We still need to figure out how to solve our problems whether we have money or not. And again it's the same thing. Your tribal council, maybe they have all the money and they're not giving it to you to fix it. That doesn't mean you stop trying to fix it. It means you try to figure out what you can do creatively and if that means feeding them popcorn. It's like a Charlie Brown Thanksgiving -- everybody gets popcorn and toast and whatever it is that you have. It is the same in tribal court systems.

It is important to be transparent in your code. It is important to make things accessible. I have worked in a court system where nobody knows where the code is. Nobody knows where the code is. It is not online. You can access almost every case from the Confederated Salish and Kootenai Tribes, the Crow Tribe, almost every tribe in Montana, almost every tribe I know of who has a solid, longstanding appellate court, you can access their opinions and I do, because when I write an opinion I would rather use another tribe's decision than use a state's decision. Why? Well, in some cases because we're all similarly situated with the Indian Civil Rights Act or it's because our code looks like another code or our constitution is based on the same treaty. All of those things are important that maybe non-tribal court system people don't take into account. If I'm writing in a state system, yeah, I might steal something from another jurisdiction, but if I'm writing something in a tribal court I want it from another tribal court because I think they have invested in the same values that we do.

Again, we have opportunities that other people don't have. States are regulated in ways necessarily that we're not. I would ask you though as tribal people and tribal leaders, when you're building your court systems, really take into consideration what's the best thing? Do you think that lay advocates are the best way to go? Would you let a lay advocate operate on you? I don't know. And I'm saying that that's equally as dangerous. So would you let a lay advocate...? Let me make sure that I'm very clear on this. There are some incredible lay advocates. My uncle who helped start the Crow Court has been a lay advocate for 38 years and he knows the Crow code inside and out. He may not know form, but he knows substance. That is important. But there are other people who go in and pay their fee and then try to write your will or want to help you with your divorce. Maybe not necessarily without training. Be specific about those things. Do you want your judges to not have any training, to just come in and go off the cuff? Do you want everybody to be attorneys? Is that really the most financially sound way to go? Not always. I like to keep myself in business, but that doesn't mean that there's not room for everybody to work in there, but I think training is important. You can never learn enough and quite honestly, you can never share enough of your training with other people.

Again, I encourage people really to build strong court systems in the idea that make it fit what your tribe needs. Your tribe might not need a drug court, but you might need a dog catcher. You might need a youth court, but you don't know how to start it. We're sharing people. Everybody has them. People are developing, there's money out there and grants to get them. There's lots of resources. Your law schools in your states usually have incredible resources. For example, the Indian Law Clinic at the University of Montana, Maylynn Smith, never says 'no.' Aw, I'm done now. Thank you very much. I think we're going to open this up for questions."

Robert Yazzie: Traditional Principles of Leadership

Producer
Native Nations Institute
Year

Former Chief Justice Robert Yazzie of the Navajo Nation Supreme Court provides an overview of the traditional Diné governance system and specifically the leadership principles that Diné leaders relied upon to make sound, informed, strategic decisions in consultation with and on behalf of their people. He offers a convincing argument for Native nations to consult their traditional governance systems in order to meet the challenges they face today.

People
Native Nations
Resource Type
Citation

Yazzie, Robert. "Traditional Principles of Leadership." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. November 6, 2013. Presentation.

Ian Record:

"I have the great pleasure of introducing Robert Yazzie, who is...who I've known for many years through his affiliation with the Native Nations Institute. He's been one of our longest serving members of our International Advisory Council. He's a real major figure in the area of tribal justice systems, and in fact I think Rae Nell [Vaughn] and Eldena [Bear Don't Walk] may reference the Navajo Nation Justice System tomorrow because they're really viewed...that system is really viewed as a leader in the process that many Native nations are engaging in in terms of reclaiming the function of justice in their own communities and returning it to a position where it's culturally appropriate and culturally relevant and reflective of culture. And Robert was one of the main architects of that movement, to make that justice system work for the Navajo people in a Navajo way. And we have the great honor...it was interesting, we see Robert a couple times a year and after the last time we saw him he mentioned a desire to come and speak to leaders such as yourself about what he calls the ‘traditional principles of leadership' and basically how you work to instill your own core values in the actions and decisions that you make as leaders, again, whether you're an elected official or just a decision maker within your own community, within your own family, within your own nation. So with that I'll turn the floor over to Robert. He's going to present for about 20 minutes or so and then we want to leave a little time at the end of his session for some questions."

Robert Yazzie:

"[Navajo language]. Anybody here? I have a humor to share with you just as an opener. When we say '[Navajo language],' we always say, ‘Goodness be unto you.' And so I had a solicitor when I was the sitting chief justice, he used to -- he's a white guy, used to see his Navajo wife every weekend. They would go to drive three hours to Albuquerque and when they meet they'll say [Navajo language], hugs and kisses and everything. So around 8:00, she would tell him, ‘Hit the hay.' And then over the weekend when she gets mad at him, she'll say, ‘What the hay?' I know that would get you going. Thank you for the cake. Good for my sugar level.

I would like to talk about the principles of Diné leadership and I want to talk about the definition of how Diné leadership can be understood in terms of its definition, in terms of its qualities, and also the challenges and experience of Diné leadership yesterday and today. So for purposes of achieving a better government, the question is, ‘Can the modern day leadership incorporate the traditional principles of governance from the past?' I think that's a very important question on our table.

So what is leadership? Studies of political systems show a scale of differing patterns, from absolute authoritarian leadership to leadership that's only persuasive. Some leaders exercise command with force and others only persuade. Most form of western leadership are based on the notion of power, to back up a command. In other words, leadership in that respect usually means power, control, authority and coercion. Diné, traditional Diné leadership is not about power, it's not about control or coercion, but a recognition that words are powerful through influence and persuasion. Persuasive leadership is based on compliance with the command or advice of a leader such as a wise uncle or other relative out of respect.

The Navajo word for leadership is '[Navajo language].' I think the concepts really teach us a lot, so I'm going to be talking about concept as a way to understand something about leadership, traditional leadership. So the Navajo word for leadership is '[Navajo language],' which in essence means 'a planner' and it comes from a word base means ‘speaking' [Navajo language]. The word for ‘planning' is '[Navajo language],' refers to talking things out to make a plan. The Navajo word for ‘leader,' '[Navajo language]' arises from power as a speaker and the word for ‘planning,' '[Navajo language]' is about problem solving and discussing plans. An elder would say '[Navajo language],' that it is about learning how to think, '[Navajo language],' learning how to use your thinking when the [Navajo language]. The [Navajo language], the leader uses those elements of thinking and planning as tools for leadership.

We generally understand that traditional leadership is based on possessing wisdom and the ability to speak, create plans for successful outcomes and results, create respect that compels people to follow. It's something like his or her word is law. So given that brief definition, we can ask the question, ‘Well, what are the qualities, what are the characteristics or traits of leadership and how does one get the qualities of leadership and earn respect?' So when we look at the thinking of the leader or for anybody for that matter, we look at two things that are opposites. The simplest way of saying it is you have something good, you have something bad. That's the centerpiece to your thought...to your thinking. So in that respect, our old system of government last seen in operation 1859. '[Navajo language]' means ‘the peaceful chief.' '[Navajo language]' is more of the opposite of a good peaceful chief. '[Navajo language]' means ‘firm.' It could mean something very rough as well. So looking at those concepts helps us to understand the Navajo leadership definitions and qualities according to the early style of leadership we call '[Navajo language].' So if you can imagine a circle, imagine that you have 12 leaders sitting toward each other, one representing the peace, one representing the war. So as I said, that was last observed in 1859.

