wellness courts

Leech Lake Joint Tribal-State Jurisdiction

Year

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

 

Native Nations
Resource Type
Citation

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

Joseph Flies-Away: Knowing, Living and Defending the Rule of Law

Producer
Native Nations Institute
Year

Joseph Flies-Away (Hualapai), Associate Justice of the Hualapai Nation Court of Appeals, discusses the importance of Native nations building and living a sound, culturally sensible rule of law -- through constitutions, codes, common law and in other ways -- that everyone in those nations knows, understands, practices, respects and defends.

Native Nations
Resource Type
Citation

Flies-Away, Joseph. "Knowing, Living and Defending the Rule of Law." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 3, 2014. Presentation.

"Good morning. Say these words with me, right after I say them: Framer. Framework. Founder. Follower. Funnel. Facilitator. Friend. Family."

[Audience]

"Now remember those words. Now I'm going to say something to you and I'm going to ask you to do something. I'm going to say ‘the people' and then in your own mind or in your own verbal expression yell out at the top of your lungs, or as silent as you want, your 'people.' So when I say ‘people,' you say your thing and then I'm going to say, ‘Gather, ground, and grow,' and I'm going to do something with my hands and I want you to watch that. So you all know what to do? You're the accelerated class? The people. Joan [Timeche]. You can't interrupt. I don't know if this is on or not. He put it on me, that man, so I don't know. I can't deal with the technical stuff. I've got to go on. Remember the instruction. I say, ‘the people,' you say yours out as loud as you want in your own language and then, ‘Gather, ground and grow,' and I do something with my hand. The people. [Audience] Oh, gosh, you people are...come on. [Hualapai language]. The people. [Audience] Gather, ground and grow. And I'm going to continue with that kind of thinking as we do this.

Okay, I'm going to talk to you from this paradigm and it's this, and I always speak to everything from this. And I developed this starting when I was a planner for the tribe and a council member for the tribe and then when I became a judge. This used to be a flat planning tool, but it became spherical when I became a judge after this minor said to me, ‘Joey,' because they always call me 'Joey' instead of 'judge.' I let the kids do that, but not the adults. ‘What do you think about when you decide to send me to jail?' or something like that and I really thought about it because I wanted to tell that juvenile what I thought about when I decided things because I had...that was the first time someone really asked me the question. So this has come...let me get it up here...and I now speak with it all the time because it's very relevant to what we do as community nation builders, how we all gather, ground and grow. And some of it's very academic so I can speak to a bunch of professors in this way and then I can speak to any population. I can speak to Chinese. I can speak to Russian. I was in Australia in November. I spoke to a bunch of judicial people there from the same point of view. I'm going to share this with you. Now that's this sphere.

As people gather, ground and grow -- throughout all human beings -- there's always conflict. There's always going to be, as you see on the bottom, conflict, but at the same time there's always going to be cooperation. And between conflict and cooperation we're going to go through life; all our life, we're going to have goods, we're going to have bads. We're also going to have issues of personal, or citizen against the group, tribe or community and we have to balance between myself and my people, myself and my family, myself and the tribe, myself and the nation. But we're somewhere along those lines in balance. We're going to also have to think about what one person thinks is right or wrong, as opposed to what the group thinks is right or wrong. Me, my family. Me, the tribal council. Me, my co-workers.

Now this last one, this sphere is made up of these axes and so there's that one, that one, that one, but the bulk of it is made up of this last one, which is on one end common law, constitutions and codes, that which is written and on the other end custom, common practice and culture, that what we do. And all cultures are in there somewhere. White people, you're like way over here on the writing for a long time, Anglos, English, they wrote. We didn't write all the things. We had picture glyphs and we had symbols and things, but we're more down here. We didn't have to write everything. We talked about it, we were oral, we told stories.

So as we get into the more modern context, they're asking us to be more in this somewhere up here rather than down here. But there's nowhere in the sphere that's wrong or bad. It's where the group of people have decided to be because you're going to take your custom and culture as far forward with you as the best you can. But like at Hualapai, chiefs used to have more than one wife. Can I do that now? Unfortunately, no, I guess not. So you don't bring everything forward with you. You bring the best of your people, the best of your culture, the best of what you know as human beings from out this generational growing as people. But somewhere along the line you're going to be between here and balance here all over.

The person in the middle or the institution in the middle is what I call the warrior of law. Every human being should be a warrior of the law. They shouldn't be just a judge or shouldn't be just a leader, shouldn't just be someone who was put in that position. Everyone of us, our children, all should be a warrior of law, meaning that we're going to try to balance all of these things throughout our lifetime. With myself as a human being, because this works as individuals, but myself with the groups that I'm a part of because there's always going to be the me, but always a group. There's always going to be all of these other things.

So, as far as dispute resolution, the four words that I look at that by constitution or by custom and peacemaking, they're basically doing some of these things. They're confronting whatever issue might be at hand or whatever problem or whatever hurt or whatever pain that's there. They start communicating about it, meaning they're going to discuss or they're going to go through procedure. What procedure are you going to use to get through it? So I call that communication.

They're going to need to make compromises, because no one can have everything they want, although we want to have everything we want, we just cannot. When we go to court, somebody's going to lose in there. I made a lot of decisions. I was telling some of these people this morning, half my tribe hates me because I put them all in jail at least once and I've took children away from people, I divorce people and I gave alimony to one side or I gave the tool chest to someone and they got pissed about it, whatever it's going to be. As a judge, you're hated or disliked by half the people. You can't win. It's sad for me, but I try to do my job. But people have to make compromises, but you confront, you communicate, you compromise in order to reach concord, which is peace.

So every warrior of the law, everyone of us should be wanting to get to peace inside of us as an individual, but with the groups and people, families and all of the others that we are a part of. That should be our goal in life as humans. Now institutionally, you have governments writing things down in constitutions saying how this communication might work procedurally: trial level, appeals, how it's to be filed. I have a case right now where the justices, the three of us on the panel, are bickering over whether to give a person a pre-trial conference on an issue, these little things that we have to deal with, but it's all a part of how we're going to communicate about it on the appellate level. But we have a code, we have new rules that we made not too long ago in the court of appeals. It's supported by our constitution and we try to do the best we can. But there are a lot of issues that I'd rather would not have all this procedure, all this stuff in the court system.

When I was judging, and I judged in many places, and I've been around many places to help with, as professor said, wellness courts. I even came to do TA [technical assistance] for this tribe actually. Pascua Yaqui used to have one of the only family wellness courts at one point and it was a good one. I don't know where it is now, it's not there, but they had a good family wellness court. I think they have adult, but that kind of process is something that you look at a little bit differently and we're making rules...they make rules about it and everything, but I've been all over the place and I've learned a lot everywhere I got from the people that I deal with. They're all over the board. Some like to be more like haikus or White people when they want to be the system; they want to look just like the state court. Others don't want that.

When I sit as a judge, I wear a ribbon shirt that my mom made and I don't like to wear that black dress. I might as well put on that white wig if I wear that black dress, but I'm not going to do that. I don't want my hair white yet. It's getting there, but I'm not going to go there yet. So I wear a ribbon shirt because it's something that is of us, not of Anglo. But there are a lot of tribes who want to be like that. Well, okay, who am I to say, ‘Well, that's not good.' But all of you as nations or people...leaders of your people, warriors of law, all of your people have to come to some conclusion about how that's going to look, up here. History, clarity, vision are the past, the present and the possible, the vision. You have to have a sense of what that's going to be.

What is your court system, your dispute resolution system going to be? And there's quite a bit out there as you just heard. There's other places that have started peacemaking. There's other places who are just developing court systems. A lot of people have...I read grants for the federal government, we award money to people who are just developing court systems and they want to do more like wellness court, they want to deal with the issues of that because wellness court is about addictions of all the people and yesterday I said, ‘Well, we can't build all these nations with half our population being sick, we just can't do it. Then we rely on all the outsiders and it's not our nation, it's theirs. We have to get our people well.' So wellness courts are important. We have to keep working on them and a lot of tribes, they ask for money to do that and that's one of the things I help them do. So we have dispute resolution, we have writings, we have customs here, we have the individual issues where people file against each other or the community or the tribe files against the person or however it goes.

Now, this part here, I'm going to talk about some of the...see the people, policy, place, and pecuniary possibilities. That's another way of saying the people gather, ground and grow. Policy meaning how do these people as a political unit, polity, get together, organizational structure. Remember the people were like this, we're related by clan, by family, by band, whatever. But when we get to government, it's like this, hierarchical. How is the structure of our government going to be? So the people gather in whatever form or fashion, ground, and then the place and land issues like we have to have a building for our court system, we have to have a place to meet, we have to have a courtroom, we have to have all these things. And when I was a judge, I got electrocuted in my court and some of my council members here don't even know this, but I was electrocuted in our court because it was a condemned building, but that's where I had to hold courts for two years. But we have to have a place to do it.

The pecuniary possibilities is we have to have the money and the funds. We have to be able to have the resources, the tools to do good court, to make good decisions. If you have an appellate court system and you're only paying your judges $100 a day when they're making five times that an hour as lawyers somewhere, you won't get all the people you need. I've been in different places where they pay from $100 a day to $500 a day and I've done all the different places, but it's a matter of pecuniary possibility meaning financial. So going back to this, it's another way...do you have the people to do your court systems, do you have the human resources, your own people? It's best to have your own people as judges I would think.

But now through the TLOA, Tribal Law and Order Act, how many of you are actually looking at doing TLOA changes with your 3C or sentencing? Nobody in here? Because it's going to ask you -- and then the VAWA [Violence Against Women Act], the VAWA group -- it's going to cause you to have to have certain requirements made of your judges, of your public defenders, of your prosecutors, but we don't have a lot of us, don't have the human capital. There's only been three people at Hualapai that have gone to law school and two of them, they're younger than me, have already gone on and I don't know what the first one's doing, but the other one, he works in California and he's going to be a sports agent and I'm the one that works for tribal people, but some of us don't...some tribes don't have anybody who's gone to law school. But I'm not saying you have to go to law school to be a judge, although these acts tend to make you think you have to do that. But you have to have the human resources and we don't always have that.

