tribal courts

From the Rebuilding Native Nations Course Series: "What Strong, Independent and Legitimate Justice Systems Require"

Producer
Native Nations Institute
Year

Native leaders and scholars discuss what Native nations need to do to create strong, independent and culturally legimate justice systems.

Native Nations
Resource Type
Citation

Fineday, Anita. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 5, 2010. Interview.

Jorgensen, Miriam. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Spearfish, South Dakota. Apil 19, 2011. Interview.

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

Laverdure, Donald "Del". Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

McCoy, John. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Cambridge, Massachusetts. September 18, 2009. Interview.

Tatum, Melissa L. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. January 25, 2012. Interview.

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

Yazzie, Robert. "Why the Rule of Law and Tribal Justice Systems Matter" (Episode 3). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy and the UA Channel, The University of Arizona. Tucson, Arizona. 2006. Television program.

Leroy LaPlante, Jr.:

“I think a strong, independent tribal justice system, first of all, is tribal. I think that it should be tribal in the sense that it knows how to deal with tribal issues. And yet it’s diverse enough to handle and adjudicate all matters that come before it. I think you should have competent judges. I think that you should have strong advocacy for clients. And it must have a way of measuring its performance. But yeah, a strong tribal system should be tribal in nature. In other words, what I mean by that is, it shouldn’t just be a boilerplate replication of what a state court looks like and promulgate those laws. But those laws should be traditional in nature. It should reflect our customs. It should reflect our customary law, our traditional laws, and we should know how to deal with those and inject those viewpoints into our decisions.”

Melissa L. Tatum:

“I don’t think I could draw you a picture of a strong and independent court system, because they can take so many different shapes and many different forms. I can tell you what the support beams are, and then the way the drywall and the paint and the decorating is going to be different. And the support beams may be put together in a different way to form shapes for different tribes. But you’ve got to have an independent judiciary, you’ve got to have the funding to be able to resolve the disputes, you’ve got to have someone to make a connection between the past and the present, and you’ve got to have the capacity to solve the disputes the community brings before you in a way that everybody accepts as legitimate. And that’s what a strong and independent court system looks like. Now that may be a peacemaker system, that may be an Anglo-style adversarial court, that may be a hybrid of the two. That may be, you know, the court may be in a single-wide trailer; the court may be in the most absolutely beautiful, technologically up to date building. But it can take a wide variety of forms. Its function is what’s critical.”

Miriam Jorgensen:

“I think that we oftentimes trip immediately to saying, ‘Oh, that justice system has to be a sort of Western-style court system.’ And in fact, I almost always find myself using the word court. But, it doesn’t have to be a court with the judges and robes and the bench and all that kind of stuff. It has to be a dispute-resolution mechanism that’s effective and efficient and transparent about the way decisions are made, and that can hold people to those decisions. But it can be as indigenous as you like. It just has to be one that works to meet those standards.”

Donald “Del” Laverdure:

“I think it needs independent decision-making authority without political interference, first and foremost. Secondly, I think it needs to be fully funded. My experience among tribal justice systems -- and I have served on a handful and also helped create a number -- is that they need the funding to have the staff, the clerks, the recorders, the people keeping track of the files. It’s absolutely critical for all of the day-to-day functioning. The third thing, I think, for them is to apply that nation’s law according to how they view it. And I think the Navajo Nation really has emerged as a leader in fundamental or Diné  law in their statutes, interpretation of those, and it’s widely accepted by the community. I think we’re making steps there. It’s always two steps forward, one step back. And I think if we have all of those markers that it’ll be the institution that we need to be independent and stable.”

John McCoy:

“They have to be independent. They have to be independent and not worry about political consequences. So consequently at Tulalip, the court system comes in, here’s the budget. So normally, without hesitation, they say, ‘Okay, here’s your money.’ They can’t tell them how to spend it; they just give them the money. And then the court administration then takes care of the budget. So you have to give them that autonomy.”

Anita Fineday:

“Well, you need to have a few things. Number one, you need to have independence from the tribal council, from all elected officials, whoever they may be. And this is a struggle in Indian Country, as we all know. It routinely happens that tribal judges are replaced if they issue a decision that is really unpopular. And so the tribal court needs to be independent, and it needs to have adequate funding. That’s the other thing that happens is I’ve seen tribal councils say, ‘Well, we’re not going to get rid of the judge, but we’re going to cut off all funding to the tribal court.’ So no one is getting paid any longer. So you need to have an independent stream of funding. You need to be independent of the elected officials. And you need to not fear that if you issue a decision that’s unpopular, that you’re going to lose your job.”

Rae Nell Vaughn:

“It’s just so important that when we have issues that come up through tribal court systems, that as a judiciary you’re giving well thought-out opinions, and it’s ironclad so that you can’t -- it won’t be unraveled. And there you go, you’ve lost more jurisdiction.”

Robert Yazzie:

“When Navajos go to court, they expect certain things to happen. One is to say [Navajo word], which means ‘my mind will become at ease’ when this problem that I have is addressed. And people look for a satisfied result. And so when people feel confident with the court system, especially establishing a relationship with the judge, knowing that the judge’s role will be carried out to bring peace to the problems at hand.

From the Rebuilding Native Nations Course Series: "Justice Systems: Key Assets for Nation Building"

Producer
Native Nations Institute
Year

Professor Robert A. Williams, Jr. discusses how an effective, independent justice system can play a pivotal role in a Native nation's efforts to exercise its sovereignty and strengthen its communities.

Native Nations
Citation

Williams, Jr., Robert A. "Justice Systems: Moving Your Nation Forward." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. 2012. Lecture.

“And so when you think about the key assets for Native nation building, so that you can have practical self-rule, you think about -- first and foremost -- the constitution. It starts with your constitution. It’s your governing document. And as I went through that history, many of you have inherited constitutions that really weren’t very well-suited to your needs 50 years ago, how well do you think they are suited to your needs today? Ask yourself, ask your grandmothers, ask your grandfathers: ‘Have we grown any better into our constitutions in 50 years?’ And I think every answer, in every instance is, ‘No, it still does not fit. It still doesn’t feel right.’ And the same discomfort that you've had with those constitutional clothes is the same discomfort that your grandparents had -- that prior generation -- and until we learn to throw off those bad-looking, ugly clothes that don’t fit, and figure out what it means to have a tribal constitution, we are never going to be very comfortable in our constitutional skins. So you have to take the process of constitutional reform very [seriously].

What's the second necessary element for practical self-rule? You've got to have laws. And by these I mean all sorts of laws: your own customary laws, customs and tradition, your own statutory laws. Go through your tribal code book and try and figure out where your juvenile code came from, where your criminal code came from. I bet you eight out of 10 times some consultant, or somebody in your tribal attorney’s office went to the state juvenile code, put it up on a word processor, knocked out ‘The State of Arizona’ and put your tribe in there. And sometimes the tribal attorney will say, ‘Well, this way our tribal code on juvenile justice harmonizes with the state code.’ That's a scary thought. But you ask. And so tribal law means that you have taken on the responsibility of passing laws that make sense for you -- just don’t accept anyone else's hand-me-downs that don’t fit very [well].

Are you not only legislating, but are you regulating? I know one reservation I work with has over 40 different agencies generating codes and you can’t find them in one place. So imagine, if you want to do business on that reservation, you have to knock on the door of 40 different regulatory agencies just to get your business started. And foreign laws [are] also a piece of a practical self-rule. The Indian Civil Rights Act, the Indian Reorganization Act -- many areas of foreign law that are a part of the process.

And so when you think about those key elements of practical self-rule, what’s the key institution that makes it all work? Tribal courts. You need an independent judiciary interpreting and enforcing the constitution and tribal law. All of these elements are absolutely crucial, and the only way to make them work is to have an independent judiciary.

From the Rebuilding Native Nations Course Series: "Test: Does Your Nation Have an Independent Judiciary?"

Producer
Native Nations Institute
Year

Professor Robert A. Williams, Jr. shares a short test to help a Native nation and its leaders and citizens determine whether or not their judicial system is truly independent.

Native Nations
Citation

Williams, Jr., Robert A. "Justice Systems: Moving Your Nation Forward." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. 2012. Lecture.

"So, like Miriam, I'm going to ask you to take a test to see whether or not you have an independent judiciary on your reservation. Get out your pens, check yes or no, and we'll tally at the end:

On my reservation, the Chair is related to the Chief Justice -- yes or no?

On my reservation, the Chair is poker buddies with the Chief Justice.

On my reservation, judicial review means the Council can review any judge who makes an unpopular decision and fire him.

On my reservation, checks and balances are something the tribal finance office can’t keep track of.

On my reservation, separation of powers means the Council doesn't ask questions about the judiciary's travel expenses, and the judiciary doesn't ask questions about the Council's.

On my reservation, the question of whether the tribe has waived its sovereign immunity is something that only the Council can decide.

Now, if you had six to five "no's" you are very independent, but if you only had one to two, it's kangaroo court city, babe. Where do you stand on that test? And as tribal leaders, you need to engage honestly with this issue of, 'Are you ready for an independent and strong tribal judiciary?'" 

Joseph P. Kalt: Sovereignty: Your Best Tool for Development

Producer
Native Nations Institute
Year

Harvard Project on American Indian Economic Development Co-Director Joseph Kalt share some innovative ways that Native nations have exercised their sovereignty in order to foster sustainable economic and community development.

Native Nations
Resource Type
Citation

Kalt, Joseph P. "Sovereignty: Your Best Tool for Development." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 25, 2009. Presentation.

Joseph P. Kalt:

"What I'm going to do is...this is fun for me. Part of what our jobs let us do -- [because] we work for universities and we don't really have to work -- is we get to drive around a lot and see the world and see really cool things out there. And so the real title of my talk is ‘Some Cool Ideas We See Out There That Might Be Interesting to You.' [Because] part of our job...I had, actually, a tribal chairwoman up in the Pacific Northwest one time say to us, ‘Oh, I get you guys. You're just a pipeline; you suck up information over here and shoot it out the other end.' [Because] you guys are too busy. You don't work for universities; you don't get to run around like we do and just sort of hang out. Really, some cool ideas we see out there, maybe they'll be useful to you. But the theme is, the theme is ‘Sovereignty is your Best Tool for Development.' You can feel in these sessions the only policy that's ever worked to turn things around in Indian country -- rebuild the communities, give people jobs, rebuild families -- is self-determination. That's the only policy that's ever really worked. Why? Well, sovereignty is a tool of development. I'm just going to show you (if I can figure out how this works...see I can do it; here we go) some cool ideas, things we see out there, people using their sovereignty as an asset, just like having money in the bank.