So the two kinds of leaders traditionally, '[Navajo language]' or 'war leaders,' and the '[Navajo language]' or 'peace leaders,' the word '[Navajo language]' relates to decisions that are prompt, powerful and aggressive. That's the person's characteristics. The speaking done is for...the speaking to that...for that quality is for war. So the ability to immediately evaluate a situation and to speak to a plan to...and speak to a plan of immediate and aggressive action is necessary. Individuals get a reputation of being successful warriors. The word '[Navajo language]' comes from the word '[Navajo language]' basically means 'understanding of something good.' Understand [Navajo language] as a state of perfection. One definition is that [Navajo language] is that state of being where everyone and everything are in proper place relating and functioning well with everything to achieve a state of harmony or perfection. That requires a kind of speaking to achieve a perfect state that is wise and successful.

So Justice Austin who I used to sit with, Raymond D. Austin, who was Associate Justice when I was Chief Justice and after he retired he went to...went back to school. He was a law school graduate and he was a member of the Arizona Bar. He went back to the University of Arizona to earn a...to do his dissertation in Navajo common law. So he has come up with a book called The Navajo Nation Courts: The Common Law and in his book he talks a lot about the duty of a [Navajo language], the duty of a leader, which is to maintain [Navajo language] as a perfect state of condition and he said that could be the theory, but in terms of practice, the leader would identify a problem, a [Navajo language], and that leader has the obligation to engage himself or herself in what we call '[Navajo language].' In English is to say, ‘Think for the people to find the problem.' Identify the causes of the disruption of the state of [Navajo language] and once you have done that, then the challenge in one is to restore [Navajo language].

Individuals who want to be leaders do not appoint themselves. The status is earned. The western notion of advancing one's own name for political office by election makes no sense. Election in a traditional sense is spontaneous and based on necessities. For example, there may be plans for spring planting over a winter fire. So there would be talk of when to plant, who could read the stars to know when that is done and other matters that call for leadership guidance. So people who talk about what would be the best...who would be the best person to guide the planting season; that is a way leaders were chosen.

I served as the Navajo Nation court judge and the chief justice for the Navajo Nation Supreme Court for 19 years. As Navajo judges, we are considered as successors of the traditional [Navajo language], peace chief, because we are chosen for our individual qualities. Traits that make a difference in being a good leader include adherence to the duty of promoting harmony and order and treating people with fairness and humility. [Navajo language] of the past and today are looked upon as role models and the respect for our decision depends upon our personal integrity. Humility is a personal value, which prompts people to respect us judges for our decision not for our position.

One of the traditional terms for leader is that person is slightly higher than others and it reflects the view that leadership and the acceptance of its authority comes from those who conduct themselves well. It comes from individuals who speak well, plan well, show success in community planning or those who can talk the goods in for the people. Humility is not simply self-effacing behavior, but behavior that is consistent with competent leadership that is tempered with humility. Leadership is not for the self, but for the people. The people [are] the source of that power.

What is the traditional Navajo process for planning and decision making for leaders? The way of achieving [Navajo language], the good things, is by talking things out. As I said, the Navajo word '[Navajo language]' means 'to talk,' is related to leadership because of the common expression, as I said, words are powerful. Words of great leaders are powerful because they speak solution into reality. Navajos believe thoughts become action in words and that words create action or reality when they are spoken. Thinking becomes speech become action. That is the thought system where thinking and intuition drive words and speaking. Speaking in groups is planning and action is the result of thinking and planning. The Navajo word for leader '[Navajo language],' which arises from power as a speaker and the word for planning '[Navajo language]' is about problem solving and discussing plans. And there's a word, I'm sure that you have your own word for this concept, called '[Navajo language].' It's a very important concept in the past traditional practice of leadership. '[Navajo language],' which is 'talk things out.' It involves having free discussion among the leader with his people, with the community to clarify relationships, to identify problems and disputes and provides for a method of planning and making decisions. [Navajo language], talking things out process requires that reciprocity, doing things for each other in return, is about his or her obligation to what we call '[Navajo language]' and [Navajo language] is a concept that really can't be translated into English and I believe you have the same...the same experience is true with your language. That one word cannot be said, while '[Navajo  language]' means respect. '[Navajo language]' can mean many, many different things, even a book won't satisfy a good explanation of what that word means, but at best '[Navajo language]' is something like treating people with respect, compassion, reverence. So [Navajo language] or talking things out requires that reciprocity be practiced to ensure there's equal and equitable treatment for the people.

And there's another word that is very important as well, '[Navajo language].'Can you all say that? [Navajo language]. Not today? [Navajo language] is one of the practices for [Navajo language] and as I said, it's understood as knowing how to treat people with dignity and respect. The [Navajo language] as a [Navajo language] is always expected to act as though you have relatives. If you walk around, talk around, walk around and talk as if you have no relatives and the people would always say, ‘That person is forgetting about his or her obligation through [Navajo language].' A [Navajo language], a leader is always expected to honor his obligation through the concept of [Navajo language]. Talking things out with the people helps a leader to learn about ideas, expectation and recommendation of the community. An important aspect of making effective decisions by a leader is being well informed of the issues and concerns of the people. To be informed is to know what the people want. I think that is probably your experience as well when you observe Navajo Nation tribal council in session. Not everybody is there to know...to fully know what the people want, because the more you observe sometimes the more you find out the leader really needs to understand what the people are thinking and what is it that they're concerned about.

The other part, the other issue that was discussed is transparency and it's something that is really difficult to translate from English to Navajo, but at best you can say in Navajo, we say '[Navajo language],' means you can't hide your plans. '[Navajo language],' it means to make clear your plans. [Navajo language] requires transparency, a free flow of information, a duty to communicate, to make known the issues at hand. Planning for action can be transparent except for war way planning so that everyone who is affected can see what is going on and have an opportunity to have a say. Navajo tradition requires energy and good will when putting plans into action so that good intentions reflect positive energy [and] will produce a good result.

What are the challenges and experience of leadership in Navajo country? In 1989, we had a major crisis. The Navajo Nation government was, were nearly as a whole was nearly put on its knees. The Navajo Nation Chairman Peter MacDonald was accused [of] bribery and kickbacks and the Navajo Nation Council proceeded to put him on administrative leave for accusation and for other serious criminal allegations. He refused. He told the Navajo Nation Council, ‘You have no legal basis.' And he was right, but the matter was put before the Navajo Nation Council on a certified question and the Navajo Nation Supreme Court came back with a response and said that...he says, ‘under traditional method of selection of leaders, people choose their leaders [Navajo language] based on trust and confidence. If a leader breeches the trust by wrongful acts, the people would simply walk away.' This practice was what justified the council action to remove Chairman Peter MacDonald from office.