A lot of people have wise people, older people. Well, not all old people are wise, but there are some...these peacemaking courts, which they put to use, those are the ones they're putting in there because they have some sense of wisdom and people respect them. Unfortunately...my mom says, ‘I didn't say anything and I'm an elder.' But I look at her, to me she's my mom and the elders are way older than her. So some people, we don't see the elders in the same light. But most tribes have good, strong, wise people who can be peacemakers, but are those...

Like what kind of cases are you going to bring to those systems? We have the law. We have a criminal code, tells you everything you can't do that's a crime, all the offenses, battery, assault, sexual defenses, everything. We have civil codes that tell you what you can't do. But we also have custom things that we shouldn't be doing, but these ones go to the court system that we have that is under the constitution and the code, but what about when people are just mad at each other? That is where I wish we would have more of the peacemakers where we could bring people in...we have a gym; we could fill the whole room with whatever. Bring these two people in and say, ‘What happened?' and if we have to give them boxing gloves. Well, let's make it a safe little place and let them have at it because we fight with pipes and all kinds of things, bats, when they get thrown in jail, why can't we let them do it in front of us? Just have them...we could do peacemaking at home if we just had the ability to figure it out.

And we can do it in our own way because at Hualapai, in our ethnographies and what I've read and then what I asked about from my great grandma was, they used to say...people would come in and if they needed to bring in another chief from another band...because Hualapai really, 13-14 bands of Pai people, [Hualapai language] is people of the tall pine. It's my great-grandfather's people. There's other bands. They're all different people. A long time ago they would bring in a head man or a chief from something else and sit down, hear what's going on and let that person decide, things like that. But they would all talk [Hualapai language] or how they'd say that. They'd all talk about it and some decision would be made and that would be it. [Hualapai language], it would be over with. That's it. We can still do that at home, but do we have the ability, do we have the people, the human resources to do that and do you?

Those are the things you need to think about and we have a lot of resources, but sometimes we don't know, we don't...and again it goes back to our own ability to see it in those people we don't like. And I know, you guys are all going to say, ‘Oh, I'm not like that.' All of you probably don't like someone at home and you...it just tears at you when you see them excel maybe or whatever. You know how you see them going down the road and you go...I know. We all do that. You're going to all these cars waving and waving, there's one, don't wave at all. All of us, you know. We have to come and accept that that's the confrontation, the acknowledgment of that. We have to know that that's what we do. I know I did it or I do it. I'm afraid of people at home. They're mean to me and I was telling our councilmen, I have no thick skin. I'm a baby. One little word, look, I'm just in tears practically. But we do that to each other. We have to somehow get past that.

But a lot of that comes from the historical trauma or the way that we were raised. Our parents and the grandparents were in boarding schools and they weren't given all the love and all the parenting, and so we're kind of just mixed up through a lot of hurt and pain that we're not over. We carry it. And I always make the mistake of saying like Bob Marley, but I'm not talking about Bob Marley. What Marley am I talking about? No. Jacob Marley. Christmas Carol. You know how he's coming, ‘Eh, harr.' We carry our pain and our misery and our hatred and anger for whatever our great grandpa said about so and so. We do that. We need to let that go. We don't have to forget everything. We've got to let those chains go because we're holding onto such pain and just horrible feelings about things that has just been handed down.

My grandma used to tell me about how the...she heard and all of Hualapais know about this -- we're celebrating this in the next month or this month -- when they made us march all the way to a place called La Paz, which interestingly means ‘the peace' in Spanish, but they took all the Hualapais over there and a lot of people died on the way and they took off and escaped and came back home. People died on the way back. But I come from and these guys come from the people who survived that. But when the old people told you that story, they would remember and they would cry and they would just...and we haven't let all that go and we all have our stories, we all have that memory that we carry. And we may not acknowledge it or even know or can see it, but we do, we just hold on because our grandmas were special to us, our grandpas and we listened to them and they unfortunately sometimes gave us this feeling.

My grandma said, ‘Don't trust white people.' I didn't trust a white person until I went to college and five years ago I went to a reunion and I told them this. I never said it to them before. I said, ‘My grandma said not to trust any of you people, but you're all right.' And they laughed like that. But I had to tell them that because I was like, ‘Oh, god.' Three white people I had to live with in a three-room thing and, ‘what do I do with this?' because I hadn't lived with white people. The white people in here probably think that's backward, but it's just...I'm telling you as it is. So we have this in our people and I'm going to go these ones.

ELDR, E is for earth, L is for lightening, D is for dream and R is for rain. Dream's the most important, that just means law and I'm going to get to that, but E is the physical. We have a lot of issues: alcoholism, diabetes, hypertension, all of our physical problems that we have. L: lightening. Our thoughts. We hold off on our... We have terrible thinking. We remember, we hold onto these thinkings. The R: the rain. The emotions. We have a lot of the emotions still. But D, the most important one is the dream, which is law, whether it be what we've done as custom or what we've written down and all of that is good, but we have to have our law.

Law is what connects us and binds us together, whether it's in the stories and tales and cultures and customs and common practices that we know, that the Pueblos know more, Hopi knows more, Diné know more of these things because it's in ceremony. But we also have the ability to write things down for ourselves, for people to know in our own place, but also for outsiders to know who we are, where we come from, where we want to go as human beings so that is this side, but everywhere here is good.

There's so much more with this. I didn't even look at this. I had all these little notes, but I didn't even tell you these things because I guess that was all right, I went through stuff, but there's too much to say all the time and too little time with this. And there's too little time for all of you in a way because you're going to be 10 years from now, boom, what happened? So we've got to wake up, [Hualapai language], and do what you've got to do and go home as survivors and know that you descend from strong and powerful people and that you can do this stuff with whatever knowledge you learn from each other and other people and just do the best you can, like I said yesterday, because we have to get past that. We are going to be the people who show the entire earth how to be good human beings. Hopi prophecy, other prophecies -- that's going to be the Indigenous people. Which one of us are going to do the best job of that? So I challenge all of you to go and think about that.

Lastly, warrior of law, all of us as human beings, as leaders, leadership, law, land and les affaire we'll leave that for now. But all of us should say, ‘I stand in reason, I walk with will, I stumble over morality, but I will catch myself and go on with my journey with law. So the best of luck to all of you. [Hualapai language], thank you."

Sheila Morago, Jill Peters, and Theresa M. Pouley: Some Tools to Govern Effectively (Q&A)

Producer
Native Nations Institute
Year

Sheila Morago, Jill Peters, and Theresa M. Pouley field questions from the audience concerning lobbying, the importance of public education about tribal sovereignty and development, and how the Tulalip Tribal Court deals with fetal alcohol syndrome and its effects. 

Native Nations
Resource Type
Citation

Morago, Sheila. "Some Tools to Govern Effectively (Q&A)." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 26, 2008. Presentation.

Peters, Jill. "Some Tools to Govern Effectively (Q&A)." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 26, 2008. Presentation.

Pouley, Theresa M. "Some Tools to Govern Effectively (Q&A)." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 26, 2008. Presentation.

Audience member:

"This is a question for Sheila. What's your feelings on the effectiveness of like short DVDs in lobbying? I testified at a language bill and this other tribe brought in a short DVD and it had their elders interviewed, their children, and it's talking about the impacts of learning the language in the schools. And it seemed to be very positive, pretty short, but do people spend time to actually watch them?"

Sheila Morago:

"Actually they probably do, especially if it's an issue that's coming up and is very relevant to something that is going to get voted on. What I would say that if you're going to do that, you don't want to show it while you're sitting there unless it's really short. Sit there, encourage the person that you're talking to to watch it. And especially if it's something that has your elders, your children, a group consensus of how this is going to affect you, all of that works. Again, they want to see how it affects the tribe itself and those tribal members. So absolutely any, [because] the last thing they want to see, to be real honest with you -- Jill working in Senator McCain's office -- is someone walking up and handing you a stack of paper this big and say, 'Here's the background on this. Can you read that before the vote tomorrow?' It goes shoo! right back there. So one of the things, that is a quick and easy way for someone to get all their listening, seeing and being able to get that very quickly so that's a great idea.

James R. Gray:

"I wanted to ask a question of [Jill]. If you had...I know in one case on our reservation we have a grocery store that's owned by the tribe. And it's a good case study on how to deal with something in kind of a crisis moment because we had bought a going concern from a non-Indian business owner who was going to close his business so we took it over. A significant number of our tribal members lived in that town but it was serving everybody there. And one day the Oklahoma Department of Agriculture walked in and did a survey like they always do on that store owner's maintenance of the WIC [Women, Infants and Children program] and food stamp program. And we were carrying out that contract within our tribe, but at the grocery store level it put us in a completely different role. And in that circumstance they fined us. Not because we were charging too much for the program, we weren't charging enough. We were cheapening our own business. For some reason, it was just a mistake on our end at the management level, but we ended up cheating us. But they said, "˜Well, we brought this to your attention on four different occasions and your manager never fixed it. So now we're going to have to fine you.' And as embarrassing as that was, we said, "˜Well, can we apply the fine in the form of a payment for contracted services?' Because what we didn't have in our tribe was a health department of agriculture that was going to do this anyway. Had we had that, we would have provided that assistance, but since we didn't have it we entered into an agreement with the State of Oklahoma Department of Agriculture to pay them to come and monitor that program. Because the Daily Oklahoman made a big story about this and put it on the front page of the newspaper that Chief Gray and the Osage Tribe were kicking out the State of Oklahoma off the reservation for being cited for health department issues, which created a freak-out among the community that something was wrong with our grocery store. And so they never corrected it of course, but we entered into this agreement where rather than accept jurisdiction of the state into our grocery store, we just paid them to come on and make sure that those programs were running right and everyone got to save face. And we left the jurisdictional fights for other bigger issues [because] you didn't want to get into a big court fight over something that you didn't do right, but because the issue of jurisdiction would never have been heard properly in the right context. So the suggestion I wanted to ask, maybe you could speak to is, could you talk about how important it is to pick your fights and ways in which you want to advance your interest as you're protecting your rights as well?"