Create a city: what a cool idea! All around the earth we human beings, everywhere, we create little towns. Just pause and think about it. We do that, that's what we do. And they usually have a title like alcalde, if you're in Mexico, or mayor or something like that, whatever. You go out in Indian Country and quite often, there's only one town with any government. It's in the central, where the tribal headquarters are. Why is that? Why don't we see more? Not just a little community, but a real self-governing town? We human beings do this because someone's got to decide what the speed limit is down there on the road. Someone's got to decide, 'Where are we going to locate the solid waste facility?' Somebody's got to decide these very local things that all over the world we human beings have to face, but you don't see it in Indian Country. The tribal government, the central tribal government does it all. Why is that? ['Jurisdiction.'] What do you mean? She says 'jurisdiction.'"

Audience Member:

"The town of Mission, on the Rosebud Reservation in South Dakota, is the only real city in Mission, South Dakota. And they have their own functioning city council and this kind of thing. So it's a jurisdictional issue for us because if a non-Indian gets a DUI, then the city sheriff would pick them up and haul them in."

Joseph P. Kalt:

"And one of the reasons everything out there is run through the central tribal government is because historically, when the feds controlled everything, they only wanted one government to deal with, partly so they could control everything. ‘If I channel all my money through you, name you tribal chair; well then I can control everything.' And so you've got this legacy out across Indian Country of -- like you say -- no towns, in the sense of little governments. Not big governments trying to rule the world, but just getting the little things of daily life done. Alright. So there's some real cool cases out there.

One of the fastest growing towns in Indian Country for the last ten years has been Kayenta on the Navajo [reservation]. Interesting. Notice how I wrote that. That's the way towns identify themselves. You don't see that in Indian Country, right? [Because] of this legacy of, ‘We're going to channel those dollars so the federal government and all the power through the central tribal government [because] we want to control that. We don't want real self-determination for tribes. We want to control it.' What did Kayenta do? Well, they went out and basically said, ‘Darn it, we're going to create a town,' basically, a township. And they said, ‘We're having trouble with things like, well...' It's no different than any other nation. They were complaining about the central Navajo Nation government, just the typical thing. There's nothing wrong with central Navajo Nation, it's just they had local needs down on the ground, so they go in and they create a township.

They didn't levy taxes. They're not called taxes; they're called fees, little business fees. And they convinced the local, very small business owners and so forth, ‘Look, if you'll pay small fees to support what we're doing, we'll go out and do things like go in and do all the archaeological surveys we need to do as one big block and create a little industrial or business area.' Because what was going on was every time anyone would want to open a business, it'd then take 18 months to do...’Well, we'll go do it ahead of time and figure out, okay, this is a safe place for our history. We can have some business. Oh, we'll also use our little fees to put in, oh, water lines, buy a fire engine,' the things that towns do, okay? Oh, and they promised the community business permits. ‘You submit a permit,' I think they said, ‘we'll have it to you within 10 working days,' not two years -- fast. We'll try to provide local service for you.

Here's another case. Quil Ceda. Quil Ceda Village at the Tulalip Tribes north of Seattle. This is a really cool case. Sort of like, ma'am, like what you were saying about Mission. Well, they're a little frustrated. They're sitting next to Marysville, Washington and Seattle sort of dominating them. So they went out and they created a village. And it's this chartered city. It's a separately chartered city. It's a separately chartered city. This is actually their charter. That's actually part of their charter. They said, ‘We're going to exercise our sovereignty and...' you can just eyeball it there. ‘There's going to be a village council, there's going to...' the bottom right-hand corner, ‘we're going to start putting in our own public utilities.' They actually now have a company that runs the fiber optic system on the rez and it's taking over the cable television operation and the telephone operation and all the data stuff and so forth. They have ordinances and resolutions about how they're going to operate. They have administrative departments of clerks and treasurers. They have boards and commissions. They have taxes. They basically created a town.

They went to the feds and got their congressmen -- lobby, lobby, lobby. It's a federally chartered city. It's only the second federally chartered city in the United States. Anybody know what the first is? What's the first federally chartered? Huh? Washington, D.C. And now the Tulalips have the second federally chartered city. Why'd they get it federally chartered? [Because] they're getting -- don't tell anybody else -- they're getting ready for a big fight with the State of Washington over taxation. And by getting themselves federally chartered they can build an argument that, ‘Hey, wait a minute, Washington. We're not a city of the State of Washington, we're a city of the United States. You state, you don't have jurisdiction over us.' Pretty cool little try they're doing.

And what did they end up with? They've ended up with this economic powerhouse, just an absolute economic powerhouse. Quickly, their two basic businesses are two shopping malls. They just opened a major casino a year ago April, but they basically built themselves on two shopping malls. There's one of them. Just the classic big box stores; Home Depot, Walmart, etc. And then they have one of these high-end outlet malls. And the payoffs for them: jobs. It turns out by creating a city, it's like running a business. There's lots of jobs. ‘Oh, I now have to have a crew, because I've made myself a city, I have to have a crew who takes care of the strips along the roads of the grass and so forth [because] you've got to keep vegetation a little ways off the roads so you don't have fires and so forth. Oh, and I have to have my own water company and I have to have my own cable TV company and I have to have my own building inspectors and I have...' and on and on and on. If you pause and think about it, it's actually a pretty good business because you create all these jobs.

They now are the economic powerhouse of their region. I think they employ something like three times more people than are members of the tribe, or at least adult members of the tribe. And most of their citizens are working for their tribal government. Go ahead and let somebody else stand behind the cash register at Walmart. Their tribal members are out there running the highest tech -- I took a tour recently of it -- running the highest-tech water treatment facility in the United States. They've got this, they've got a special -- I'm not very good at science -- but it has something to do with a membrane that you push the water through and so forth. And they're now being looked at around the United States as one of the best water companies in the United States. And they have fire departments and they have health inspectors and so forth -- income for people.

They started asserting jurisdiction. You gave me the perfect lead for this. They started asserting jurisdiction. Because now, ‘Wait a minute. No, thank you. Our cops will patrol here. No, thank you. Our school buses will go here. No, thank you. Our health inspectors, our fire inspectors...' Jobs, jobs, jobs. But also, jurisdiction, jurisdiction, jurisdiction: using that power to create a town, using sovereignty to create economic development, but also to expand their jurisdiction. Also, in the process, building an unbelievably qualified and capable set of employees. They're sitting there now as the economic powerhouse, as the economic powerhouse in their region.

So what happens? They get invited to every damn meeting. They're starting to complain. They basically are starting to be treated like another county or city [because] they're so powerful. All the other governments around them have to recognize their sovereignty and have to deal with them. And so they now have these employees who are getting so well trained, they go to the meetings and they're the dominant, they dominate the meetings. They go to the meetings with the surrounding counties and they're going to have a meeting on, they have big problems, they live right on an interstate highway and -- the weirdest thing I ever heard -- right on this interstate highway, whenever they need a medevac [helicopter], they close down I-5, right in front of the Tulalip's, and land helicopters and it causes all the traffic to have to get off the freeway and run through the middle of Tulalip. Well, this creates all this jurisdictional trouble. The tribe basically controls the process, because they've got the best traffic planners out there. They can tell you -- it's just fascinating -- they can tell you exactly the rate at which light posts will be demolished by cars at parking lots. You might think it's crazy but it's some crazy...They have to apparently replace like 65 light posts a year. They all cost like $8,000 or something like that. But they're in charge of this in building essentially a city that is dominating their region.

Jurisdiction: it also gives them pride. They're the ones calling the shots on water treatment. They're the ones calling the shots on traffic control. It may seem like little things, but now the kids grow up with a different image in their mind, don't they? The kids grow up thinking, ‘Hey, this is sort of cool. Yeah, we go down to that meeting with the counties and we're there. So they're kicking butt. We know what we're doing. We've got the best-trained people. We've got jurisdiction.' And you see that resurgence of pride. How did they do it? How did they do it? How did they do it?

They started to get a mentality -- when I talk to people there -- they start to get a mentality that they don't run grants and programs, they don't have a housing program, they don't have a fire prevention program, they don't have a street-paving program run on some grant. They have departments. They're a government. They're a city. They have to do all of these things. And it's a change in mentality to think, ‘We're not just here living from hand to mouth.' And if someone funds highways next year we'll have a highway program. Nuh uh. They're investing in the planning, building the infrastructure to be departments, if you will, not grants.

And codes for everything. Codes for everything. These guys are code mad. They have the health code, they've got the fire code, they have the code for how far the sidewalk has to be placed away from the street, how often the grass has to be cut next to the street. Why did they do that? Why would anybody...they spend all their time writing codes, writing codes. Jurisdiction. They describe it as just a shield. When somebody wants to assert, ‘You don't have authority to have your own fire department.' You pull out, ‘Yes, I do. See my code? See my code? I do too.' ‘Where'd you get it?' ‘Well, our government created it. Well, that's the same way you, City of Marysville, got your fire department is you created a code.' So this tribe very much is conscious of the number, one of the main tools they have now to fight with over this issue of jurisdiction, is they basically any time anyone comes at them, 'Well, you don't have a good health department.' 'Wait a minute, my health department's better than your health department.' They're very aggressive, very, very aggressive about this.

They also have an attitude. 'We're going to do it ourselves and we're going to do it better. We're going to do it ourselves and we're going to do it better. When we walk into that meeting, when we walk into that meeting with the counties on traffic flow, or whatever it is we're going to do, or sharing the cost on repaving a road that cuts across the res, we're going to be better prepared, we're going to have better training, we'll have harder numbers. And if you fail me, if you don't do your job and don't show up, you're not going to have this job anymore as the head of our highway department.' I'm picking on you, I don't know why. You look like a nice guy, too, I don't know. My point is, they have this attitude and they hold each other to it. It's an attitude of, ‘Look, guys, let's go out there and really, really be a nation.' In this case, be a city. They hire the best. They hire the best.

Now, that sometimes means they don't hire Indian, but it doesn't bother them because they say, ‘Well, we're in charge.' Now watch me pick on somebody. ‘I'll hire this white guy here to be my police chief.' Why? Because he's the former president of the State of Washington's police chief's association and no one's going to be able to come in and push him around. Now, sure, part of his job is to try to get a young Tulalip guy to come along and be the next police chief, but the attitude is one, ‘We're going to go out there and we're going to get the best, and I don't care if you're Native or not [because] we the city, our sovereignty, our jurisdiction controls you.'

And then taxes...and not grants. It's that same mentality. It's that same mentality. All over Indian Country, people have to live in this environment in which the governments are so weakened because people keep taking jurisdiction away. Most governments in the world, it's actually not an evil thing -- if you provide services back to your citizens, it's not an evil thing that you go out and levy taxes. And so this tribe is sitting there, taxing these businesses -- actually trying to tax even more -- starting to tussle with the state, as you can imagine. But again it's that mentality of being a real government. They don't spend their time with grant writers. They've got a couple, I think they have one grant writer, but that's not what they fundamentally do. They don't make their life and their livelihood off of that mentality. They say, 'Look, we're going to provide services to our citizens and to the people who are in our shopping malls. We're going to provide them services and we provide good services, actually people don't complain.' And the result of this is they are not putting pressure on their neighbors, these sort of horribly run cities around them, who are now having to reform themselves because the non-Indian citizens at the next town were saying, ‘Hey, wait a minute. Quil Ceda Village is much better run than the town of Marysville.' And so you start to see that assertion and the pride and the ability to get these things done.