I think one of the questions that really bothers a lot of us is that when it comes to decision-making, how effective are the leaders in making a good decision? I think here's where we can involve the question, ‘Does traditional Diné leadership make a difference in the modern day?' And we talk about the problems we have on the...in Indian Country, that at times the atmosphere towards leadership can be very negative. And you look at the situation in Indian Country, people are living the hard life, frustrated, overwhelmed with trying to make things...trying to make ends meet and because there are no jobs, no money, no educational opportunities people are suffering from domestic violence. People cannot help but feel that leadership is inefficient, ineffective. So here's where we are asked the question, ‘If we were to do something a little different,' for example, look at the question, ‘Do the principles of Navajo traditional governance have a role in this scenario?' That is to say, does the traditional Diné leadership make a difference in the modern day? And sometimes when we need to respond to that kind of question we always talk about journey narratives, we always talk about Twin Heroes.

Twin Heroes were out to help save the people when the bad energy, the bad monsters began to take its toll on human lives. People really struggle, people were suffering, people were living with chaos and disharmony and so when we look at these narratives we can say that there was...that the Twin Heroes came and helped the people in many, many ways. They destroyed almost everything, all of what we called '[Navajo language],' the bad energy. But there were some who say, ‘Please save us. We can help the human race to live a quality of life.' But there are certain type of [Navajo language] that have no mercy on humans and so when the Twin Heroes, before killing the monster, the father, the Sun said, gave instruction and said to carefully study and observe the movement and behavior of the monster. Before you make the attack, thinking before you make the attack is a value that advises leaders today to carefully observe the problem before taking any sort of action. So it's telling us that where there's chaos is to really study the problem, understand the problem before you proceed to say, ‘What are the alternatives?'

So one of the things that we're trying to do within the Navajo Nation is to make some changes. I have a proposed legislation here before the Navajo Nation Council and it's about creating a uranium commission that would help to clean up the abandoned mines. We have so many... so much abandoned mines that it's causing a big risk. It's already causing a lot of health problems and people have died from it. And I was told, ‘Well, could you help us? Could you design a legislation that touches upon the fundamental law of the Diné?' And so it took me a long time to think that when we look at our tribal code, we see a lot of incorporation of state law, federal law and I think the emphasis should be, now that most of our kids are going to law school and are coming back to establish their practice, I think the emphasis is to take seriously and to say, ‘How do we develop our Indian thinking and use it as a tool to craft legislation?' So when I thought about this in terms of creating a commission and I thought about the leadership of that commission, that this leadership should be guided by the fundamental law of the Diné, and also the leadership also should be informed about the laws that we have, the laws from the time of creation. The laws from the time of creation is telling us about what is the natural law, '[Navajo Language]'? Natural law means laws that come from the earth and the universe and that itself, the natural law was like planting the seeds, planting the seeds to develop other forms of law.

For example, we have what we call traditional law, custom law and common law. So the medicine people sat down and said, ‘Well, the natural law should be something that is coming from the water, from the air, from the fire, from things that grow on earth. They have their own independent existence. We are...we come from those elements and then as such we should observe a relationship that is one of respect.' Everything that we learn from those elements we say that '[Navajo language],' means everything is related, we're all related in one way or another and as such we are the elements of nature and the elements of nature is us. So in that respect, we can't dominate those elements and the only thing we can do is to clearly understand that from the time those things were put in place and the time we were created is what the holy people did and said to us, ‘This is the law and I put it in your hand. [Navajo language] in the holy way I put it in your hands. Now you shall become the stewards to take care of these elements. These elements, you take care of them, they'll take care of you.'

So those were the thoughts in terms of creating a commission. I know that a lot of us are concerned that what is it that we should recover from our past? There are sources already that we can learn about, that we can apply, that we can work with and if we proceed to do that, it's amazing how much that can be done, it's amazing how much of an influence it has on the kind of thinking we have. It'll change the paradigm. Like you said, this is the way Navajos handle it, this is the way the Mohawks handle it, this is the way the Blackfeet handle it, is what we will be saying if we were to proceed down this path. And I think a lot of us learn, know our language. And this legislation is talking about a story as an approach to develop a law, but it's not a matter of talking about the story. The story should be to say, ‘How do I use this material to develop something for this modern day? How can I develop this as law so my kids in the future can say, this is the law of our grandfather and our grandmother.' A lot of us are up in age, we are the grandmothers, we are the grandfathers, and a lot of grandmothers and grandfathers say, ‘I have no idea, I have no clue about the creation story.' When the grandkids are asking questions, the response is, ‘I don't know.' But it's not simply that we can't just say, ‘I don't know,' because I know that a lot of us Indian people know a lot about our past and if we take the time to share that and say, ‘How can we revive those? How can we learn to articulate those teachings so that they sound like law in the statutes, in case laws?' Thank you."

 

Donald "Del" Laverdure: Nation Rebuilding through Constitutional Reform at Crow

Producer
Native Nations Institute
Year

In this in-depth interview with NNI's Ian Record, Donald “Del” Laverdure, a citizen of the Apsáalooke Nation (Crow Tribe) and former Chief Justice of the Crow Tribe Court of Appeals, discusses his nation's monumental effort to discard a constitution and system of governance that were not working and replace them with a constitution and system of governance that supported effective, informed decision making and that made sense culturally to the Crow people. He also discusses how his nation continues to work to strengthen its justice system.

Resource Type
Citation

Laverdure, Donald. "Nation Rebuilding through Constitutional Reform at Crow." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. September 12, 2010. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host Ian Record. On today's program, I am honored to welcome Donald "Del" Laverdure. Del is Deputy Assistant for Assistant Secretary Larry Echohawk of the Bureau of Indian Affairs. He is a citizen of the Apsáalooke Nation, also known as the Crow Tribe of Montana, where he served as Chief Justice of the Crow Tribe Court of Appeals from 2002 to 2006. Welcome Del, it's good to have you here."

Donald "Del" Laverdure:

"Thank you for having me."

Ian Record:

"The bio I provided for you is just the tip of the iceberg. So I was wondering if you could just take a moment and share with us a little bit more about yourself."

Donald "Del" Laverdure:

"Okay. I was born and raised...I was born in Crow Agency at the old hospital, which is the site of the current tribal administration building, was raised by a full-blooded Crow mother and had a Chippewa father who was absorbed into the culture and became Crow himself. And both spoke fluently as did many of my relatives. And so there was dual languages always, growing up and even to this day. I went to a school just immediately off the reservation, a school called Lockwood, and we were some of the first Crows to integrate into the school. And it was quite a learning experience, to say the least, of having Crow culture and language at home, and then going to majority society. It gave many learning lessons over life that have served me well. Eventually, I ended up leaving and coming to the University of Arizona for civil engineering, and then went on to law school. After this time, some important things occurred, most importantly of which, I was given a couple of Indian names, Crow names. I'm part of the Ties-a-Bundle Clan on my mother's side, and we always introduce our self [Apsáalooke language], which is "˜I'm Crow, my name is First Stone,' which was given to me by my clan uncle Chanis (?) Whiteman. And then I was also given a second name more recently called 'Walks High' by Jerome Hugs (?), which is also another...married into our clan. Those have certainly served me well because culturally they've put me in the right context to live up to those names for the family and to try to provide for the next set of Crow generations that come after me. While all this was occurring, I did start to pursue after private practice for a couple of years as a tax attorney. I went into academia and was a [William H.] Hastie Fellow, which was fairly prestigious, to increase minorities in the teaching profession. Then I received, at the time I also taught federal Indian law, ran the Great Lakes Indian Law Center at the University of Wisconsin-Madison, and simultaneously was appointed as the chief justice of the Crow Court of Appeals. Subsequent to that, I went to Michigan State University, was an assistant professor of law, and then co-founded and directed the Indigenous Law Center. At that time, I then took a sabbatical and returned to the Crow homeland to become a general counsel for the executive branch of the Crow Tribe. That was roughly in 2006 and I served for...I resigned as a chief judge after four years, and then became general counsel, and served for three years prior to this most recent appointment with the [President Barck] Obama Administration, as the deputy assistant secretary for Indian Affairs."

