tribal courts

Tribal Sovereignty Special

Producer
KNBA 90.3 FM
Year

What does tribal sovereignty mean in Alaska? KNBA's Joaqlin Estus talks with two experts about the legal basis for tribal sovereignty, and tribal judicial systems at work in Alaska. Hear about a court ruling that Alaska tribes can put land into trust status, tax-free and safe from seizure...

Native Nations
Resource Type
Citation

"Tribal Sovereignty Special: The Our Alaska Show on KNBA 90.3 FM (Host: Joaqlin Estus)." Featured on KDLG 89.9 FM Public Radio for Alaska's Bristol Bay. Dillingham, AK. April 9, 2013. Radio Interview. (http://kdlg.org/post/tribal-sovereignty-special-kdlg, accessed August 19, 2013)

Leech Lake Joint Tribal-State Jurisdiction

Year

Across Indian Country tribes are strengthening and better defining their governments in order to meet the unique needs of their communities. As Native nations work to expand their sovereign powers, tribal justice departments can play a critical role in achieving those goals. In the early 2000s, the Leech Lake Band of Ojibwe faced a rising crime rate. Because Minnesota is subject to Public Law 280, county and state agencies controlled the primary resources for law enforcement and judicial processing. But recidivism statistics for its tribal citizens showed that the state system was not addressing the problem. Despite its limited judicial infrastructure, the nation had a strong desire to intercede, and a strong commitment to holistic care rooted in traditional values. It was with this determination that Leech Lake set aside a history of interracial tension to work with neighboring counties to create a Wellness Court that helps people overcome their drug and alcohol addictions.

 

Native Nations
Resource Type
Citation

"Leech Lake Joint Tribal-State Jurisdiction." Honoring Nations: 2010 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2011. Report.

Northwest Intertribal Court System

Year

The Northwest Intertribal Court System (NICS) assists tribes in developing tribal courts that provide fair, equitable, and uniform justice for all who fall within their jurisdiction. Owned by a consortium of tribes in Washington State, NICS recognizes the sovereignty, individual character, and unique needs of individual tribes. Its services, which include code writing and technical assistance, help Indian nations develop the necessary legal infrastructure for handling a full array of civil and criminal matters.

Resource Type
Citation

"Northwest Intertribal Court System." Honoring Nations: 2003 Honoree. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. 2004. Report. 

Permissions

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

Devon Lomayesva: Making Constitution Reform and Tribal Law Work

Producer
Native Nations Institute
Year

Devon Lomayesva, a citizen of the Iipay Nation of Santa Ysabel in California, offers her perspectives on asserting tribal law in a P.L. 280 state. The Iipay Nation of Santa Ysabel underwent a constitutional reform process, and Devon shares her experiences with and perspectives of that process. Her expertise as a former Iipay Nation of Santa Ysabel council member and practicing tribal attorney affords her insight into the successes and challenges of reforming and implementing Indigenous governance structures that reinforce tribal sovereignty.

Resource Type
Citation

Lomayesva, Devon, "Making Constitution Reform and Tribal Law Work," Interview, Leading Native Nations interview series, Native Nations Institute for Leadership, Management, and Policy, University of Arizona, Tucson, AZ,  November 10, 2014.

Veronica Hirsch:

Welcome to Leading Native Nations. I’m your host Veronica Hirsch. On today’s program we are honored to have with us Devon Lomayesva, a citizen of the Iipay Nation of Santa Ysabel in California. Devon currently serves as staff attorney for the Soboba Band of Luiseno Indians. Devon, welcome. Good to have you with us today. I’ve shared a little bit about who you are but why don’t you start by telling us a bit about yourself. What did I leave out?

Devon Lomayesva:

Well, thank you for having me. I have been in San Diego my entire life. I was born and raised there. I’m, as you said, from the Iipay Nation of Santa Ysabel and I lived there when I was very young and like many families moved off the reservation so my dad could have work and grew up around the reservation for most of the rest of the time and lived back and forth after that. So very near the reservation my entire life. I went to school all in San Diego. I went to about seven elementary schools, middle schools and high schools altogether so I moved around a lot. And ended up going to community college at Grossmont and then transferred to San Diego State as a history major and went on to California Western School of Law. And from there I accepted a National Association for Public Interest Law Fellowship with California Indian Legal Services where I spent a very large part of my career learning the ins and outs of federal Indian law and tribal law and from there was able to get an in house counsel position for my own tribe. Went back to California Indian Legal Services as the Executive Director for about five years and after that that’s where I am at Soboba. During all that time I’ve been pretty involved with my tribe. I’ve served in a number of capacities. I was elected as a tribal council member in about ‘96 in my early, mid-20s so was a young age when I took that. I was reelected but resigned because I had come in as the tribe’s attorney and so that’s the position I preferred to take. I’ve been the Gathering Committee Chair for the last 16 years and I’ve recently been on the Judicial Commission which recommends and selects the tribal court for the tribe and most recently the Election Commission Chair. We just had elections a little over a week ago so pretty active. Outside of my tribe and my legal work I also co-founded the American Indian Recruitment Programs with my husband when we were both students at San Diego State and that program has been running for over 20 years now to offer culturally appropriate mentoring and tutoring services to native youth in the San Diego area including reservation and urban area native students from middle school through high school and we’ve had great results in getting them to not only graduate from high school but to also continue on to higher education. And I’m a mom of three little ones. That keeps me busy as well.

Veronica Hirsch:

I want to transition now though to talk specifically about your personal opinion, your insight regarding aspects of native nation building and so I’ll begin with this question. How do you personally define nation building and what does that mean for the Iipay Nation of Santa Ysabel?

Devon Lomayesva:

Nation building is a term that I guess you hear more and more now as tribes begin to identify as nations in front of the Band, the Tribe, the Rancheria, the Pueblo and that’s something that I think speaks a lot to even the question that you ask. And you have to look back at the history, your own tribal history to really know what native nation building is and my perspective as a tribal member for my tribe only is that it has to be something that’s just that, it has to include the nation, it has to be inclusive. It needs to involve the entire community to the extent they want to participate. Many times you have community meetings and people don’t come but the opportunity and the notice needs to be there to be all inclusive and to do it in different forms, not just to have a large meeting where some people don’t feel comfortable. As a leader to open up the doors for one-on-one for people that want to be heard that way. So it needs to start with inclusion and it’s really about how can we best govern ourselves. What structures need to be put into place so we can get where we need to go? What are our goals as a tribe? It’s not an easy thing to define or to just do. It’s a lifelong process for most of us and something that at least in the history of California tribes and my tribe within California that you need to be able to say, ‘This is what we’ve been through, this is what we want. What are our priorities?’ and take that…and my tribe’s actually started to do that in a number of the legal reforms that we’ve made, the infrastructure that I know we want to have. So I guess to sum it up it’s that inclusion, it’s that leadership taking responsibility for bringing in everyone together and it’s putting in the framework that works best for you, whether it’s the written law or it’s the infrastructure for the services, for your judicial systems, whatever your priorities are. So it has to be something personal, there’s not one formula that’s going to work for every nation.

Veronica Hirsch:

I appreciate your inclusion of using multiple means by which to engage community members in that nation building process and the fact that you emphasize inclusion as well which really leads into my next question which is the following. Based upon your former council member experience, what do nation building leaders do?

Devon Lomayesva:

Like I said earlier, when I was on council that was my mid-20s and you always wish you would have had all the experience and go back and do it. Of course then you get other experience and say, ‘Well, I’m not sure if I want to do that.’ But at the time that I was on council and still today there exists many, many social issues; poverty, high unemployment on the reservation, we’re remote as far as San Diego County tribes go. People always say, ‘Oh, you’re only an hour from downtown San Diego.’ Well, if you have no job and you have no money and you have no car and probably no driver’s license you might as well be 500 miles away from downtown San Diego because it’s not accessible. The bus comes once a week and I think that’s important to understand the context of when I was on council. We had a large generation gap in our council at the time I was on there. A chairman that had been the chairman for many, many, many years and a couple of us that were younger and full of energy and we learned very quickly that things won’t get done to “build the nation” if you just run in and think that all your ideas that you bring from the outside are going to just come in and, ‘Well, just get a fire station, just do it.’ ‘Well, just have drug treatment programs,’ and it’s not that easy and it takes a lot of patience. It takes a lot of getting to learn the history of the tribe. We all don’t know the histories of our tribes. I feel I have a good handle on it but there are so many other things that I know I don’t know that I see would be so valuable to help move our people along. A lot of people don’t want to say that or admit that but it’s the reality. Custom and tradition is something that we hold dear within our tribe and many of the tribes around us because that was our traditional law was the custom and tradition. But when you go through the many, many periods in history that we have as Iipay people, as Santa Ysabel Reservation, that custom and tradition changes and it moves in different directions and when you try to bring it back in there’s not agreement on it because our nations and our clanships have been so broken. And in that effort to try to bring that back, you can’t do that if you don’t know the history. So that’s something that is fundamental for any council to build their community, to build their nation. You have to know the cultural components, the cultural history, the legal history and the textbook history because you compare those and you learn from that. So that’s number one for me and other than that it’s going back to that inclusion and seeing what the community wants because you need that community support in order to put in the infrastructure and the goals and the plans that you want to move forward.

Veronica Hirsch:

You touched upon some of the challenges in your former capacity as an Iipay Nation tribal council member and I’d like to address…I’d like if you would please address some of those challenges more specifically. Based upon your experience, what are the unique challenges of being a council member of a native nation?

Devon Lomayesva:

Well, no surprise to anyone that’s been in this capacity or worked with tribes is it’s the politics and by nature you are a politician when you are a tribal council member. You are an elected leader. There are still tribes that have appointed leaders and I can’t speak to how those work. There’s hereditary leaders. But in my experience and within my people, we’re at the point where for many, many decades we have elected our officials. So it’s political, it’s based on your family. It doesn’t mean your family always supports you but families, even if they’re bifurcated or split, those are still units that come together and it’s very obvious and it’s not secret. But you have to be able, and it sounds so obvious, it seems so clear but you have to separate yourself from that and it’s not an exercise that’s easy for any of us because that bias creeps in constantly and honestly takes away from that nation building, from that infrastructure, from dealing with those social ills that plague and hold us back from being what we can be to our full potential, from practicing our culture, from speaking our language. Those things hold you back and as council, a former council member and someone who works with councils a lot in my profession, that is alive and well and something that needs to be addressed on a serious level but it can only happen from within the tribe. You can write ethics codes, you can give training but if the council members aren’t going to internalize that and see that getting over those past family histories that have caused that tension all these years or the bias or those things, you’re not going to be able to move forward in the way that I think that you would want to as a leader. So it’s very important to recognize that and stop and it takes someone to call people out on that and I was in many situations where there was a vote of the people that some council member said, ‘Well, we’re not going to do that ‘cause that’s not what’s best for the tribe.’ I was like, ‘No, we’re representatives of the tribe and even if you personally don’t agree with it, which happened many, many times, that’s your charge and that’s your responsibility to carry that out. So there’s many, many challenges but I think it’s absolutely working it with a group of people that come from varying and potentially competing agendas but coming together for the good of the people and being united.

Veronica Hirsch:

Looking back now, what do you wish you knew before you first began serving on your nation’s elected council?

Devon Lomayesva:

I talked a little bit about knowing more about the history and I feel at this time now I’ve improved upon that. My tribe doesn’t have or especially at that time didn’t have a lot of written law, we didn’t have codified titled and things like that that other tribes have had so a lot of it was on that custom and tradition and I think it’s really vital and it’s again something that we all say we’re going to do but we don’t always go out and do is talk to the people that have been around and get a consensus about what is the custom and tradition about how we pass our land and it’s an ongoing issue today. We don’t have an assignment ordinance, we don’t have a land use code or a land use plan so all these tensions and because it’s not written or it’s not consensus within the people, it goes to further complicate those issues of passing of family land and it brings out the worst in people. ‘Well, you just don’t want to do that because you don’t like my family.’ And tribal leaders get hit with that all the time and I’ll tell you sometimes it’s true. So you go back to saying, ‘As a leader, I need to know the history, I need to know what the consensus is at a minimum about these pressing issues.’ Land is always going to be a primary issue for native people. That’s our base, that’s where we come from and to not take the responsibility as a leader to know and understand that is truly an injustice to your position and to the people ultimately. Other things that I think I wish I would have known is probably maybe a little bit more about the organizations or tribal groups that the tribe participates in and how they operate. I really didn’t look into that because I really didn’t know and I don’t necessarily know how you would do that if you didn’t know in the first place but I think for younger members that are looking to run for leadership, watch, go to the council meetings. Many of them are open but people don’t go and just listen and learn. It takes a lot more listening before you can do the learning and go to your general council meetings because you’ll see how the tribal councils interact and you can make up your mind for yourself, do you want to be this kind of a leader, do you want to be that kind of a leader and there’s many different types and forms and so observe. Go out and observe and talk to people, something I wish I would have done a little bit more.

Veronica Hirsch:

You mentioned previously some of the challenges associated with land currently, that the Iipay Nation of Santa Ysabel does not yet have a land use code in place and that really speaks to a portion of the next question I’d like to ask regarding some of the unique challenges of California based tribes. So using California based native nations as an example, do small tribes have an easier or harder time regarding nation building?

Devon Lomayesva:

I thought about this question before and if you look at the state of our tribes across the nation now, I think it’s easy to generalize and say, ‘Well, if you have a large tribe land base with larger numbers of membership then you can do so much more. You can build more, you ha…maybe you get more funding because you have a higher population or you have a larger land base,’ depending on where you’re getting funding from which is very true because California with very small Bands, Rancherias, very small membership all for very specific and real historical reasons we have been left out. We’ve been left out of the tribal justice system because we have these small numbers or we’re told, ‘Oh, you can combine together.’ We’re two separate nations. Consortium courts has been something that California tribes have resorted to because of the funding issue and also because if you only have 30 people in your tribe, it makes it difficult to fill all those positions. So yes, size can matter with funding. But with smaller tribes in some instances the community is the community. Some of the larger tribes you have districts and those communities are one and maybe that’s traditional. They…that was a village within the larger nation. For us, the way the tribes were put together out here and there’s of course exceptions to tribes that, and that’s why they’re the confederated tribes or united tribes because their tribes were forced to be together. But most of them at least in San Diego, we were those independent villages that were part of a larger nation but were autonomous. So the Santa Ysabel Reservation is the Ellykwanan Village and that’s…you can say that for just about every reservation with a few historical exceptions there. So when you have that smaller group, you have that smaller community that’s more easily accessible. You come together and you all come together when you have your general council meetings, your community meetings. Of course we have a lot of people that live off the reservation like many or most reservations. So in that respect I think that inclusion I was talking about earlier might be easier for a smaller tribe than a larger tribe but it takes money to do these things which is the reality and when you’re told by government funders that you don’t meet that criteria, it’s really difficult and despite the perceptions that are out there today that all tribes have gaming money, our tribe doesn’t. We don’t have that. It didn’t work for us and there’s other ventures the tribe is trying and I don’t know if they’ll be successful but you have to have those resources and while you can have a strong will of the people, you can’t implement without those resources. So of course the answer is it depends. It depends on how you’re able to structure the tribe. I talked a little bit about the tribal justice funding that’s historically been denied to California. That’s not only because of our smaller numbers and land base because collectively we have huge numbers. We have a huge representation throughout the state. San Diego County has one of the largest number of reservations of any county in the country but we’re also a Public law 280 state and I think we’ll talk about that more later but that’s also been a reason to deny funding to California tribes. ‘Well, you have the state. You don’t need those funds.’ Clearly you can’t build a nation if you’re having to use the laws of a state. So it really just depends and I think in some ways it’s helpful to be smaller and really that reflects historically and traditionally how we were. We were smaller Bands of a larger entity but now we are separate as a federally recognized tribe which wasn’t obviously how we were set up originally. So the challenges continue.

Veronica Hirsch:

You’ve touched upon resource access as well as limitations in available resources or limited abilities to access those resources and also about the historical context of California native nations within what is now known…designated as Public Law 280. And so my next question touches upon that. Do California based native nations face unique challenges associated with their location in a Public Law 280 designated state? And if so, can you please elaborate on some of those challenges?