Jill Peters:

"Sure. And I think that's a very important point, because you're going to have a whole range of issues that will be coming before tribal governments. And some of those may be some of these, I don't want to say it's a small issue, but at the same time you're going to have bigger issues dealing with the state, that you're going to have to deal with on that and are going to really have long-term impacts. And that really is going to be a balancing of the tribal leaders' responsibilities. You really have to set priorities and when you're developing your agenda you really have to think forward. "˜Well, these are the issues that we're going to deal with and we want to address.' And maybe on a very large or overarching level, part of that is to say, "˜Well, we need to look at where we are lacking in our resources. Where are we lacking? Maybe we don't have that State Department of Health. So we need to look at well, how are we going to fill that gap?' So part of that may be a bigger policy type of approach where you decide, "˜Well, let's talk to the local [government] or let's talk to the state and maybe we can try to develop that cooperative approach.' So that way, again it comes down to the tribal government kind of determining priorities. And I think you also have, in some ways it helps to have someone who can handle your PR [public relations] in a way that can help manage those messages as well. So when you have these kind of like little fires that come up, they can help the tribal government sort of help manage so that the wrong message is not being communicated to the community members who are out there who don't have the privilege or knowledge of what the tribal government is doing. So again, it's probably not going to be a very simple reply or answer to that, but again it's a matter of the tribal government determining what are the priorities, looking at areas where maybe they're lacking in resources and trying to see how they can make up for that in resources. And some of that may be a little preemptive. You may be thinking ahead about problems that you may not have at this point in time, but you have to look at, "˜Well, if you have checker-boarded lands and you have checker-boarded jurisdiction in your community, what are some of the issues that may come up as a result of some of those conflicting jurisdiction issues.' So it's not a very uncommon issue. It could be a gas station, it could be something else. You may have a gas bill. How do you deal with that? It's an individual owner and you have checker-boarded land and then -- you want to be able to kind of anticipate some of these issues. So some of that may be looking ahead, being a little more proactive, rather than reactive. So and again it comes back to the tribal leaders determining some priorities, having some good planners, having a good PR person. Some of those things can help manage some of those issues. And again it may just be looking for other avenues of resources that are out there. What are the tribal communities doing maybe to kind of help address some of these issues? I don't know if that directly answers your question or if anybody else has anything to offer on that particular issue."

Audience member:

"Yesterday, Sophie Pierre mentioned that tribes must be the authors of their own stories and also, Chairman [Anthony] Pico said tribes must be more transparent and project a better image, because ultimately it will be the voters who decide the fate of many of these Indian issues. My experience is that tribes could do a lot better job here in this area especially in engaging their local communities. You've talked a lot about engaging the political structures, and particularly in Washington. My experience again, when tribes do engage public relations, it's often an outside firm that has little knowledge or understanding of Indians or of the local community, and that few tribes actually take the time to explain what they're doing with their communities on their websites. So my question to you is what can tribes do more to better tell their own stories, particularly with local communities and with local citizens who will decide many of these issues for us, like it or not?"

Sheila Morago:

"PR is something new for tribes and it's really difficult for them to make that transition. We're taught very quickly, especially -- I work in the gaming parts, so talking about how much money you make, what you're doing with it, how your charitable contributions are being made -- to be real honest with you, that's very tough. We're taught not to brag and that's kind of bragging. So one of the things that we do a lot, especially here in Arizona, you have to be pretty transparent. Chairman Pico's right. A lot of this, especially when it comes to gaming, is voted on by the people. We just went through our referendum in Arizona in 2002. California just went through theirs just recently and before that. One of the things that we do particularly is we publish an annual report -- and they're actually out on the table right now. Every year Arizona does an annual report that tells how much money we made, statewide -- not individual tribes. We tell how much money went to the state and one of the great things that one of the tribes does is TGen, they give some of their money to TGen, which is great. We have to work with local communities. Those people are going to be the people who are voting on our particular issues if it comes down to a gaming issue. So if you're asked to speak at community meetings, you go. If you can be part of any type of cities and towns forum, you go. You want to be the resource. So you want to have an intergovernmental relations person that is within the political structure of the governor's office or the state legislature or your representatives. Anytime that there is an opportunity to speak, you speak. Anytime you have a reporter call you, you answer. That is one of the biggest things that really that you'll see in any type of newspaper article. All attempts to contact a tribal representative were not answered and you're like, 'Kch!' So it's difficult because --especially if you're dealing with something that's bad -- you really don't want to be the front person. And as we all know, it's very hard for anybody to be the one spokesman for the tribe. And that is something that has to get done on a tribal level that the council and the tribal leadership actually gives that responsibility to somebody. And that's a difficult issue, too. Everybody is in different parts of that in developing all of that. But once you get very good at it, you'll realize the benefits that happen with that. All of a sudden you're not the bad person. And sometimes you can spin it to where you're the hurt person in the deal and it helps a lot, especially when you're dealing in intergovernmental relations and doing cross-jurisdictional things. The more people know about you, the easier it is for them to understand where it is you're coming from when you're dealing with that stuff."

Jill Peters:

"Yeah, I know intergovernmental relations, when I talk about it, it sounds a lot easier than I think, in practicality, it is, and for a lot of reasons. And I think one of those main things is information and sharing information and it really is a hard thing to do. And tribal governments, as Sheila mentioned, are sort of now just coming onto par of actually having web pages and putting things on their web pages, sending out press releases. A lot of tribal communities that I work with do have newsletters. So they send out newsletters, but these may be only quarterly or something else. So they don't include -- it's very limited information. So, as Sheila mentioned, it is helpful to have someone who can be working on PR issues for you and be able to give information out, especially to neighboring communities. I work in Phoenix, so one of the issues that is constantly dealt with are the communities that live within the city boundaries of Phoenix. So you have a community where one road separates Scottsdale from a tribal community. I mean you literally walk on one side you're in a tribe and you walk on the other side you're within the city. It's taken many, many years, but these two communities have learned to work together. And it's not always easy, but I think they do a lot of information sharing as well. I can't speak to exactly what that is, but I think at least they know who to call if they have questions. So there's a contact person. Also, some communities establish working groups with other jurisdictions so that they meet on an annual basis -- or what other type of regular basis -- and they just share information and they share different areas of priority that they're working on and see where different areas of -- they match where they might be able to work together. So I think there's a variety of ways that you can deal with that issue but it's just again, it may be that there's not someone on the ground whose taken that responsibility, or is not assigned that responsibility, or there's not resources to deal with that issue. But communication really has to be a key part of tribal government for a lot of reasons. Again, if you don't know what's happening in your neighboring community, they're not going to know what's happening in yours. And so if you keep operating in that mode, chances are someone's going to take an action that's going to negatively impact you or vice versa. So I think really it just has to be a priority again at the tribal level. Someone has to reach out, whether it's the tribe or the local community. If you're working with the other community reaching out really is the first step."

Gwen Phillips:

"I have a quick comment. It's just exactly what you're speaking about here. Chief Sophie [Pierre] had to leave the room because we have reporters asking about a purchase of land and did we support it and all this other stuff. So I was madly looking for support for her, as a director, to give her. So my job as a staff is to make sure I've got all of that information and then to feed it to her, in a timely manner and a concise manner, so she can do her job. My question is actually for Theresa, Judge Theresa. I was the Director of Education for our nation for ten years. And Sophie had alluded to our having done a full Psych Ed assessment of our school-aged population in the early 90s. And we had assessed, at about, 40 percent-plus fetal alcohol syndrome; fetal alcohol affects. We had a very intensive program operating for a good dozen years addressing fetal alcohol affects, but we repeatedly and continually -- in all systems out there that are designed to assist individuals in growth -- come up against brick walls all over the place. Not our own brick walls, of course, but those of the institutions that we have to deal with. And I'm wondering what approach, if any, that your nation has taken in addressing this, because these are the ones that are the circles?"

Theresa Pouley:

"Well, there's a couple of really important issues. One of them is fetal alcohol syndrome or fetal alcohol affect. And Tulalip does a great job about this. And it's the judge's job to make sure the state court thinks we're doing an okay job from a due process perspective, but Tulalip has taken the position that unborn children belong to the tribe. So if you are a substance-abusing mother who's in the court system, there is some possibility you may sit out your pregnancy in jail because it's our responsibility to those children not to have them be subjected to that. That's a pretty hard line and that's a hard thing to do as a tribal council person. I don't want to sort of minimize that, but there is this huge recognition of that. Wellness courts themselves, which institutionalize a structure -- weekly meetings, weekly reporting -- actually that works great for people with fetal alcohol syndrome and fetal alcohol affect. So for our clients that have those particular issues, it's working really well. And the sort of last one is how do you get it started. I think Tulalip is sort of like the perfect example of anywhere you want. The chief of police took the resolution to the board of directors -- not the tribal court judge -- the chief of police. The chief judge was doing it on the ground already. The board of directors passed a resolution. It is a most amazing thing when you can empower your judge to invite people to the table, because if the judge invites you to come sit, lots of people come and sit. So it's kind of a surprising tool that you can use to be able to orchestrate that. So I hope I got all three of your issues."

Gwen Phillips:

"Yeah. I'm just -- the reason I'm saying that is because we're in modern-day treaty negotiations. So we have the federal and the provincial governments that we're negotiating with. And we had tabled with them our intent to strike both within our liquor control legislation and our child protection legislation, the very thing that you spoke of. And they were just freaking out big-time talking about the charter of rights and freedoms and da, da, da, da, da. So exactly like you say, once the woman has made the choice to keep that baby, that baby belongs to us. So I'm pleased and will probably be in touch with you to figure out how we work it out systemically."

Joan Timeche:

"Thank you very much."

Theresa Pouley:

"If tribal court judges have a job, that's it. We have to figure out how to put a Western-style justice system face on remedies that are tribal. So that's our job and we take that job real seriously. Now we'll see, we may have Roe vs. Wade in Tulalip Tribal Court any day and I'll let you know how that comes out." 