Ian Record:

"Well, you've done quite a lot in your young life."

Donald "Del" Laverdure:

"Yeah, that's what people tell me, but the Indian names have accelerated that process. So I've been fortunate and Crow teachings have prepared myself for when the window of opportunity came and when I was called for service not only for the Crow Tribe, but for Indian Country in general."

Ian Record:

"Well we're here today to talk about the Crow Tribe and Indian Country as a whole, and delve into a number of topics. And the first question I want to ask you is a question I ask a lot of individuals, tribal leaders, practitioners of nation building, if you will. And that is to get your response to a quote that a Native leader once shared with us at the Native Nations Institute, which is, "˜The best defense of sovereignty is to exercise it effectively.' And I'm curious to learn from you: how do you view that statement?"

Donald "Del" Laverdure:

"I would say I absolutely agree. I think that one of the enduring lessons of federal Indian law and policy is that by not exercising that residual sovereignty that has been maintained prior to the U.S. Constitution, certainly post-constitution, as extra-constitutional sovereigns, the exercise of that is absolutely essential to protecting it. For example, because criminal jurisdiction is a maze between several governments -- tribal, state, and federal -- by exercising certain authorities in the criminal context at the tribal level, oftentimes there will be deference provided by the local governments and prosecutions sometimes, depending on the crime, will be abstained by the federal government. And that's just one example, but I'm a firm believer that if you exercise it and you exercise it with respect and continuity, then the norms of accepted tribal sovereignty will become day-to-day type of occurrence for other governments as well."

Ian Record:

"One of the most fundamental exercises of sovereignty is constitution making. And back in 2001, the  Apsáalooke  Nation, the Crow Tribe, reformed its constitution. And I'd like to talk a little bit about that. You obviously -- being a citizen of the nation -- you have a firsthand perspective on what it was like before, what it was like during, and what it's been like since the new constitution was ratified and took effect. And before we delve into the specifics of what your nation has done in this particular area, I'm curious to get from you what your definition of what a constitution is."

Donald "Del" Laverdure:

"I view a constitution as a social contract among the citizenry, that the Crow citizens, in this case -- or any citizens for that matter come together -- form a government and set the rules for that. It doesn't necessarily need to be in a constitutional form. It can be simply written laws, codes, etc., as some nations do without a constitution. I think the constitution becomes really the guiding framework for the rules of behavior that are either to be punished or accepted and how we're going to act according to those rules as a set of citizens within that community."

Ian Record:

"In 2001, as I mentioned, the Crow Tribe ratified a new constitution and system of government. I'm curious to learn from you, what compelled your nation to take this major step and what were some of the fundamental changes made and why?"

Donald "Del" Laverdure:

"The move for a new constitution, I think it started a generation before. The proposals were there. A number of older Crow citizens who I've interacted with in my roles within the community have told me that a number of people have wanted to do this. They informed various committees, studied the issues, and I think people, in fact, at the time were concerned about how decisions were made, stability, being able to move forward as a community towards prosperity with economic development. And part of the problem of the prior constitution, which was a pure democracy, was if 100 people showed and had quorum -- and the agenda was set by the four executive officials at the time -- any and all decisions could be made according to that. And in fact, oftentimes there was vigorous public debate among other things: fighting, shaming, etc., when you go on the council floor for an agenda item, and people would have to do the role call and walk down the line and say you're either for or against someone or something. And so it made decision making very difficult. It couldn't be individuals -- it was done by groups -- and it was a significant amount of politics that was involved in almost any decision. So this new constitution, the seeds had been sown, the dissatisfaction with how decisions were made and those who had the authority, I think came to a head after a very long administration prior to that. And then there was a fresh face that came in who was largely apolitical at the time, and he had campaigned on change, much like we see in national politics today. And with that change, there was a movement to move towards that, and I think the community largely embraced the idea, and ultimately the process itself was somewhat flawed, but at the end of the day and in a short time period, a vote was made by some thousand-plus Crows and sixty percent or so said yes. And since that time, it's been a major change in the way the government's conducted."

Ian Record:

"So what are some of the ways that government, governance I should say, within Crow is different now than it was during the what some have called the ''48 constitution.' What were some of the fundamental changes that were made during this reform process?"

Donald "Del" Laverdure:

"I think, and just to step back for a minute on the history of the '48 constitution and the thought process that went into it and then to kind of highlight concrete changes, the Crow Nation has been very proud that they were a non-IRA [Indian Reorganization Act] tribe. And it's been in the history and continues to this day, even for many Crow politicians that they take great pride in the fact that they federal boilerplate constitutions and continued on their own. That was back in the mid-30s and then there was still a need for some set of rules. So groups came together had discussed a...got some help, from what I understand, from a lot of folks' parents and grandparents. Legal aid lawyers assisted them, and so you had some bylaws and a charter, essentially, on how the rules were going to go forward and it was done in this fashion for the '48 Constitution, where it was a pure democracy with the agenda and four elected officials. But the community as a whole had final say, even though those would carry the torch between early meetings or even special meetings. So the process it self, to make any decision was always a quarterly momentous decision and folks would campaign or run on those decisions. And so when you move forward on a development agreement, for example, in the '80s or '90s, coal development specifically, not even a quarter later, there'd be a group that would want to change that or withdraw it for a variety of reasons, good and bad. Today, after the post-2001 constitution -- despite the trials and tribulations of kind of understanding new roles -- a new legislative branch was created with eighteen elected members, three from each of the six districts. And what that did was profoundly change the number of elected officials per capita, per person. And so, I think what you see now is with the four reservation-wide, [at-large] elected executive branch officials, the eighteen district [representatives] in the legislative branch, you have more people with access to the voice that probably weren't heard before. And that part has been largely a success because of access to it. The other thing that occurred in that process is in the exchange or compromises of who had what say, some of the powers from the previous executive branch, the chairperson, were then put as a final say with the legislative branch, for example approvals on anything dealing with natural resources or trust resources. So anytime we worked on an economic or energy development deal, before it would just go through as an agenda item and if 100 people said yes, that's what occurred. Under the new constitution, you have to get a majority of the legislative body. And that begins in the subcommittee process, which they start prior to these quarterly meetings required by the constitution. And so you end up working with that body, through the process, address their concerns, and then there's a very vigorous floor debate on whether in fact final approval is provided or not. And so it's fairly open, transparent. The decisions carry more finality to them and -- at least in my experience there, not only as a court of appeals judge but as general counsel -- the decisions stick. There may be amendments that come afterwards, but they're largely less significant than the overall deal itself. Another thing that occurred was, another important thing is term limits. Prior to that, they were two-year terms limits, and it's probably well documented in the series that it leaves very little time for a ramp-up of experience, and then you turn around and run for re-election. So any of the changes that you get used to, the people that are there can easily be wiped out and the institutional memory is gone. Factions grow and they largely end up winning elections based on certain ideas. So the fact that those were extended to four years then gives people a real platform to learn, make decisions, govern, and then run on your record subsequent to that. So too with the legislative branch, the four-year terms are very helpful, and the fact that they're staggered, one-third of the legislative branch would be up every fourth year and then two-thirds every fourth year, so you retain that institutional memory of policies, procedures, what deals were done, why they were done, and that adds to the, I think, the strength of the decision making and the fact that they don't change very quickly. Final thing is, under Article X of the new constitution, the Crow court system was recognized, albeit with some caveats on some issues that have occurred since then. But the fact that it was constitutionally recognized was extremely helpful as a kind of third-party decision maker on important issues of day-to-day things, from small criminal issues to civil issues, and also in the commercial context as well."