Devon Lomayesva:

Absolutely. Public Law 280 was passed without consultation with tribes so off the bat it was something that tribes were not informed about, weren’t consulted, not even permission but not even told ahead of time, ‘This is how this is going to work.’ And in a state that endured several periods from different sovereigns implementing and dictating their laws, the tribes in California had a very unique history in that they were able to adapt. We’ve had to adapt to the changing tides I guess you could say. So Public Law 280, it was something that was just added on. So what it did, and this is the part from my legal perspective, I honestly don’t know if we’re ever going to be able to…what does Public Law 280 mean because it’s not defined and it takes court cases to define it for the smallest of things that you think, ‘Well, shouldn’t we know that.’ But what it ultimately does is because it was a law that dealt with the jurisdiction in Indian Country, criminal and civil, that at the end of the day what it really does is it puts the safety and the security of tribes in jeopardy which I don’t know what the intended result was. Some people say it was because the federal government didn’t want to shell out the resources, we go back to the resources, for all the tribes. There’s over 100 recognized tribes in California. At that time these tribes were still here maybe some of them weren’t recognized at the time of the passage of Public Law 280 but there were still a lot of tribes and I could go on and on about the history of the law but essentially it was done number one without the tribe’s consent or inclusion and the effect of it was not thought out and it wasn’t funded. So the state had to take over these specific areas of jurisdiction—criminal and limited civil—without any money. So they’re of course going to be resentful, they’re going to be, ‘What are we supposed to do? How are we supposed to do this?’ So what happens is the feds leave the tribes which for better or for worse, that was law enforcement for many of the tribes, the BIA police and when they’re gone and it’s the state, we don’t have money to do this. You…I guess you have to toughen up with what you have and you get these stories and these histories of an interaction with California law enforcement—of course no interaction from law enforcement is usually pleasant but it was…it was very bad. It was not met well and it resulted in just as bad if not worse situation in Indian Country where you have confusion as to what laws apply, you have just brute force coming in because ‘we don’t have time for this, we don’t have the money for this, we’re just going to come and we’re going to get it done now,’ and that’s not the way law enforcement’s supposed to work, at least not in our country, in our states, in our tribes. We don’t do things like that, aren’t supposed to. So over these many, many decades up to today and I’ll just give an example. You have a domestic violence situation on the reservation. You have an Indian and a non-Indian married couple and you are a neighbor, you hear, you call. ‘Hey, we have a couple of parents out there fighting. We heard a gunshot.’ ‘Okay. Well, we’ll try to get somebody out.’ Half hour, hour, two hours, five hours, next day comes. So what’s happened in that time? Either somebody has been severely injured or tribal leaders have to risk their safety, a family member, a neighbor, maybe even a child has to put themselves in that situation to let it resolve in some way and most of the time not in a good way and you can’t completely fault the California law enforcement systems. There is some valid claim to availability but after 50 years you think there might have been some kind of a way to set up your police stations, your sheriff stations to know, ‘This reservation and all these reservations in this county are your responsibility.’ So this happens. We have a tribal police officer and tribal police officers can have varying ranges of authority. Are they tribal police, are they rangers, are they security, are they casino security? And these things have been litigated and they mean different things as to what authority you have as a tribal police officer and how well you can protect those people. Right now, in San Ysabel most people will call the police officer first but he doesn’t have access to what every other police officer from the state or from the county would have. He doesn’t have the ability to run license plates. He doesn’t have the ability to call for backup unless he calls the sheriff. So you can just see here the challenges in protecting people and that’s what this is about. This is about protecting the safety of your community from the criminal standpoint. Just to be clear, Public Law 280 did not take away criminal jurisdiction from tribes, it’s concurrent. They run together. But, going back to what I said earlier about resources and the size of tribes, it’s not that easy just to set up your codes and your court and your law enforcement to be able to enforce criminal law and that’s why California today in 2014 we have only a couple tribes that are enforcing very small components of criminal law and they had to go through arduous processes to be able to get to that point and a lot of money and a lot of back and forth, a lot of insurance. So it’s not something that is available for most tribes in California. And on the civil side of things, it’s just as confusing. It did not…there’s not a clear line for where the state has civil jurisdiction and the tribe does. You get this a lot with evictions. ‘Well, you’ve got to go down and get an unlawful detainer.’ Well, no we don’t. This is tribal land, this is a tribal person but the state can’t enforce tribal law. So you just see, your head just starts to…and this is for lawyers and judges and police officers and tribal leaders alike. While there’s constant education on Public Law 280, there’s change in leadership, there’s change in lawyers, there’s change in the police officers that serve your area. So it’s a constant education that will never end just by definition of the players that are involved. So a very, very significant and relevant issue for California tribes but yes, the challenges are many and if it wasn’t enough challenges with just trying to protect your communities, this law did nothing to help clarify. But at the end of the day there is still a dramatic reliance upon the state to provide law enforcement because the resources, the infrastructure is not there. You can’t just set up a police force overnight. You have to have…the police officer has to have something to enforce. You can’t say, ‘Oh, go enforce custom and tradition.’ Well, who’s going to tell the police officers that that is. So it’s a very complex problem but tribes are making headway with their own tribal police. For the tribes that have the resources, they’ve been able to do that and even join with tribes that do not to offer that education, the training, the resources. And I think we’re making a little bit of headway in getting that funding out here to California. There’s been recent cases that have kind of beat that down but at the same time it’s encouraging so I think we’re getting there. Just one more thing on this is one way, and my tribe has done this and many of the tribes at least in San Diego County and a few that I know of beyond, have passed either piece of security codes or law and order codes that they’re civil in nature but they have the usual criminal offences that are put into a civil context. So things like harassment, it’s a civil penalty but at least it allows the tribe to issue a citation against that person and what do you do, you put a fine. And it forces that person into tribal court so at least there’s something to hold them accountable for that bad behavior. And most people don’t want to go to court, it’s scary—even tribal court, very scary for people that have been in outside court—because you just don’t know. But that familiarity is increasing as more and more people are cited into tribal court to be a part of that system, to legitimize that system, to put revenue for the tribe for those bad behaviors to reinvest in the law enforcement, to put those funds on those citations. And also have a way to deter the behavior which is what we want. We want to discourage the behavior and I see that working, slowly but surely.

I kind of mentioned a little bit about the tribal court and we have been a part of the Intertribal Court of Southern California, I don’t know, six, seven years give or take since it was first developed as an intertribal court. Most of the tribes as I mentioned several times are small. Pooling those resources together made more sense. So…but it is still the Iipay Nation of Santa Ysabel Tribal Court. We don’t share law. The law has to come from the tribe so Santa Ysabel, we go to court we don’t use other tribe’s law. So a lot of people don’t understand how an intertribal court works. So we share judges because that way we can share the resources but that judge applies the law of the tribe. So if the tribe hasn’t passed it, then it’s not used. So our constitution and the Peace and Security Code, Law and Order Code, we also have a Children’s Code, we are…we have an Election Law. So all those laws are basically part of what the intertribal court will hear. Now within our constitution it states that the court will hear all matters that arise under the constitution. So that makes it a little bit difficult because we have the constitution which is just that—it’s guiding policy and principle and structure. It’s not the daily law that you apply. So for some of those areas that we don’t have a law, using the constitution only can be a challenge. And I use that background to go back to your question because the more you’re in tribal court, the more you’re able to resolve those issues without having to resort to the state courts, to state law enforcement. So the example of…when you go to our reservation, the main part of the reservation, you enter on a BIA funded road and BIA funded roads are technically public roads so we can’t close that off so you get non-Indian people, non-Iipay Nation member people driving on the road and they are subject to the laws of the nation. So if they violate the Law and Order Code, they can be cited into tribal court. That’s something…what ifi they’re drunk driving? We can cite them in there and you don’t necessarily have to go to the state, to the local law enforcement. So that’s where I see this working is having that infrastructure, whether we have to pool resources and shared or not it’s been really good because people are actually going. First people, ‘Oh, tribal court…’ You’re driving through another state and maybe you get a ticket driving through the nation’s portion of the highway. ‘Oh, tribal court, pff,’ throw it away. Well, that doesn’t work anymore because the courts have evolved into a way where they’re working with the state and they’re getting that comity or you’re working with credit reporting agencies and we all know that credit controls your life for better for worse. If you throw the ticket away you’re going to default and that’s going to be on your credit and you’re going to be subject to a fine. So we’re able to do this from the empowerment from our constitution to our laws to the citation into the court to its finality and we do all of that without the state. That doesn’t mean that there’s issues that we don’t have the ability to do yet but I think that’s probably the broadest example of where we are right now on how we’re doing that.

Veronica Hirsch:

You briefly mentioned empowerment arising from the Iipay Nation of Santa Ysabel constitution and I’d like to transition into a discussion of the development of what is now the Iipay Nation of Santa Ysabel constitution by first looking at the or rather beginning a conversation about the amendments made to previous Articles of Association. My question is as follows. Were any amendments made to the 1974 Santa Ysabel Bank of Diegueno Mission Indians Articles of Association? If so, when and why were such amendments made and how significant in intent and impact were those possible amendments?

Devon Lomayesva:

Just to give a little bit of history on…to give some context to this question. The tribes in California came from very, very diverse cultural and linguistic backgrounds. There’s not…California tribes cannot be generalized so in the context of the Iipay Nation of Santa Ysabel and many of the tribes that surrounded us, we governed by a qipai which was later came to be known as the captain who was someone who led but not as an individual with the sole power. Their power came from essentially the support that they had and if people decided they no longer wanted to support you, you essentially were no longer going to be the leader. That’s a very simplified version but it goes to speak to how we traditionally governed to how we get to these other documents and the way leadership functions. So moving through the times where our leaders were essentially disempowered and our tribes were in disarray as far as how are they hanging on to the traditional and still functioning. And you get to the Indian Reorganization Act which our tribe voted against. So at that time in the ‘30s, we did not adopt an IRA constitution. I know scholars differ on whether there was in fact a cookie cutter IRA constitution or whether the tribe were free to draft their own, but from what I’ve seen most of them look pretty similar and for whatever that’s worth that’s how they came about. And while Santa Ysabel did not adopt that at the time, if you look at the constitutions that many of the tribes adopted during that IRA timeframe, our Articles of Association look a lot like that and essentially from how I view it the government was trying to set tribes up like corporations because nations don’t have Articles of Incorporation, corporations do and this whole the notions of membership and elections and duties, that’s what I see in my nonprofit articles and bylaws. That’s not what applies to a nation. You have either your traditions which for many tribes those were not written but you still had the councils and the delegates and the understanding of how that was and whether you put it to writing or not it exists in a form that makes your government function. So when we get to the point of the 74 articles, you come through a lot of history including a lot of division among our people about the appropriate role of the tribal leaders and how they interact with the United States government and their representative, the Bureau of Indian Affairs. We had entities such as the Mission Indian Federation that was borne out of Southern California. There’s very emotional, mixed feelings about this entity but from the most objective standpoint that I can offer just looking at what its purpose was, its purpose was to make the best of what the reality was which was the BIA was here to stay in the lives of tribes and we better start fighting for the ability to govern our tribes, understand what the laws are that apply to us, be informed, be educated about the laws they’re passing without our consent so that when they come about we’re prepared as tribal leaders. On the other hand, those wanting to keep that tradition maintained, fighting for that, fighting for our clanships and our traditional structures to be kept in place and that has survived in a co-mingled sense. So again, in ‘74 the will of the people was to take back a little bit of that power to govern ourselves, to exercise that sovereignty as we all talk about as tribes or that quasi sovereignty, the domestic dependent nation. Whatever you want to call what we have as tribes, we’re going to exercise it to the most that we can and we decided we no longer need the BIA to give us their stamp of approval on changes to the law that governs our people. So that was very significant in removing the secretarial approval provisions of that. And I think that’s really kind of been the, I guess the culture of the tribe from before that point but since you mentioned that, that has just been a continuation and I think that really speaks to why we’re still here and governing. California was decimated to numbers that we really shouldn’t have survived as people because the numbers were so low but we have and we’ve continued to thrive and to regain lands—very slowly and very painfully in some respects but we are here and we’re governing. And from that point we’ve just further asserted our ability to govern ourselves and to implement our own laws that we choose to be responsible on our own. No more running to the BIA and saying, ‘Oh, chairman’s not following our law, what are you going to do.’ But some tribes still have those provisions in there, our neighboring tribes and of course that’s their choice and tribes make those choices for different reasons but oftentimes whatever the issue is that caused resorting to the Bureau for that assistance in interpretation, it’s sure going to take you a lot longer to resolve once that additional party is in there. But that’s just my experience.

Veronica Hirsch:

You mentioned briefly that it’s in your opinion just the nature of the Iipay Nation of Santa Ysabel to refute some of the more intrusive actions of the BIA as an entity upon the people, upon the community and so I’d like to follow up on that point that you mentioned with this question. Can you discuss in more depth what you believe prompted the removal of that Secretary of Interior approval clause?

Devon Lomayesva:

I’ve spoken with a few leaders from that time and you get varying answers but you don’t even necessarily have to talk to anybody if you know what was going on at that time. This was the ‘70s, the era of self-determination which probably at that time people weren’t walking going around, ‘Oh, this is the era of self-determination,’ but it was certainly an awakening. This was the time of AIM, of Alcatraz, of…and people may have their own opinions about what those times in history did for our people, for good, for bad but whatever you…wherever you fall on that you can’t deny that it was certainly a time of empowerment for native people. Many of…my own dad and many of the people from his generation were members of AIM, some more active than others. A lot of the tribal leaders and people today that really have been on the forefront of advocating for the continued existence of our tribes were at Alcatraz and so it kind of all culminates into that sense where natives were going to school, native studies departments were growing and people were wanting to take classes, people were saying, ‘Our traditions aren’t gone, they’re not dead. We’re still here.’ And it was just…it would have been a great time. I was just a little baby so I don’t remember anything but it just kind…it just makes sense that that happened for Santa Ysabel just knowing our people and knowing what they were involved in at the time, knowing what they were doing. It just makes sense to me that that was a further expression of, ‘We don’t need you to be who we are.’ And I think it’s just as simple as that but yet that complex when you look at who we’ve been as a people and I think that was it. It was the time for that to happen essentially.

Veronica Hirsch:

And what do you think has been the lasting impact of that action that yes is grounded within specific history of that self-determination era as we now term it with the activity, the national attention focused upon the American Indian movement, the occupation of Alcatraz? What do you believe has been the impact though of that specific removal of the approval clause?

Devon Lomayesva:

I think what it’s done and for those of us that come from that community and our tribes are very close in San Diego, we all have relatives on pretty much every reservation because even the other tribes, we have Luiseño and Cahuilla and Cupeño in addition to the Ipai-Tipai Kumeyaay, all the different names we’ve been given over time. So it’s a very close community and it always has been since we’ve been here and that interaction has always been there. But I think that it just shows in the things we’ve done. Santa Ysabel has never been known to be a tribe that just rubber stamps anything and we kind of have that reputation. We don’t go with the flow necessarily and that hasn’t always been a great thing but it’s been something that has shown through in some of the laws that we’ve passed. We developed a Children’s Code several years back and when we were…this was a couple of attorneys working on it, myself included. ‘Well, where do you want the jurisdiction to be? Do you want it to be on the reservation in San Diego?’ It’s like, ‘Well, why do we have to limit it to that? It should be wherever our kids are. We don’t care, wherever they are.’ So okay, let’s see what happens. Yeah, of course there are some federal law provisions that might put a damper on some of the exercise of that but we said, ‘We’re going to put it in there and we’re going to see what happens.’ And what has happened is that provision is still in there and our tribe has been able because of our Children’s Code ad because of the commitment of the tribe to prioritize our children via social services, Children’s Code, attorneys and law enforcement and courts, all of which you have to have if you’re to have a meaningful Children’s Code, we’ve been able to get children back that were this close to adoption in Pennsylvania with non-relative foster parents when we had a grandma on another reservation nobody even knew. So if it wasn’t for that will of our people and the will of our social worker to fly back there not knowing anybody and to say, ‘Our law says we’re taking that child,’ and it worked. And since then there’s been kids from New York, Pennsylvania, I think even Texas and all kinds of other places where we’ve been able to find family for those children and I don’t think there’s anything more important than that and that’s why we have laws like the Indian Child Welfare Act to protect those children that come into state courts. Well, most of the time, if they’re not on the reservation or close, we’re not going to know about the case until the state tells us so we need that law but when you’re on the reservation that law doesn’t apply. It’s our law. So with those together we’ve been able to be I guess you could say very progressive and proactive and I think that’s one of the greatest examples of we don’t need approval from anyone other than our people in order to protect the interests of our children and by nature the entire Indian family and our people.

Veronica Hirsch:

You mentioned the powerful impact of the will of the people and of specifically the Iipay Nation of Santa Ysabel and I’d like to now transition to questions regarding the will of the people with reference to the 2005 constitution. So in 2005 the Iipay Nation of Santa Ysabel adopted a constitution. What prompted the nation to go down the constitution reform road?