Theresa M. Pouley: Reclaiming and Reforming Justice at Tulalip

Producer
Native Nations Institute
Year

Tulalip Tribal Court Chief Judge Theresa M. Pouley shares the long-term, positive effects of the Tulalip Alternative Sentencing Program on the Tulalip tribal community.

Native Nations
Resource Type
Citation

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

"I am Theresa Pouley. I'm a judge. I've been a judge for a long time, only in tribal courts. That's the only place I ever wanted to be a judge. And I've been a tribal court judge for ten years; six of those years were as the chief judge of the Lummi Nation. So that almost is a credential all in itself. I'm honored to be here today. I rarely get to speak in front of so many council people. It's not a good spot for a tribal court judge, usually. I'm honored to be associated with Tulalip's tribal court. I was really honored and humbled to be awarded High Honors at the Honoring Nations program for a tribal court program. I'm here to share that experience with you today about Tulalip's alternative sentencing program and hopefully we can learn some lessons from it.

Every day I think about Tulalip and its justice system. Most judges in tribal courts think about those issues all the time. At Tulalip, whenever I think about it and whenever I give a presentation like this, I always stop for a second and see if I can come up with a pearl of wisdom from our ancestors. So today I thought about it and there's an old Shenandoah proverb that I think fits Tulalip's alternative sentencing program. It says, 'It's no longer enough to cry peace. We have to act peace, live peace and live in peace.' So when I think and talk about the alternative sentencing program I always do it in those three ways. How do we act peace? Let's talk about the history of Tulalip. Where did they get to where they are today? Let's live peace. What's Tulalip doing now that's different and useful in resolving some of the issues that are facing our communities? And the last one is how do we live in peace? What are the lessons that we learn from that so we can move into the future?

So let's start with the history. And I like to go way back when I talk about Tulalip. I read a bunch of stuff about Tulalip -- I'm actually a Colville tribal member, which is a cousin on the other side of the mountains in Washington State. So I went about the business of learning about Tulalip. Tulalip is historically a fishing community. That's why that picture is up there and it always reminds me of who I speak. They were a very peaceful people. All of their disputes were resolved by families or resolved by the elders in their communities and almost every Indian agent, non-Indian person who came to Tulalip said the exact same thing. They're a peaceful people. Now just like all the rest of the Indian nations -- and that includes everyone that you're at -- that was pretty badly interrupted in the late 1800s. And Tulalip's system of problem solving went from that dispute resolution that was family and community based to being a system based on punishment and prison. Doesn't make any difference what tribal jurisdiction you're from because the United States Supreme Court decided in Ex Parte Crow Dog, which sort of took all of Indian nations and put us on the same page, that the way that we did justice wasn't right; that we needed to do it in a system where there was a trial, where there was consequences and where there was punishment. Now the results are exactly the same. In 1999, the Bureau of Justice Assistance, for the very first time, came out with crime statistics in Indian Country. And for all of you as leaders you know them; you live them every day. We have two times the rate of violent victimization of Indian women in Indian Country than in any other population. We have two times the rate of tribal members in jail for drug and alcohol-related offenses. We have two times the rate of alcoholism that causes, and as a matter of fact as high as, seven out of 10 violent crimes are caused while our relatives are under the influence of drugs and alcohol. Those are alarming statistics. And it doesn't make any difference if you are living in South Dakota or you're living on the Tulalip reservation, it's the same for all of us. That's the consequences of a system of punishment and prison. Tulalip in particular had sort of a double whammy. Washington's a Public Law 280 state so not only did we have the federal government coming in and dictating how we were going to take care of problems in our community but we also had the state government coming in. So not only did we have the feds prosecuting and putting people in jail from a punishment and prison perspective but we also had the State of Washington coming in and taking tribal members and punishing them and putting them in jail. And 57 percent of the Native Americans who were actually put in jail because of a drug- and alcohol-related crime are going to be back in jail within that same year.

So Tulalip, who was really spurred by its economic development -- I don't if any of you, have any of you been to Tulalip? They have the most beautiful facilities. They have a beautiful casino, an outlet mall; they have a Walmart. That's pretty exciting in Indian Country. So they took this economic development and rather than paying it out to tribal members in per capita said, "˜We can do this better. Enough is enough. We're tired of tribal members going to jail. We're tired of a concept of prison and punishment so we're going to take it over.' In 2001, so this is just seven years ago, Tulalip retroceded all of its criminal jurisdiction from the state of Washington. And that's a big deal. Tribal court went from [a] one-day-a-month court system to 1,100 cases almost overnight. In 2001, when those cases started coming in, my boss was the chief judge at Tulalip and he did what we're trained to do as lawyers in developing tribal court systems. He implemented a system that gives everybody due process, notice and an opportunity for a hearing and guess what was happening? You can't take the state system of punishment and prison and put it in a tribal community and expect different results. And fortunately for me, my boss knew that. So he started changing the system just a little bit at a time. He would sentence people, suspend that sentence and then of course require they get drug and alcohol treatment, education, GED and then of course send them on their way. A year later they'd come back for a criminal review and guess what, they didn't do any of that stuff, right?

So that's the second one. How do you live that peace? So what did Tulalip differently? Judge [Gary] Bass just started hauling everybody in every 30 days. There's a joke at Tulalip that if you come to tribal court, get a divorce, we're going to give you a UA [urinalysis]. Want to write a will? We're going to give you a UA. You're in trouble?We're going to give you a UA. Why would you do that? Because it's absolutely critical to address the underlying cause of the crime, and the underlying cause is unresolved drug and alcohol abuse in over 80 percent of the cases at Tulalip. So you've got to identify it early so if you do a UA, you can suddenly see if somebody has a substance-abuse issue because Tulalip is right on the I-5 corridor, there's lots of drugs that are available on the Tulalip reservation. Meth is one that just scares absolutely everybody in the community.

So you've got to figure it out. If you come in and you actually are arraigned because you're accused of a crime, you will have to take a UA. Now we won't use it against you -- as the judges -- but we want to know, are you using drugs? Do we need to get you treatment? And we'll have a CD [chemical dependency] evaluation done before you even get to trial. If you go into custody in the jail, because you're a danger to the community or to yourself, you're going to get a CD evaluation while you're in jail [because] we want to know what the underlying cause of the problem is. You're going to come to court every 30 days and you're going to answer to the judge. And you're not just going to answer in a bad way. So when you say, Judge Pouley, "˜I did the best I could to get to my CD evaluation but I missed it.' Judge Pouley's not going to say, "˜Okay, go to jail for the next six months,' [because] that doesn't work. I'm going to say, "˜Okay, go get your CD appointment, bring me back the card and come back to court today,' because we have to engage people in that process. Tulalip's alternative sentencing program and alternative sentencing idea is to hold individual offenders accountable for getting better. 'Do you have a job?' 'No.' 'Okay, well, before you come to court two weeks from now you bring me some proof that you stopped at the TERO office or that you stopped to get your GED or that you're doing job training and if you do, I'm going to tell you good job from the bench,' because you want to encourage the positive and have immediate consequences for the negative behavior.

Now that expanded at Tulalip, because we still had a variety of people who were sort of our revolving door of justice people. You know who they are. The ones who come in three or four or five or six times in a year because despite our best efforts, they just can't kick a disease. It's recognition that it's a disease, that a judge can play a crucial role in diagnosis and treatment of a disease. In 2005, the chief of police at Tulalip looked around and said, "˜Wow, this is working.' So he didn't ask the chief judge. He went to the tribal council and he told the tribal council that they should plan a drug court, that they should require all of the departments at Tulalip to come together to plan a court system that was responsive to the needs of their community. And in 2005 the tribal council, the board of directors at Tulalip, passed that resolution. Chief judge didn't say, "˜Oh, no. We're not going to hear that resolution from the tribal council.' Chief of police didn't say, "˜Oh, no. We're not going to send anybody.' We all have the same problems and we all need the same solutions. So Chief Judge [Bass] and I went about the business of coordinating those meetings. And out of that a wellness court was born.

Now you just have to change everything, right? So you can't have a system of punishment and prison. You have to have a system of praise when you do a good job and accountability, immediate consequences when you don't. You have to have goals for your individual clients. You have to call them clients and not defendants. You have to change the whole way you think about the system and the wellness court really was sort of the final vehicle to do that. The wellness court is a group of people who sits and meets once a week about all of our clients in the wellness court. It includes everybody. It includes CD treatment providers, mental health providers, domestic violent perpetrator, treatment providers, but it also includes GED, job training, Northwest Indian College, casino employment, TGA who grants licenses. All of these people come together once a week to ask this very simple question. How do we help our client get better? It's a pretty amazing tool, but it's only amazing if you take the very last step. And at Tulalip we sort of did it backwards but we gave it a name. It's called [Tulalip language] -- the court giving the means to get stronger. If all of the people involved in the justice system have that perspective, it fundamentally changes the way that business gets done. It's not a western-style court system transplanted on the Tulalip reservation. It's a Tulalip court system to try and help all of our relatives get better. It's a pretty big change in just the way you think about things. And even though I'm a Colville tribal member, I have to tell you this, I've got plenty of relatives on the Tulalip reservation and that's true for most of us. Everyone in our communities is our relatives and you have to be vested in helping them get stronger.

So what's the last thing? How do you live in peace? What's the lessons we learn from it? First thing you guys are probably going to ask me is, 'Does it work? If you just change everything, does it actually work?' Well, interestingly enough, Tulalip's only been hearing cases -- remember I said -- since 2001. So in seven years, 1,100 cases we started. We had less than 400 criminal filings last year. That means it works. The number of repeat offenders at Tulalip is down 25 percent each year for two years running -- changing the way that we do business. This year in 2007 -- and I just did the statistics, I never thought this could happen -- that the number of criminal cases filed went down another 12 percent, because people are figuring out that the court's going to hold you accountable. So don't make any mistakes about that. If you're not doing what I asked you to do, you are going to spend some time in jail. But the goal of it is different. It's not punishment. It is a time for you to be individually accountable on a short-term basis. So you give me a positive UA, you go to jail for a day, not for six months. I don't know anybody who ever learned how to be clean and sober in jail. But you can sure teach that lesson if you use it as a tool.