Ian Record:

"I'm curious, you've already...you've touched on this a little bit, but I'm curious if you can paint a picture for folks of what exactly decision making looked like prior to the 2001 constitution taking effect. It was a general council system as you mentioned. Can you kind of paint for folks what the typical meeting, how it transpired, what went down?

Donald "Del" Laverdure:

"There would be a lot of informal meetings among families, clans, others. Usually there was kind of a regular system of politicians, if you will, and they would talk with the elected leaders or however they got their jobs in the government, and then they would work together to set an agenda. And setting the agenda is half the battle. And the fact that you would either get something on the agenda for a vote, or delay, or not have something on the agenda, carried particular force. And so even that part was very political. The notices or announcements would go out that a tribal council meeting would be held on whatever the agenda items were. People would go in and you'd sit in a round hall with bleachers, everyone would sit around. Then the chair would preside over those meetings with a variety of people that worked with them. Then discussion would be had, people would have debate, and people would either walk in knowing they had a certain vote or not, and they call it "˜walking through the line.' They would be made public on what issue they stood for or not. And there were all sorts of issues associated with that: shame, embarrassment, public fights. People I think...people who liked confrontation and who liked to be in the middle of the big debates enjoyed it, but I think for the average citizen who may not know exactly what was going on, it was a very arduous and difficult process. So not as many participated, as they say, as they do today."

Ian Record:

"And then, from what you're saying, from what you've shared already about the new system, there seems to be, as you mentioned, much more finality with the decision making, that the decisions that are made can then be built upon by other decisions that advance the nation forward, where it sounds as before there was a lot of difficulty generating much less sustaining momentum.

Donald "Del" Laverdure:

"Yeah, I would say that's accurate. The fact that there was these quarterly council meetings, decisions would be reversed very quickly. Major corporations who had invested in, say for example, drilling commitments on oil, gas, coal bed methane, or coal, then would say, they would hear a story from two or three of those companies, and then they would say, "˜Crow Nation is not somebody you can deal with because there's no stability, and we're willing to invest millions and be a partner here, but we don't want to continue forward based on that experience. So through the new constitution, the fact that the rules are out there, they're in public just like the '48 constitution, but in a way they know the process, it's different. You've got to go through various levels of approval from cutting a deal with the executive branch and their attorneys, to the subcommittee, and then the legislative process. And ultimately, then Bureau [of Indian Affairs] approval if there's trust assets involved. But it has been a marked change.

Ian Record:

"I'm curious: you've achieved reform, your nation has achieved reform, what sort of challenges did your nation encounter during the reform process, and how did it overcome those challenges?"

Donald "Del" Laverdure:

"Well, there's been a number of cases that have been litigated over the constitution itself, from voting rights of off-reservation Crows, to the process, the votes, the fact that there was only a thousand despite having some 10,000 enrolled citizens. And almost universally, all those cases have not stood the test in the federal court system. Some of them have been remanded into the internal tribal court system because it is an internal tribal sovereignty issue. Those were kind of some of the news flashes of what had occurred. The other thing was after the constitution went in, there was now going to be a vote on who was going to be the new chairman of this newly elected body and there was supposed to be a grandfathering in of the existing, but then there was an indictment that came down. The chairman resigned, the vice chairman stood in, so there was a new election and that was just six months after the constitution had been passed. And so you had this dynamic of political parties saying they were either for or against this change, and it was a very close vote. In fact, I think it was 100 votes out of 4,300 people and ultimately, Chairman Carl Venne won over the then-vice chairman Goes Ahead. That was significant because the existing vice chair, sitting chair had campaigned on continuing with the change, and he narrowly lost. The challenger, Carl Venne was [saying], "˜Go back to the old constitution.' And the irony of it all is at that point when he came in, because I am one of his clan nephews, he asked me to do an assessment. And so I worked with him very closely, and what I stressed to him as an educator at the time, before I was appointed to the bench, was that this was largely a very good thing to go forward with and that he still maintains certain authorities, but they had to go through approval processes and transparency was also a very good thing. And over time, his views softened and he learned to work within a system and ultimately accepted it. And I think that was significant in our contemporary history because somebody who campaigned against the very change that was there learned to accept the change of reform. And then we then started to develop and work very closely with the legislative branch after my judicial experience. And ultimately, it's still in a process of change. But the other area that we had many problems with was our court system. We had popularly elected judges at the time with an appointed court of appeals. With the new constitution passing, the administration at the time then removed all the judges and put in several appointed judges with legal experience, because these were non-legal, tribal Crow judges who were fluent in the language, often times former police officers, and there was a battle between what is the appropriate role of the court with this new constitution. I sat on the...I was appointed shortly after, and I sat on the judicial ethics board of the chairman, and we developed a set of rules on how we would test whether somebody was legitimately removed or not. At the end of the day, we did reinstate the formerly elected judges, who then later were subject to recall. We had a series of hearings, and then why in one case to resign, and another case we removed, and yet in another case there was a court case that I think went to settlement more recently. And so the fact that the tribal court it self was subject of the political branches and we needed to determine exactly where the judicial system sat. And at that time, I'm actually pleased to say I was part of trying to bring a stable process to how we select judges and move forward as a nation."

Ian Record:

"How has the judicial system at Crow changed or been strengthened by the new constitution?"

Donald "Del" Laverdure:

"To be honest, this is a difficult subject. I think the other branches and the delineation and the scope of the roles and duties, responsibilities is much more clearly spelled out in the constitution and what's expected. The judicial one, I think, is very thin because it's only four or five sentences in Article X. All it says is there will be a Crow [court system], however it did say that they would be subject to the Crow Law and Order Code, which is part of the tribal statutes that's subject to changes by the two elected branches. So I think there's an inherent weakness in the structure of the court. However, having gone through all the processes I mentioned, I think there was a long learning curve of, that the tribal court is an indispensible part of our government, and that it has to exist, and it has to set rules fairly and act upon them in a consistent manner in order for us to be legitimate and accepted by the outside world, and also to be the third party when the two political branches disagree. And we did have court cases on this and ultimately, we did come to an agreement. However, the tribal court system remains underfunded and is not completely independent, but I think it is fairly strong considering the circumstances."

Ian Record:

"So what sort of, and you touched on some of the growing pains that you've... you've already touched on some of the growing pains that the Apsáalooke Nation, the Crow Tribe has experienced since 2001 when the new constitution was ratified. It's interesting: we've talked with a number of tribal leaders across Indian Country whose nations have gone through reform. And there's kind of this stark reality that reform is only the beginning of change that you have to continue on with the process of change. Particularly, in many cases, you have nations and communities where all they know is the old system, and it's hard to change that overnight."