Devon Lomayesva:

At the time of…well, I should back up. So we obviously had our Articles of Association that we had governed under up until that time for many, many, many years unchanged that it was our general council who is the entity that makes the decisions, passes laws, is the controller of the government. The general council is all tribal members 18 years and older. It’s as simple as that and we convene every month at 10:30 on Sunday and it’s been like that forever. And our quorum was…I think it was 17 people and most of the time we had a quorum. Once in a while you wouldn’t so you’d just talk for a while and you were done. But as time went on tribes started doing more things and gaming came about and in…several tribes had gone into Bingo in the early ‘80s and I won’t go into all the history of gaming but it finally got to a point where of course there’s some legal challenges to what some of the tribes are doing and tribes came out on top despite Public Law 280. And so tribes were, very generalized form here, able to gain on Indian land with a whole bunch of caveats and exceptions. So as tribes like mine started seeing other tribes building these facilities and making all these funds, ‘Well, why can’t we do that?’ And that’s kind of a very generalized sentiment of what happened, at least from…in California and in San Diego specifically. So in the mid-’90s there started this process to get a compact in place between the tribes and the state which is required under IGRA, the Indian Gaming Regulatory Act. So all the tribe…literally every tribe was represented here and we say, ‘Well, what’s this compact going to be? What’s it going to say? What’s it going to do?’ And what resulted was a compact from 1999 and a lot of tribes signed off on that and that was their ticket to be able to go into tribal gaming. Our tribe actually also voted to accept the ‘99 compact. However, our tribal chairman at the time refused to go and sign it despite the mandate. So despite a lot of internal issues we were left out of that and it wasn’t until several years later that new leadership came in and said, ‘Hey, we still want to do this. The people still want to have a casino so we need to get a compact.’ And we eventually got one. It wasn’t like the ‘99 compact. It was much less favorable and ultimately turned out to require so much that that is part of the reason why we no longer have a casino. But putting that in the context of this constitution in 2005 was as I said the Articles of Association were drafted as if we’re a corporation. So there’s a lot of things in there that if you’re this big investor on the outside you might be a little scared and say, ‘Oh, well, what are my rights and remedies with the tribe? What am I going to be able to do if you don’t pay or you default or you…’ whatever, all the legal issues. So the tribe was…had our compact so we were already moving forward with our investors and contractors on the casino. But the discussion at the same time was, ‘We need to have a better law in place. We need to have a real constitution, something that’s going to contain a statement of who we are and it’s really going to talk more about our people, it’s really going to be a true governing document. It’s not going to be this cookie cutter, BIA template that’s worked for I guess the democracy that we have lived by for all these decades and historically.’ So everybody was excited about it and there was a committee formed, there was an attorney on the committee, several tribal members and a couple of the tribal leaders that started meeting. I was not on the committee and I was not the lawyer on the committee. At that time I was the in house council for the tribe and I was working on a number of other things. So from my understanding and I did go to a couple meetings and listen in for a variety of reasons, there was a model brought to the committee and the understanding was that the model was a starting point to have the committee on behalf of the people start to mold it into something that made sense for who we are as Santa Ysabel. So the process went along, there was a few community meetings. ‘What do you guys want to see?’ ‘Oh, we really want to see…’ ‘Do you want a tribal court?’ ‘Well, yeah, a tribal court. We like what we’re doing so far with that. Let’s continue to explore that.’ Really general conversation. A lot of the people had never seen a constitution other than maybe the United States Constitution. They said, ‘Ah, well, are we going to have the United States Constitution?’ ‘Oh, no, it’s going to be tailored to what you guys have traditionally and historically and…but it’s going to have some components of United States. It’s going to have separation of powers and branches of government.’ ‘Oh, okay, that sounds good.’ So those kind of conversation were happening and it finally gets down to where we have some drafts that are looking like they’re going to be close to what the final is going to be. And I have to say that what I’m saying now is my observation of what happened and I only speak for myself. I’m not speaking on behalf of the tribe or the nation or any other person other than myself. But I think that my observation and my perception is also shared by a number of others and I will circle back to that statement in just a few minutes. So the…one of the final drafts came about and it had some really good things in it. It set out a little bit of the history of who we are, it established a base role in our membership. It was desperately needed based on previous changes to the Enrollment Ordinance, actually recent changes that resulted in a great increase in tribal membership which had divided opinion but it included people that should have been enrolled in the tribe. So there were some good provisions. There was the judiciary but then there was this executive and legislative, very long sections and there was no more tribal council. It was like, hmm. There was still a general council but you already had the three branches—executive, legislative and judiciary so you had four branches ‘cause you had the general council and just in my mind and knowing my tribe, knowing the laws of the tribe, knowing how we’ve always operated, I was a little worried. I said, ‘Well, gee, I don’t…I wonder how this is going to work.’ And so…and other people felt that way. Other people said, ‘Well, we’ve got to do this. We need this. If we want people to invest with us, we want people to take us seriously we have to do this.’ So you had different…and this was within the tribal leadership that these conversations primarily happened and as one of the tribe’s attorneys I was there along with the attorney doing the constitution and there was a lot of disagreement. There was a lot of different views on what the result would be of this provisions. And I felt very, very strongly that this was too much change too soon because what essentially happened within the constitution committee was that for whatever reason the model that was brought to them was essentially what ended up as the final draft and the entire…entire Articles of Association was completely thrown out except for I guess you could say the general council and yes there was a membership provision but it looked nothing like it. And just knowing a little bit about history generally in the world and how nations have risen and fallen, when you have such dramatic change, it’s a stress on the people and it’s an unknown and it can lead to very unintended results and outcomes. And I noted that and I was told, ‘Thank you but no thank you. That’s your opinion.’ And others were told the same thing and it was the leadership at the time that said, ‘This is what we want to go with.’ Said, ‘Okay. I guess we’ll see how the vote turns out.’ There was a final meeting, it was explained. Not word for word. It was explained more generally. You didn’t have what I would consider to be a representative representation. It was a smaller number than I hoped and this affects whether you’re on or off the reservation so for whatever it’s worth we had those meetings and it was sent out and it was passed. Almost immediately we didn’t know what to do. Just one more quick thing. Another thing that’s in the constitution is a savings clause which was heavily debated and I have to say at least my opinion and observation on that area won that little battle because originally that was not in there and I said, ‘Well, that basically means that every tribal law we have will be null and void and we will have nothing except this document that’s completely different from what we’ve governed under for decades and we will have nothing except this document. How are… You’re going to throw out laws that we’ve had for decades.’ And so the savings clause was in there and the result of that was that any law that’s not in conflict with the constitution shall be valid.  So that saved a lot of our previous tribal law including custom and tradition. So after it was passed we started looking into…well, actually before it was passed and I’m forgetting a lot of points because it was a very, very stressful time for a lot of us that were kind of in the mix. And one of the I guess you could say warnings was that how are we going to pay to implement all the requirements because it was…it’s crazy. It was at least a dozen departments which are great ideas, fantastic if you have the resources and not even money resources. We’re talking human capital. We’re talking people resources. ‘Do you have 12 people that are going to be the head of the Department of Finance, the Department of the Environment, the Department of Culture? How are you going to get people, let alone qualified people to fill all these positions and are they all going to work for free? Where are they going to work? We have a tribal office that has three offices and a temporary trailer that has squirrels running around up top. How are you going to do this?’ ‘Well, we have a casino coming.’

So the discussion was, ‘How are you going to pay for all these departments? How…where are you going to house them?’ And it was a real discussion and it was very unnerving to hear that it was going to be the casino money that was going to pay for all this because of the compact that we signed we had to go into an MOU with the county which was a complete disaster but for a number of reasons politically we agreed to that and it’s hard. And I’m just going to digress for a minute because you have a people that have been severely impoverished for so long. When there’s the promise of something better, it’s like, ‘Wow!’ and you’re star struck and you’re blinded by, ‘Well, look, they do really good,’ and ‘Wow! They get education, they get cars and they get their homes repaired.’ And it was just…you can’t necessarily fault the people for being excited. We had all these little vignettes and all these little…cool little trinkets that we all got and little…we were having bagels and coffee and all these great things at our meetings that never happened before so…and those things weren’t bad but it really distorted the people’s ability to think about what’s this going to really mean. Not what is it going to mean for us in the next year when we’ve got all this money. That was the thought, ‘We’re going to have all this money. Wow! Now we’re probably going to build new offices, you won’t have to worry about that.’ But nobody that about what if it doesn’t work, what is this going to mean for us. So going to where it was approved, almost immediately we started having problems with, ‘How are we going to implement this?’ My opinion is from day one we started violating our constitution and that’s not something that anybody wants to say or admit but it’s the reality and it’s the truth and that’s something that you can’t argue with. But at the same time we didn’t have any other choice because we didn’t have that money to go and immediately implement everything it required. So we then had to for the first time…the constitution had a new election procedure and it’s very detailed which was to me kind of surprising that the elections portion would be so detailed in the constitution and not in an election code or law. But whatever. And it had all the terms for the first election under the constitution. Because it was the first you had to do this and you could do that. So we did that and the elections happened and of course there has to be winners and losers in elections and there was a challenge to the elections and there was challenges that happened actually before the elections on key provisions that I started thinking about, ‘Wow, who would ever take that position?’ But when you go back and you think about how this document came about, how it was “pitched”, how it was described, it made perfect sense if you were those people that were going to remain employed or elected. And I think that’s really important because this is an issue that’s very difficult for tribal members, tribal leaders, the attorneys to all talk about but it’s a reality and that’s why it’s so important to really think about these documents and for anyone, any tribe that’s thinking about revising their constitutions or even their laws or policies, they have a huge effect on the people and when provisions are put in for political reasons, you’re not necessarily going to see it when you’re reading the document. You’re not going to see it ‘til afterward and then you get these, and again this is my opinion, you get these insane interpretations that couldn’t possibly be what was intended in this sort of framework, a democracy that we’re supposed to have, to where you essentially have a document that allows for the chairperson to almost have total control of the tribe. And people say, ‘Oh, no, because there’s a legislature, that’s your balance. There’s your judiciary, that’s your balance.’ Well, but when you don’t have the resources, the funding and the people that are supposed to be in all those positions, those…they’re barely hanging on by a thread. But you still have the chairperson. We’ve had a legislature that has not had to full capacity for years. We just had elections so as of this coming first week of December, for the first time we’ll have a fully elected legislature but we haven’t. We haven’t had a complete election commission, judicial commission, none of the department heads, maybe a couple, maybe a couple have actually been filled and I don’t even know if they’ve even been given the titles that are mandated under the constitution. So while you’re supposed to have had 10, 20, 30, 40 people as either elected representatives or appointed or hired, you really don’t and so that leaves the whole intent of the document impossible to fulfill because you have lack of quorum. We didn’t have a quorum of the general council for over three years. Three years. How can you run a government on that? How…well, you know how? Because it doesn’t really matter because the new constitution doesn’t need the general council. They only need the general council if the will of the people is to go through all these hoops, petitions and certifications and mandatory waiting periods and then a reading into the record and all these things that even civics teacher’s minds would spin let alone people that have been operating under a more simple structure of articles where the general council ruled and only delegated power to the tribal council. Now you have a situation where the general council has the power but if and only if they exercise it under an enormity of policies and procedures within the constitution that were never explained. So when you come full circle to where we’re at today, we had an actual sizeable amount of tribal members run for the legislative positions. We actually had more than double run for the positions available, which made me happy because it really prompted people to have to say, ‘Well, why do you want to be a tribal leader? Why do you want to be in this position?’ And to my surprise but also to my liking and I’m kind of, ‘Ah, thank goodness.’ A lot of people are really looking towards constitution reform and that was a platform for some of the people that were elected by decisive margins. So I think what we’re going to see with this legislature and our executive is the people have seen how this constitution has played out over the last few years and we want change and the people want change. I want change. And it doesn’t mean we have to throw it away and go back because there are good things but I think what the people have said is they feel like they’ve been disempowered which is the complete opposite of what you want to come out of a document that was supposed to bring you structure and investment and all these opportunities. And I’m hopeful and I think there’s several areas where the people that have still been coming to the meetings even though we don’t get quorums, people with varying educational levels, varying ages from 18 to their 90s want to see the people take back some of the power. So I’m hopeful that there’s going to be something that’s going to be a little bit of the old and the new combined together for something that better reflects who we are. So that’s ongoing and we’ll see how that plays out. It’s a really tough process to amend the constitution. It takes a lot of people to come together through a very defined and articulated process but I think we can do it. So when I circle back to constitutional reform in Indian Country, I can only speak to being a part of this process in varying degrees of participation but don’t accept what’s first given to you. Don’t accept a cookie cutter. Don’t accept something that comes from another tribe because you’re told that it works for that tribe because for all the similarities and the shared histories that we have as tribal people, we are all so different and from my reservation to the reservations next door, we pride ourselves on those similarities but honestly more on those differences because that’s who defines us as the village that we were, the village that we are and the “federally recognized tribe” that we are today. And I think people are starting to see that but it’s been too recent for some tribes to see what the effects are. But no matter what you think you have to offer, if you see something as a tribal person, a tribal leader, another tribal attorney, whatever your position is, just throw it out there because the more we stop and think and play out scenarios, I really think there should be like a law school exam or something where you throw out these hypotheticals and throw it…make up something that happens on the reservation and apply your constitution that you’re thinking of adopting to that and see what the real result is and that would go such a long way. We didn’t do that and frankly there were those that didn’t want to do that. So whether we adopted ours out of lack of our own due diligence and work, whether it was political influence, I think it was a little of all of those combined but that took away the voice of our people and while you can tell your kids, ‘Don’t put your finger in the light socket,’ some of them still do it and they don’t learn ‘til they do that. At least if anything I hope that tribal people will just not take what’s given to them because certainly historically we haven’t always done that or we wouldn’t still be here. It’s been an interesting experience and I’m just hopeful that something that makes more sense for who we are is going to come out of whatever reform gets started next year.

Veronica Hirsch:

Thank you for that explanation. You mentioned that the current 2005 adopted constitution for the Iipay Nation of Santa Ysabel represents a significant departure from the previous 1974 Articles of Association and also that in your opinion another phase of constitutional reform is eminent for the community. So with that in mind I’d like to ask you, thinking forward, what strategies and approaches do you think should be used to educate Iipay Nation citizens not only about their current constitution but about whatever perspective future suggestions for amendment might arise?

Devon Lomayesva:

There are so many things that I guess from my background and my experience what I could see is helpful and calling a community meeting, all the…make sure you have food, do it in the morning when people are fresh, have copies for everybody, give it out ahead of time. These are…that’s all well and good and yes that might help with participation but you can’t try to just do it all at one time. You can’t… You really have to be honest and realistic about the capacity of your members to grasp and understand, not because of ignorance or education, but because of the lack of experience. We can’t expect that they’re going to know how to play these scenarios out and the reality is is that tribal leaders are going to have to rely on someone. You’re going to start with a premise or an issue and I think the best thing to do is to make it more of what we call the roundtable, to put everybody on equal footing because the worst thing you can do is have the leadership dictating and educating what this is about because by nature it’s going to be…it’s going to be what they feel is best and they’re already in the office, they’re already there so it needs to come from the community but you have to be able to rely on who brought this to you, where did you get this because it has to be something. You could always start with nothing and maybe that’s good or you start with what you have. What have we had all these years? Well, obviously it couldn’t have been completely bad because we’ve allowed it to continue for decades. So what is it that’s missing from this document? So if you have something that’s been working but you’ve noticed there’s been some things that have prohibited you from moving forward as a nation, then start with those things. And for us it was, ‘Oh, we’ve got to have people that are attracted to the reservation that feel protected that want to do business with us.’ And that was really one of the big pushes. Well, then what can we put in there? We can put for limited waivers of sovereign immunity. There’s all kinds of things you can do but you really have to…you have to be able to rely on your attorneys, your counsel. You have to be able to rely on your professionals. Maybe you’re going to hire one of those entities out there that says, ‘Hey, we help tribes write constitutions.’ And I’ll tell you, there are some good ones but there are some bad ones and how do you know that? How do you know that if you’re just starting out? It takes a lot of homework before you get to that point where you’re with your community. But I really think going back to what I had just stated about really what is an issue that you, Joe, what do you think is an issue that we’re not able to deal with as a people right now that you would like to see made possible? Okay. You want to have a cattle ordinance. That’s been an issue for you for a long time. Okay. Well, how can the constitution help that? Is that even the role of the constitution? What is a constitution? These fundamental questions…and those weren’t…those might have been brought to the constitutional committee but they certainly weren’t brought to the people at the community meetings and if they were it was told to them. It wasn’t, ‘What do you want your founding organic document to be?’ Do you have to call it a constitution? And yes, you can…this takes a very long time. You can’t… I mean, the year and maybe a little bit less than a year and a half I think that we took to do this we probably should have spent a lot longer. But ask the people, ‘Well, what’s wrong with what you have now? What’s not working?’ And that’ll give you a lot of insight into what the potential changes may be. Don’t just throw it out and bring in something random. I think that’s a huge mistake. Bring in a whole bunch of models, read them, actually read them. And for the people that just are like, ‘I don’t even know what this is saying,’ you have to be realistic that you’re going to have to rely on the people that do whether they’re people that are…whether you bring in universities that have projects. There’s a lot of universities out there that do assist tribes with constitution reform, there’s lawyers, there’s clinics, there’s all kinds of means. You have to make the decision to trust those people and move forward. But take the time that you need, don’t throw out what you have because most of us have been using whatever that is for a long time. In our situation coming up, I really think that it’s going to be our current constitution with our articles right alongside of it and kind of regrouping. So if you do it that way or you have a few models and you really have to fundamentally decide how you want to structure your government. I don’t think anybody ever thought, ‘Oh, well, by doing executive, legislative, judicial,’ that there was essentially going to be no place for the general council and the ironic thing is if you look at our constitution, it has the general council up there as, ‘They are the supreme governing body of the tribe.’ Well, not really because in order for them to exercise that supreme governing authority, they have to go through a process that is very intimidating and that takes somebody to really go out there and rally a large, large number of people. So they’re now in a reactionary form. They’re no longer in the form where they are calling the shots because it used to be come to a meeting, from the floor of the general council I make a motion, it’s done. That cannot happen anymore. It does not happen. When we finally had a quorum at our last meeting, we were…there is a requirement for I guess you could say a ratification by the general council of certain things that need to be done. So just the example, the judicial commission is charged with finding, evaluating and recommending who the tribal court should be or actually the tribal judge and I could go off on that tangent for a little bit but I will wait. But essentially our judicial commission came back and said, ‘You know what, we recommend that we keep the tribal court, the Inter-Tribal Court of Southern California.’ So there was actually a vote and the general council said yes. So there are times when they do have the power but as far as what we were used to in the day to day business, they don’t get to vote on the laws. That’s now a legislative process and the general council has no…has had no role in that and we’ve passed all these laws without the general council. So know what you want your structure to be and play out those scenarios and ask those questions and you’ll be in a much better position when you have to actually go and implement whatever document that you adopt.