So 12 percent decrease in crime just between 2006 and 2007, and then we had a really interesting thing happen. Our number of civil cases -- which is cases where people don't go to jail, cases where you come to resolve child custody disputes, get child support, where you want to sue for damages -- guess what happened to those? For the very first time in 2007 they were higher than our criminal cases. Now why does that matter? A lot of people say, "˜Well, geez, that just means you have to go to court and court's a terrible place.' No, because at Tulalip you can choose. You can go to tribal court if you want or you can go to state court. You don't have to come to tribal court. Six hundred and one people, 601 tribal members last year voluntarily came to tribal court instead of going to state court. Well, that's a big deal. Some of those 601 people came to get restraining orders or filed civil suits against each other instead of beating the crap out of each other. That's a good day.

So not only do you have a decrease in crime and an increase in the number of civil cases, but do you know that 80 percent of the criminal case load at Tulalip, so about 400 cases, 80 percent of those have a current drug and alcohol evaluation? Almost all of them are compelled into treatment. And the amazing thing is when people start into treatment you get so much information. Most people don't choose to be drug or alcohol addicted. There are mental health issues that need to be addressed, so almost all of our clients in wellness court also are seeing mental health counselors and they're resolving issues that are maybe centuries old. You also have to make sure that you get people a job.

My favorite sort of success story at Tulalip actually is about a person. So we took in wellness court, [Tulalip language], the hardest of the hard core: people who had had two or more cases filed a year and had been unsuccessful in probation in six years. And in 2006, no, 2007 -- last year -- we had two graduates, people who had been clean and sober for 18 months who are now working when they never worked before. We have one young lady who just moved into the fifth stage who is probably 25 years old. She was in jail probably for six months of that timeframe. You know what? She's been clean and sober for over a year. She got her kids back. She is a great parent and she's taking parenting classes and her significant other, who was also in trouble with the law all the time, they're together raising their own children in a clean and healthy way. So how do you do that? How do you accomplish that objective?

It's sort of what I call the four C's and actually I think there's six of them. At the end of the PowerPoint presentation it gives you all six of them. But I sort of lump them together in about four. You have to have communication and coordination of your services. Your law and justice system must be part of the whole tribal system. You have to be prepared as tribal council people, and tribal council judges have to be prepared to stand shoulder to shoulder with their elected officials to say, 'Enough is enough,' to say that it's time to help our relatives heal. [Because] I have to tell you, it's not all roses. We've got great statistics, but if you start holding tribal members accountable, what do you think the tribal membership says? So it's important that you're all on the same page. You have to stand together. Your tribal court system is part of your government every bit as much as any other department. And the fact that we have separation of powers doesn't mean we have a separation of problems. You and I all have the same problems. It doesn't mean that we have separation of solutions. Because I'm a judge, I know a variety of things about promising practices. Because you're tribal council people, you know a variety of things. If we put our heads together, we can get it done [because] it's really for that young lady and her husband and their kids, because we get to break that cycle of drug and alcohol abuse and poverty to give them a real future. So it's worth the effort, but you've got to be prepared and you have to be able to stand together. You have to communicate it to everybody. So it's absolutely critical that everybody in the community knows what's happening [because] if they don't, it looks a little funny. And people don't necessarily like changing the justice system. There's a lot of people who think Western-style justice systems all have to look the same, so you've got to communicate. So you've got to coordinate, communicate. You absolutely have to be corrective. So you have to have somebody who's in the position to say, "˜You did a great job. I am so proud of you. I can't believe you've been clean and sober for a year. Your kids are so proud of you. I know your grandma's so proud of you. Good job.' [Because] too many times nobody bothers to tell people good job when they do a good job. We happily toss them in jail when they don't, but it's got to be corrective. So you have to reward good behavior, but you also have to be prepared to send people to jail for the consequences if they're not doing what you need them to do. And it has to absolutely be comprehensive. That's the last C. You've got to look at it in a holistic way. You can't just do it from one department perspective. You really do have to all stand together 'cause you know what happens when we all stand separate, right? It's happened over and over and over again. About this, the future's now. About this problem of drug and alcoholism and crime on Indian reservations, we need to take control [because] that's what the Shenandoah proverb says, right? "˜It's no longer enough to cry peace. We've got to act peace, live peace and live in peace.' I think we can do it. So call your tribal court judge. We can do it together. We're all part of the solution. Thank you very much." 

Jaime Pinkham: Intergovernmental and Intertribal Relations: Walking the Sovereignty Walk

Producer
Native Nations Institute
Year

Jaime Pinkham discusses why the building of productive intergovernmental and intertribal relationships is so important, and shows how they can advance the nation-building efforts of Native nations. He shares a number of in-depth case-study examples illustrating how Native nations have engaged in such relationships in order to overcome conflicts and achieve their goals. 

People
Native Nations
Resource Type
Citation

Pinkham, Jaime. "Intergovernmental and Intertribal Relations: Walking the Sovereignty Walk." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 21, 2012. Presentation. 

"So I get the opportunity to talk about 'Intergovernmental Relations: Walking the Sovereignty Walk.' And believe me, a lot of my comments will come from my personal experiences at Nez Perce. And it's good to see Joanna Merrick, one of our tribal leaders from Nez Perce, who was able to join us for this conference here. Because if you think about the political landscape of a place like Idaho, it's probably a lot like what the people at Yankton Sioux experience in South Dakota -- a very conservative community, a very conservative government, which trickles down into how the local governments kind of operate and feel and look at Indian policy. So it really was out of necessity that we found ourselves working on these intergovernmental agreements.

I think those of you from the Pacific Northwest probably know of a guy by the name of Billy Frank, Jr. from the Nisqually Tribe. And one of the quotes that I always steal from Billy, one of my favorite quotes, is when he said, 'We need to be peacemakers when we can and warriors when we must.' Those of you who ran for tribal council, I bet you've heard the standard campaign is, 'I will fight for sovereignty, I will fight for treaty rights.' It doesn't always have to be a fight, does it? Well, I've never heard anybody who said, 'I am going to fight against sovereignty and treaty rights,' much less somebody who got elected on that platform. So we ask ourselves, in this nation-building tool kit -- all these things that we've been sharing with [you] -- how does intergovernmental relations become a part of the tool kit?

So let's look at what's been going on over the past three decades, since the 1980s. We've seen this thickening of relationships between tribes and with states. And some of this is driven by the fact that we see governors being elected and taking actions to formalize new relations with tribes within their states. Some of it will come as an executive order by the governor. Just in 2010, the Governor of South Dakota, newly elected Governor [Dennis] Daugaard, had created a secretarial position -- Secretary of Indian Affairs -- and he selected someone from the Cheyenne River Sioux, an attorney by the name of J.R. LaPlante, to head up this first department within the State of South Dakota. And what's interesting, before this the tribal relations in South Dakota was under the tourism department in the state. So it shows a major shift in thinking. And we also see state legislatures responding, too. For example, in Idaho, the State Legislature had passed legislation that created an Indian Affairs Commission. And on this commission you have a representative from the House, from the Senate, from the Governor's office as well as a representative from each of the five tribes in Idaho. The expectation is that maybe there's another avenue to resolving these conflicts and trying to head off issues before it gets into the legislature because believe me, you don't always want state legislatures working on Indian policy.

There are other areas, too, that we see. If you looked at the National Conference of State Legislatures -- it's a coalition of the 50 state legislatures in the U.S. -- and on their website, if you look under the Indian Country headings, 42 of the 50 states now have some kind of a formal relationship that they're developing with tribes, whether it's through the actions of the governor or the legislature. So we see this emergence. But the other thing we see too, which I find extremely fascinating, is the number of Native Americans running and getting elected to state legislatures. Now you see this in South Dakota, certainly up in Alaska, Montana, we're seeing it in Idaho and Washington. One of my favorite stories is Richard Marcellais, Chairman of Turtle Mountain Chippewa. Not only was he chairman of the tribe, but he was also the state senator from North Dakota from that particular district. And back in 2010, when the chairman was running for re-election, he gave me one of his campaign cards. And you look at it and here he is with this war bonnet on and this picture that says, 'Integrity, Honesty, Hard-working. Re-elect Richard Marcellais, Chairman, Turtle Mountain Chippewa.' Turn the card over. Here he is in his business suit, 'Honesty, Integrity, Hard-working. Re-elect Richard Marcellais, State Senator.' I thought it was fascinating. How many citizens have this ability to exercise leadership in multiple layers of government? And tribes have that opportunity, and we see many tribal people exercising it.

Well, we also see the growth in intergovernmental relationships between tribes and states. For example, the Indian Gaming Regulatory Act requires that we negotiate compacts with states, which in turn are intergovernmental relations. And many times we see these compacts also leading to other relationships and agreements with local governments over gaming and its impact on land use and public safety and revenue sharing and other areas as well. So we see this emergence going on. And the growth in intertribal partnerships have long been occurring. I was talking with Jefferson earlier, another Columbia River Treaty tribe at Warm Springs. We've had this ancient relationship where we're connected by river and our relationship to salmon, which that grew into a connection by blood. And so that strategic alliances with tribes that have lasted over maybe the axis of a common resource, a common language or maybe we had common enemies. So we always had these nation-to-nation relationships between tribes and that's nothing new for us.

The growing interest by governments in strengthening agreements, avoiding the pitfalls, and simplifying processes. Gosh, believe me, they just don't print enough money to solve all our problems these days. So what are some other avenues that we can have to provide the services that our tribal citizens need, whether it's through health care or law enforcement, jurisdictional issues? And I'll share some examples of where this is coming true. And the drivers for this growth are many.