Donald "Del" Laverdure:

"I couldn't agree more. A famous writer said, "˜Be careful not of the wishes that have gone by or the prayers that have been unanswered, but be careful of the prayers that are answered.' And I think [in] Crow's case, maybe it was answered, and now reform and change is very difficult. And to change people's understanding of how we govern ourselves and how we view ourselves takes not only a lot of education, but just experience and building up in trust, expectations, and then ultimately confidence, and that their government works and that it serves the people, all the people, all the Crow citizenry, not just a few. And having gone through that process, I think we've made a march toward progress, but by no means is that change even near completion, and it's going to require a lot more hard work for another generation, I would imagine."

Ian Record:

"Both you and I were participants today in an executive forum on constitutions and constitutional reform in Indian Country. One of the topics that was discussed in great detail today was this issue of legitimacy and specifically ensuring that a nation's constitution is culturally appropriate. Can you speak to that issue relative to your nation?"

Donald "Del" Laverdure:

"Yeah definitely. I think the fact that the new constitution expressly cites our treaties of Fort Laramie -- which is really the foundation of the Crow's relationship to the federal government and then everything else flows from that -- we have an 1851, 1868 cite and do recognize that there is federal law which is debatable on whether it should've been in the constitution or not. But nevertheless, saying that we're Apsáalooke people, have our name said and listed in Crow, and that we list all the districts according to how we understand them. For example, Lodge Grass is in Crow '[Crow language],' which is the word for "˜Valley of the Chiefs.' Many chiefs were there historically. And having those types of things in there is important to our identity, our culture, and the future aspirations of where we want to be as governing not only Crows, but anyone within the territory and boundaries of the Crow Nation. In addition, one of the things I think has been, may have been a missed opportunity, could be subject to further amendments in the future, is the centrality of language for the Crow people. Some two-thirds are fluent, whether that be oral or verbal, and I think a nod to who we are as a people could've included some references to how the language is so important to who we are as a people. And so many fluent speakers, and we're having a generational change now where we have a lot who understand but don't speak as fluently as those 35 and older, and that we somehow incorporate and expect that from our officials. And I'm proud as a Crow person to say that many of the day-to-day governing things that occur, from business permitting to discussions with committees to phone calls back and forth are conducted in the Crow language. And the vast majority, super majority of all officials speak it and they speak it to each other when we conduct meetings. And we'll utilize English at times, but that's more the lawyers than it is the Crow politicians. And I think just that the essence of who we are as Crows does revolve around the treaties, the land, the language, and our clan system. And all of those things are critical to understanding and having legitimacy for all the Crow people."

Ian Record:

"Yeah, I mean, incorporating things like the districts as Crow people see them, that sends an unmistakable message to the people that "˜this is our constitution,' does it not?"

Donald "Del" Laverdure:

"It does. And perhaps in the future, through the legislative process that we would return more control at the local level, which I think it was historically through clan systems in certain areas, and the fact that we have those six districts and now we have three from each of those districts represented in Crow agency, the capitol, interacting with the executive branch I think does send the message that it is uniquely Crow and it is under our own rules."

Ian Record:

"I want to turn to another topic now and that's tribal justice systems. As I mentioned in the open, you served for four years as the chief justice of the Crow Tribe Court of Appeals. And I'm curious -- we've touched on this issue a little bit already -- but I'd like to get more of a thought from you on this topic of what roles can the tribal justice systems play in the rebuilding of Native nations."

Donald "Del" Laverdure:

"Well, I think they are as important as the political branches, the executive and legislative in this case. I think the court is the institution that enforces law. And we're going to have this new constitution, this reform, this change, and all that flows from it, the new dynamics, personalities, recognition of culture in many ways at the court, in and of it self has to be viewed as a legitimate branch of government that should be fully funded, and applies the Crow law or organic law to all the situations that are there, and that they interpret the Crow constitution from a Crow perspective. And that is absolutely critical, not only most importantly for our own Crow citizens, that they in fact feel safe and secure in their homeland and all the rules are the same, applied equally to everybody in similar situations. And then also to the outside world -- that we do have a system that is a check on the other branches, that if there's a commercial deal that is legitimate and lawful, that that continue and be enforced. And I think that all of those things become absolutely critical just in the social functioning of our society. And having some 4,000-plus cases per year go through that court system is very significant, and so it's a player in everyone's day-to-day life."

Ian Record:

"So I'm curious, it sounds like from what you've been saying that Crow is moving towards having one day a fully independent, strong, robust court system, that you're kind of on your way. And I'm curious to learn from you, what in your view, in your experience, does a strong independent tribal system look like and what does it need? What does it need to have?"

Donald "Del" Laverdure:

"I think it needs independent decision-making authority without political interference, first and foremost. Secondly, I think it needs to be fully funded. My experience among tribal justice systems -- and I have served on a handful and also helped create a number -- is that they need the funding to have the staff, the clerks, the recorders, the people keeping track of the files. It's absolutely critical for all of the day-to-day functioning. The third thing, I think, for them is to apply that nation's law according to how they view it. And I think the Navajo Nation really has emerged as a leader in fundamental or Diné law in their statutes, interpretation of those, and it's widely accepted by the community. I think we're making steps there. It's always two steps forward, one step back. And I think if we have all of those markers, then it'll be the institution that we need to be independent and stable. Certainly, having good serving people looking out for the public. And the other part, kind of those hallmarks of what we view as independent, stable judiciaries is I think in the tribal context, the least, I think it applies in a number, but at least at Crow, they have to be from the community, and they have to have compassion, because you're dealing with peoples' children and grandchildren, and you have to be a part of that community in order to have the reputation as a '[Apsáalooke language]' -- a good person -- and that you work with people and you're there to help them. You're not there just to sit as a third-party judge in another system where society is anonymous, whereas in our society, everyone is known and there are clan rules and clan systems in place. And if that judge can integrate all of those things in addition to those, then I think we'll be where we want to be as a Crow Nation judicial system."

Ian Record:

"You mentioned as the first key to an effective tribal judiciary, the insulation from political interference. What does political interference do? And I guess...let me back up here. What happens when politics do interfere in tribal court jurisprudence?"

Donald "Del" Laverdure:

"I think it delegitimizes the tribal court, number one. Number two, I think it creates a corrosive effect internally to the tribal court, the personnel itself, that when they make a decision, they're going to be overruled, and it could be for arbitrary reasons or favoritism, familial connection, kinship, etc., and that kills morale for folks working hard trying to make the standards the same for everybody. And so those two things more than anything, I think, are the effect of political interference."

Ian Record:

"And doesn't it send a pretty clear message to investors? And when I say investors, I'm not just talking about folks with dollars to invest in the nation. I'm talking about citizens of the nation who are considering a career working on the reservation, whether it be as a teacher, within tribal government and that sort of thing, all kinds of investment."

Donald "Del" Laverdure:

"Yeah. I think investment in the larger sense, not just third-party dollars for energy deals, but peoples' investment of human capital in themselves to a community. I think it does send a very poor message that this isn't a place where you want to put your life and your family and to contribute all that you have to make the governing system work well, efficiently, and be representative of uniquely Crow values. So I do agree that it would have a very harmful effect."

Ian Record:

"So I want to back up a little bit and talk about what Crow governance was like prior to colonization, prior to the establishment of the Crow reservation, the Crow agency. What did it look like prior to that time?"