Veronica Hirsch:

With regard to constitutional reform, have you witnessed any successful strategies in engaging tribal citizens in these efforts?

Devon Lomayesva:

In most tribes and there’s a lot of us that have talked about this recently, you have a core of the people that are everywhere. You have the people that come to the meetings, the people that run for office, the people that put on the gatherings, the people that show up to help cook for funerals, you have kind of a core and then you have those people that show up on the outskirts so you kind of know your community. You know pretty much where people stand as far as their participation. I don’t have a magic answer for how to engage the people that we know for years and years and years and their parents and grandparents before them have always chosen to stay on the sidelines which that’s what they’ve chosen to do. So I think that the invitation goes a long way. Even though you might not participate, if the meaningful invitation is there. Tribal leaders still go and knock on doors. Some of our committees still actually go and knock on doors ‘cause not everybody is going to respond to something in the mail, not everybody is going to be at the meeting to hear it and you do the best you can. At a time when the majority of tribal members are living off reservation, not necessarily by choice—probably a lot of resource issues, housing, you name it—it’s hard because our people are spread out everywhere and when they live out of state they’re not going to come back for meetings. Once in a while they do. So you really have to know your community and you have to know the people that traditionally engage in it and you hope for the best. When we…right now a lot of people say, ‘Oh, well, you should just be…it’s so much money to send notices.’ ‘Well, everybody’s on Facebook, everybody checks their email.’ Well, you know what, no they don’t. We still have people that live without electricity, without running water and they have a simple phone that doesn’t have data. I was…even though technically on the election commission we could have just said, ‘Well, you agreed that we could send these electronically and you signed a paper. I don’t care, we’re going to mail every single sample ballot to everybody because we want to make sure that they get it in as many ways as possible.’ And that is essential and you can see the difference in the turnout. Just like in our own cities and states, the voting percentage… This last election was deplorable and I think everybody knew that coming in that it was going to be low turnout and I was actually kind of looking at the percentages and I think our tribal election had a higher turnout than we just did on the national election overall and so I guess that was kind of encouraging but at the same time not. So there’s nothing magic about it but it certainly is being aware of how you’re notifying people and how you are approaching them. And some people it takes a lot of time but you have to…maybe you have to go to the elder’s committee meeting and you say, ‘Look, you guys, we know you have your concerns.’ Go to the veteran’s committee, go to the gathering committee. ‘What are your issues.’ Don’t just say, ‘Hey, come on out, we’re going to have a meeting next week to talk about this.’ Get to know their issues and even though they might not show up, by taking the time to talk to those committees, they represent those interests, you’re probably going to get a lot of feedback that you can then relay or at least to throw into the discussion. ‘Hey, they’re not here but when I met with the elders the other day they were really concerned about X.’ And even…they say, ‘I don’t know if I agree with that but I want to let you know.’ And I think that’s your obligation. If you’re someone that’s going to be in this reform process, you have the obligation to share what you’ve heard and that makes for a much better discussion and it puts more scenarios out there. So I think that personal contact is vital, going to your committees and this is whether you’re a tribal leader, whether you’re on the committee or you’re just somebody that as a member wants to have as much representation as possible. The personal connections are vital. Hold the meeting at the same time as another meeting. Not the same time but to piggyback before or after another meeting and that really helps to get better turnout and what other incentives that work for your people. It’s always nice to have a cup of coffee when you’re talking about something and that really goes a long way and I’ve seen that work. So that’s probably the best that I could offer. But there’s certainly nothing magic about just mailing out a notice so for whatever it’s worth, that personal contact.

Veronica Hirsch:

Related to the topic of successful strategies, I’d like to ask, can you describe any successes that you would term as such as part of this 2005 constitutional reform process? You mentioned the inclusion of the savings clause which I think could appropriately be considered a success of this process. Can you either expand upon that or describe any other successes that arose out of the 2005 constitutional reform process?

Devon Lomayesva:

Two stick out just going in order. The first is that, and I was really surprised that this section wasn’t more hotly debated because if…we all know one of the things that’s debated is membership and it was really surprising that the creation of a base roll was included. And what that did essentially is it took the most current form of the enrollment ordinance which had previously been amended to include a number of other California census when originally the membership of Santa Ysabel was only based off the 1940 census and a lot of our tribes in San Diego and I know several throughout California, the 1940 census was their base or 1929. I’m always amazed at how many census there were. There were dozens of census out there so to only use one it’s kind of like, ‘Oh, that’s interesting. What if you weren’t there that day?’ Well, I guess you weren’t on it and it’s that simple how many people were left off the rolls. So when we changed our enrollment ordinance, we added on a very, very comprehensive history of our various villages which I think really helped people to vote to change that because it’s unfortunate that you always hear, ‘Well, if there’s more members there’s going to be less resources.’ And this is way before we were thinking about…not before thinking about but before the casino was more of a realization which is a sad but true conversation that comes into the mix when you talk about membership and per capita, it’s real and it’s sad but it’s something that I think eventually and even now tribes are dealing with in a way that we have to maintain our membership, we have to be here. So despite some of that and some of the ‘Well, if they weren’t on the ‘40m, then they’re not even supposed to be from here.’ You get all…you get the difference of opinions. We adopted it, we adopted at least…I don’t want to guess but at least five other documents where we allowed people to enroll that were on those that were affiliated with Santa Ysabel and so that was all put into the constitution and everybody who was enrolled as of the time of the adoption of the constitution was going to be on the base roll and that process as far as I know is still being put together but it’s there. And now even though our enrollment committee has dwindled in numbers, have to get that staff back up, we have a more inclusive membership of those that came from Santa Ysabel and so that was very encouraging because you created a base roll where now people can’t go back. You can’t go back to the ‘40 and say, ‘Well, they’re not on there.’ ‘Well, no, because now our new base roll is…’ I think it’s supposed to be 2007 base roll is what our goal was. And so that’s going to include…think of all the members that came since that time to have a more complete and accessible roll where people that are eligible and entitled to be enrolled can go to that base. So that was encouraging and I think that was a good thing for the tribe to put that in the constitution ‘cause membership is fundamental within the tribes and that was important to be in there. The other was the judiciary. As I said, we had joined the tribal court and were just kind of learning about it and kind of seeing how it was going to come together but that’s’ something vital because until then disputes were resolved by either the tribal chairman, the tribal council or the general council. I couldn’t imagine having this constitution without a sound judiciary and it must be by design because the general council wouldn’t have the power to act in that capacity anymore and you would only have the tribal chairman who by definition in the constitution kind of presides over everything and the legislature is there to write and pass laws and budgets but not the day to day governing and dispute resolution. So whether it was by design or just because that was something the tribe was leaning to, the judiciary has been a really good forum because it’s also motivated the tribe to look to passing other laws, I mentioned the Law and Order Code which can now be heard in tribal court and it gives… Actually the court itself is on another reservation about half an hour or 40 minutes away so people…it depends on the person but you go to a different place where you feel…’cause when you’re a smaller tribe you feel like, ‘Oh, it’s biased. Everything’s going to be based on the family.’ But in this situation it works well for us because it’s off site with a judge who is not a tribal member which I have my own feelings about that. I actually am also pro tem for the Inter-Tribal Court and I’ve heard cases for other tribes and other families but not for my own and I think that if I were to hear something for my own tribe, I’d probably end up being conflicted out because of being on council, of being on all the committees and being an attorney for the tribe, eventually probably something would conflict me out. So while it’s our court, the beauty of it is that we have options and if we were to try to hire our own judge to come up like the constitution calls for, it would be very difficult. You go back to a resource issue and this is kind of where I say that the judiciary was a good part of the constitution but I have to do that with the caveat that there is some disagreement and some interpretation and compliance issues right now with how the constitution is actually meshing with our adoption of the Inter-Tribal Court because in my opinion we have some problems. But generally the judiciary has been a good thing but we’ve only used the Inter-Tribal Court so that’s really my only context So the tribal court.

The 2005 constitution included a judiciary whereby a judicial commission would make recommendations for a tribal judge in essentially a trial judge and an appellate judge capacity. So you were supposed to go out and find judges and presumably you’d have to pay for them. I remember the discussions when we were talking about this because the Inter-Tribal Court was already on the radar and something we had joined but not necessarily had used yet so we were all just saying, ‘Oh, Inter-Tribal Court.’ You don’t necessarily have to put that in the constitution but draft it so that if we do keep the Inter-Tribal Court it’s going to be compatible. But…and this goes back to the unfortunate politics that get inflicted into the drafting of constitutions and other laws. There had been a decision that was adverse to some of those that were on…well, that were elected leaders so the Inter-Tribal Court left them with I guess you could say a bad taste in their mouth. That wasn’t… ‘Well, we don’t want the Inter-Tribal Court because we didn’t win.’ That’s really what it boils down to. But the problem is that we were already a member and already using the tribal court. So what the draft…and I obviously don’t agree with this to today…what the drafting did was say…it kept all the language that Santa Ysabel has to hire its own judges despite all the discussion of, ‘We don’t have money, we don’t have resources, we don’t have a court, we don’t have a bailiff, we don’t have any of these things,’ that language was left in there and it has all these specifics. It’s very long, this section. All these specifics about, ‘This is how you recall the judge, this is how the court’s supposed to function,’ all these specific procedures for the court. But the problem is, it said, ‘However, despite the provisions of this constitution, the Iipay Nation may use the Inter-Tribal Court up to 36 months after the adoption of this constitution,’ and that was kind of another version of a savings clause. It saved the Inter-Tribal Court. The thought process was that, ‘Well, within three years we’ll be able to have our own court, no problem ‘cause we’re going to have all this money, because we’re going to be able to do all these things, because we’re going to have all these people that…a judicial commission that are going to be empowered and informed to do all this stuff.’ Well, the 36 months came and went and the tribe…our casino was about to close, we had no money, we had nobody coming to meetings, we had nobody on the judicial commission so we were in this state of, ‘We can’t even comply with the constitution if we wanted to.’ And I reflect back on hearing some of the leadership at the time and attorneys saying, ‘You can get volunteer judges, the law schools, they’ll help you.’ That’s not a court. Yeah, you can get a volunteer but you still have to have a process. They’re probably not going to pay. You’re probably going to need some mileage and you’re going to need some…let’s think practically how this is going to work out.’ And all that was just ignored. ‘Hey, you’ve got 36 months for your Inter-Tribal Court.’ I remember somebody saying, ‘for your Inter-Tribal Court,’ and this was before I had anything to do with the court, saying that to other leaders, saying that to other committee members in meetings. It was very divisive. But at the time where it had come and gone, the…there was a time before we stopped having quorums that the judicial commission said, and I was actually on it at that time. We went and met with the Inter-Tribal Court and said, ‘How much do you charge us? What’s the set up? What do we get?’ And then we had looked at other tribal courts where the tribe completely funded their own court. You can’t compare the cost. It was just hands down, even if we wanted to do it, we couldn’t even afford to pay the full dues under the Inter-Tribal Court let alone try to establish our own. So we came back with a recommendation and it was presented by the leadership and it was voted upon and approved. Well, being as…I don’t know what words come to mind…dysfunctional, unorganized, lacking infrastructure. We had a case come up about six months ago where the tribal member was issued a citation under the Law and Order Code. They went to tribal court and she said, ‘This court doesn’t have jurisdiction. We are not a member. We did not adopt it. Our constitution says we can only use you for up to 36 months so you do not have jurisdiction over me.’ And I was like, ‘Hey, pretty good. Way to read it.’ But I said, ‘But that’s going to be quashed because we have proof that the general council, as they’re supposed to, adopted the recommendation of the judicial council.’ Well, somebody wasn’t taking notes or minutes and there was no evidence to show that the tribe had in fact made that vote and done that. So the judge says, ‘Until you can bring me proof that you’ve adopted that, there is no jurisdiction and this case is basically going to be stayed, it’s going to be on hold.’ What did that do? It was like, ‘Ah, pffh, we can go out and violate anything we want and what are you going to do about it?’ So the judicial commission, me not being a part of it because by that time I was a judge at the Inter-Tribal Court, did the same thing that the previous had did, came back, same recommendation, still don’t have any money, still don’t have any infrastructure, the Inter-Tribal Court is the best court for us and that vote was presented at the meeting where we had nominations and that was the only reason there was a quorum because it was tribal nominations. By luck or planned luck, whatever it was, the vote came up, there was a quorum and the general council did adopt the Inter-Tribal Court. So, ‘Okay, phew.’ So now we could go back to Inter-Tribal Court, ‘Hey, proof.’ But here’s the problem, the constitution still says only up to 36 months so what does that mean? I think you could get a judge to say, ‘Okay, well, since you followed the provisions and the people voted on it, okay.’ But what does that mean for all the provisions in there that talk about removing the judge, that talk about the powers of the appellate court? So then are we allowed to just ignore all that and follow the policies and procedures of the Inter-Tribal Court? That’s the most logical but there’s other provisions in there that work with other provisions that aren’t under the judiciary so how does that work? Well, I don’t know because nobody’s tested it out yet. Now we haven’t had a case go to the court yet to challenge that but it could come. So it’s very unnerving to not know if we are in fact protected by the constitution and what it promises to have in there. So nobody knows at this point. We think we’re okay for now but it’s not compatible.

Veronica Hirsch:

Your answer illustrates the complexities of the actual implementation of these various aspects of constitutions, constitutional reform so I’d like to ask you, how…in your opinion how can constitutional reform best intentions better translate into actual implementation?

Devon Lomayesva:

I think you again have to go back to why do you want to change it, why do you need something different? If your only answer is because you want to attract investors, then it’s not very well thought out because in my opinion that’s not a legitimate reason. You could pass a corporation code, you could pass economic development code or ordinance to deal with that. You could do so many things. You have to have some foundational reasons that you completely explore and vet with the people to make that huge of a change because you’re not going to be able to anticipate all the outcomes. You’re not going to be able to anticipate all the effects. Even things that aren’t even related to the category you don’t think about, about the ripple effect of changing things. And why fix what’s broken…what’s not broken. If it’s not broken, you don’t need to fix it. We all kind of know the saying. So why did we throw away all the things in our articles that had worked for us for so long to this unknown. Yes, we did have some things that should be improved. I think the membership was good. Adding in the authority to have a tribal court, that could have been added in. But think about it, have visuals. People say, ‘Oh, native people, it’s visual,’ and it’s very true. It’s very true that you want to look at things from more of an observational standpoint. I was…I can’t remember where I was now. A conference I was at, one of the gentlemen that was in a boarding school said, ‘They sent me to this boarding school, they want me to read about how birds and the animals live but why can’t I Just walk outside and learn that?’ And I think that’s really, really telling of our history but also us having to come to terms with what have we become as tribal governments. Have we thrown that observation and hands on focus and way of governance out? Have we come to be only written? And if so, not everybody has molded into that. How do we explain that to the people that this is going to affect that only learn and see things from being out there? And it gets to that personal touch, it gets to the real issues and being as thorough as possible and not allowing something that’s magical to come in and replace. ‘This is the best thing.’ Look out for the sales people, look out for the people that are promising to give you something that’s going to overnight make things better. It’s like the TV channels where, ‘Only seen on TV. Get it now. Miracle this, miracle that.’ There’s no such thing in governance and I think we need to be cognizant of that as tribal leaders and tribal people.