We see this devolution of power. The federal government -- the granddaddy of governments, so to speak -- wanted to transfer more responsibilities and authorities down to other governments whether it's tribes, the states. And many times they transfer those responsibilities, but they don't transfer the resources to implement them. But we see this devolution going on. In some respects the Indian Self Determination Act, which provided the tribes with the opportunity to manage those BIA [Bureau of Indian Affairs] responsibilities, we see cases where tribes and even the states are asking for a greater say or the ability to manage natural resources like federal lands or the bison range in Montana when it comes to the Flathead Tribe [Confederated Salish and Kootenai Tribes], or Nez Perce who wanted to take on wolf recovery from the federal government for the entire state of Idaho. So you see these responsibilities being shifted from the national level on down to the tribal level and state level. And you even see states going through this too, transferring certain authorities down to counties and cities. Also the increased assertion of sovereignty by Native nations; the more that we get out there and exercise our sovereignty wisely, we see this expansion, especially where you have life-sustaining resources like water and fish and wildlife that don't know political boundaries. And so our sovereignty will be extending outside of our reservation boundaries to provide for law enforcement, management and care of natural resources. So we see ourselves expanding outside of our boundaries.

In some cases, it's the challenges themselves that drive the need for these intergovernmental relationships. In Nez Perce, we're a checkerboard reservation. You've got three counties, multiple cities. You've got these jurisdictional intersections and as cars are passing by, whose authority takes precedence? What parcel of land are you standing on at a particular time? And are you Indian, non-Indian, or are you a member of another tribe? And so you have all these complexities of this jurisdictional web of issues that you try to sort out. We also see it in social services, welfare reform, where Congress had kind of created this inequity granting more authorities to the states than they did to the tribes. So in some cases, we're forced to work with states on social service programs. And of course the limited capacities; and it's not just limited capacities of money, it's also what kind of talent and resources, whether it's technical resources or intellectual resources or information that we need to solve our problems. But as well as work with our neighbors as they face the same kind of concerns and challenges and opportunities that we do. And always there's the potential value added by cooperation. Thinking about Billy Frank's comment about are you going to be a peacemaker or a warrior, you need the wisdom and the strength to do the due diligence to decide which is going to work in your community. Sometimes it is the litigation -- you have no choice but to litigate your concerns.

One example I'd like to use that I know Joanna is familiar with, a very difficult decision at Nez Perce and it involved the adjudication of water rights in the Snake River Basin. In the tribe, we didn't want into the fight, but we had to get into the fight when the state had filed water claims against the federal government. Well, we weren't going to stand by and let the feds represent our interests. Even during the negotiation, hell, it was hard to tell what side the feds were on. Were they with us or against us? And so we knew that the only chance for us to make sure that we came out protecting our interest was to engage in the litigation. But the tribe took two tracks. They were parallel tracks that were simultaneous. One involved the litigation and one involved a mediated negotiated solution. On the litigation side, the primary basis for our claims was around in-stream flows. We're salmon people; we love our sushi. And so being [that] the Clearwater and the Salmon and the Snake rivers coming through our country, the salmon are important to our society. And so we wanted to insure the in-stream flows for the adults to return and for the young smolts to go back out to the ocean. But it was also the in-stream flows for our consumptive uses, for domestic-industrial uses. Also the litigation was over the use of springs. We used to herd our cattle all around that region. And in our treaty, we retained the right to access private property to water our cattle and horses. So that's where litigation was taking us.

Same thing, though, on a negotiation was about the in-stream flows. But when we got to negotiation we found out there were other things that we could put onto the table. We were allotted and all the surplus land that was not either reserved for tribal allotments or for the tribe in common and not homesteaded was given to the Bureau of Land Management. We had federal BLM lands within an Indian reservation and dammit, we wanted those lands back. So we put those on a negotiating table. The next thing we said, 'There are two federal fish hatcheries on this reservation. Why are the feds running them and why aren't we running them?' We said, 'We want those fish hatcheries,' under negotiations. Well, the feds said, 'Well, we'll give you this one. This other one has this huge research facility, it's state of the art and we don't want to give it up.' So we negotiated and we said, 'Okay, let us co-manage it with you.' So we started talking about even more than that. And we started talking about funding --funding for watershed restoration, funding for the infrastructure to have clean water and clean sewer, to build a community infrastructure. So we had a funding package on there. Then it came up to a vote and I tell you there was not a wrong answer. Do you vote for litigation? Do you vote for negotiation? They were both right answers. And I think there's something liberating about you can pick either one and either one is going to work. But after a hard decision -- I was no longer on council so that rested with Joanna and others -- they voted with the negotiations. And it was actually one of the largest-funded water rights settlements in this country. So it shows that sometimes litigation and cooperation -- tough choices -- but cooperation does allow you to put more opportunities on the table.

When I was on council and we'd be talking about these intergovernmental agreements, we had concerns about going forward with them. And one is we have this long history of conflicts with these governments. So why would we want to sit down and be their partner all of a sudden? And wasn't it just the feds who have this government-to-government relationship with us? Why do we want to recognize these more junior governments like cities and counties? And we also thought, 'Yeah, they're the minor leagues. We're a tribal government. We're in the big leagues. We don't want to deal with these little junior varsity governments.' And also the feeling that we are tribal sovereigns. We always think there are three true sovereigns, and that's the tribes, the federal government, and the states. And why would we want to deal with these other governments? By dealing with these non-sovereign sort of governments, doesn't that erode our sovereignty? So there was a concern about that. And the other one is heck, sometimes we're so darn good we just beat them in court anyway any time there's a conflict. But we figure, we admit that these intergovernmental relationships -- we're talking about how government is a tool for the nation -- well, this is one of the tools in the toolkit here, is these nation-building tools of how tribal governments can interact with other governments because we can influence policy outcomes on a broader scale. When you interact with state on policy issue, your authority, your voices get expanded and may impact how things go on outside your community. And it enhances economic opportunities. And I'll share an example of how this worked at Nez Perce, where because of the existence of the tribe and our work with the local city, we were able to expand the economic infrastructure to support both the city and the tribe. And also the delivery of quality services to our tribal members, especially on reservations where you're very rural and we had limited resources to provide for our tribal members, but also the counties and the cities have the same limitations. So are there opportunities that we can cobble everything together to create a single functioning program? And again, I'll share more examples of that.

This federal devolution thing -- it's not going to go away. I think it will continue to expand and we need to be prepared for it. Utilization of scarce resources, the mutual concerns -- as I covered before -- but also I think what's important here is when we talk about the concerns -- that I showed on an earlier page -- really these intergovernmental relationships are an exercise of sovereignty. We say to ourselves, when we get into these agreements, that we have the sovereign ability to negotiate the terms of an agreement, to pick and choose who we want to partner with, to characterize what is the nature of that relationships. So really these intergovernmental agreements are just an expression of our sovereignty. And so the contributions are many -- and again so that I stay on time and we play a little bit of catch up here, let me cover these in the examples that I'm going to show here in a bit.

So let me share just some common areas for these intergovernmental agreements. One of my favorites is a Flandreau Santee Sioux Tribe in South Dakota. They sit on the far east side of the state right along the boundary of the State of Minnesota. So you've got the Flandreau Santee Sioux Tribe, a small reservation and it overlaps the boundaries of the city, the City of Flandreau. And so again you have this jurisdictional intersection. Whose laws take precedent? Who's involved in a particular action or crime? Is it civil, is it criminal, on and on and on? Well, they were struggling with this about this overlapping mixed jurisdiction and they finally decided back in 2000 and said, 'What if we just create a single police department?' And so in 2000 they created a joint police department. And actually, it's led by the tribe, so you have uniformed police officers that provide law enforcement, tribal law enforcement, that also provide law enforcement over the city. And how they managed that, the cooperation of that is they have a joint public safety commission that provides oversight, helps with the creating of laws, and it respects the rights of the tribe as well as the interests of the city in this agreement.

Others are justice systems, and we've been talking a lot about [Chairman John] 'Rocky' Barrett at Citizen Band Potawatomi. We have a lot of Rocky stories, too. And Rocky was saying, there was a city that came to him and said, 'We don't have the resources for law enforcement on our reservation. Can we contract with the tribal police to provide public safety on the reservation?' And Rocky said, 'Yeah, fine, we can do that.' But he said then they came back later and they said, 'You know what, we like how you resolve your disputes in your court system. Can we use your court system to adjudicate our conflicts?' And Rocky said, 'That was unheard of.' A non-Indian government saying, 'we like how your courts operate, can we use your courts to resolve conflict?' And it just shows the sophistication of the infrastructure that Citizen Band Potawatomi was developing. When I was talking to Rocky a couple years ago, he said that agreement is no longer in place. He said after a city council election, the new city council voted to disband that relationship. So we say, 'Well, the city didn't have the staying power to stay in it.' But there's another example that's been emerging.

Leech Lake Band of Chippewa in Northern Minnesota -- another checkerboard reservation -- and you've got the issues that the tribe and the non-Indian community share is the same that many societies share; and it's the substance abuse, and the crime that is associated with substance abuse. And so you've got the state, the tribe and the counties with these overlapping jurisdictions. And they decided to get together to create a joint wellness court; it was the tribe and two local counties -- Cass County and Itasca County -- that formed this wellness court. And while it focuses on the crimes itself, it also focuses on how do you drive down the repeat offenders. And so it has this intensive monitoring program that if you're convicted then you have to frequently appear before the court and they monitor you on your progress. 'Are you keeping up with your treatments? Are you doing your community service?' And on and on and on. But what's interesting is that it doesn't matter which court you go to. The joint powers agreement says, 'Well, you go to the court...' If I'm a tribal member, I can go to Cass County court and through teleconferencing I'm kind of beamed into the tribal court. And so what's interesting is that you've got these three courts with the same laws respecting their authorities, but it doesn't matter whether you're Indian or non, you can go and get the same kind of treatment and oversight in whichever courtroom you go into. And the counties actually, the counties and the courthouses, fly the Leech Lake Tribal flag in their courtroom. How many county courthouses fly tribal flags? One of the attorneys, one of the judges actually said, he said, 'There was a time when I thought tribal courts were inferior to our courts.' And he said, 'Through this joint powers agreement I recognize it is not so.' He says, 'I now fully understand the strength of tribal sovereignty.' And he says, 'That Leech Lake flag that flies in my courtroom reminds me of that every day.' There are even cases where the tribal judge, Korey Wahwassuck, takes the bench right next to one of these county judges, too. I think it's just a phenomenal agreement.