Donald "Del" Laverdure:

"As far as my relatives and older folks in our clan system, what I've been told anyway, is that we did function as the original clan system, born on your mother's side and you're a child of your father's side. And just to get into specifics about roles, of how that looked because it does go into governance of how you live as a community and as a family and survive and prosper. On the mother's side, you would have the other folks on you mother's side have the right to...they usually brag you up, make you feel better, bring your ego up. And then you have the balancing act on your father's side, which is to tease you, to shame you, and to bring your humility back into check. And you have these checks and balances of the family. There would be, within the clan system, usually a clan elder who largely was respected among the family connections. They're typically the ones to speak and lead. In fact, in Crow culture, which has a fair degree of existence today, is the right to speak in public even with those systems, and there are rules and responsibilities that go with the clan system in there. And you're not to violate those. The enforcement mechanisms have probably disintegrated a bit -- you know, the American government bringing in different rules and breaking up the families –- but before it would be, the expectations were [that] you're to follow these rules and that everyone had a role. And these older individuals would then conduct ceremonies, they would decide family disputes, or pick people. They would always go by consensus decision-making, which was really important –- as opposed to top-down, vertical -– and always were viewed as people that were very good listeners. You can hear something, but you may not listen, and to listen is to learn and to share information about resolving these disputes. So it was really this family nucleus, kind of, at its core. And these families then would follow certain band chiefs, and we had band chiefs throughout our historic homeland. And the band chiefs were [Apsáalooke language], you know sub-chiefs, whatever, they were good men. And groups of families would follow them and they would largely –- if that person continued to conduct themselves in a good way, treat people with respect, listen, make good decisions, be thoughtful, etc., have patience, wisdom -– groups would follow them and they would live as a community in various parts and survive together. And if they didn't perform or if they weren't the type of leader they thought they were, then people would leave and go elsewhere. So that structure was always based on locations within the Crow Nation's territory, and so you would have pockets of this. And law and order was kept as such, the women ran the camp, the kids were to follow them, etc., etc. And so I think it was more of an understanding based on our traditional culture and clan system and then it would break into further roles for scouts and warriors, etc."

Ian Record:

"And so how, just speaking generally, how did colonialism impact that system?"

Donald "Del" Laverdure:

"I would say that certain parts of it have been corroded or negatively affected. Many people do still follow clans in some ways. But with the creation of the first agency out in Livingston, because the rations were given and following up on the treaties, many families were broken up, and they would take jobs or try to get the rations, so they would settle in new areas, and it broke up that family-clan unit that used to govern itself. And then it was changed to Crow Agency, the present-day capitol of the Crow Nation, Crow Agency. And so a number of people came there, and of course through the larger federal policy, were made into farmers, enticed them to do things and settle and have homesteads and break up the tribal land base. And all of those things had the corrosive effect of really disintegrating the clan leaders, the sub-chiefs, and it still existed to a large degree, even through this...and the language is fading a bit, but it's still fairly strong, the clan system is still respected, some of the societies have also disintegrated. There are some that are still active. And so, our culture, I think, has evolved in reaction to all this schism of internal conflicts of federal policy. One minute, let's try to help the Indian and we know better paternalism to, "˜Let's make them into '[Apsáalooke language],' which we say is "˜white.' So all of those issues have created what we've seen in the past, which is –- and continues today -- is high unemployment rates, mental health issues. We've got a checkerboard land jurisdiction, so everyone's fighting over authority to decide. And, ultimately, through a lot of this, there's a lot of passive lessee, lessor-lessee relationships, where other people have gotten wealthy off the great landholdings of the Crow. And so it's really up to us to try to get the healing back. It starts with the constitution and other things, and then reintroducing the culture, education, set roles and responsibilities back. But there has to be the healing, to get us back to where we were before."

Ian Record:

"I want to finish up with a brief discussion of an arena in which you're directly involved in your current position, and that's intergovernmental relations, federal-tribal relations. And this is a...it's interesting, over the past 30 years or so, particularly with the advent of the Indian Self-Determination Act, we've seen this exponential growth in this area, where Native nations across Indian Country are engaging to a greater degree than ever before in formal relationship building with other governments, with other jurisdictions, with federal agencies, with state agencies, with local municipalities, with private interests even. And I'm curious to get your view of that arena of tribal sovereignty, if you will, of tribal governance and kind of where you see it at currently and where you see it headed."

Donald "Del" Laverdure:

"First from the tribal perspective, then I can probably speak more from the limited federal, in a year. From the tribal perspective, I think it varies on the community and the leadership and their expectations. In some cases, intergovernmental agreements don't work, or they view them as a denigration of sovereignty, giving away sovereignty. I think for the most part, at least in my personal experience, has been that they've been beneficial, by and large. For example, in the tax area, we have to deal with federal Indian law where state and local governments have been given more and more say to tax value on the reservation that's been generated and move it off the reservation. By having intergovernmental agreements, you can have kind of a unified view of who has what piece of the pie, and you can divide it up however it's going to be subject to negotiation. But you have that one for a duration of time, and then you can use that to move forward on development or other things because oftentimes, uncertainty is the key to kill a financial deal. So that's one aspect. I think law enforcement's another at least in, again, speaking from the Crow tribal perspective -- and there are differing views of this -- but I think with scarce resources, underfunding, the number of police per capita is much lower than it is almost anywhere else, some rural areas with an exception, sometimes one third as many for an area that's very significant. In our case, it's two-and-a-half million acres. Not enough cops -– sometimes one or two at night -- and that's a frightening proposition. So law enforcement makes sense, but there are passionate views about that. In terms of kind of intergovernmental agreements in general and the diversity of them, I do see them growing substantially across the nation. And I think to deal with the federal Indian law and the rules that keep changing -– you know, we talk about rules in governance, but the U.S. Supreme Court, as anti-tribal as it is in the last 30 years, they're changing the rules constantly. And so tribes are almost forced into intergovernmental agreements to deal with all these changing rules so that they can have a set of rules, whether it's, you know, law enforcement or tax or any number of subjects. And so I think it's a healthy way to deal with it. Some people view it –- you know, you've got to have the fight, the bloody fight and go down swinging for pure tribal sovereignty -- but I think at the end of the day, citizens expect services, and they want accountability, and this helps bring that for many. One of the caveats more recently in the Midwest, for example, is those deals that were struck before –- water, sewer, trash service -– these intergovernmental agreements that were so good for tribal sovereignty and worked, many of those governments are now rethinking them because they're reacting to new case law that's coming out. And so it's turning into litigation, instead of two sovereigns coming together and working on a deal for the benefit of the larger community. So we're starting to see an added wrinkle in all that and people rethinking relationships and it's unfortunate because of the instability largely created by the federal court system. So I can't really blame people depending on the scenario that they have. Either they have a trustworthy other government partner or they don't, and that's the key to intergovernmental agreements is confidence that once you sit down, negotiate, make the tough compromise, that you're going to stick to your end of the deal and you're going to hold your word. And that is important, not only at the tribal-state level and tribal-other government level, but ultimately, where the origin of the relationship is the tribal-federal level. We have to do and say...we mean what we say and we do what we mean. And that's critical for relationships with Indian nations. Speaking now from a federal relationship for a minute, and I'd like to say in my current role as an Obama appointee is we have two roles. If the tribe wants us there, under the trust responsibility and this historic federal-tribal relationship, we should be there and we should bring the resources to bear. If tribes, as they are now are becoming more sophisticated, that they have figured out the rules of the game, if they don't change, and they become very good and adept them and very creative and entrepreneurial as they progress and move forward and they don't need us and they say you need to get out of the way, then I think that's our job, is to get out of the way and to cut the bureaucracy and second-guess even decision making from the federal perspective for Indian nations and let them become truly self-governing, sovereign entities. And so, you can see that it's a somewhat convoluted answer, but it depends on the perspective you're speaking from and it makes a significant difference, I think, in the entire tribal-federal relationship."