Veronica Hirsch:

The shift in not only general council’s ability to achieve quorum from the 1974 Articles of Association to the then 2005 Constitution and I’d like if you could please explain, and we could even put it in that context of before and after so to speak, if you could describe the general council’s efficacy and what are the successes and the potential pitfalls that have and will impact the general council.

Devon Lomayesva:

As I had said, the general council/tribal council setup is the ultimate democracy. It is…and it’s frustrating because…because it is such a true democracy which is the will of the people. The will of the people changes and it can change every month and it’s extremely frustrating and it’s extremely damaging. But at the same time, as a whole it’s worked and it’s kept the people together. There’s a reason to come together because together you are the general council and you have the power to make important decisions, you have the power and not only the power but you ultimately then have the responsibility, you’re an active part of government. Each and every one of you actually does count. A lot of times when you vote you’re like, ‘Gosh, I voted late. I already know my vote doesn’t count.’ But when you’re in this kind of a tribal government setting and it’s such a small amount of people, it’s really vital and so the general council has been the only way to accomplish the results that you want as a people. It’s been the way to pass laws. It’s been the way to punish people, to make sure tribal leaders are put in their place or congratulated or people are honored. That is something that the general council has really maintained the power and responsibility to do for decades and decades. Albeit there’s times when the general council will change on you as a tribal leader perspective or as a tribal member. They decide, ‘You know what, we actually decided we don’t want to have that as our law anymore.’ And so it can cause some chaos in government but with all systems you take the good with the bad and I think it’s been generally good. When you get to…and the general council up to the time of the other…of the new constitution, we only had to have 17 or 18 people present and while that wasn’t necessarily a good representation of the total membership, voting membership, it was still something that was attainable and we all knew and most of the time we got many, many more than that. There wasn’t even a problem. But… I talked about the change in the enrollment ordinance. That happened and so we had more people coming to the meetings so never a problem with quorum. But then these kind of rolled together, the effect of the new enrollment ordinance, the new constitution. The constitution required 10 percent of the general council which is voting members 18 and up be present for a quorum. Well, if you have 600 adult members, then you need 60 people there. 60 people is a far cry from 18. That’s three times the amount and in all the… I’ve been going to the meetings since, off and on since I was in my early teens and I’ve been going since. Rarely do you get 60 people there other than elections or big votes that rarely come about. Maybe voting on an ordinance or something ‘cause we didn’t always do it by mail, secret ballot. We used to just, hey, you’d be proud of your vote and you’re going to raise your hand in front of everybody and we all just voted right there on the floor. Now everything’s secret ballot. So getting the 60 people there was really something that I have to think about ‘cause it didn’t sound like much. Eh, 10 percent. I don’t think anybody really thought about it, about ‘Are we going to be able to make the quorum?’ Of course I did ‘cause it’s like, oh, geez, this is going to be tough. ‘Oh, well, we have a lot more people enrolled now, people are still enrolling.’ Then I think about, well…or did somebody think about this? Did somebody think about, ‘Wow, 60 people. That’s going to be tough to maintain. Could that be good for me?’ Well, yeah, it could but I don’t know. But you just think about it and you think about the reasons behind the drafting and that takes you back to how important it is, when you see these things, when you see these changes, you’ve got to play them out. You’ve got to throw in some scenarios. You’ve got to say, ‘Okay, what does this mean?’ I could name off all the people that come to our meetings right now, piece of cake, that have been coming for the last three years. And to think 60? Even on the day that I said we just recently got the quorum, we didn’t have it from the beginning of the meeting. We had to solicit to get a quorum. Some people were saying, ‘Oh, that’s illegal?’ I said, ‘Where is it illegal that I can’t call up my uncle and say, “Hey, come down to the meeting so we can get a quorum”?’ And that’s what we had to do. So even…even with nominations for elections it was…we didn’t have a quorum until we made it happen. So by design I don’t really know what happened there but the effect is that it goes without saying, three years with no quorum and the constitution itself, as I said, allows for the majority of business to continue on without the general council. Yeah, the judicial commission, they had to recommend the court but how often does the judicial commission have to do that with the general council? Well, it’s only happened twice so that’s…while it’s very vital, it’s not something that requires an ongoing quorum. So everything else, the budget, all the laws, all those things can happen with the general council absent and they have happened. So the efficacy of the general council is that…they’re essentially powerless. They have to go… They don’t have a voice. It’s reactionary, it’s after the fact. And until the general council is led by or understands or is educated about that process and actually one of our recent legislative candidates who previously served on the legislature said, ‘I know you guys feel like you’ve been disempowered, disenfranchised but you know what, it’s really not that hard and we can talk about it. I know we never have but you guys can do this if you want to, if you learn.’ I kind of agree with that but I also feel that the process is still going to be pretty daunting. But that shows that our own elected leaders have realized that, have recognized that and so the change is coming. We’ll just see if we can accomplish it.

Veronica Hirsch:

Lastly, reflecting on that process, I’d like to ask, what can other native nations engaging in constitutional reform learn from the Iipay Nation?

Devon Lomayesva:

I think they can learn number one that too much change overnight is going to have insurmountable, unintended consequences. They should learn or could learn that you don’t just end with your first bite at the apple, that you explore, that you research and that you get as many advisors from the membership, from the leadership, from your trusted consultants, attorneys, whoever they are and you flush those out. You don’t throw away things that have been working. You keep those and you hold dear to those because it’s rare. You think about realistically the funds, the resources, the human resources, the people that are going to have to play out the roles that you’ve put into that document because that is your document, that is the number one law of the land that everybody is more than happy, trust me, to say, ‘But that’s our law. That’s our number one law. That election law conflicts with the constitution. Why aren’t you following the constitution?’ And they’re the first to be pointing that out and you as a tribal leader need to be able to understand every single piece of that and if there’s things that are working for you, keep it in there. Change the things that there’s consensus that there needs to be reform. And don’t do it purely for economic gain because as tribes you are a nation and that’s only one component of it. And I guess last, what you can learn is that change can be good but it’s a process and it’s not something that will happen overnight. And in our year and a half we could have spent another year and a half and probably still not been able to flush out and anticipate all the changes that would happen with it so take your time and don’t rush it.

Veronica Hirsch:

Thank you, Devon Lomayesva, for providing us your personal opinion and insight regarding the Iipay Nation of Santa Ysabel’s constitutional reform process. And I thank you for joining us today as part of our Leading Native Nations program.

Devon Lomayesva:

Thank you for having me

 

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."

Michael K. Mitchell: A History of the Akwesasne Mohawk

Producer
Native Nation Building: Governance and Development undergraduate course
Year

Grand Chief Michael Mitchell of the Mohawk Council of Akwesasne offers students a broad overview of the governance history of the Akwesasne Mohawk and the efforts his people have made during his time in office to exercise true self-governance and rebuild their nation.

Resource Type
Citation

Mitchell, Michael K. "A History of the Akwesasne Mohawk." Native Nation Building: Governance and Development undergraduate course (faculty: Dr. Ian Record). American Indian Studies program, University of Arizona. Tucson, Arizona. March 31, 2008. Presentation.

Michael K. Mitchell:

"[Mohawk language] What I said in my language is it's an honor to be here and I'm very nervous anytime I stand before a class that seem to be at the university level that have garnered so much knowledge from books that I don't quite know how I could relate, but I'm going to try.

I come from a territory that got dissected by the U.S./Canadian border. Half of Akwesasne is located in upstate New York and the other half is in Canada. Three quarters of what's in Canada is in the Province of Quebec and a quarter of it is in the Province of Ontario. So we have five jurisdictions on the outside perimeters of our reservation.

As I'm going along, I may be asking you some questions because I'm working on almost like an autobiography of my upbringing and political experience and a question I have is if any of you already know, what year did the American war of Independence end? Does anybody know? I should have you on Jay Leno. In the late 1700s, right? Because later on, it lead into the War of 1812, but around that time was when they put the international border. And for some reason it split our Mohawk community in half. So part of us became Americans and the other part Canadians. So you have brothers and sisters, one's American and one's Canadian at least by the standards on the outside.

We always consider ourselves to be nation members and citizens of the Mohawk Nation. And I don't know how much you would learn about the Iroquois in your American Indian studies but the Mohawks are part of the Haudenosaunee, Iroquois Confederacy, also known as the Six Nations. And the nations that make up the Iroquois Confederacy are the Mohawk, the Oneida, Onondaga, Cayuga, Senecas and Tuscaroras. At the time, what we called the 13 Fires or the 13 Colonies, when Europeans were starting to settle in North America [want to break for a minute?] they met and got permission from the Iroquois Confederacy and established relationships with the Haudenosaunee as to where European settlers would take up residence. It started with the Dutch, Germans and later the English and each group that came, each group of settlers that came made treaties with the Iroquois.

Now in making these agreements there was one particular agreement that we know very well that was made in Albany, New York. It was called the two-row wampum because our people recorded our history in wampum belts. And this is a story that our people talk about in our earliest relations with European settlers. There was a belt that had two rows and our elders said that at that time it signified two ships, two vessels. One was a ship and one was a canoe and what they told the European settlers is that, "˜On this ship you came to this land to escape from religious prosecution, from not being able to practice your governments the way you would want to be represented and so in this land we're going to give you that freedom to do so, speak your language, practice your traditions, your culture, everything that you would like to be as a people will remain on that ship and in our canoe will be the same thing. Our governance, systems of government, our languages, our cultures, our traditions, our ceremonies, our religious beliefs will be in our canoe and they will go down the river of life together in parallel. I will never make laws, my nation will never make laws for your people and you will never do the same with us.' So it was that kind of a relationship. "˜But throughout time, we'll always be there to help you.' And as it was in the earliest times, Europeans were not aware of their surroundings, they were not aware of the many types of foods that they could cultivate and eat. So the Native Americans were the first ones to show them, the first time that they would ever have experienced squash, pumpkin, corn, beans and down the line, as well as medicines. In this exchange, Europeans showed them how to hunt, utensils, farming equipment, etc., so there was this exchange.

Anyway, in those days where they came from they told a story about being ruled by kings and queens, nobles, barons and peasants, religious prosecutions. So one of the earliest historical leaders in this country was Benjamin Franklin and in his earliest writings he talked about sitting at the council fire of the Iroquois and he watched how they governed their people, for it was something drastically different than what he was accustomed to and he invited others to come and observe when nations got together and talked about governance.

Their leaders were called [Mohawk language], chiefs. And contrary to the way politics are run today for both of us, because I'm an elected leader, usually have a term of three to five years. But in those days a Native American chief would be put up by the women of his nation. We all had our own clans. I belong to the Wolf clan. Among the Mohawks there's three major clans, the Wolf, Turtle and Bear. And so it would be the women of that nation is was said that would watch men form the time they crawl on the ground to the time they walk to the time they hunt to the time they marry, the women of that nation would know and judge the character of a man; how he provides, how he related, how he conducted himself as a human being, as a family person. If he was a good hunter, if he was a good speaker, if he knew ceremonial, cultural things that belonged to his nation, then they knew he would be a good leader. And so he didn't have to make promises to say, "˜I want to be a chief.' The women already had made up their mind that he would be a good leader.

And so when they picked a man to be the chief, the women had a fair notion what would make for a good leader and in them days, and we still have that system of governance today, a man had three chances in his lifetime, in his adult life, in his leadership life to be a good leader. If he did something against what would harm the people of his nation, the women would come to see him three times and straighten it out. He would have three chances to retain his chieftainship. And on the third time, they would have a head warrior with them to take his title away. It was considered a disgrace if a chief ever had to have his title taken away.

And with our tradition, a man who was a chief was given a headdress that had deer antlers and he carried that, he wore that in council meetings and in ceremonies and important events when they met with other nations. And so that symbol of office, if there ever came a time that he would be removed from office, there was a term called "˜de-horning a chief.' They would take his title away by taking his antlers away from him. He would never be recognized as a leader again ever in his lifetime. And so that was the system of governance for us. Then European governments came and said, "˜We have a better system.' And I'm going to talk about my experiences on the Canadian side, but there's parallels on both sides.

In Canada in 1867, they created a federal legislation called the Indian Act. It had three major objectives or principles. One was to Christianize the Indian nations, make farmers out of them, and educate them; what they call educating the Indian-ness out of them, make them non-Indians. And so they set up these residential schools. They would round up all the Native kids off their territories, send them hundreds of miles away in a church-run school and those kids wouldn't see their parents until eight, ten years later they would be allowed to come home. That was a system that ran and stopped probably around 1971, '73, they started closing off the so-called residential schools in Canada.

Did it work? Many times it did, for our people returned home strangers, no language any longer, no awareness of their customs and traditions, cultural values, can't speak the language, but they were educated. And the thing that happened with many is that they were lost. They couldn't mingle with their people, associate with them, but they couldn't survive in the cities, outside the reservations because now they had lost something very important, their spirit as Native Americans. So for many to get home, they had to relearn or get re-educated as to who they were. The churches played a strong part de-Indianizing of our people because all these schools were run by religious institutions.

Some significant things that happened is that when they started catching on as to the effects of residential schools in that just under a hundred years in Canada, is that suicide rates, social conditions prevailed on the majority of people who came out of residential schools. Suicide rates are high. In Canada there's 30 million people, population in the country. We form the majority of the prison populations in Canada because one other factor that was crucially important, alcohol wasn't meant for our people to touch. In the time that they drank they became...they lost their memory, they committed a crime, they killed somebody, they robbed something that would land them in prison, lifetime, 20 years. And so that became a big social impact in our development, progress as people.

We are now starting to realize the consequences because the values that we were taught as Native Americans, as Mohawks in nation for us, the virtue of what makes for a good person was in our cultural teachings, and when they took that away from us and tried to make us into something else, we couldn't adjust there, either. And so in Akwesasne, those that are on the Canadian side wound up in a school strange enough called 'Spanish.' On the American side they wound up in a residential school, which escapes me for the minute. Anybody ever hear of Jim Thorpe? What school did he go to? Carlisle [Indian School], that was the school where they sent our people on the American side, and a lot of our elders went to school with Jim Thorpe.

So they would return home. Now there are some people that use their education and they did make something of themselves but in between that was a sad story. So those of us that got an education within our community, there was a fight all the way through. I was raised by my grandparents and they gave me the cultural teachings, the language, ceremonial songs, what makes for a good person. Many of the stories of the nations that I find myself now being an elder in a community of sorts and as strange as it is, the governance that I told you a little earlier about how people get put up, my mother is a clan mother and they are the ones who put up leaders. And so I would say from the time I was small being raised that I had retained all these teachings that I was going to be a traditional chief, where the women would put you in office.

In the 1970s to "˜80s in our community, there was always turmoil between the elected leaders and the traditional people. And then for us there was elected leaders on the Canadian side and there's elected leaders on the American side and there was the Mohawk Nation traditional chiefs. So if it wasn't bad enough to have five governments on the outside, we had three inside the reservation. And like the Hatfields and McCoys, the elected leaders were usually the Christian leaders and the traditional chiefs were people who they called them the Long House people. They were the people who maintained the ceremonies, the language and the customs and traditions and they adhere to a traditional form of governance as I had told you.

Anyway, as in any society when they don't get along there would be skirmishes. So the nation people said, "˜We want to find a way to exchange our cultures in the event that maybe we could make for a better world in the next generation. So we're going to exchange some of our people.' So they send me over to the elected side and in 1982 I became, I was elected as a chief in the elected system and at that time I was probably the first one. We were referred to as pagans because we weren't Christian and the church taught them that if you're not a Christian you must be a pagan. So that was a very catchy name on council by my peers, to have a pagan chief. Not that I really knew much about it, so it didn't really bother me. But as I later found out, some cruel things. The priest in our reservation was a Mohawk from another reservation and so when you get somebody believing in something really hard, they espoused a lot of hatred and that existed in my time growing up. If you weren't a Christian Mohawk, then you were something of a lower class. My duty and responsibility was not only to be a good leader, but to change that whole image and that whole attitude of what makes for a good Mohawk person.

So two years later...they've only got two-year terms; we had another election. In that time, I looked at our elected governance, chief and council, the way they conducted their business. They didn't have any public meetings, they didn't show the community any of the minutes of their meetings so they know how much education dollars, how much housing dollars and welfare and house...so it was all like a big mystery. And usually it's a favorite; some people get catered to. If you elect a person and you represent so many of a large family, you're looked after. If they didn't think that you were supporting particular people on council, you didn't kind of work your way up the ladder.