Now maybe this works for you and maybe it doesn't. I don't know. But it's a pretty cool idea in terms of using your sovereignty, using sovereignty to really go out and make it an asset in the fight for development and jurisdiction. A couple more real quick ones. Start taxing: another cool idea. But maybe you don't call it that. It's still a bad word. I'm not stupid. But, well, maybe I am stupid; you guys can judge that later. But start taxing. Why? Because you're trying to get off of that system of, ‘Oh, is my department going to survive depending entirely on whether I can go get a grant,' and whether, ‘you got sick last year and didn't get the grant written,' or whatever it was. But to do it, you've got to do the first thing, in a sense. And it doesn't have to be a city. The message obviously is if you can provide capable and high-quality services to the people, they turn out not to fight you quite so much about that second thing up there.

Examples: 2002, the Navajo Nation instituted the first comprehensive sales tax in Indian Country. What did they do? They earmarked it for things that met their priorities, for their priorities -- trust fund, land acquisition, local governments. And then they had smart and culturally based exemptions. Cultural organizations not subject; if you're selling things and you're a non-profit, not subject to our sales tax, for example. [Because] you're trying to design a system that works for you, not somebody else's sales tax. The payoffs? Started to build the missing infrastructure. What do I mean by missing infrastructure? All around Indian Country, I'll give you an example, there are no street lights [because] the feds never fund street lights. Another one: dental clinics, eye clinics. It's real interesting, you look around Indian Country, as tribal governments start to generate their own resources under their own jurisdiction, you can see actually where the missing stuff is, the missing services. Things like eye care never was a priority. Teeth. ‘Oh, teeth didn't seem...' ‘Well, wait a minute. Why should some outsider tell me whether my teeth are important?' And also, again it's very interesting -- here's a guy standing up here to tell you to go tax your people, but in all honesty it starts to send a signal. This is our government. It's a government of us. It's a government of the people.

One last idea: leverage your sovereign immunity. What do I mean by that? Incorporate under your own laws. It's kind of a movement around Indian Country now. Why incorporate under the State of Montana law? Why incorporate under the State of New Mexico law? Why not incorporate under your own law? And so you have cases; here's a tribe actually in El Paso, Texas, Ysleta Del Sur [Pueblo], can't get any economic development going. They feel like every time, they've got kind of a racist government around them in the State of Texas, and they create their own laws of incorporation. That's just parts of it there, sort of again, it's what the Tulalips are doing: codes, codes, codes. Well, in this case, we're going to create our own through our own jurisdiction. You don't have to incorporate in the State of Delaware or the State of South Dakota. You can incorporate here at this nation. This just goes on and on. It's interesting, Ysleta Del Sur is a Tigua, is Tigua. And so notice down at the bottom there: 'Corporate name shall be in the Tigua...' This is their law. The State of Texas, I'll guarantee you, never would have said, ‘Any business incorporated in the State of Texas shall have a Tigua name.' Ain't gonna happen, guys.

Challenge the nation with sovereign immunity. Waiving sovereign immunity? Where did this idea of immunity come from? Do you know where the word sovereign comes from? Do you know who the sovereign is? It's the king. This idea of sovereign immunity comes from British and European kings saying, ‘I am above the law. You, my subjects, cannot ever sue me or come after me in anyway. I am above the law.' Well, that's interesting. So the idea of sovereign immunity actually comes out of these Western European kings. Here's what real nations do with sovereign immunity.

My first one is, who wants to be West Virginia? Here's an interesting little tidbit. The poorest state in the United States is West Virginia. What's West Virginia also known for? They get on TV now and then. Coal mining. When do we see them? Yeah, or when there's an accident and there are 32 miners trapped in...now that's interesting, the government mine inspectors don't seem to work very well. We did a little analysis of the state constitutions around the United States. The State of West Virginia has the absolute strongest prohibition on any waivers of sovereign immunity of any state in the United States. You can't waive sovereign immunity in the State of West Virginia for anything. And they're the poorest place in the United States,

Now that's a tough issue, right? Wait a minute. Waive sovereignty? Well, waiving sovereign immunity isn't the same as waiving sovereignty. What real nations do all over the world because, face it guys, they're not going to lend you money unless there's some recourse. You're not going to get lended; no one's going to lend you money. So what governments do all over the world? They create international treaties. Example, the Treaty of Mauritius, [because] it was signed in this little country called Mauritius. A bunch of countries in the world said, ‘Okay, I'll deal with you, you deal with me. We'll set up our own separate court system. We'll set up our own separate court [because] I don't want to waive sovereign immunity into your courts and you don't want to waive sovereign immunity into my courts.'

Options: more and more tribes are succeeding in writing contracts in which they waive sovereign immunity on their company, but they don't waive sovereign immunity on the state, that is on their nation. They waive sovereign immunity into their own courts. 'Yes, you can sue my coal mine company. Yes, you can. I'm waiving immunity, but you've got to sue in my own courts.' That's what other governments do. That's what other governments do, except for West Virginia. West Virginia can't sue anybody from the state. And so those mine inspectors are just horrible, they have no accountability and they get on TV [because] they kill people. Waive sovereign immunity into your own courts. But to do that you have to have courts that work. You can talk a big talk, you can talk a big talk, but you have to have courts that work.

Second, waive sovereign immunity into international courts. Examples: Pacific Northwest. The Northwest Indian Tribal Court essentially says to a bank or a car dealer, ‘Hey, I'm going to waive my sovereign immunity, but we're going to waive it into the Northwest Indian Intertribal Court.' Oh, that's sort of cool. How's it work? Fundamentally it works if I'm a car dealer and I'm going to...'What tribe are you from? You're not Pacific Northwest. Okay, you're Tulalip. I'm going to waive...I'm going to sign a deal with you and if we get into a dispute, we're going to go into...Okay, I'll do it.' 'I'm the banker. I'll sign a deal with you. We're going to go into the Intertribal Court. We get to the Intertribal Court and nobody from your tribe can be on the hearing panel. We'll have judges from other tribes.' As long as you're not AIG, that's right. As long as you're not AIG, good point. So creating courts among tribes is one way by which you can provide assurances. Investors don't think the best things of state courts. It's not like people, like business people have great confidence in state courts. In fact the State of West Virginia has some of the worst courts in the United States. Indian tribes can out-compete by making yourself safer and a true rule of law.

Last point: waive yourself into arbitration. More and more tribes essentially say, 'We'll waive ourselves into arbitration,' meaning, you pick. 'If we get in a fight, you and the banker, we're going to...you pick one person, I pick another, so we're equal and then they'll pick a so-called neutral and we'll have...at least we'll have a level playing field.' But then you have the issue of -- and I'll tell you one last sort of cool story -- you have the issue of, if you have an arbitration award, who enforces it? Who enforces it if you have an arbitration award? 'You owe me money. The arbitrator, our arbitrator here just said you owe me $10,000,' and you go like this. You say, ‘I'm not going to pay you.' How do we enforce it? Very interesting. There's a very interesting case of a tribe borrowing like $110 million. They set up an arbitration clause and they had this big fight in the tribal council, should we waive sovereign immunity and here's what they did. It's kind of a cool idea. This is what I mean by challenging your own nation. We're trying to borrow $110 million. We don't want to waive sovereign immunity completely. We'll waive into arbitration. By that I mean, if we get in a fight, we'll go to arbitration and then on enforcement of an arbitration award, that will go to tribal court. If our tribal court won't enforce an otherwise proper arbitration award, then you can take us to state court.

This is a tribe that basically said, ‘Look, the tribal council meeting was cool. Look, we're talking big shots like we're sovereign and all that. We might as well back it up.' If we won't enforce our own agreements, what's it do? It puts the pressure then on the tribal council to make sure that they've got a good tribal court because that arbitration award, if it wasn't enforced by the tribal court, then it was going to go to state court. And the bank said, ‘Yes.' They've never had a fight, never had to do this, but it was enough for the investor to say, ‘Hey, we'll do it.' You waived yourself into your own courts.

Alright. I don't know, just kind of cool ideas we see out there, just kind of things we see that tribes are doing. Whether they work for you, I don't know. Everybody's different, but there's a lot of cool stuff going on out there."

Michael K. Mitchell: Perspectives on Leadership and Nation Building

Producer
Native Nations Institute
Year

Mohawk Council of Akwesasne Grand Chief Michael K. Mitchell discusses the Akwesasne Mohawk's effort to regain control over their own affairs, and offers his advice to leaders who are working to regain jurisdiction over their lands and resources as well as rebuild their nations.

Resource Type
Citation

Mitchell, Michael K. "Perspectives on Leadership and Nation Building." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 25, 2008. Presentation.

Michael K. Mitchell:

"Mohawk golf club. Guaranteed to go 300-400 yards, no problem. So if you can't hit your drives, I'm selling good sticks. Actually I wanted to come up here and start with this because the game of lacrosse is a contribution of Native American. It's an Indigenous game. We were playing this game when Europeans came to the New World. But if you read your history, it will tell you the Jesuits, the first time they saw Iroquois playing this game against another tribe, they recorded in their history that they were at war because they played the game so intensely. It gives you an idea how far apart -- their view and ours -- because they were really playing this game to honor their Creator. They were playing the game to honor their elders. They were playing the game to get physically fit. And it could be, in them days, close to 100 braves on one side. And if they had a difference of opinion or a difference with different nations, they wouldn't necessarily go to war, but they would agree to have a lacrosse game. And the winner would be accorded the right of whatever differences they had. And I wanted to inject a little culture because I want to donate this stick to our Indigenous golf tournament that we're going to have Friday. Don't you guys get any ideas about using it for a driver, either."

Joan Timeche:

"We will be, I'm not sure if we're going to, we'll probably auction this off at our golf tournament on April 4th here in Tucson. Thank you very much."

Michael K. Mitchell:

"It was a real pleasure to sit in the audience this morning and listen to the presenters share some of our experiences on leadership, Indigenous leaders from different nations. There's a lot of wisdom there. From what I understand, there's quite a few young leaders that are attending this conference. Heed their words, because nation building is a process that you cannot get from books, you certainly can't get it from Washington or Ottawa. These ideas of governance stem right from the heart of our nations, passed on from our elders.

They say in our traditions back home -- among the Mohawk Nation, Haudenosaunee -- our leader is acknowledged from the time he is crawling on the dirt, to when he walks, to when he's a young man and he hunts. And everything he does defines his characteristics. And depending on what clan he belongs to -- because we also, like many nations, have our clans (I belong to the Wolf clan, my Mohawk name is Kanentakeron) -- and so we are defined [by] how we are conducting ourselves within our own society. And from that, back home the women of the clans would select who the leader would be. And they say that he has already proven his leadership from the way he conducts himself, morals, leadership to how he relates to his people, how he takes care of them, how he acknowledges the elders in the families that are in his nation. So the women already knew he was going to be a good leader. And they say that he would be a leader for as long as he demonstrated those qualities. If at any time he wasn't a good leader, that he would fall on something, the women gave him three chances in his lifetime to set it straight; they would set him straight. And so if he went beyond that and he didn't follow the principles of [Mohawk language], a good mind, the women would take you out of office.