Land use examples. Swinomish, I think, is a great example; you've got another checkerboard reservation. And so you've got the county and the cities that overlap with Swinomish and each had their own land use laws. And so when maybe a county would permit something and put conditions on this permit process, you would have impacts across the boundaries on the tribal resources, impact to the water and the land. And so they decided to get together and create a comprehensive land use plan, which now they do. And that land use plan, while maybe it started with the county land use plan, it began to grow into other plans and other arrangements. Actually, as I understand, Swinomish was the first tribe in the nation to have a joint agreement on land use planning with other governments within a reservation.

Natural resource examples; there's an abundance of those. Chippewa Flowage Agreement; Lac Courte Oreilles in Wisconsin has a relationship with the state and the U.S. Forest Service -- the feds -- on the operation of a reservoir that inundated one of their villages. And so this cooperative relationship between three parties helps to address the management concerns in managing the water levels within that storage facility.

Social services: you see the Houlton Band [of Maliseet Indians] that has this child protective team that works with the state to try to assert more authority of protecting Maliseet children in their placement and their care and establishing foster homes. The other one I want to share is Little Traverse Bay Bands of Odawa Indians; we've been talking about [former chairman] Frank Ettawageshik. They have within their constitution a clause that specifically talks about intergovernmental relationships. They said, 'We recognize we have inherent powers and that as citizens and nations we have these inherent rights.' And in the constitution it says they recognize that there are other peoples and governments and nations within the world that also have these inherent rights. And it says, 'We will recognize their sovereignty as long as they recognize and respect ours.' It's a quid pro quo on a government-to-government relationship and I think very unique to see that actually embedded in a tribal constitution in that way.

Let me share a couple of case studies from home, one about this bitter fight that we had when I was on tribal council with this alliance, and another one is this project that we did with the City of Lewiston on expanding our infrastructure. Nez Perce is a checkerboard reservation. If you look at a highway map, it would be within the State of Idaho and it covers about three quarters of a million acres, but through our treaty we have actually a large land base that extends across three states and covers roughly 13 million acres of land. We were homesteaded. Similar case of what happened at Yankton Sioux; we were allotted and then homesteaded and that has created a bunch of conflict. Well, this alliance had formed because, as we were out there exercising our sovereign powers -- whether it be through tribal employment rights offices, we were aggressively purchasing land -- and thank god the tribe is still aggressive in buying land today. We're buying land on and off the reservations and county governments were upset because of the fear that it was going to erode the tax base and we were going to become larger land barons. We had implemented a utility tax on the reservation saying any private utility running through the reservation whether it's a railroad or a cell tower or utility line had to pay a utility tax. Law enforcement. Even the state lottery became the issue because we told the State of Idaho, 'If we had to negotiate a compact with you to have gaming on our reservation, then doesn't it serve that you have to get a compact with us to have those lottery machines on the reservation?' So we forced the state...well, we had to litigate it first and we won in litigation and it required the state to negotiate a compact with us on the state lottery; but it was a source of conflict, these ongoing questions of sovereign immunity.

Those of you who can remember back; there was a senator from the State of Washington, Slade Gorton, who was really tough on tribes with sovereignty. Well, Slade was in his heyday back then. And so 23 governments -- cities, counties, highway districts, school districts, even the same school districts our kids were going to -- had created this alliance to challenge the jurisdiction of the Nez Perce Tribe. And the premise of that conflict was the same thing that happened at Yankton Sioux. As a matter of fact, the tribal attorney that was fighting or the attorney that was fighting Yankton from South Dakota was also helping to fight tribes at Mille Lacs, the Omaha and Winnebagos in Nebraska, and he moved out west to help fight the Nez Perce on our jurisdictional issue. So this guy was really making a name for himself, kind of inciting this racial conflict over sovereignty.

And so the alliance took the position that since we were homesteaded that our reservation was diminished. Quite basically saying is that our outer boundary was erased and our only jurisdiction was over the lands that we held, that we owned. And we said, 'No, the political boundary is intact,' and there was an issue of diminishment. And they were actually using the Yankton Sioux case to cite that. And so we had these series of conflicts and charges and countercharges that were going on. And things got so bad the prosecuting attorney from Lewis County was speeding through the reservation, coming down the grade and down at the bottom was one of our tribal police officers. And he was speeding on by and so our tribal officer pulled behind him and pulled him over. And when the tribal police officer got up there, this county prosecutor said, 'I don't recognize your authority,' and he drove off. And our cop, our tribal cop, played it really smart. He didn't get into this wild chase, he just pulled in behind him with his lights flashing and followed him off the reservation boundary to where this guy turned him into, he turned himself into the state patrol. We tried to get the guy disbarred, but the best that we got out of it was tremendous media coverage about how reckless this is becoming. We had the city administrator for one of the communities on the reservation write a letter, an internal memo, which happened to leak and it talked about bloodshed was inevitable. Phil Batt -- grand gentleman, the governor from Idaho -- flies up and tries to convene a meeting between us and with these 23 entities around the table and, as hard as he tried, we were not going to come to a resolution and the tensions continued to grow.

But then something wonderful happened. And I hear Joe Kalt's going to be here later on this afternoon, and Joe Kalt is one of my heroes. And Joe had a friend from Idaho, a guy by the name of Keith Allred, who worked at the Harvard Institute and he said, 'This is what is going on in Idaho.' And so folks at the Harvard JFK [John F. Kennedy] School of Government offered to come up and help mediate a solution. How can we get off of this litigation merry-go-round and ease these confrontations, which were growing and building day after day? And so through Joe and Keith, they provided this neutral facilitation and created the starting point that we would accept each other's existence and honor and recognize them. And we needed to learn about one another. The more you fear, the less that you're willing to collaborate on. And we discovered that we cared about many things. And what we ended up doing was framing this MOU [Memorandum of Understanding] where we promised to work together. We knew that the jurisdictional issues would always be there but we said, 'There's areas of interest that we have in common. We need to focus on that. We'll commit ourselves to respect our governments and we'll agree to try to minimize these conflicts.' And so we went forward and we created an MOU that had this language in it. It says, 'nothing in this MOU shall limit or waive the regulatory authority or jurisdiction of the governments.' The alliance signed off on that. The very thing that they feared they were willing to recognize the tribe's jurisdiction and our sovereignty. So there's still tension between them, but boy, that was a major milestone to get that agreement in place and try to bring some peace back to our existence.

Quickly here, let me wrap up with another project: the City of Lewiston, Idaho. The reservation boundary is over here in green. The City of Lewiston, the largest community next to the reservation, well, our casino is right there where that little red arrow is. We bought a sliver of land and we thought that was the ideal place. And it first started out with a little metal shed where we sold cigarettes and expanded to a little convenience store. And we said, 'It's time to put a gaming facility there,' but we didn't own a lot of land. And by putting up a gaming facility, we knew that we're going to need the infrastructure of water and sewer but that was going to eat up valuable land that we'd rather develop. So our executive director, being quite savvy, he pulled out the comprehensive plan for the City of Lewiston and he looked at their urban growth boundary. And you know what, the city was kind of encroaching and growing towards the reservation boundary. And we recognized that eventually the city is going to have to expand their infrastructure and services, so why don't we get together and hit them up with a proposal? So that's what we did. So we committed to work together. And this is when the alliance issues was going on and so we played this quite well in the media, I thought, too. We told the city, 'How about we go out and get an EDA [U.S. Economic Development Administration] grant? And what we're going to do is we'll build the sewer line connecting to your sewer and water facility where it ends right now and let us extend it on to the reservation boundary and connect it to where we want to do our casino expansion at.' And we said, 'We'll build it to your specifications.' And they said, 'Yeah. Eventually we're going to want to build that and you're going to pay for it? Well, that's great. Let's do it.' And so we did. We got the EDA grant, extended the water and sewer out to our casino. And then, you know what? The tribe -- we're not water and sewer managers -- but you know what? The city's pretty darn good at it. So we told the city, 'Let us transfer the ownership of the facility to you at the reservation boundary. That way you can take over all...you've got the infrastructure in place already to manage those kinds of things.' So we did that, and so right now we pay the city a fee to maintain this. We didn't have to use up valuable tribal land to do that, and right now I'm happy to say the tribe just did groundbreaking again for further expansion. So here's a chance where we saw this intergovernmental opportunity with another tribe that helped us expand our economic infrastructure. But believe me, the good will that that created, the fact that we're fighting these 23 alliances and we said, 'See what happens when you want to play fair and you want to respect us as a sovereign?' Our sovereign ability allowed us to do that and the City of Lewiston was one of the beneficiaries of that.

Well, I've got to wrap this up, but some of the observations are that this isn't easy work. There's a long history of conflict that we need to overcome. We had to exercise kind of that sovereign attitude; do the due diligence. Where are those opportunities where we can have these intergovernmental relationships through cooperation and negotiation? And then where are those times that we've got to be -- like Billy [Frank] says -- it's time to be the warrior and draw the line? Both are hard choices, both are difficult paths to take, but the difference is in the outcome. And I've got to wrap up now and give a couple of minutes for questions and answers, but thank you for your attention."

Frank Pommersheim: A Key Constitutional Issue: Dispute Resolution

Producer
Native Nations Institute
Year

University of South Dakota Professor of Law Frank Pommersheim discusses the key constitutional issue of dispute resolution and presents three cases demonstrating how tribes are endowing their constitutions with legitimacy through the careful, thoughtful resolution of disputes.