So it was that kind of governance I wasn't really used to. So I started taking minutes of our meetings and I would show them around. Finally I did a small newspaper, I would ship them out into the community. I became very well versed on information that had to get into the community. So I took it upon myself -- because that was my tradition -- to take this information and provide it to the community. Now for some reason, the community liked having this information even though I was traditional and the next year they wanted me to become the Grand Chief of the reservation.

Now I'm going to go back a little bit. The first time I went for elections and I was put up, our traditional people don't vote. So I had to get elected by the other side. I still don't know how that happened, but it did and I got in. So the second time around when I competed for the Grand Chief position, a Grand Chief is elected among the general populace. A District Chief is elected from his own area. So I thought I was safe there. And to jump in that short time was a little difficult...and it was rough for somebody that came from the traditional side of the community. I got beat up going to work. The office that I had was occupied by protestors who didn't believe that the Grand Chief should be traditional. My life was threatened. And so it didn't kind of work out at the beginning, but if you have a thing in your mind that you want to try to govern, I had to mix my upbringing into my politics. So I found different avenues, different venues where I would get information to the community, "˜This is our situation.' And as I'm trying to fight off my opponents, I also had to fight off the governments on the outside. So I got together with the chiefs and we had some sessions, normally like you would anywhere else where you decide to get everything out in the open. And I convinced them that we're here for the same reasons -- to have effective governance.

Don't forget about the Indian Act that I told you, because not that long ago in our community the Indian agent ran everything. He controlled the chief and council, told them how to vote, what is the important issues and how they should govern, how they should make decisions. When I was coming out of high school was the last few days of the Indian agent was around in our reservation but the effects, government policy, everything was decided in Ottawa. If the chief and council made a decision about something, whether it's a school or a health facility, anything that would benefit the community, you had to ask for permission through the Department of Indian Affairs and they would let you know if you could do it. I was very much opposed to not having the community be the ones who decide on issues and I advocated that the people had to get involved.

Now we live on a reservation as I told you that's half in Canada, half in the States. For me to come from Cornwall Island, Ontario, I have to cross through the customs to the American side of the reservation to get to St. Regis, Quebec. If I have to go to Snye, I have to go back to the American side and get back into Quebec. So every day I'm going through borders. And when we had problems crossing borders, I convinced the community that we should stand up for ourselves. After a few meetings we got people worked up, we shut down the international bridge; fifty of us went to jail. But that was the first time in "˜70s that in Canada people started, Native people started organizing themselves, speaking up for themselves, and that was the time that changes started to happen. Then we started getting in touch with our brothers on the American side.

One of the things that happened, we affected government policy. I convinced Ottawa to allow us to hire our own people because they had non-Native coming on the reservation to be our education director, to take notes in terms of social programs, to take health information back and statistics that they kept and nobody really was comfortable with that kind of relationship. In the space of two years, I was able to convince the governments on the outside to allow young people who were coming out of colleges and universities to come home and work for us, stay home. They became our administrators, they became our teachers, they became our police people, our conservation, environment...we had jobs of all kinds, but they weren't really our people that were working there. So that was the changes that came about in the "˜80s. As the changes started to happen, confidence came back to our people, that confidence and tradition.

There's something important I left out, an event that happened in 1984, which was just as I was starting my second term, my first term as Grand Chief. The Pope came to Canada and he had asked the bishops that... he was tired of the churches in U.S. and Canada every time a figure like that would come around they would dress up the Indians, put the war bonnets on and put them on horses just the way you see them in cowboy and Indian movies. That was the perception. So as easterners we were not very much aware of the prairie Indians, they still would put western headdresses on our elders and parade them around. Well, the Pope that we had passed away just a few years ago, Pope John Paul. He didn't want that. He said, "˜I want to see real people. I want to see them how they do their spiritual practices, I want to experience it.' So the priests on my reservation wrote to them and said, "˜We just elected a pagan over here so I'll send his name up.' And I got a call from the Vatican and they said, "˜Would you be interested in putting a ceremony on for the Pope?' And I agreed. I went back to the Long House and I told them what had been requested and in their wisdom they said, "˜Maybe it would make for better relations because as long as they don't understand they've got hatred in their hearts.' And so we put together a small group. We went to Midland, Ontario to do this ceremony for the Pope.

When I got there, just imagine what it must have been in Woodstock when they had this great big celebration over there, change it around, the Pope was the main attraction but there were about I'd say 70,000, 80,000 people in these foothills, cameras, everything was broadcast worldwide. And this event that he was trying to pursue was one that he was pushing for all religions to have greater tolerance and understanding of each other. And this one mission that he had in North America was to understand the Native spiritual practices better. And so I worked with the Ojibwes and the Crees in Canada with the Mohawks to put together this ceremony. And we put together a healing ceremony that consisted of smudging, sweet grass, sage and tobacco, the three main things that we use to conduct our ceremonies. I'm a singer. I sang with a group of other young guys. And so the whole event was televised and when it come up to putting the words to him and singing and putting him through the ceremonies, the Pope started to have tears come down. And when we got done and everything was translated to him what we were saying, I knew that it had a profound effect on him.

So when it was over, and by the way about 500 perhaps maybe more than that of the same people that called us down and called us pagans were in the audience out there somewhere. I know because I put buses on to get them there and I paid for their gas as chief so I know somewhere they're out there. And it was slightly uncomfortable because they said, "˜Well, now that we've got a pagan chief we know we have to go out there. The previous chief would have given us money.' Well, I did give them money and I put buses on and I helped them get there so I knew somewhere they were in the audience.

But what happened that day was, the speech that he gave at the end of the ceremony where he said, "˜The European people that came across the salt waters, the religious, the churches that came across believed that the Native Americans in this country were godless, soulless people and ever since then we have advocated to everyone that the only one way they would be human beings if they became Christians.' Then he put down his papers and he looked right at them and he said, "˜That was wrong. For I have experienced a religious experience from these people that I want to talk about.' He proceeded to lay everything out for them saying, "˜The churches have been wrong. The White man has been wrong,' he says, "˜to even have thinking that you've got to be like us.' Then he talked about the residential schools, talked about the education systems. By the time he got done, he offered an apology on behalf of the Church. And then he told everybody, he said, "˜I know there were ways that you have shown the distaste of your own practices. I'm going to ask you to go home, incorporate your traditional teachings in the Church.' And from that time on for me life became easier because the protest, the occupations, the beating have stopped and I was given a chance to govern.

We went to the churches, me for the first time, to give talks like this about peace and brotherhood, because for me in my upbringing we also had a spiritual leader. He had a name, referred to as [Mohawk language] but we only refer to him as the Peacemaker because with him he came to our people like close to a thousand years ago at a time when there was warfare going on between nations. And he advocated the great peace, the Great Law of Peace where people would put away their weapons and always find a way in whatever you do advocate a more peaceful way to live. Now you also had in the Great Law of Peace the constitution and that constitution advocated fairness in representation, fairness in governance. The people were the ones who made decisions and put their leaders up more to be like servants and so [Mohawk language], a chief was really a person who followed the wishes of his Nation. And this is when I was telling about women wound up being the ones who elected their leaders. Very interesting concept: five nations in unity governing on the basis of peace on the law that was known as the Great Law of Peace.

This was the meetings that Benjamin Franklin sat in and he brought his people along to say, "˜Look at these people making decisions and look at the way they govern and the way they advocate their governance, is that they would find a way to speak, counsel, make decisions all on the basis of peace.' And so they influenced the Constitution of the United States. I offer you these tidbits of information because I know you're going to go back and check, where did this all occur. Well, today it's pretty well a foregone conclusion that these events did happen and that there were these early influences, but with us when governments met and they came to a decision, nations would have to all unanimously agree. That's something that Benjamin Franklin said, "˜My people cannot ever do.' So they opted out for majority decision. So that was the difference in our lifestyle back home in governance.

In my time, I tried to cooperate a combination of our traditional cultural practices in a modern elected governance system. And that law called the Indian Act in Canada, I opted out of the provisions of that so that I could replace it with some strong, Mohawk-flavored governance models; giving the power back to the people. That's why in 1982, '84 I was asked by the elders to consider being a chief maybe for a term or two just so that they could turn things around and maybe politics would get a little better. And as I said a while ago, in 2006 the second time that I retired, people kept putting me back in office and they always said, "˜For one more term, until we can find and develop new leaders that will take your place.' And I began to find myself stuck to a position that I was only supposed to be there on a temporary basis. Now mind you, the excitement of governing, the challenge of representing and serving your people is a fire that is always going to be ignited inside you if you're a leader. And so I agreed to keep going.

Now I serve on the advisory board for the Native Nations Institute, but I also serve in advisory capacity to many other developments, both American and Canadian, Native American leaders. Offer them advice based on many years of experience. I wasn't...I'm not going to lie to you, it wasn't always a peaceful leadership style based on peace. When I talked about shutting down international roads and bridges, took over islands but just to get people involved in a non-violent way without guns, without clubs, but simply assert yourself. And so I started doing this across Canada and people rose and life is better when you can speak for yourself and nations can speak out. And that was a time for us that led up to 2006 when I finally made my decision to pursue a private life, more or less. Elections are coming around back home next year and they said, "˜You had enough rest. You should consider coming back.'

Well, presently I'm working on my book. Basically I made a very fast cut through of my experiences but in more greater detail of events that happened in the United States with Indian Country, events that happened in Canada, because I offer certain parallels that are very distinguishable. But my survival in politics led to my knowing my traditions and my culture and my language, taking the best of the non-Native world and combining it, pushed education a lot but the social conditions in our community has improved. But being on that border, we got famous for something else. I don't know if you can guess at it but whenever there's a border there, what's likely to happen? Anybody take a guess? Smuggling took place and in a big way because we've got 100 miles of the St. Lawrence River of islands and in the dark of night, our people know that territory inside out. And so it started with cigarettes. Canadian companies, cigarette manufacturers would reroute their cigarettes from Buffalo, New York to Pennsylvania to New Jersey to Boston and make a big circle and then would bring them back in and they were using our people to bring them across the border. It wasn't long before people caught on and they started doing their own smuggling. It's still going on. So I had that to contend with. Pretty soon motorcycle gangs called the Hells Angels in Montreal started, "˜Hey, there's a profit to be made here,' so they started enticing people to bring drugs across. And then when that started, some of that drug stayed in the community. So for us it was always an ongoing battle.

When 9/11 happened, and if some of you have a good memory CNN, NBC, CBS, ABC all had giant screens with a map of Akwesasne saying, "˜Those terrorists came through that Indian reservation.' For two weeks that was going on. They were reporting that it had to be this complicated, unique Native community where they might have come through. The more they talked about it, the more they convinced themselves that that in fact happened. It wasn't until maybe two, three weeks later that they found out they didn't come through there, that they were in fact in the country. I was Grand Chief at the time and you will not know your gut, the heart, what it felt like thinking they crossed and killed so many people because of this border. And it's a border that much unlike...I went to visit the Tohono O'odham Nation here. Their reservation is the same way. Part of it is in the United States, part of it is in Mexico and they've got 85 miles of nation territory they have to watch over. People are coming over, but not to the extreme or as dangerous as people coming from Canada into the States because they have one thing in mind, smuggle something over. So now our concerns is explosives, guns, terrorism types, finding a way through our reservation.

So that became the greatest concern. So we made up our own border patrol program. We added to our police force. Now we work with the Royal Canadian Mounted Police, the U.S. Border Patrol, the U.S. Customs, State Troopers and it's a program called IBET [Integrated Border Enforcement Teams], integrated policing. And that's becoming another big part of our reputation, coincide with the smuggling concern.

But all in all, you advocate to your young people, "˜Go to school, get an education, seek something out that you want to be but come back home.' And that thing that started in the 1980s is still going on today. And so I've just given you a very fast run-through of what life is like for where I come from. I don't know how much of it you can digest in a short time, but you invited me here to talk a little bit about where you're from and what you do or what you were doing and that's the story of Akwesasne. By the way, Akwesasne in Mohawk means "˜land where the partridge drums,' and at the earliest times along the St. Lawrence you still see quite a few, I guess you call them grouse, partridges, from that family, very prevalent on the St. Lawrence. And they call our place the home of the partridges. Anyway, that's my story."

Ian Record:

"I've got a question about...you mentioned just now the jurisdictional agreements you have around law enforcement to try to control the smuggling and all that. I've had conversations with you before where you talked about the kind of early origins of when Akwesasne started really asserting their jurisdiction back over their own territory and I wonder if you could talk about that, because at least originally Canada and the provinces and even the states weren't too approving of that, were they?"

Michael K. Mitchell:

"That's right. On the Canadian side the Mounties enforce...Royal Canadian Mounted Police enforce the federal law and the Provincial Police, Ontario Provincial Police and the Quebec Provincial Police enforce the provincial laws. That was on the river and on the mainland. And they enforced the Criminal Code of Canada. And so as complicated as our territory is there was no room...we had a Native police force but they weren't giving them any respect. As a matter of fact there's a term I still remember. They called them "˜window dressing cops.' If they won't let you do anything but they were still complaining that they weren't arresting our people on driving intoxicated or speeding. They didn't keep up their quota so they had a very narrow definition of what makes for a good peacekeeper. And when I became chief, I wanted to see that change. But I found nowhere where that would happen. They had everything cornered off.

As a matter of fact, the time that I became chief our people were being arrested on the river for fishing, traditional fishing whenever they would net and have enough for their families, put away... The laws on the outside said, "˜You can't do that anymore.' So they started taking the boats, the motors, the nets, confiscating, making seizures. So when I became chief, our people came to me and said, "˜What has changed so much that we can't practice our traditions any longer?'

Well, I went to see the person who was the...the officer who was making these seizures on the river, in the middle of the river. I stopped him with a few other boats that were traveling with me, let's put it that way, and as nicely as I was talking to him asking him, "˜We don't need provincial, federal license to fish. It's in our treaties.' He says, "˜That's in the past. From now on you will learn to get a provincial license.' So I says, "˜But we don't have to.' And I was diplomatically I was trying to be...he was just squashing, didn't care about it. So I took it to the next level and I said, "˜Look, sir, if you don't tell us where the boats are that I can go get them, I might have to take your boat.' He just laughed. As soon as I give the signal, our guys are waiting, they shut the motor off and took his equipment out, tied a rope and we towed his boat back to St. Regis to the police station and we seized the conservation officer's boat.

When I got back, then I phoned Toronto, the main office of the Ministry of Natural Resources and told them what I had done and actually they said, "˜This could be an international situation, crisis of sorts so what can we do?' I said, "˜I guess we have to negotiate the release of our boats, half a dozen of them.' They just had elections in Ontario so there was new people there and they said, "˜Well, that man, the officer, is he a hostage, are you holding him in a hostage situation?' I said, "˜No. I'm holding his boat hostage.' "˜Well, is he allowed to go home?' I said, "˜Yep. If he can walk or swim, he can get back across the river, but the current is very strong, so he's going to stay here until we get our boat back.' So pretty well half the night we're negotiating back and forth. The Premiere gets on the phone, he says, "˜I want to put an end to this. I know you don't need fishing licenses to fish in your traditional territories. I'm well aware of that.' He says, "˜So I've got people looking for your boat.' As it wound up it was in Toronto. So he says, "˜We'll have them back by 9:00 in the morning.' So they returned all the boats. Naturally it helped my leadership because I was able to resolve the situation without any violence of sorts. And the same man that made these seizures was the same man that was made to bring them back the next day.

I wanted to see our own people become Conservation Officers so I went back to Quebec federal government in Ontario. "˜Nobody,' he says, "˜We never heard of that before.' Being an international community I picked up the phone, I phoned Albany, New York. They had a state troopers, conservation police training. I said, "˜Can I send some people down to be trained to become Conservation Officers?' They called back and said, "˜I don't see why not. These are dual citizens, you can do that.' So I sent two. Six months later they got home. They had the state trooper Stetson hats, 'Dirty Harry'-type .9 mm pistols, everything that's totally legally in Canada that's...they came back and they're certified police force and they hit the waters to start patrolling.

By that time we had set up our Mohawk Justice Court, we had laws that I had registered with the nation council and they started executing. And that raised in the community a perception that we could take care of ourselves, that we could have law and order and it could be done with our own people. And the attitude on the outside changed too. We didn't always have to be fighting each other. The right people came and the relationship led to us having more police under our jurisdiction, having our own justice, having our own courts and because I was able to diplomatically negotiate these things, it became a much better environment for us, on the river and on land.

I like being, talking about being a good strong advocate, a good leader, but some funny things happened along the way. Those two conservation officers that returned home, within that same week they were on patrol, they got a call from the island I was from and an incident had taken place. I'm in the main village with elders. We were talking about how we could build a new seniors' home for them and they walk in. So all the elders made a big fuss over them. "˜These are the people we've heard about. They've trained and now they're out there on the river, they're looking after our people and are giving out licenses for non-Natives and they're making them buy licenses from us. What a change! And they give them cookies and milk and everything.' They said, "˜We're really here to talk to the grand chief.' So I went over and said, "˜What's up?' He said, "˜Sir, there's been a murder on the island where you're from. We've investigated and found out that somebody in your family is involved and we need to talk to you outside.'