Well, back home in Canada, Canada thought they could improve on that kind of leadership and that kind of democracy. And you've been hearing this morning about the Indian Act in Canada. You also heard about the Indian Reorganization Act in the United States. That was Canada's idea of governance for First Nations. I grew up in the longhouse. My mother is a clan mother, my brother is a wampum keeper, and I have a sister who is a very strong Christian -- goes to church just about every day. So for my family, I think we cover all the elements. Now I come from a territory that is located in upstate New York and it's right on the border of Canada/United States. Half the reservation is in the United States side. My brothers -- James Ransom is the tribal chief, he's here; Ron LaFrance, Jr. is a tribal chief, he's also here –- he's one of the younger ones. We were just talking to James a while ago and he's on his third term. They both adhere to those principles and philosophy from the traditional side of our nation. And when you have that in your heart and in your mind, it just about guarantees that you have the nation's heart and mind, that you're going to be a good leader. And so those ideas about all the frustrations that you're going to face in your political lifetime, there's another saying back home, the elders tell you as you're growing up: If you're going to be a leader, you have to have a skin, and in our language that means 'seven thumbs thick,' or sometimes they'll say 'seven skins thick,' because you have to exercise a lot of patience, you have to exercise a good mind and good will. And you will take a lot of abuse. And so you take that home. And how you conduct yourself as a leader that will be judged by the people in your territory, in your community. And so for us, term limits is something that is decided by your nation and that term could be your whole life if you're a good leader. So those people that you saw -- those three people that sat in front of you and gave presentations just before noon -- look at them as very wise leaders who are willing to share their experience with you, because they have demonstrated the type of leadership that our people need and have served our nations well.

I became Grand Chief in 1984 and all I had in knowledge was my traditional upbringing. I didn't realize that under the Indian Act that all the authority comes from Ottawa, comes from the Indian Act, comes from the Department of Indian Affairs. The council that I inherited was in a deficit of close to $2.5 million and all they were responsible for was $5 million. The government was sent to come down and put our administration finances under third-party management. So I came to be a leader at the wrong time. And I studied, talked to people, and I found out that it's pretty well the Indian agent, Indian Affairs, their officials pretty well ran the community -- education, they controlled health, they controlled social, welfare, housing. And it was just like they said this morning; the chiefs that were on council were really just administering the programs. So the head chief was the band administrator. The language that was prevalent; nobody said 'nation.' Nobody spoke of 'nation.' As a matter of fact, our people at that time looked down on nation people. They were the Long House people, traditional people, and they never gave up the idea that we're a nation. They kept that alive. But they were very few because they also followed their own Native American religion. They still had their ceremonies and they kept that going. They kept our tongue alive: [Mohawk language].

We only spoke our language, first language. And so when I got to work in my term, there was some men by the council office and they didn't have an appointment. So they stayed outside because that's the way you met with the chief back in them days and you better have an appointment. So they caught me as I'm going in and they said, "˜We'd like to meet with you. And we don't have an appointment, but it's kind of important. Could you make some time for us?' I said, "˜Come on in.' Sat down, gave them some coffee, spoke in our own language and I said, "˜What seems to be the problem?' And they said, "˜Well, our friends over here were out fishing the other day and a conservation officer stopped them. And he said they didn't have any license to be on the river to be fishing, by the interior government. And so they confiscated our boats and motors and nets. And in the last six months it's been a steady process of having this happen. You're a new chief. We're wondering if you might consider checking into this.' I said, "˜Listen, I'm going to make time tomorrow morning. I'm going to get my boat and I'm going to track down this conservation officer from Ontario and ask them,' because you grow up believing that our waters is ours. And they were making new laws and the government was changing things, creeping more into 'civilizing us' by making us come under their law -- provincial law, state law. And so the Aboriginal right to hunt and fish at that time was slowly being taken over. Anyway, when I told them that I was going to go on the river they said, "˜Well, we'll come with you because we know the river. We know where he's going to come in from.'

So early in the morning we got out on the river. It didn't take long before they found where he was coming from, Cornwall. You have to come around a certain island. And the river current is very fast. So when you come around this one island eastern corner island, St. Regis Island, you have to, you're in United States waters and you're in Quebec waters and he's in Ontario. That's where we were waiting for him. And as soon as he come across that island we came out and we stopped them on the river. And then we shut off the motor and we started talking. He didn't want to hear anything about...I was asking him if he could return the boats. Maybe he didn't understand that we don't need a license. He was aggressive. He was talking down to us like we didn't know anything. So I tried to be very diplomatic, and when it came down to the end -- remember that seven thumbs thick, patience and all that -- I said, "˜Sir, you won't tell us where you took their boats but we want them back. So I have to take your boat.' And his jaw just dropped and he says, "˜You're what?' I said, "˜Yep, I have to take your boat until they get their boats back. You're coming with us.'

We took him down to St. Regis Village police station and then I phoned Toronto, Ministry of Natural Resources and I told them, I said, "˜I have your administrator official here.' Well, it worked up very fast up the chain of command. People were calling. "˜Is he a hostage?' Nothing like this had ever happened in Canada. I said, "˜No, I just want those boats back.' So it didn't take long, maybe a couple hours. Their Premier, Prime Minister of Ontario, he calls. He said, "˜Look, this might be an international crisis situation. I'm sure we can resolve this.' Anyway, we worked it out, they traced; they found those boats in Toronto, which is a four-hour drive from Akwesasne. I said, "˜I want them boats back by 9 o'clock in the morning or I'm going to call a press conference.' So he calls back in half an hour, he says, "˜Those boats are on their way.' You see I learned very fast that you've got to speak their language. That's the only way they'll do business with you. Those boats came back. The same guy that arrested them brought the boats back in the morning -- turned them over, they inspected and everything was there -- the motor, boats.

And then I asked my council and our administrator, "˜Why is it that we don't have any authority on the water? We live by the river. We're on the St. Lawrence and we don't seem to have any authority left.' The RCMP, the Royal Canadian Mounted Police, they enforce the federal laws. The Quebec Provincial Police and the Ontario Provincial Police enforce the provincial law. So everybody was an authority out there except us. Anyway, I passed a council resolution. We put together our own conservation law for the water, for the environment, for the wild game, for the river life; sent it to Ottawa. Well see how fast it came back and said, "˜You have no authority under the Indian Act to do this.' Anyway, seven times, diplomatically. Again, they said 'no.' I turned around and I went to the nation chiefs, the traditional leaders at the longhouse and I said, "˜I want to implement a nation law based on our inherent right.' We went to the Iroquois Confederacy Grand Council meeting and passed it as a community law for Akwesasne.

I said, "˜Now, we need our conservation officers.' And Canada says, "˜Nope. Whoever heard of Mohawk conservation officers executing their own law?' Ontario said no. The feds said no. Ontario said no. Don't forget where we live. I called Albany, New York -- New York State Police Academy -- and said, "˜Do you have a conservation course up there?' They said, "˜Yeah.' "˜Can you register some Mohawks to take this program?' "˜Yep.' Six months later they come home wearing uniforms. They had the state trooper headgear, nine-millimeter sidearm -- 'Dirty Harry' guns -- and they hit that water and they started bringing in.

Oh, at the same time, we executed our conservation environment law in the justice program; we set up our courts. Well, that court was nonexistent. We're only doing dog catching and little municipal things. We upgraded our statute [because] we had judges but they just weren't allowed to hear bigger cases. Those conservation officers were bringing in non-Natives who refused to buy our fishing licenses, hunting licenses, safety license and they brought them to our court and they were kicking and screaming saying, "˜This is a kangaroo court. You have no authority. I'm going to contact my member of Parliament.' But when they opened that door, there's a courtroom that had the Mohawk community flag, the Haudenosaunee flag, on the wall. There's a judge sitting up there, there's a prosecutor and there's a lawyer there that would defend you if you needed one. They read the charge, they read the law and they paid the fine. And that's how we started our justice program.

And those, I guess in reflection, is stand up for your nation's rights; putting them back in action. Those conservation officers, the first time they went over to Canada into Cornwall, the Ontario Provincial Police arrested them, confiscated their weapons saying, "˜These are totally illegal in Canada.' They went to court, produced their training from the United States. The judge says, "˜These people are qualified for the work they do. You return them guns.' And so you have to fight the legal system, you have to fight the government system, but after awhile -- oh, the appeal, they lost the appeal, too. Anyway, you have to take control. And then I noticed that on council, the way the programs were running, the Department of Indian Affairs just about ran everything, all the different programs. So I went to see the Minister of Indian Affairs and said, "˜Look, these deficits are going to keep occurring "˜cause your people don't give a damn about how our business is...' (Thank you very much. That wasn't peace; that was two minutes.) Well, to make a long story short, I asked the minister, [because] all these government people that were in authority over us, none of them was [Mohawk language], none of them were Native. So I cut a deal with him. I said, "˜I'll wipe that deficit out within five years but you've got to let us do it our way.' He says, "˜What's that?' I said, "˜A lot of our people are skilled in financing, administration, proposal writing. Why do we have to get authority from you?' So we made a deal. That was kind of a curiosity for him. And I said, "˜You take back all your government people and we'll hire our own to look after the affairs of our people. We'll look after our administration.'

We did wipe all that deficit within five years and our government grew. We established a relationship with the traditional government and passed a resolution recognizing them as our historic national government. We started having meetings with the tribal council on the American side and we started planning for the future. It's just an idea that evolves from your own nation. A lot of other episodes happened like the stories that I'm telling you. I was on a little bit of a roll there. When you're a leader, you require patience but sometimes it's the audacity, shocking the Canadian and American governments to say, "˜Yes, I have that authority and I'm going to do something about it.' You also got to think of your youth and your elders, and I proposed the writing that led us to having our own nursing home, our own arena, looked at development around in the community that needed those programs and our people went after them. So it's out there. For those fights between a tribe and the Long House on our side was an ongoing affair. Today, they sit together and they plan for the whole territory. And that's the kind of story I guess I can leave with you. Don't allow yourselves to fight with one another because the Indian Act, criteria from the American government, state, etc. -- we have that jealousy factor; it don't belong to us but we are so full of it in our communities. The longer vision in nation building, you rise, give knowledge to your young, respect your elders, look after the people in general and fight together. And I guess I could say that to all of you."