Ian Record:

"You mentioned this new wrinkle that where essentially, some other governments, some other jurisdictions are rethinking their relationships with Native nations, or abandoning those relationships altogether because of the emergence of new case law that I guess maybe tilts the game more in their favor. Don't these, making sure that these intergovernmental relationships, whether they take the form of an IGA [intergovernmental agreement] or some other form, don't they require essentially ongoing, constant maintenance to account for those sorts of developments, to account for political turnover, for instance?"

Donald "Del" Laverdure:

"I think they do, at least if folks are thinking long-term. You have, whether it's now today, gaming compacts for example. Ten, twenty [years], some of them no duration time period, that they expect these rule to be in place and for this part of the revenue to be shared, and they expect state and other governments to hold their end of the bargain. So too with gas tax agreements, tobacco agreements, should tribes be subject...want to enter into them and negotiate them, that period of years, regardless of decisions, of federal court decisions, should continue for the duration of the term and then they can sit down as partners and renegotiate, should there be a change in circumstances. So I still think they have a critical function. And Indian nations' role vis-í -vis all other American governments...at the end of the day, they should be the ones driving those relationships and what they expect of them, and that the relationship can then take on a view of being reciprocal, as opposed to one-sided."

Ian Record:

"Now you mentioned this perspective on the part of some tribal leaders, some tribal citizens perhaps, that when you engage other governments -- particularly governments other than the federal government -- in any sort of formal partnership, formal relationship, that you're somehow denigrating your sovereignty or somehow giving up your sovereignty. It's been our experience that we're seeing that perspective less and less. That replacing that perspective is a perspective that when we engage in these relationships, it's an act of sovereignty because we make the sovereign choice to engage with those other governments on terms that are acceptable to us in order to advance our goals. Are you seeing more of that dynamic at play in recent years?"

Donald "Del" Laverdure:

"I think I have seen that not only from prior academic life, but on the ground. That I think, just by virtue of exercising that authority, that they are asserting their sovereignty. That's the camp that I'm in, but there are other purists, the treaty folks who have their societies, and they view any other agreement with any other government as violating fundamental treaty law. And so they're going to have, there's going to always be at least that in the Plains area, where I know there are many treaty folks, and up in the Midwest. But I definitely -– there is that element -- but we argued exactly what you have just summarized. And at the end of the day, some of the agreements did go through and some of them didn't and it just, it depended on the subject matter. But I think across Indian Country as a whole, I think that view is becoming much more prevalent and being exercised."

Ian Record:

"You mentioned the Supreme Court as a very uncertain arena, and that's putting it mildly. A very uncertain arena to, I guess, resolve disputes between jurisdictions, resolve disputes between governments. Given the current composition of the court and essentially how long that composition will continue to exist, doesn't it make it incumbent upon tribes to think negotiation first, to think relationship building first before litigation because of litigation's uncertain outcome?"

Donald "Del" Laverdure:

"That's...it's a complicated...I'll give you a complicated answer. It depends. That's something everyone hates to hear, especially tribal citizens from their lawyers. I used to think that. And even as a general counsel, I use to believe that, but now having seen such a diversity of hundreds of government's interactions, litigation forces positions and you can...and very few cases ever make it up to the U.S. Supreme Court; it's a tiny fraction of a percentage. And so the real question to me is, is this happening at the Circuit Court of Appeals and the lower federal court levels? And that's a judge-by-judge selection on whether they're knowledgeable about tribal sovereignty or not. And if they are knowledgeable, then I think in some cases it's still, it would be appropriate to the community, but litigation is leverage against other governments. And if you win a lower court ruling, more often than not, that's going to be settled. And so going straight into it, if you have a partner who's favorable, who's knowledgeable about Indian nation sovereignty, and they're willing to truly compromise, and it's something they can accept on behalf of their community, that makes sense. If they're not, and in those other situations where they take account of those other factors, the intangibles, the biases, etc., then I would say it would behoove you to take less if you can proceed forward in a situation that makes sense. And I've seen that in a number of contexts, especially at the federal level. So my view is a little bit different than it was previously."

Ian Record:

"And we've seen a lot of tribes that we've worked with who hedge their bets and do both simultaneously. They're going the litigation route, but then they're also trying to work out a negotiated settlement to...because often litigation takes years to unfold. It's interesting, Billy Frank, well-known leader up in the Pacific Northwest, he tried to capture this, I guess this challenge, if you will, by saying, "˜We need to be peacemakers when we can and warriors when we must.' And I'm curious to get your thoughts on that perspective."

Donald "Del" Laverdure:

"That's a really good description, and I certainly would defer to his having lived through and experienced all the fights of the Boldt litigation and the aftermath, and now having seen him come up to D.C. quite a bit and advocate for their intertribal organization, co-management of fisheries, and usual accustomed places. I think that's correct. And I think peacemaking has its function not only from an intergovernmental standpoint, also internal disputes. Peacemaking makes a lot of sense, and I hope to see a return of that from the judicial context and something that I helped some communities with. And then the warrior part, which is you've got to stand toe-to-toe and give it your all and even if you lose, just waging the fight is going to create that confidence from the people who are at home, who don't have the voice or the resources or the background to wage that fight themselves, but they feel it. They know it, they've experienced it, and they like to see people who would take that position so they can feel good and confident that they did assert themselves, and somebody who understands them move forward on that basis."

Ian Record:

"I had one final wrap-up question and that is based upon your vast experience in a number of different areas that are critical to tribal sovereignty, critical to tribal governance, what do you see as the future to tribal sovereignty and tribal governance?"

Donald "Del" Laverdure:

"I think the future looks good to be honest. I am more than hopeful that the change that we are seeing in the diversity of those rethinking, questioning, wanting to instill their own values and culture into how they have to conduct their lives everyday I think is going to continue and is going to continue at a very rapid pace. And I say that because having been through the university structures that I have, I was in school for nine-and-a-half years formerly, then taught and then getting into politics, the trend that I see is that more and more Native youth who are becoming trained and educated, not just educated in the Western sense. It's fine to have a degree and accomplish something and to kind of have a Western view of what life is about in a four-month period and then you wrap those all up in a number of courses, but to have understood the teachings of where you come from. And when you combine that and that is the center of your universe is where you are from, where your teaching is centered, and that you are that Indian nation citizen first, Indian second, and a student third, in that order. I see unlimited possibilities for the rebirth of and reformulation of Indian Country as we know it. There are just more and more youth coming out like that, which I think is the key not only for this next generation, but for all the future generations of Indian country. I'm simply one dot in the sand of the ocean and I happen to have tried to make a contribution and a difference and I think many others are going to be like that coming forward."

Ian Record:

"Well Del, we really appreciate your time. We've run out of time unfortunately, I feel like we've just scratched the surface of your wisdom and your experience and we thank you for joining us."

Donald "Del" Laverdure:

"Thank you for having me."

Ian Record:

"Well, that is it for today's program of Leading Native Nations. To learn more about Leading Native Nations please visit the Native Nations Institute's website at nni.arizona.edu. Thank you for joining us. Copyright 2010. Arizona Board of Regents."

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.”