Geez, when you get news like that the first thing you do is boom, it hits you right here. Did somebody die in my family? Did something happen? Did somebody in my family do something? I went outside and he said, "˜There's a farmer up there who called us. We got there and found out that his pig had been killed. And the pig had piglets, six of them. They were all killed too.' And he said, "˜Chief, it was your dog that killed them. You're under arrest.' I said, "˜What?!' The first person on the reservation when they got back from training that was arrested was me and I tried to dispute it. I said, "˜Well, you got no evidence.' They had pictures. There was a trail of piglet parts down to my house, to my farm. Around the house, where he had dug up, there were piglet parts. I was raising an Alaskan malamute. So he was laying there, he had blood on his face; he had blood on his chest. They took pictures, a very thorough investigation. I had nothing I could say but the whole reservation was laughing up and down. "˜There's your conservation officers.' So they marched me across the street to the Justice and charged me and I had to go back for my hearing two weeks later.

In those two weeks, there was a lot of commotion, a lot of discussion "˜cause all I had to do was say, "˜Drop it,' or the elders would say, "˜Don't go there because how hard he's worked to get this program this far.' And people were either for or against. I went to court, I paid the fine and it was done. I said, "˜We have a very efficient peacekeeper and we all have to follow the law regardless who it is.' So that's how the law and order picked up in our community.

I just don't like telling this story but he heard it once and he always asks me about it. Anyway, thank you very much." 

Honoring Nations: Rae Nell Vaughn, Dan Mittan, Henderson Williams, Andrew Jones, and Hilda Faye Nickey: The Choctaw Tribal Court System

Producer
Harvard Project on American Indian Economic Development
Year

Representatives from the Choctaw Tribal Court System present an overview of the court system's development to the Honoring Nations Board of Governors in conjunction with the 2005 Honoring Nations Awards.

Resource Type
Citation

Jones, Andrew, Dan Mittan, Hilda Faye Nickey, Rae Nell Vaughn, and Henderson Williams. "The Choctaw Tribal Court System." Honoring Nations Awards event. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Tulsa, Oklahoma. November 1, 2005. Presentation.

Rae Nell Vaughn:

"[Choctaw language] Good afternoon, everyone. I'd like to take this opportunity to thank the Harvard Project for giving us this opportunity to participate in this exercise. It's really been an education for all of us. Before we begin our presentation, if I could have the group step here into the light. They're off to the wing there. I'd like to introduce members of the Choctaw delegation who are here and also in the audience. We have with us Senior Peacemaker, Mr. Henderson Williams; Andrew Jones, who serves as Diversion Coordinator under the Court Services Department. We also have Senior Judge Hilda Nickey, who serves as the Youth Court Judge. And we also have somewhere, there on the opposite end of the stage, Mr. Dan Mittan, who serves as Director of Court Services.

I'd also like to take a moment and recognize and introduce to the audience and to the board of governors here our tribal council members from the Mississippi Band of Choctaw Indians and if they would stand to be recognized please. The light is pretty bright and I'm having a hard time in seeing them. We have Councilman Mr. Charlie Nickey from the Conehatta Community; Mr. Tony Martin, representative of the Tucker Community; Mr. Ronnie Henry, representative of the Boque Chitto Community; Ms. Phyliss Anderson, representative of the Red Water Community, also serving as Secretary and Treasurer for the tribal council, Mr. Kevin "Jody" Edwards, who also serves as our chairperson for judicial affairs and representative of the Standing Pine Community; and last but not least, Representative Troy Chickaway of the Conehatta Community. Could we give them a round of applause? They have been quite supportive of the Choctaw Tribal Court System. At this time Chief Lyons it's my honor and privilege to present to you the Choctaw Tribal Court system."

[Video: "...Band of Choctaw Indians is purposefully weaving innovation with the traditions, customs and values that are Choctaw. In this significant way they are 'Keeping it Choctaw'. The Choctaw Tribal Court is a court of general jurisdiction that handles cases involving crime, delinquency and child welfare including violence and victimization issues. The court also handles civil matters involving personal and commercial conflicts or disputes. Some of the contributing factors that exacerbate the above case types include substance abuse, poor economic conditions, social justice problems and stressful family and parent/child relations. To address the above cases and contributing factors the Tribal Court established a Teen Court and a Peacemaking Court. Through these specialized efforts the court has unique opportunities to apply culturally relevant and appropriate philosophy, methods and approaches drawn from the Choctaw culture to more effectively handle the needs of children, youth and families affected by crime and delinquency or involved in civil conflict or disputes. Additionally, the court employs two strategies to further support and culturally enhance the day-to-day operations, the internship program and an Indigenous law library. Let's take a quick look at these four outstanding efforts from the Tribal Court of the Mississippi Band of Choctaw Indians that not only helped us sustain it but by focusing on the guiding principles that are Choctaw ways are truly, 'Keeping it Choctaw'." / Hilda Faye Nickey: "Several years ago we decided it was time to not only preserve the wisdom of our elders but to better educate our younger generations of our tribal and founding values by the use of technology available today. We are more than we had anticipated. Probate law is just one important example of our traditional ways of caring for one another in the time of a relative passing have a powerful impact on Choctaw families. We are excited about the potential influence this Indigenous law library project will have on the Choctaw Tribal Court System and our people." / "The Choctaw Indigenous law library perpetuates the foundational Choctaw principles of tribal life by compiling and archiving videotaped interviews with the elders of the tribal community. The elders are speaking in the Choctaw language and there is translation in English for the non-speaker's benefit. Present day situations are the topics for discussion such as the disciplining of children, the qualities that establish a good home within the community, how family and community disputes should be resolved and even how the planting and harvesting of crops are closely linked to times of forgiveness, reparation, restoration and renewal. This oral survey method of validation and discovery is renewing and further establishing tribal ways that are critical to the tribal court for ensuring cultural relevance, appropriateness and competence in judicial practice. It has the potential to reimage the entire tribal court to be more reflective of the Choctaw as Indian people when referenced by the legal community and the public. Every case type, criminal, juvenile, civil and especially peacemaker is benefiting from the outcomes of this project. The practice can be readily duplicated by other tribes for the development of further oral surveys, compiling databases and even developing guidebooks for other cultural documentation. This invaluable resource demonstrates how advanced technology can be effectively used to preserve elder wisdom while promoting Choctaw culture on all paths of life 'Keeping it Choctaw'." / Rae Nell Vaughn: "We know that the children and youth of the tribe are our future. We know that we must provide opportunities for them to obtain skills and knowledge that will take us to an even better way of life while still preserving our culture, who we are. Mentoring is probably the oldest form of education known and it is still very effective. Our summer internship program is a continuing effort by our Tribal Court System that provides invaluable, hands-on experience for committed youth as they shadow our court staff." / "Designed primarily for Choctaw college and high school students the summer internship with the Choctaw Tribal Court System is assisting in the advancement of a qualified tribal workforce. With exposure to historical and significant court and government proceedings at all levels, these young people have a unique opportunity to see government in action. The ultimate goal is to hire these students in any tribal government position guaranteeing true Choctaw self-determination and ensuring the use of traditional and customary law to be the guiding tenets of how tribal government operates. The interns shadow staff in all offices and positions of the court, appreciating that the traditional roles for staff of being a family and community member do not end because one wears a tie or a robe. Submitting a research paper with an oral presentation encourages necessary communication skills for later employment. Visits to other courts and governments also provide a cross-cultural exchange with interns witnessing for themselves how the other systems interact and interface with the Tribal Court System. These meetings in turn demonstrate to government agencies the importance of practicing good intergovernmental relations as we all influence one another and should hold community as a value of highest esteem. Interns understand that the interweaving of tribal knowledge with academically acquired knowledge strengthens Choctaw law systems and advances good government practice while 'Keeping it Choctaw'." / Henderson Williams: "Peacemaker court is based on Choctaw ways we have researched through historical accounts of tribal life, learning the way things were done in Choctaw villages. Cases are sent to Peacemaking from child courts when opposing parties agree to discuss the conflict between them. They arrive at their own common agreement to permanently solve it. This is truly win-win situation. All can be resolved without the lengthy trial court process through Peacemaking." / "Ittikana Ikbi, Peacemaker Court, is an alternative venue within the Tribal Court System to the common adversarial court setting. Confidentially conducted by one of the two Peacemaker judges, each proceeding zeroes in on applying foundational Choctaw values with uncommon methods for application. In fact, the room being built in the new justice center designated for Peacemaking sessions will have no corners. Circular in design it supports and promotes holistic and collective Indigenous approaches to problem solving. Conflicts usually affect more lives than just the obvious ones so Peacemaking is a comprehensive method of dealing efficiently with even the contributing factors that aggravate these surface concerns. Once exposed, the remedies can be found and plans made for healing, damages repaired, relationships restored and all parties possessing a better understanding of the part of the solution that they own. Besides reducing costs by eliminating attorney fees and all the paper involved in the adversarial system, peacemaking methods have been effectively applied in human resource matters and in political settings where disagreements can divide a community. The wise use of customary laws and traditions are being applied to current realities. The legal professionals, including law enforcement, rely on Ittikana Ikbi with frequent referral restoring it as the primary source for solving conflicts occurring in the tribal community. The senior Peacemaker Henderson Williams points out, 'This becomes a major accomplishment when the end result sustains families, brings relief to stressful situations and preserves friendships. This is 'Keeping it Choctaw.'" / Choctaw teenager: "I have been working with Teen Court for two years now. I was scared at first not knowing what to expect but I knew some of the others that were participating so I joined. It has been a challenge so far but I really enjoy it. We learn about how real court works by doing the jobs ourselves and we know that it is a real case so we know it is very important to do the jobs well." / "Choctaw Tribal Teen Court is designed as a diversion for juvenile offenders that would otherwise enter the formal youth court and be placed on probation. A juvenile offender stands before his peers for an age appropriate disposition that many times includes an immediate verbal apology to the parents. Often a lengthy embrace comes next with tears. This kind of restorative justice just doesn't happen in the adversarial setting and is a clear application of the foundational Choctaw principles of tribal life. Though this jury and all other positions except for the judge is made up of young but well trained Choctaw teens, their demonstrated wisdom is proven well beyond their apparent youth and supposed innocence. One of the unique aspects of the structure of Teen Court is that an offender is required to serve on a jury at least twice. When they listen to others with the same problems, compose age-appropriate dispositions side-by-side with other teen volunteers that are already living responsibly, as well as perform community service work and attend additional training on social problems together, they become a valued part of a worthwhile endeavor making significant changes in their own way of life, an outcome of Choctaw teens mentoring Choctaw teens. Several programs are involved with the training and several of our participants are entering the Tribal Court Summer Internship Program. Finally, recognition for service performed is a critical part of the positive environment established through Teen Court as recognition banquets are held twice a year. Teen Court provides juvenile offenders the safe pathways needed to achieve restoration through Choctaw methods of apology and forgiveness and familiarity with other Choctaw principles. That's 'Keeping it Choctaw'. Through these four works the determined weaving of innovation with the traditions, customs and values that are Choctaw is resulting in a path to Indigenous justice that secures the peace and dignity of all within the tribal community. The Tribal Court System of the Mississippi Band of Choctaw Indians is unwavering in its commitment to serve the Choctaw people yesterday, today and in the future. [Cherokee language]. Thank you.]

Heather Kendall-Miller:

"I'll begin with the questions. I can tell you we were all very, very impressed with your program and especially the Teen Court Program. It's marvelous that not only have you brought that level down to children to get them to take responsibility for their lives but you've given them the tools to be able to do so. And I, as I was watching this I was wondering in my head whether or not the program actually included a way for children who were defendants to be integrated into the judging process and your video explained that nicely. So thank you for that. I do have a question and that is related to the support that the court gets form the tribe in general, obviously you've got quite a turnout from your tribal council and that speaks volumes and that's really wonderful but you've been struggling to get into your building for a number of years. What's up with that?"

Rae Nell Vaughn:

"Who should I defer that question to? It has been one that has been a challenge for us and that's more of an issue for the executive and legislative branches to answer. I don't know how else we can define that, but we have been progressing as well as we can with the tools that we have and it's quite evident with the work that we're doing and yes they are very supportive. I think like any other tribe we have pressing priorities. Everyone is a priority. The court is not any higher than our health needs, our education needs, we're all a priority to the council, and I have great confidence and faith that we will get that building completed and we will be in there and we will be able to provide more services and forums for our membership and for the members of our communities."

Heather Kendall-Miller:

"If I may just ask a quick...another question. One of the things that I was intrigued about as well in the success of your court system is the relationship that your tribal court has with the state court system. I assume it's one of mutual respect. Has there been a rocky road in the past in that regard or is there a relationship now in which both courts give full faith and credit to each others' decrees?"

Rae Nell Vaughn:

"Well, I think that there has been somewhat of a challenge with our relationship with the state. However, we were able to have a very historical meeting this past summer at our Justice Symposium, the first opportunity for the Supreme Court of the State of Mississippi and for the tribal Choctaw Court System to meet, which again speaks volumes of this relationship, knowing of the history of the State of Mississippi, knowing the history of the Mississippi Band of Choctaw Indians, to have had this opportunity and to have that mutual respect for one another I think speaks volumes. We've had other occasions and opportunities however for this formal opportunity was one that we...I would never have expected to see it and it has happened. I'd also like to have Henderson Williams, our Peacemaker, who would like to also join in and answer."

Henderson Williams:

"In response to that question, it brings to mind just recently the very first time this has ever happened, county court referred a case to Ittikana Ikbi, the Peacemaker Court. There was a case where part is involved in the county court, the state court, had conflicts and the judge referred that case to our peacemaking court. This is something that has never taken place and I believe we have started a good association with the county and the state in that we are working on this case. If we can resolve it and maybe other cases will come along and I'm looking forward to a continued relationship with the county, with the state, particularly in my field that is in peacemaking. Thank you for that question."

JoAnn Chase:

"I join Heather in congratulating you on an outstanding court system. I was particularly struck also by the teen court and the innovative nature of the teen court, and was wondering if maybe you might expand a little bit on some of the information that was provided in your video. I'm particularly curious about the opt-in process and thought that that was quite unique and innovative and would like to hear just a little bit more about that. And then, and similarly perhaps some of the impacts, if you might expand a little bit if you have any kind of...the impacts of the teen court, for example lower recidivism rates, any possible statistics you might be able to share with us as well regarding that impact in the youth community."

Rae Nell Vaughn:

"Okay. What I'd like to do at this time is defer that question to Andrew Jones, who is our diversion coordinator and who runs our teen court."

Andrew Jones:

"As for the recidivism rate, I can honestly say that with the teen program we've only had one child to actually come back to be sent back to the former youth court. And as for the expanding it, just recently we started, we actually placed teen court in the schools because the schools [were] having, they're having problems with their own issues and instead of bogging the former youth court down we decided to use teen court with it instead of just actually using the former youth court."

Dan Mittan:

"If I could...I'm not sure that we understood the first part of your question. Was it about the opting in? What was that?"

JoAnn Chase:

"Yes, it was. It was about the opt-in process. I was referring to some notes and I just was wondering if you might expand a little bit on that process and if it was exercised regularly and so on, and if you wouldn't mind doing that that would be really helpful. Thank you."

Dan Mittan:

"I'm still not sure I understand but...except that the juvenile offenders, this is a diversion, so instead of going into the formal youth court program they're diverted out into this and then as a part of that they have to serve at least two times on the jury. Well, in the middle of all this training just to partake in the process of being...serving on the jury the training sessions are so interactive so that they find themselves in a different peer group and we think that because of that relationship building within that peer setting they find new friends, things maybe that they thought they were like before and then they realized when they actually rub shoulders with them and work on projects together they're not like that and so we're seeing bridges crossed even between the little groups amongst the teens. And I would just further add that we end up then, those kids, once their time with teen court is over with, they actually come back to say, 'Hey, I want to be a prosecutor this time or I want to be the defense attorney.' So it really is a perpetuating thing."

Michael Taylor: The Practical Issues of Business Development - Some Things to Consider: When to Waive Sovereign Immunity (or Not)

Producer
Native Nations Institute
Year

Tulalip Tribes' Attorney Michael Taylor explains when tribes should and should not waive sovereign immunity and why. He also discusses some effective approaches to doing limited waivers of sovereign immunity, and stresses the importance of Native nations building a track record of fair and effective use of the sovereign immunity waiver as an important tool for exercising sovereignty.