NNI Forum: Tribal Sovereign Immunity

Producer
Native Nations Institute
Year

Tribal sovereign immunity has far-reaching implications, impacting a wide range of critical governance issues from the protection and exertion of legal jurisdiction to the creation of a business environment that can stimulate and sustain economic development. Native Nations Institute (NNI) Radio convened a group of tribal leaders and Indian law experts to discuss tribal sovereign immunity and the need for Native nations to approach the issue strategically. Moderated by Harvard Project on American Indian Economic Development Co-Director Joseph P. Kalt, the forum provides tribal leaders and their constituents some important food for thought as they seek to protect their nations' interests and advance their nation-building priorities.

Resource Type
Citation

Native Nations Institute. "Forum on Tribal Sovereign Immunity" (roundtable forum). Native Nations Institute For Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 14, 2007. Interview.

Joseph P. Kalt (moderator): "Like other sovereign nations around the world, Indian nations have powers of sovereign immunity to be free from lawsuits, other challenges to their authority. At the same time, the realities of a globalized economy, a very competitive world, often puts tribes under pressure to waive that immunity and tonight we’re going to talk about the issue of sovereign immunity, when to waive it, when to use it, when to not waive it and we’ve assembled a very distinguished group really representing all walks of life here. On my right, Lance Morgan is the Chief Executive Officer of the Ho-Chunk Inc. tribal enterprise of the Winnebago of Nebraska, well known for its success over the last decade in building a conglomerate of businesses to really rebuilt and strengthen the Winnebago Nation. On my left, Professor Rob Williams from the University of Arizona Rogers School of Law and Director of the Indigenous Peoples Law and Policy Program is one of the nation’s leading educators in American Indian law, has written on all aspects of law and teaches tribal audiences law students at the University of Arizona all the aspects of American Indian law and focuses a great deal on the issues of sovereign immunity. On my right, Chairman John 'Rocky' Barrett is the long-serving Chairman of the Citizen Potawatomi Nation of Oklahoma. Starting a couple decades ago with very little, it’s now the engine of Shawnee, Oklahoma, and the surrounding region and noted for its success not only in its economic development, but in rebuilding a community that had been scattered across the United States. On my left, practicing attorney Gabe Galanda from Williams Kastner. Gabe is an expert working with tribes particularly in the Pacific Northwest really doing innovative things with handling sovereign immunity, its uses and misuses, providing advice to tribes, to clients, on these challenges the tribes face as they struggle with the question of when to waive their immunity, when to not waive it. And so we’ve assembled these folks to talk to us about their experiences, their views on this challenge that so many tribal leaders face across the United States. I’d like to begin with all of you, and maybe start with you Lance and work down here, we hear a lot about the issue of sovereign immunity, often out on the ground. Waiving sovereign immunity is equated with waiving sovereignty and you’ve faced this I know in your business enterprises. What are your views on that, what’s the boundary there? Is waiving sovereign immunity waiving tribal sovereignty?"

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Lance Morgan: "I really don’t…I think they’re two different things. I think they’re easily confused because they both use the word 'sovereign' in it. I always say that on our reservation, if somebody were to try to take away a tribal sovereign right, maybe a state or a county or somebody else, then we’ll fight to the death, it’s on, we’ll empty the tribal treasury to fight that one. But if it’s a business transaction where we want to play a game, we want to take someone’s money or we want to make sure that we do something together, I really want to make sure that we’re playing the game by the same rules, and waiving sovereign immunity really is not that big a deal for us in those situations. If we want to access that capital or to enter that relationship, then it’s only fair to be able to level the playing field between the two parties. So in those instances we’ll waive it all the time. It really isn’t that big a deal for us."

Joseph P. Kalt: "Rocky, from your point of view, tribal chairman having dealt with these issues so much, with your bank, with other aspects, what’s your view on this question is waiving sovereign immunity waiving your sovereignty?"

John "Rocky" Barrett: "It’s actually an exercise of sovereignty. I know from our perspective, we sort of look at it as how would we feel as lenders if someone came to us and wanted to borrow money and said, 'We’re not interested in waiving sovereign immunity in dollar amounts for this particular note or this contractual obligation that we have with your bank'? Our first reaction would be, 'Well, you don’t intend to pay us.' We take the same perspective at the tribe, that if we’re going to behave as responsible lenders, we have done our due diligence, we know that the cash flow is there, we have reasonable expectations for the success of the project for which we’re borrowing the money, and if we do not then we still feel duty bound to pay the loan off. So the waiver of tribal sovereign immunity from suit, particularly for financial transactions, we think is a part of doing business responsibly as a tribe. But it’s not a waiver of your sovereignty. You as a sovereign have the ability to say, 'I’m going to, as a sovereign, I’m going to put us on equal footing in this obligation and I’m doing that as a choice.' So you’re really not giving up…you’re exercising your rights."

Joseph P. Kalt: "Gabe, what are you seeing with your clients and what are you telling them about this issue?"

Gabe Galanda: "Well, we look at sovereign immunity primarily through two lenses. One is the proactive use of sovereign immunity as Chairman Barrett said as an exercise of sovereignty, essentially defining the time, scope and manner by which a sovereign may consent to suit or invite lawsuit against the sovereign and ultimately the tribal treasury, so that’s looking at it proactively perhaps in a means of drawing commercial investment to the reservation or other private investment to the reservation. It really becomes an exercise of sovereignty. But defensively is perhaps where the line between sovereignty and sovereign immunity blur, because defensively most common you will find tribes leveraging their immunity to withstand attack by local government or state government as Lance eluded to, and in that instance you are using sovereign immunity as a defensive mechanism to protect your sovereignty and without sovereign immunity state courts will be presented with questions of regulatory jurisdiction, in particular whether cities, counties and states have jurisdiction over affairs arising out of the reservation and as a threshold defense to that type of question which would be brought in state court by such entities, tribes can assert their sovereign immunity. So in asserting their sovereign immunity defensively, they are protecting their sovereignty, and in some instances that’s where the lines between sovereignty and sovereign immunity blur."

Joseph P. Kalt: "Rob, I know you’ve got strong views on the origins of this concept of sovereign immunity. Where does it come from?"

Robert Williams: "Yeah, I’m always amused when I hear tribal people defend sovereign immunity as one of their inherent rights as if it was something that existed prior to contact, and actually sovereign immunity originates in the 14th, 15th century, it comes from this notion that the English king could do no wrong and that would be exactly what the old common law courts would pronounce. The king can do no wrong and since the king maintains his courts and pays the judges, the judges aren’t going to dare challenge that notion. So it’s really an idea that you find replicated in no tribal culture in North America. In fact, the traditions of most tribes are that leaders are totally accountable to their people, and oftentimes leaders take on additional responsibilities for their people. So it’s a countercultural notion. I think the important thing to recognize is that sovereignty is really the big-picture issue, and that sovereign immunity is a tool of sovereignty and that’s how governments have always looked at sovereign immunity. The United States has sovereign immunity, the federal, the state governments have sovereign immunity, tribes have sovereign immunity. The big difference has been that for the past 100 years, the federal governments and state governments have used their sovereign immunity as a tool, making strategic decisions about when to use it, when to assert it, when to waive it, when to limit it, when to cover it by insurance, and so I think what you’re seeing many tribes now understand is that this is an important tool of sovereignty, of control over the reservation, of control over economic development, and it has to be used with a lot of thought and has to be used strategically."

Joseph P. Kalt: "Pick up on that, all right. I’ve heard a lot of tribal council members view a request by let’s say an outside investor for a waiver of sovereign immunity as an insult because it says to the outside investor I don’t trust your court system. I don’t trust you to adjudicate any disputes between me and you. I don’t trust that. And I sense sometimes there’s some truth in that, that is that all you’re hearing is just mistrust of tribal court system. Should tribal councils take it that way as an insult?"

Robert Williams: "I think that tribal councils should really look at what’s being said when outside investors say, 'We don’t trust or we don’t know your court system.' That’s a challenge for the tribe. Many tribes have established very effective court systems. They have courts of appeals, they have codes and business codes that they operate under, but sometimes they don’t do the job they need to do to make sure that the outside investment company understands that. So if what the tribe is hearing is we don’t trust your courts, we don’t know about your courts, rather than look at that as an insult, I think it’s better to look at that as an opportunity to educate and if the tribe really can’t say to these outside investors or to entrepreneurs on the reservation -- because Indian people have to use those courts as well -- if they can’t say that we have a fair court system, that we have transparency, that you can do business here, that your debts will be obligated. Rather than take that as an insult, I think what the tribe needs to do is look inside itself and make a decision about how important that is. We’ve talked about sovereign immunity as a tool of sovereignty, an effective judicial system, an effective dispute-resolution system is also another important tool."

Joseph P. Kalt: "Gabe, what do you see out there? You deal with tribal clients and they hear it as an insult. It’s an insult to their sovereignty."

Gabe Galanda: "A lot of it, though, really depends on the way in which the request is made. As a threshold matter, if you are a non-Indian entrepreneur approaching a tribe to do business, you must appreciate that there are blurred lines between sovereign immunity and sovereignty and choice of law and choice of forum, first and foremost. And then beyond that these are not just legal terms of art that can be plugged into a boilerplate contract. These are legal terms, certainly, but they have social overtones, political overtones, cultural overtones. Along the lines of what Rob was suggesting, some people believe that they have a treaty right to tribal immunity when in fact they probably do not. But you have to understand the consciousness of Indian Country and tribal council who are elected by their people, and ultimately what their people are thinking about issues of sovereignty, jurisdiction, sovereign immunity and the like before you even approach a tribe. So it’s much like going to the Far East and before you would ever go to the Far East to do business, any business person knows you would become savvy in the ways of people doing business in the Far East, the custom and traditions of those folks sitting around a board room or even a restaurant. You may take a translator. When approaching a tribe, you may take a corporate Indian lawyer who understands the philosophy of tribal government, who understands those political, social and cultural overtones and ultimately understands the pragmatic approach that tribes are taking to resolve issues of common concern. And they are valid concerns: the integrity of tribal court systems, the transparency of tribal government, the sophistication to do business in seven, eight or even nine figures. Those are very valid concerns, but it’s really in the art of the delivery and in making sure that when you approach tribal government, you are doing so very sensitively and you appreciate that it may be your only approach, only opportunity to really convey to them that you are there to do business in a meaningful way and you are there to meet halfway on these very important issues."

John "Rocky" Barrett: "The exercise of sovereign immunity has become in some ways the way that Indian Country seems to be using it is presenting a threat and judges, particularly Supreme Court judges, seem to find the concept repugnant, and unless we tailor the use of sovereign immunity in the same way that state legislatures have and the federal government has, where you provide recourse in situations where tribes want to take sovereign immunity now. If they don’t provide some other form of recourse, to someone with a complaint within their judicial system, they’re going to find themselves on the receiving end of some very adverse rulings."

Joseph P. Kalt: "In your case, too, Rocky, I take it you all have taken this prospect of an insult and basically turned it into a challenge to build your own court systems and to be able to sit there and say our court system…I take it…Hearing you talk before, I know you think you’ve got a court that’s just as good as any other. What have you done in that arena to build that court system?"

John "Rocky" Barrett: "We do think we have a very good court system but if a lender, if we have a project that we need a lot of money for that project from a lender and the lender…we exhaust all the lenders who say everyone says we’re going to have to have a tribal sovereign immunity waiver, well, then I guess we’ll have to have a sovereign immunity waiver. I’m not saying there’s situational ethics there but…"

Joseph P. Kalt: "But you’ve built your Supreme Court."

John "Rocky" Barrett: "We have built our Supreme Court and they are a very knowledgeable, responsible group of experienced jurists."

Joseph P. Kalt: "And how do you relate to the State of Oklahoma courts?"

John "Rocky" Barrett: "We have a full faith and credit agreement with the Oklahoma courts, which has only been tried a couple times. Once, the first time not successfully, but after we appealed the process through I believe that the state is more comfortable with that process now. But the idea that we would defend ourselves from jurisdictional threats from the state governments, we would not hesitate to use sovereign immunity from suit as a defense in that matter, the same as the state would not hesitate to use it against us if we were to make a similar jurisdictional threat."

Joseph P. Kalt: "So you’re looking for parity there."

John "Rocky" Barrett: "Yes."

Lance Morgan: "I think it’s important to understand that you’re talking about sovereign immunity and sovereignty in a couple different contexts. In the United States, the government makes up maybe 25 percent of the economy. On a reservation, typically the tribe might make up 95 percent of the economy and because of lots of reasons, the tribes are forced to be the economic engine on their own reservations also. And so you have a governmental context in this really emerging, fastly emerging commercial context in business, and they’re really two separate issues and I think that what happens, the confusion is that political leaders think of it a certain way. But in a business context you have to think of it, it’s a much more flexible dynamic, and that’s what causes confusion I think at the local level. And tribal government leaders are right to protect sovereign interests for the government, but it becomes an impediment to the growth on the economic side that really in all cases isn’t really a rational kind of reason to not go forward, and it can end up hurting you by limiting your opportunities on your own reservation."

John "Rocky" Barrett: "There’s definitely a misunderstanding of what it is on the reservation, too. It’s amazing what people will come up with of what their perception of sovereignty is. We recently in the performance venue of our casino, we had Three Dog Night there to perform and of course that drew all the old hippies in half the State of Oklahoma."

Joseph P. Kalt: "Did you go, by the way?"

John "Rocky" Barrett: "Oh, yeah. My hair’s shorter now. One particularly grizzled, tattooed old guy showed up and immediately sat down and fired up a joint. Of course our police descend on him and put him in cuffs. He said, 'I thought you guys were sovereign.' And I said…"

Lance Morgan: "It’s a crime not to care on the reservation."

John "Rocky" Barrett: "His idea of sovereignty was a total absence of law. That was his perception of it."

Robert Williams: "Let me pick up on a point there. Those full faith and credit agreements, which essentially allow tribal judgments to be enforced in state courts and state judgments to be enforced in tribal courts, there’s an example of exercising your sovereignty. When you can have another court take a look at your own tribal court’s judgments and say we’re going to enforce those, that extends the reach of your power, and so there’s an example whereby using sovereign immunity creatively, combining it with some of these other tools like the full faith and credit agreements, gives a tribe a chance to really project its sovereignty beyond the reservation borders, and that’s what sovereignty is all about."

John "Rocky" Barrett: There were some practical applications that really what generated this thing was child support payments. We were having difficulty getting child support judgments enforced in state court. People would go off reservation and we could… non-Potawatomi spouse, we couldn’t get child support judgments enforced and when the thing was reversed for the state where they wanted to enforce a garnishment I think or I think there may have been a child support issue, we finally sat down with the local district judge and said, it looks like we have the basis for a quid pro quo here and we worked the agreement out and filed it with the Oklahoma Supreme Court. This was back in ’84. It’s been a long time ago. ’85 I guess.

Joseph P. Kalt: "We all work with or know tribes where they’re a long way from being able to walk in and negotiate or secure for example full faith and credit agreement. Where do you start? Think about some of the tribes out there that are struggling without the economic development, without the economic resources, still saddled without a court or with an older constitution not of their own making. Where do you start in this game to build these kinds of capacities to walk in and be able to stand there toe to toe with the state of Oklahoma and say look, 'Our child support system is just as good as yours, we can do this reciprocally?' Where do you start in that?"

John "Rocky" Barrett: "We are the court for another tribe in Oklahoma. We are the court for two of the local municipalities around us who can’t afford their own court and police systems. This other tribe that has come to us, we enforce their statutes. They’ve maintained their sovereignty from the standpoint of having adopted their own set of statutes, but our clerk, our judge, our prosecutor, our public defender, they all function on a…we do it on a contractual basis. They function to act as that tribe’s court, and if it were not for that they couldn’t afford the cost of the infrastructure."

Robert Williams: "And talking about sovereign immunity may be a bit of the tail wagging the dog, because to even get to the point where you can talk seriously about thinking about sovereign immunity, thinking about taking out insurance policies to cover liabilities, negotiating these types agreements with the state, you better have your self-governance act in order, you better have an effective tribal council, you better have an effective constitution, you better have a really good tribal court system with independent judges who are not afraid to make decisions that might be politically unpopular. And so in many ways, to even get to this point that we’re talking about where you’re going to be thinking creatively and strategically about using sovereign immunity as an economic development tool, as a sovereignty tool, there’s a lot of steps that need to go beforehand that tribes need to think about seriously."

Lance Morgan: "It’s a tiny piece of the puzzle. I think that sometimes people talk about sovereign immunity in a negative fashion or something you have to waive or something that will hold you back or keep people from dealing with tribes, but I think that once you get your act together and you start evolving as an entity, as a tribe and as a tribal corporation or something, sovereignty starts becoming a positive. You can use it to ward off kind of nuisance-oriented suits. You can also use it to really start asserting your rights as a tribal government. One of the examples I like to give is that we were in the tobacco business and the state controlled every element of the manufacture, the distribution and we were just at the retail end and they would just cut us off. They’d tell the non-Indian distributor don’t sell to us without state taxes on it or we’ll pull your license. They would never go to bat for us. But we were part of this thing in the late ‘90s where there was a tribal manufacturer, a tribal distributor and a tribal retailer all with sovereign immunity and the state would tell them…they’d call us up and they’d say, 'You better not do it.' Well, we only sold to tribes. We sold to each other. We created an entire distribution system that was protected by sovereign immunity that allowed the tribes to assert what it wanted to do, its own taxation rights on the reservation that it couldn’t do before under the old system. That’s just one example, but there’s a hundred ways that you could use it as a way to step across the line and assert your rights."

Gabe Galanda: "And I would say at a very basic level, you have to walk before you can run as Rob is suggesting, but you can begin to empower a tribal council to begin assessing their sovereignty, just assessing what it means to have sovereignty, and maybe you’re a P.L. 280 tribe which means you have by federal law ceded criminal jurisdiction to certain states. Well, that doesn’t mean that you’ve ceded civil regulatory jurisdiction and the Cabazon case tells us that. So you may have somebody on your reservation who is a nuisance, who is causing problems, who you cannot criminally prosecute by way of P.L. 280 or Oliphant but you can civilly exclude them from your reservation and that is an exercise of sovereignty. Now best-case scenario, you’re civilly excluding them through a tribal court process, but even without a tribal court the tribal council could have the inherent authority to exclude someone civilly from the reservation and they begin to establish their sovereignty in that way. You may have a reservation that’s been completely allotted by the Dawes Act essentially creating a checkerboard environment, where you have fee parcels next to trust parcels next to fee parcels and so on and so forth and you’re confused about who has jurisdiction over what. Well, there’s a law suggesting that you have civil regulatory jurisdiction within the exterior boundaries of your reservation, irrespective of whether there are non-Indians who own fee parcels that were essentially taken from tribes and tribal people in the 1800s. So there’s another exercise in sovereignty. How are you going to harness that sovereignty -- and irrespective of fee title over your reservation in the fact that it’s checkerboarded -- assert civil regulatory jurisdiction over these activities that are taking place within your reservation? Maybe you begin to tax your non-Indian neighbors under your local taxing power, or maybe you begin to assert zoning authority. So there’s a number of ways tribes can begin to walk again before they run to begin understanding what their sovereignty is, notwithstanding all these erosions of sovereignty that Congress and the courts have forced upon tribes, and then once they are more accustomed and more fluent in the language of sovereignty, then comes the more sophisticated discussions about building tribal justice systems, about exercising your sovereign immunity in certain ways, which ultimately is an exercise of sovereignty. And then you can begin to take those steps, and I think it becomes circular and somewhat starts to perpetual itself."

John "Rocky" Barrett: "Yeah, if you don’t exercise it, it doesn’t exist."

Gabe Galanda: "And if you don’t exercise it Congress or the courts will."

Lance Morgan: "You don’t get elected one day and all of a sudden you’re a sovereign, tribal sovereignty, sovereign immunity expert. Those things evolve over time. With Chairman Barrett, you’re talking about somebody who’s been there and functioning and has dealt with all these situations and has learned how to approach these things. This is an evolutionary process and you’ve got to figure…you talked about walk before you can run. You’ve really got to figure out a way to internally in your tribe nurture that kind of environment where a sophisticated approach to this begins to evolve internally."

John "Rocky" Barrett: "I remember the night where we sat down and said, 'Let’s sit down and list everywhere that tribal law applies or could apply if we had the statute.' And we sat down and worked with Browning Pipestem. I don’t know whether you remember Browning. And Bill Rice, who's a law professor at Tulsa University Law School. And we sat down with them one night and basically walked through our set of statutes and what their experiences were with other tribes and talked about what our, what is the gambit of tribal law that could apply that we could use. Interestingly enough, from that night we probably doubled that list since then because of the evolving picture of how we interrelate because we got in the rural water district business and we started operating a state-licensed rural water district basically where the water district leases the operational facilities, the pipe and the water treatment plant and everything from the sovereign of the Citizen Potawatomi Nation and that interaction between essentially what’s the state body -- which we control the board of directors of it -- back to the tribe. That’s a hybrid that we never dreamed that we would have, or this hybrid of us providing the court and police for a municipality, a charter municipality. That’s an interesting cross-deputization issue."

Joseph P. Kalt: "One of the dimensions here that sometimes comes up and you’re starting to touch on it, so often this issue of sovereign immunity is accounted around the big business deal, the bank is depending, whatever. But so much of sovereign immunity often has to do with littler things. A tribal chairman friend of mine one time said, 'You know, if you get a reputation, someone slips and falls in your casino and hurts themselves 'cause you had improper equipment there or you had not repaired the floor or something, that reputation spreads around the community pretty fast and you start to lose business and so forth.' Maybe starting with you, Rocky, there is an element of accountability here not only with outsiders, non-Indians, but Citizen Potawatomi citizens."