Resource Type
Citation

Taylor, Michael. "The Practical Issues of Business Development - Some Things to Consider: When to Waive Sovereign Immunity (or Not)." Building and Sustaining Tribal Enterprises seminar. Native Nations Institute for Leadership, Management, and Policy, Udall Center for Studies in Public Policy, University of Arizona. Tucson, Arizona. March 29, 2007. Presentation.

Michael Taylor:

"I want to say my main experience all these years has been using tribal corporations like CTEC [Colville Tribal Enterprise Corporation], which is a special kind of tribal corporation. I call it a tribal governmental corporation. What's a governmental corporation? The post office is a governmental corporation, Amtrak, the Corporation for Public Broadcasting; those are governmental corporations and that's what CTEC is. And that's what Wright vs. CTEC is about, this tribal governmental corporation. But every tribe that I work with has a modern Section 17 corporation. Why? Why is this? Because, for example, over at Colville, they have this corporation. Occasionally I get calls from the rez attorney's office over there and they say, "˜Now, Mike why do we have this Section 17 corporation? We don't remember.' So I have to tell them, "˜Why do we have it?' When I went to Tulalip, they had a Section 17 corporation, it was an old one, 1930s vintage, the language was terrible. So we got another one. The original one had only one asset. It was a Superfund site, a polluted, a highly polluted Superfund site. So you don't want to put other stuff into that corporation. You need a new one because that corporation had enough stuff in it; that was the problem. Why do you need a new one? And I went to Ada Deer, I think [she] was the Assistant Secretary of Indian Affairs at the time, and I said, "˜I want another Section 17 corporation.' And she said, "˜You can't have one, you can only have one.' And I said, "˜Where's it say that?' So we got another one and it doesn't have anything in it either. Okay, why taxes? These forms of corporations are, it's, at this juncture, unclear as to whether the IRS considers the income of these tribal corporations as taxable. They made some moves on this some time ago and they decided that state corporations owned by tribes, whether they were wholly owned or not, the income is taxable. Corporate income tax is due on the earnings of these corporations. But they stopped and so we don't know what this, what the income of this entity is in terms of the views of the IRS. So the Section 17 Corporation sits out here as kind of a tax lifeboat. If our entity starts to sink in the troubled waters of the IRS, we move the assets to the Section 17. So don't start doing business and think you're okay without this Section 17. And if you have an old one, I think you should get a new one. It's easier to get a new one than to try to amend the old ones. That's my comment.

Sovereign immunity: when to waive it, when not to waive it. Well, how many people in here think that if you waive sovereign immunity it weakens your sovereignty? How many people think that? I would say, sometimes, at the risk of being charged with showing off, I sometimes do a push-up at this juncture right in front of the crowd. And the reason is to make the point that sovereignty is a power, sovereign immunity is a part of that power and whether you're waiving it or asserting it or writing it into an ordinance or a contract or whatever it is, you're exercising it, and indeed waiver strengthens it. It strengthens it, by actually showing that you have it and putting it out there in whatever form. So the waiver of sovereign immunity -- this is an issue with a lot of tribal people and a lot of tribal councils, they're very worried that waivers, however they're written, whether they're written sloppily, which they sometimes are, or whether they're written carefully, will somehow erode tribal sovereignty, and that's not true at all. It's an exercise of a power. Waiver is the same thing in technical legal terms as asserting it in a lawsuit or some other way. So it doesn't weaken tribal sovereign immunity...or tribal sovereignty to execute a waiver. Got it? Do I have to do the push-up? I can do it. When I go down, that's a metaphor for waiver. It strengthens me in the same fashion as when I come up. So that's my take on it. Is that right? I don't know. I made that up.

When do you waive it? When you're asked. If you're not asked don't do it. The Tulalip Tribes is a party to literally hundreds of contracts all the time. Uniform cleaners, rug cleaners, towing cars, building hotels, and when the other side comes in and says, "˜Well, here's the contract,' or asks us to write the contract, we write the contract. If the other side knows that they've got to get a waiver in order for the contract to be enforceable, then we start working on it. But if they don't, if they don't ask or they don't care, sometimes they just don't care, then we don't go up to them and say, "˜Hey, we're sovereign, you can't... if something happens under this contract to say that you have a claim against us, unless there's a waiver in here, you can't do anything about it unless we agree to it.' You have to be asked; B of A [Bank of America] always asks. They all say, "˜Oh, yeah.' I've never met a B of A guy that didn't ask. Right away, it's the first thing they ask."

Brian Spencer:

"It's a starting point. If you can't get beyond that, then we're not going anywhere. It's got to be there."

Michael Taylor:

"If it's part of the deal, then you work on it and you craft it carefully. You pay attention to what the issues are and you work on it. So the most common waivers that we have at Tulalip I'd say are major lending contracts, contracts for construction, the construction firms have now gotten savvy to this, and so they're immediately asking for a waiver. There are lots of other ways, other places where you should waive your immunity. Tribal civil rights act: you should have a tribal civil rights act. People can sue the tribe if the tribe damages them in some way and it should have a waiver in there. Tribal tort claims act: we have a tort claims act. All our cases go through tribal court. Tribal tort claims act: if you follow the process and you've been injured by the tribe, you're going to get paid something to make you whole. And as a hospitality entity, we've got to do that. If people fall off the curb at the casino parking lot and it's our fault and they injure themselves, it's quickly going to be known around the region that you shouldn't go to the Tulalip Casino because you can fall off the curb and hurt yourself, the tribe's going to raise sovereign immunity and you can't collect anything. So people are not going to come. We're in the hospitality business; we've got restaurants, we've got an amphitheater, we've got all this stuff. We need to make sure that tribal sovereign immunity is not an impediment to people getting reasonable compensation if they're injured by the tribe. Another piece of that is you've got make sure that you're insurer recognizes tribal sovereign immunity and sovereignty and writes into the contract that they can't raise it. When Joe [Kalt] comes to see the casino and falls off the curb and hurts his knee and so he makes a claim and we take the claim and give it to the, he follows the tribal tort claims act and we take the claim and give it to the insurer, we don't want the insurer saying, "˜Sorry, Joe, sovereign immunity, you don't get anything,' because then we'd be paying for insurance that's worthless. We pay a whole lot money for insurance to cover Joe when he falls off the curb, and if we don't get our insurer to say that they won't raise immunity, we've just paid for nothing because they stand in our shoes when Joe is injured and they can raise all the defenses that we have.

Tribal grievance procedures, tribal employee grievance procedures: set up this code to deal with tribal employee grievances. And now I work with a tribal chairman who's 80 years old. He can remember when the tribe didn't have any employees at all. Now we've got 3,000 or 4,000 or something like that. So they're always grumpy, aren't they? They're always after you for something and we've got a raft of codes and procedures to deal with grumpiness because that's part of life. And when they come into the tribal court where most of our grievance procedures end up, if you don't like what the administrators do and that sort of thing, and the tribe waltzes in and says, "˜Hey, wait a minute judge. Sovereign immunity -- can't do anything with regards to this,' you're not doing the right thing. All the stuff that you've done in personnel and HR [human resources] is worthless because the person can't get their grievance heard. Housing appeal, same kind of thing. Tribal self-insurance programs; we have several self-insurance programs. They're much cheaper than buying insurance, but they require us to waive our immunity so that the people who are relying on these insurance programs, if they don't agree with what they got, worker's comp [compensation] is a very common one, that they can go to tribal court and that requires a waiver of immunity. In my mind, there's a lot of reasons why you want to set up these numerous waivers. You get, I get, my office gets sometimes, we haven't had a lot of them, but you get claims of waiver of immunity where there was none. So you want to be able to show that the tribal council knows how to waive immunity and has done it numerous times so you can go into court, federal, state or tribal, and say, "˜Look, your honor, there isn't any waiver here and I can show you why because there are plenty of tribal waivers that have happened and here they all are.' They're resolutions and in ordinances and sections of contracts and that sort of thing. The tribal council knows that as the only entity that has the power to do that is the tribal council, in some cases delegated power to someone else but the tribal council and here's how they did it and there's no other way to do it and here's all the list of the waivers that have happened. So this claim that the tribe somehow inadvertently waived sovereign immunity isn't valid. So in corporate enabling acts, tribal court jurisdictional statutes, enrollment ordinances, you want to create a pattern. If you're a serious tribal governmental entity, you want to create a pattern and this is the way you do it.

We're building a hotel now. It's, I don't know, $160 million or $260 million or whatever it is. My mother advised me not to sign the loan documents. She said, "˜That's way too much money.' We sent out a request for proposals for contractors and the lowest bidder was this company, it's a big company, Canadian company, but they've got an American division. It's called PCL Construction; maybe you've run into them. They wanted a waiver of immunity and we said, "˜Fine.' And we worked and worked and worked on this waiver of immunity but at the end of this, not at the end, in the middle of this, they said, "˜We want state court.' We did an arbitration provision, which allowed disputes to be arbitrated by an appropriate arbitrator, but arbitration awards have to be enforced by a court. There has to be a court out there that will enforce the ruling of the arbitrator. The arbitrator doesn't have judicial authority. Arbitrators can, under the contract, act like a judge, make an award to one side or the other, but if one side or the other won't follow the directions of the arbitrator, the ruling of the arbitrator, you have to have a court at the end, federal, state or tribal. Federal court doesn't work in this circumstance. I won't tell you why because I've only got 50 seconds. PCL said to us, "˜We won't accept your tribal court.' You have to waive immunity in state court. So, we got another contractor. We just finally said, "˜We're not doing it. We put a lot of work into this tribal court.' Joe gave us an award recently. Our tribal court's good. We've got good judges, we've got a good court of appeals, we've got good ordinances, we even took the extraordinary step of having the chief trial judges in tribal court go over and sit down with the president of PCL and tell him, "˜Look, the tribe -- here's the ordinance -- the tribe has given me authority to enforce arbitration awards. I've got 40 years of experience both as a lawyer and as a court commissioner in King County, Seattle.' He's an Indian, he's a Colville Indian, but he said, "˜Look, now I'm not going to decide on your case when there isn't a case, but if there's an arbitration award I'll enforce it.'

We have built an institution, our tribal court as part of our sovereignty, and if they don't accept it, let's get somebody else. And they did. So that's when you don't waive. That's when you say, "˜It's affecting our sovereignty and we're not going to do it.'"

From the Rebuilding Native Nations Course Series: "The Citizen Potawatomi Nation's Path to Self-Determination"

Producer
Native Nations Institute
Year

Professor Joseph P. Kalt describes the dramatic rebirth of the Citizen Potawatomi Nation, citing its development of capable governance as the key to its economic development success.

Native Nations
Citation

Kalt, Joseph P. "Constitutions: Critical Components of Native Nation Building." Native Nations Institute for Leadership, Management, and Policy. University of Arizona. Tucson, Arizona. 2012. Lecture.

“I’ll tell just one story about constitutional reform. On the left, you see a picture of basically the entirety of the Citizen Potawatomi Nation of Oklahoma in the mid-1970s. This tribe -, well-documented -- in the mid 1970s, this tribe had two-and-a-half acres of land, 550 dollars in the bank, and that house trailer. That’s their tribal headquarters. Some tribal members that have been out there said they remember their parents talking about, ‘The house trailer is the boxing ring,’ because there would be cycles of impeachment where the tribal chairs would be impeached or removed from office. And the new guys coming in would come in and have to physically fight to get the old guys out. And they tell a famous story , they’re proud of this story in a certain way because of what I’ll put up on the right in a second. They tell a famous story, that house trailer, one of the impeached chairs of the tribe, his son is at the front door of the house trailer, ‘Dad! They're coming to kick us out!’ So dad’s afraid of getting beat up, and he kicks the side out of that house trailer and jumps in one of those cars. And Citizen Potawatomi points out that those are the three worst cars ever built. It’s a Ford Pinto, a Gremlin, and a Dodge Dart.

And today, Citizen Potawatomi Nation basically owns Shawnee, Oklahoma. They are not only the economic engine, they are the political engine of their region of Oklahoma. And just recently, in what may be one of the most striking instances of the effective assertion of tribal sovereignty, a local town, non-Indian town has opted into the Citizen Potawatomi Nation’s court system. This is like real sovereignty when somebody says, ‘I want to be under your system of government and your court system.’ Well, this is a fascinating development. And part of story is well, how did it happen? And time and time again where you see these dramatic turnarounds, Citizen Potawatomi on the left mid-1970s, today Citizen Potawatomi Nation, engine of Shawnee, Oklahoma economically, politically, socially. They’ve taken a community -- these are Okies -- in the 1930s, this community was scattered like so many other people in Oklahoma. Consequently, they have Potawatomis all over in places you can associate with the Dust Bowl effects: Bakersfield, California; Fresno, California; Sacramento; Phoenix; other places. They now run tribal council meetings essentially with simultaneous big-screen TVs in multiple communities, and they’re building sub-headquarters, essentially. I think they’re trying to buy land in Phoenix right now to build one. I believe they’ve opened one in Bakersfield or Fresno, Sacramento, something like that. They basically used their development prowess to bring the community back together. How do they do it? Well, it's very interesting. The story they tell, and so many tribes with these dramatic turnarounds tell this story. I can’t tell you how many times , you’ve heard these famous cases of economic development: Mississippi Choctaw, Mescalero Apache, some of these places in the 1980s that started to break the patterns of poverty and dependency. And we go -- twenty years ago when I had more hair, I’d go out and interview some of these tribal chairs. ‘What’d you do to turn things around?' And I’d expect them to tell me stories about business. No. Almost invariably, they tell me a story, ‘We changed our constitution. We changed our constitution.’ There's a link here, a strong link, between economic development and constitutions. Turns out, economic development and the curing of so many of the social ills that come along with poverty, dependency and so forth -- economic development is fundamentally a challenge of governance, not resources. I go out and I go to conferences in Indian Country all the time and I keep hearing, ‘Oh, we need more resources and better training.’ It’s true, resources and training are useful; but if you can’t govern yourselves, everything falls apart."

From the Rebuilding Native Nations Course Series: "Giving the Justice System the Support It Needs"

Producer
Native Nations Institute
Year

Native leaders and scholars share some critical ways that Native nations can support their justice systems to ensure their effectiveness.

Native Nations
Citation

Hershey, Robert. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 6, 2010. Interview.

LaPlante, Jr., Leroy. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

Pommersheim, Frank. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 11, 2010. Interview.

Pouley, Theresa M. "Reclaiming and Reforming Justice at Tulalip." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 26, 2008. Presentation.

Vaughn, Rae Nell. "Tribal Justice Systems in the 21st Century." Indigenous Peoples Law and Policy Program, University of Arizona. Tucson, Arizona. September 16, 2009. Presentation.

Vaughn, Rae Nell. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 15, 2009. Interview.

Rae Nell Vaughn:

A lot of courts in Indian Country are set up the way we are. They’re statutory courts, and sometimes aren’t given the respect that they should be given. Let me assure you, tribal court is not a program. It is not a social program. It is a forum that is established to protect the people and enforce the law. But for whatever reason, and there are many I’m sure, there continues to be this tendency of a perception that these are just programs. Tribal court is nothing more than a program like social services, like legal aid -- it’s just a program.

Theresa M. Pouley:

Your law and justice system must be part of the whole tribal system. You have to be prepared as tribal council people, and tribal judges have to be prepared to stand shoulder to shoulder with their elected officials to say enough is enough, to say that it’s time to help our relatives heal.

Frank Pommersheim:

You’re involved with human beings, and I think from most tribal points of view is that they don’t want to cast those individuals out, but they want to try to hold on to them and work with them and try to reintegrate them into the community. And to do that, you need resources and capacity. And in the real world, that means having adequate law enforcement, having a fully-scaled tribal court system, having institutions that can help offenders who have been convicted or pled guilty. I think that those things are really, really important.

Leroy LaPlante, Jr.:

I think, at least, our tribal officials need to recognize our court system as a stand-alone entity that has a specific function, a very important function. What the courts do is so vital to tribal sovereignty. It is so vital to self-determination. It is so vital to us. You know, if we want to engage in any type of regulatory authority on the reservation, our courts have got to be equipped to be able to carry out adjudicating any matter.

Robert A. Hershey:

First and foremost, freedom from political interference. I think that’s pretty well-recognized, right? Qualified judges who receive the adequate training to deal with all manner of cases, because there’s an escalation of the number of cases coming in front of tribal courts with an escalation of the population on the reservations. And then there is escalation in the complexity of cases that come before it. So, independence, adequate training, adequate funding for programs, adequate court staff, technology that supports this.

Rae Nell Vaughn:

If you don’t feel that support from your government, then obviously the community’s not going to support you as well; and those are some key things that have to happen is to have that support. Now you and I may argue here, but when we step out as a judiciary and as a government, we need to be unified, because each of us as a legislative body and as an executive body -- whether we’re a judicial branch or a statutory court -- we still have to work and maintain as a stable government, because if your leadership is bad-mouthing you, judicial system, what does that say of the leadership?