John "Rocky" Barrett: "Well, for us in particular, because we operate the largest chain of tribally owned national banks in the country -- and banks are purely creatures of public confidence -- if people don’t feel confident about your behavior as a sovereign in the ownership of this national bank, they’ll take their money out. Obviously, we have more money loaned than we have on deposit, that’s part of the nature of the banking business, and if you can’t keep a reputation with the public intact that you’re going to behave responsibly in all matters, it’s going to end up costing you the capital of the bank. People will run from your bank."

Joseph P. Kalt: "We’ve started to do some research. It looks like the states in the United States with the strongest prohibitions in their constitutions against any waiver of sovereign immunity are the places with the greatest poverty and the greatest reputations for corruption and other malfeasance among the public officials."

John "Rocky" Barrett: "A lack of accountability, yeah."

Joseph P. Kalt: "Lack of accountability."

Lance Morgan: "Sovereign immunity is a wonderful thing to have in a fight. It’s excellent. But it’s also a responsibility. If you misuse it, you won’t have it for long is my guess. If you use it in small context or small ways to hurt someone else’s interest when it’s really not fair, that’s what you have insurance for because you need to hang on to it for the big things, when someone’s attacking the tribe’s assets or going after really a jurisdictional kind of right or a regulatory thing, then it becomes important. But if you use it as a run-of-the-mill thing, it’s really going to be looked on as a negative, and I don’t know many tribes that do that to be honest."

Robert Williams: "There’s a lot of hidden costs here for tribes, and I like the point you make about when we think about sovereign immunity, we think about the big multi-million dollar deals, but if you sit around and think about what Indian people expect of their tribal governments, well, they expect them to provide an economic environment for jobs, they expect them to provide help out on healthcare, they expect them to help out on education. But suppose you can’t get the teacher to come out and teach at that school because they don’t think they’re going to get a fair shake in an employment context because they’ve heard there’s no protection out there for job tenure. Suppose you can’t get a construction company to build that tribal health clinic because they feel that they’re not going to get their contracts enforced. And so it may well be that one of the biggest barriers to exercising sovereignty in all these different areas is this one issue of sovereign immunity, because it creates a perception out there not only amongst non-Indian businesses but amongst the Indian entrepreneurs that this isn’t a good place to invest, this isn’t a good place…"

Joseph P. Kalt: "To be a school teacher."

Rob Williams: "This isn’t a good place to work, this isn’t a good place to teach, and it just might be that one little issue. I like what you said, Rocky, how you guys sat down that one night. I call that the sovereignty audit. I actually encourage tribes to do a sovereignty audit and see where you’re exercising your sovereignty at, and what you’ll usually find out is that you’re not exercising it nearly as vigorously as you think, and it may well be because of this barrier that sovereign immunity may be creating for you."

John "Rocky" Barrett: "Well, it’s claiming where your government has jurisdiction. If you claim the jurisdiction and authority, governmental authority that you’re entitled to, that’s basically the exercise of sovereignty. But the use of sovereign immunity defense in a court action, like Lance said, you don’t just do that casually. That’s using a hand grenade in a fist fight. It’s too much. You just don’t do that until you are attacked by a larger sovereign my guess would be."

Gabe Galanda: "I think sovereign immunity presents the most imminent threat both to business and ultimately sovereignty in the tort regime, and if you think about Mexico for example, people hesitate to drive south of the border because there’s a perception that there is no law and order in Mexico. So on some level that effects their economic bottom line. People would rather just simply go to San Diego or somewhere else rather than Rocky Point or Tijuana, given that perception or even misperception. The same thing holds true to some extent for Indian Country, which is not to suggest it’s not a safe place, but when you have headlines that read 'XYZ Tribe Dismissed Wrongful Death Suit Out of Court Leaving Grieving Widow Without Redress,' people are going to think twice before they head to the casino to ultimately do business and leave their money there for the tribe to then reinvest it in governmental service programs. Same thing can be said of amphitheaters, which are now opening up on the reservation. Casinos and amphitheaters, by the way, are a pretty interesting mix of alcohol and music and dancing and a whole host of things so things will naturally happen."

Joseph P. Kalt: "A lot of slip and falls."

Gabe Galanda: "There’s a lot of slip and falls, there may be in fact fist fights, and that’s not again to suggest that the reservation’s not safe. There is law and order there, there is law enforcement and security. These industries are regulated and over-regulated as a matter of health, safety and welfare, but when headlines begin to appear in the Sunday paper people getting dismissed out of court when something happened and perhaps it was to no fault of their own, someone falling and being hurt or being assaulted by a non-Indian patron and ultimately questioning security of a tribe, those are the kind of headlines that tribes must avoid or those people will not do repeat business and in turn the economy on the reservation will suffer."

John "Rocky" Barrett: "Well, and slip and falls, our grocery store is just a lawsuit magnet. We have one tape after another of people walking in, taking out a bottle of detergent, pouring it out on the floor and laying down in it and start yelling. It is…phony slip and falls. We probably have 20, 25 a year in our grocery business."

Joseph P. Kalt: "Now those kind of situations, I think I’m seeing a trend out there of tribes more and more waiving sovereign immunity around say an enterprise or a particular…and waiving it in to their own courts. Is that what you’re trying to do with your torts for example?"

John "Rocky" Barrett: 'Well, of course the first thing we do is call the insurance company. We try to insure in order to keep it out of the issue of what court has jurisdiction. We’ll let the insurance company handle it as much as we can. Of course, if we can show the person that has the phony slip and fall the piece of tape and say, 'Do you want to go to court on this one?' We’ll try to get it into our courts. We can’t force the non-Indian to appear in our court, but we can if we can prove that person wrongfully came after us, we’ll come after them civilly in our courts and test that issue. The most difficult part of dealing with non-Indians is not having criminal jurisdiction, and most tribes should invoke some form of civil code of behavior that if someone over whom they do not have criminal jurisdiction commits a crime of some kind they should pursue them civilly. In most cases, that’s probably a fine is all they’re going to get any way out of the issue if they’re fortunate to get that."

Joseph P. Kalt: "Lance, you mentioned a moment ago that if you abuse it you’ll lose it, basically. If this is used to really do what is sometimes the fear of essentially escaping responsibility, escaping accountability. I know Rob, as a tribal judge you’ve had some experience with this as a tribal judge. You actually have ruled in such a way as to send the signal."

Robert Williams: "And this is the point I try to make to tribal councils, is that if you look at the experience of the United States government and the state governments, they all asserted sovereign immunity and they asserted it very aggressively and what happened was in the 19th, early 20th century, judges don’t like it. Judges don’t …"

Joseph P. Kalt: "No judges."

Robert Williams: "Yeah. Someone who sits as a judge, you have the sense that your job is to do justice, and here’s this doctrine of sovereign immunity asserted by the State of Arizona, where there’s obviously a debt owed to a contractor and this poor guy may well be going broke because the State of Arizona is asserting sovereign immunity unfairly. You’re going to work very hard to find a way around that, and that’s exactly what happened in other state and federal courts is the judges were starting to chip away. We’re seeing that right now. We’re seeing lower courts, the Supreme Court chipping away at tribal sovereign immunity because quite frankly tribes are the outlier here, that most other governments have taken a very flexible approach and many tribes haven’t taken that approach. So as a tribal judge when I get a case and I feel that there’s an honest debt here or that the tribe was clearly grossly negligent, I’m going to listen to the arguments for that lawyer who’s trying to make a case that the tribe may have impliedly waived it here, but that’s really not good public policy. You really don’t want judges on the tribal court sitting there making these types of ad hoc decisions. What tribes really need to do is do what these other governments did and that is pass tort claims acts, pass administrative procedure acts where the tribe makes the sovereign decision on what forum these claims are going to be litigated at, what’s the amount of liability, when, where and how to keep control over that process so that judges like me can’t go off the reservation as we say and try and make law and make policy on our own."

John "Rocky" Barrett: "Best way to maintain the limits."

Joseph P. Kalt: "Now, Gabe, I’ve heard you express a view though that, 'Let’s not get too easy about waiving sovereign immunity.' I think you’ve had some concern that you waive it too easily you may give up your sovereignty."

Gabe Galanda: "Yeah, and I guess what I’m talking about is the alternative to the sovereign controlling and defining the time, place and manner by which it would waive its sovereign immunity as an exercise of sovereignty. My concern is when tribes are not doing through tort claims ordinances or well-tailored alternative dispute-resolution clauses to commercial loan agreements or other such things, that Congress or courts -- be they tribal, state or federal -- are standing by waiting to define sovereign immunity and waiveall sovereign immunity for the tribal sovereign. So unless you take affirmative steps to do that, you better believe that people on Capitol Hill or in courts throughout the country -- and that includes Indian Country -- will do it for you. And so there’s a number of protective pragmatic steps that tribes can take to insure that they are the ones ultimately legislating waiver."

Joseph P. Kalt: "Give us some examples of those practical steps."

Gabe Galanda: "Well, for example, just looking at the tort environment again, which I believe presents the most imminent threat to sovereign immunity, and the reaction that judges like Rob or judges on the tribal or state bench have is, 'Where is due process?' This person unknowingly perhaps came to the reservation, something happened, they were hurt and now you’re suggesting by way of your 12B motion there is no redress for this person. Well, there are alternatives to even filing the motion to dismiss on sovereign immunity grounds, which in this day and age, with an increasingly skeptical bench, is not wise for tribes to do without at least carefully considering alternatives. So you have an iron-clad general commercial liability insurance policy that makes very clear in certain instances when there are acts or omissions on the reservation by tribal employees or the tribal government itself that there is liability insurance money available. What liability insurance policies give you is two things primarily: defense and indemnification. So the first thing, there is a carrier or carriers on the line who must pay your legal defense bill, and then secondly, in the event a judgment is issued against the sovereign or even an officer or an employee they will indemnify those defendants for that judgment. It all starts with iron-clad liability insurance policies and making sure that ultimately the carrier is standing by to defend and indemnify, but the tribal sovereign still retains all policy-making decisions, decision-making, including whether to assert sovereign immunity and whether to do a host of other things. So first, make sure you have a very good liability insurance policy, and then once that lawsuit is filed and between that point in time and the time when you file, even file an answer, let alone file the motion to dismiss on sovereign immunity grounds, consider alternatives to putting your sovereign immunity in play in court and ultimately your sovereignty on trial. And two, that I recommend increasingly are if the claim has merits and there are available insurance proceeds and as a result of your liability insurance you have some sovereign decision making and authority, perhaps settle the merit, the claim with merit and then again that is good business and that keeps people coming back to the reservation to do business and that avoids the Sunday morning headlines about something happening on the reservation and someone being left without any redress. Secondly, if the claim is just outright without merit like the detergent claim in the grocery store, one alternative is to simply allow that person his or her day in court and to defeat them on the merits. You have a pretty good idea at the outset of a claim whether you can win a case on the merits, and so you might move right past the jurisdictional motion practice and simply beat them on the merits of a matter of summary judgment. They can’t prove that they were hurt, they can’t prove that you caused their harm or they can’t otherwise can’t prove their case against you. So there are alternatives to filing that motion to dismiss that I think tribes need to be very, very concerned with and thoughtful about such as what I just mentioned."

John "Rocky" Barrett: "Yeah, the issue of venue almost always arises in these deals. They want to sue you in state court because they know that you’re going to resist the venue. The lawyers that specialize in defending these phony slip and falls know you’re going to object to the venue, and so they put you in the position of analyzing what the cost of litigation is going to be and tailor their settlement at some number under what they think your cost of litigation is going to be."

Lance Morgan: "I want to change the subject a little bit to something I want to talk about: sovereign immunity, surprisingly. I think sovereign immunity is dangerous in the hands of the politically motivated or the uninformed. I’ve been in so many business deals with tribes where it’s about to happen, something critical that needs to happen and somebody gets up, either on the government side or in the audience in the room and they start making a speech and the speech is wonderful. I start believing it. And really it’s a great speech from a sovereign context, but in a business context or development side, it doesn’t make sense. But since these issues are so easily confused, lots of good things that should have happened don’t happen. And I always make the comment about the proud guy who makes the speech, stops the deal, then goes back to live in his car that’s got an extension cord into someone else’s house, and he’s talking about how sovereign he is. I’m thinking about the implications of doing these kind of things, and it really can hurt you if you don’t understand it or you allow it to be used in a political kind of way."

Joseph P. Kalt: "Particularly the two of you, it sounds to me like there’s got to be an educational role then, in other words to educate your own people so that you minimize the kind of speeches you’re talking about that sidetrack a deal or whatever. Early on in your efforts did you have to talk this issue through or did it just evolve that you got a consensus?"

Lance Morgan: "I think what really happened, I think you’re always going to have the speech problem where someone gets up and does that because you confuse the issues and what we did in our situation was is that we had this problem before, the first time the tribe started a corporation. The second time we started a corporation, 'cause we had failed -- the first one was a total disaster -- and on the second time we did it, we granted the power to waive the sovereign immunity to that corporation through a resolution of the board, so we developed our internal expertise on how to deal with this particular subject and took it out of the political context altogether, because frankly I don’t know how you ever divide it other than by just separating it, because a politician thinks in a certain way and there’s always a way to stop it by giving this kind of speech."

Joseph P. Kalt: "Is this an issue for you?"

John "Rocky" Barrett: "We asked for…we went back to our people for a specific constitutional amendment to put language in our constitution that authorized the tribal legislative body to waive tribal sovereign immunity in dollar amounts for contractual purposes because we thought that if people were going to do business on reservation we wanted to be able to make viable, enforceable contracts with those people and we wanted them to know that we had the authority to make that waiver. In the process of going to the people and asking them to understand this concept, I think our people came out of that with a clear understanding that waivers of tribal sovereign immunity in these kinds of situations was responsible behavior that was expected from its tribal government and it wasn’t something that we were giving up, but it was a business practice."

Robert Williams: "And that’s where education comes in, and I know those speeches, because I’ve given talks before tribal councils before about this issue and someone gets up and makes a speech and what I find is that oftentimes if you say, 'Well, let’s talk about waiving tribal sovereign immunity,' someone gets up and says, 'You’re asking us to give up our sovereignty,' and then what needs to be done is for the leadership to say, 'Well, not really. What we’re talking about is waiving tribal sovereign immunity up to $100,000, up to the limits of liability insurance policies, of only waiving it in tribal courts, backing that up with some education and training for our own tribal judiciary and our own tribal lawyers.' In other words, part of the education process is to make the tribal membership understand that when you talk about waiving sovereign immunity, it’s really limited waivers. I don’t know of any tribe that’s embarked upon this challenge of addressing the issue of sovereign immunity as a sovereignty tool which gives unlimited waivers of sovereign immunity. In fact, some of the research that Joe and I have done has shown that…I was actually surprised, there are many, many tribes that have selectively chosen where they’re going to waive their sovereign immunity, where they’re going to assert their sovereign immunity. So it’s as much a…sovereign immunity -- I think, Lance, you and I have talked before -- it can be a weapon as well as a tool and it has a defensive aspect to it and an offensive aspect."

Lance Morgan: 'Well, there’s really no surprise that there’s confusion about this issue, because it has so many different uses and to use it smart takes awhile to get all the context of it down, so it really is an issue where education matters in these kind of things and discussing it are very important."

Robert Williams: "Yeah, and I’ve looked at some of the laws you guys have passed, and Rocky, and if you sit down -- and maybe I’m going to sort of pull the curtain here and sort of be the Wizard of Oz -- but if you look at tribes that have really thought about this issue and if you look at where they’ve waived their sovereign immunity, it’s a pretty small exposure of liability there, which is exactly what states do. But let me tell you something, when you go to the state court or when you go to the federal court and you can show them all these statutes you’ve passed and all this legislation, what you’ve shown them is you take this stuff seriously and you’ve debated it and these are your public policy decisions and you’re going to get that respected a lot more than just going into that state court and say, 'Well, what have you done on sovereign immunity?' 'Nothing, we don’t have to worry about it.' And that’s what happens."

John "Rocky" Barrett: "I think…I don’t know how many tribal leaders have sat down and played out what happens if the United States Supreme Court essentially rules that sovereign immunity defenses are no longer allowed Indian tribes. How do you…"

Lance Morgan: "Don’t even say that."

John Rocky Barrett: "Well, but it’s something to look at, it’s something to worry about and it’s something to look at. How do you defend the treasury of the tribe, how do you shield its assets? There are still alternatives left to us in creating trusts for the cash assets of the tribe, in protecting…through the tribal courts in protecting the non-cash assets of the tribe, and of course those assets that are held in trust by the United States which can’t be encumbered are in some ways protected. But if you walk through whether or not someone could -- in the absence of sovereign immunity defenses -- make an assessment against future income, there are certainly governmental functions that would shield those in how you assert your tax authority, you could protect income by asserting tax authority over your enterprises. In the event that it happens, I believe that well-thought-out strategies could…you could defend the tribe against a raid on the treasury."

Robert Williams: "And isn’t it true that when you’re thinking about these things, what you’re really thinking about is what’s the least amount we have to give up to get business on this reservation. You don’t want to give away the whole store. You’re really making a calculated decision about sort of the minimal amount of sovereign immunity you have to waive, right?"

Lance Morgan: "Right. It’s always a calculated decision. I mentioned earlier that yeah, we do it all the time, but we’re very specific about how we approach it. We don’t show up with that on our forehead: we’re ready to waive."

John "Rocky" Barrett: "Aren’t you guys doing pretty much what we’re doing? We want people to want to do business on the reservation. We want them there."

Lance Morgan: "It’s a flexible dynamic. We fight hard when someone’s pushing our rights. If it’s a commercial transaction, we’re very flexible. I bet you we have 1,000 commercial contracts and we probably have waived sovereign immunity 30 times. Most of them don’t matter, they’re just small potato kind of things."

Gabe Galanda: "And I guess I would just follow up what the Chairman said, and ultimately there is the threat to tribal sovereignty, most notably by and through local and state government in the event you didn’t have your sovereign immunity, and there’s a great case that the tribes can still use as a shield, which is the Oklahoma Tax Commission vs. Citizen Band, a Potawatomi case -- thanks to Chairman Barrett -- but the other target, if you will, is the tribal treasury as the Chairman suggested, and if or when that day comes when sovereign immunity is no longer a viable defense for tribes, they will be sued frequently like corporate America is being sued. And unfortunately the potential through litigation, class-action litigation or other personal injury litigation could ultimately bankrupt the tribe and leave them without a viable operation. So that’s really what’s at stake is at the end of the day tribal proceeds that are used to provide governmental services to Indian people is what’s really at issue when sovereign immunity is not used responsibly."

Joseph P. Kalt: "I’m going to have to wrap this up, but I want to say first thank you to all of you. I’m struck by this conversation. What we’re actually watching is this increasing sophistication of tribal governments playing on the stage with other governments, because all around the world the strategic use of things like your sovereign immunity is an asset you don’t want to waste. It’s what governments all around the world tussle [with] and think through all the time, and it’s very encouraging, I think, to see the kinds of lessons you all are bringing to us. Thank you very much for this discussion."

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

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

Stephen Cornell:

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

Joseph P. Kalt:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tribe asserts DV jurisdiction over non-Indians

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The U.S. Department of Justice has reported that American Indian women “are more than 2.5 more likely to be raped or sexually assaulted than women in the USA in general”. The DOJ also reports, per its Bureau of Justice Statistics, that at least 70 percent of the “violent victimizations experienced by American Indians are committed by persons not of the same race.”

Until recently, tribal courts throughout Indian Country did not have jurisdiction to prosecute non-Indians for these crimes. With the passage of the Violence Against Women Reauthorization Act (VAWA) of 2013, that changed...

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McKie, Scott. "Tribe asserts DV jurisdiction over non-Indians." Cherokee One Feather. June 16, 2015. Article. (https://theonefeather.com/2015/06/tribe-asserts-dv-jurisdiction-over-non-indians/, accessed June 19, 2015)

ON Congress passes five-year banishment bill targeting convicted drug dealers

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Dangerous drug dealers convicted in the Osage Nation tribal court system are now subject to a mandatory minimum five-year banishment from the Nation’s jurisdiction.

The Fourth ON Congress passed a bill (ONCA 15-31 sponsored by Congressman RJ Walker) on April 20 with a 7-4 vote putting the five to 10-year banishment penalty into Osage law targeting those who are convicted of selling, manufacturing or distributing dangerous drugs including methamphetamine on the Nation’s properties including the three villages, the government campus in Pawhuska and the seven Osage Casinos...

Native Nations
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Polacca, Benny. "ON Congress passes five-year banishment bill targeting convicted drug dealers." Osage News. May 4, 2015. Article. (http://osagenews.org/en/article/2015/05/04/congress-passes-five-year-ban..., accessed June 4, 2015)

Cass Board, Leech Lake Tribal Council highlight cooperative efforts

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The cooperation and partnerships between Cass County and the Leech Lake Band of Ojibwe in recent years have not only been successful but apparently are highly unusual, both state- and nationwide. Time and again at the April 24 joint meeting of the county board and tribal council, at Northern Lights Event Center, speakers mentioned how other tribes and governing bodies asked them “How did you accomplish that?” or “Where does this happen?”

One key element is the Memorandum of Understanding signed Jan. 31, 2014, that provides a framework for cooperation between the county and the Band. It states, in part, that “it is mutually understood that consultation between the parties will contribute to the creation of more enlightened, better constructed and more effective policies and decisions.”...

Native Nations
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DeBoer, Gail. "Cass Board, Leech Lake Tribal Council highlight cooperative efforts." The Pilot Independent. May 6, 2015. Article. (http://www.walkermn.com/news/cass-board-leech-lake-tribal-council-highli..., accessed March 17, 2023)