Resource Type
Citation

Pommersheim, Frank. "A Key Constitutional Issue: Dispute Resolution." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

"I plan on leaving a lot of time for questions so we can have a good discussion. But I want to start by saying this, a number of you came up to me during the break asking me if I was Johnny Depp. I thank you for the compliment, but I'm not. But I appreciate that. But I also want to start by giving two examples of the importance of words and vision, because people have said how important words are and how important vision is, and I want to give from my own experience two concrete examples. One is very short but to the point. The second is much longer and had a much more profound influence on me. The first is, I think a number of tribes are aware that they have drug courts, that there's good funding that comes from the Justice Department and from the Bureau of Indian Affairs not only to tribes but to other communities around the nation to deal with the issue of drugs. And it looks to try to work with people who have drug problems and not focus so much on their criminal behavior. A very, very positive thing, a good thing. The federal government is actually trying to do a good thing in that way. But the people at Rosebud [Sioux], they think it's a good thing, but they didn't like the term drug courts because ‘drug court,' it sounds negative. And so what they did without anyone's permission, they just changed the name to ‘wellness court.' So the Rosebud Sioux Tribe has a wellness court that focuses on working with people who have committed crimes and have been involved with the use of drugs. But just think about that for a moment. To me that's a real profound difference between working with a drug court and a wellness court, because it shows the commitment of the people at Rosebud, that they want their members who have committed crimes who do have drug problems, they want them to be well. It's just like one word, the difference between ‘drug' and ‘wellness.' To me, it makes a tremendous amount of difference. And I actually see it in action, because when I listen to the tribal trial judges at Rosebud, when they talk about the wellness court, they talk about it with pride. They talk about how tribal members are really being healed and they're really changing. And I think part of that is because the drive is to get them well, not to punish them, not to be indifferent to the wrongs that they may have done, but to really focus on the good things. And I think one of the things to keep in mind in the context of tribal institutions in the courts, where I have most of my experience, or in a context of constitutions, is without being naïve, without being simple minded, to focus on the good and to focus on the positive.

The other example I want to give is a little bit broader example, because people are talking about sort of the importance of vision. And I think sometimes the word ‘vision' is kind of overused. It's a good word, it sounds great, but what does it actually mean? And I want to give one example. And again this comes from Rosebud. Thirty-five years ago, 40 years ago, before there were community colleges on most reservations, there were none. But there was one man at Rosebud by the name of Stanley Redbird, and Stanley had the vision that he wanted to start a college on the Rosebud Sioux reservation. No federal funding for it, no one had even really heard of that idea. But Stanley said, ‘We should have a college on the reservation. Why should people from Rosebud have to go off the reservation to go to college?' Well, it seemed obvious to most people. Rosebud Sioux reservation is in the middle of a very rural place in South Dakota, extremely impoverished, and you would think or most people would think, ‘You can't have a college here.' But Stanley had the vision, and he persisted. And he himself was not a college graduate. He himself was not even a high school graduate, but he persisted in his vision, and gathered around him a number of Native and non-Native people and said, ‘We can make this happen.' Without funding, without accreditation, but he had the vision, and his vision energized people, that you could do a good thing. I think that's a tremendously important thing, to be able to be energized by a vision to do something good, and in the context of starting a college. It started very slowly. Today it's fully accredited, offers not only AA [Associate of Arts] degrees, offers bachelor's degrees, master's degrees, [and] is getting certified for the first Ph.D. to be offered by a college on a reservation. Tremendously powerful. But the second part of that which kind of brings together a number of themes that I was hearing during the day is, education for what? Regis [Pecos] talked about Head Start. Head Start for what? And it's a very important question. Everybody's in favor of education, except some -- oh, this is recording -- except some Republicans. It's a joke. The thing is, is education for what purpose? And Stanley's vision was sort of the two-road approach. He wanted people educated on the reservation to know their tradition and culture, not just as something they knew, but something they could incorporate in their professional lives as teachers, as counselors, as lawyers, as doctors, but also not to ignore the good things that also come from the dominant society. And so the notion was to strike a balance, a creative balance. Hence, the two-road approach. So the people who went to college at Rosebud, at Sinte Gleska University, would know the best of the two roads. And so it was yes, education but education that didn't mindlessly accept the dominant society's view of education that meant just non-Indian, non-Native ways. That was unacceptable to Stanley and the people he gathered around him. So oftentimes there is a convergence at a high level of abstraction between Native and non-Native people about important issues, including constitutions. But one of the things you have to think through is below the abstraction, is what do you really want? And this has been one of the themes that I've been hearing all day is, what do tribal people want in their constitutions? How can you think about a tribal constitution? And Regis [Pecos] and Joe [Kalt] and others have given some very important ways to thinking about it.

I just want to add one or two things that are much more sort of practical in a way. One of the ways of thinking about law -- and I always have this for my students whether they're law students or not -- is you just ask, ‘What is law about?' Because I'm a teacher, I'm tempted to call on Bob [Hershey] to see if he could give me a good definition of what law is. But to me, what it is, it's about two things. It's about power and it's about values. Every law that exists, knowingly or unknowingly, is trying to support a particular value, and because it is the law, to a certain degree it has power behind it, because the power is what makes us obey the law even if we don't want to. So whenever we think about law -- there are good laws, there are bad laws, they cover the range, the continuum -- but the important thing always to ask ourselves is, ‘What is the particular value in that law? And what is the power that that government -- whether it's a tribal government, state government, provincial government, United States government -- that uses to enforce that particular value?' And so when tribes are thinking about constitutions, to me those are the two most important elements. What are the values? And that's the theme we've heard most of today -- that constitutions are about values. Absolutely critical, absolutely kind of central, but the other part, and Joe mentioned this a little bit, is sort of the power, because one thing that constitutions do -- and sometimes may or may not make you uncomfortable in talking about it this way -- is what? It distributes power, and that's just the reality of what a constitution is supposed to do in part -- to distribute the values, to distribute as it were the sovereignty, that a nation has to its constituent forms of government. And so when you think about constitutions broadly, those are the two things I would emphasize. What are the values that you want to see recognized, enshrined and supported in your constitution? And I think in many tribes there's quite a bit of convergence about that. Where there's more divergence is how you're going to distribute the power in the government to recognize and carry out and establish those values. And I think that's a very, very important kind of balance to keep in mind. How do you want to distribute the power?

When you look at that, roughly speaking, there's two ends of the continuum to look at. One is, traditionally, inasmuch as any tribe knows its true traditions, how was power distributed in your tribe traditionally? And two, is that still possible in some way today, in whole or in part, or not available at all today? Then the other model that's out there, which I think is a good model but it's a bit dangerous, is the model of the United States Constitution, the three branches of government, checks and balances, separation of powers. Well, they're good things, kind of, but I'm going to have a little asterisk next to them, because they're not inherently good unless that's what the people want. And one thing that's also true, because we were talking about constitutions today in terms of a lot of pressure, good pressure, from tribal members saying, ‘We want to improve our constitutions. We want to make them better.' And that's a tremendously good, positive and important thing. But I think it's also true, and one note that hasn't been struck, is that there's a lot of pressure on tribes to amend their constitution that doesn't come from within, but comes from without. And this is particularly true in the context of economic development and Joe touched on it a bit. Today in South Dakota, routinely when businessmen want to do business on the reservation, you know almost the first thing they ask, ‘Does the tribe have a separation of powers?' Now most businessmen, when they say separation of powers, if you could ask them a follow-up question, they themselves don't know what the hell the separation of powers is. It's just what their lawyers tell them. And so part of the deal about the separation of powers is, businessmen aren't really interested in the separation of powers, they are just interested, justifiably so, they want a business atmosphere where they can make money and where the rules of the game are predictable. That's what they really want. And they've been told that separation of powers sort of guarantees that. And in some ways it does and in some ways it doesn't. So I think tribes have to pay close attention not only to what's coming up from themselves and their communities but certainly in the states and certainly in South Dakota, tribes need to be alert to -- not necessarily a bad thing -- but they need to be alert to the pressures that come from the outside that say the tribes have to amend their constitutions, particularly to have separation of powers, to create a good business atmosphere. That's fine. But tribes have to realize where the pressure is coming from and what they are reacting to, what they are trying to achieve. That is again, what are the values? And if one of the contemporary values is economic development, which it is probably in every tribe in the country, then it's a legitimate question, Joe Kalt was suggesting this, that a tribe needs to ask itself. What is it that we can or should have in our tribal constitution that will enhance economic development? And I think the major thing in a tribal constitution -- any constitution -- that enhances economic development is to have a structure and distribution of powers which creates a fair, predictable rules of the game, rules of the road. So if somebody's going to come to your reservation and do business, they're entitled to know what the rules of the road are. And if they don't like the rules of the road on your reservation, fine, they can go someplace else. But they are entitled, I think, to know, and when we talk about responsibility, arguably the tribe has a responsibility to people who are coming and perhaps doing business, tell them what the rules of the road are and what their constitution says or doesn't say about economic development. So I think it's important to keep track of these two streams of pressure for constitutional reform, because in my view there definitely are these two streams. Not just one stream from the people themselves, but there is this outer stream, and tribes need to kind of thread their way through that.

The other thing I wanted to talk a little bit about -- before getting to this dispute resolution issue -- is this notion of to me two critical things are, and this note has been kind of mentioned a few times as well, is legitimacy. Any constitution will only work because it's perceived as legitimate by the people who are subject to it, that you accept it. Bush v. Gore is being used as an example. A terrible decision, an outrageous decision in which then Chief Justice [William] Rehnquist himself said in the aftermath, ‘This case can never be used as precedent in any other case.' I mean a fairly frank admission that the decision, in my opinion, blatantly political, but most American citizens kind of shrugged and said, ‘Okay. A bad decision, but we're not going to abandon a constitution.' Why? Because there's a longstanding commitment to it as being legitimate. Legitimate not because of its perfection, arguably legitimate because of its imperfection. Because if any of you actually read the constitution, know its surrounding circumstances, it wasn't perfect at the beginning. I mean, the United States Constitution recognized and accepted slavery. How could that kind of constitution be a model for anyone if it recognized and legitimized slavery? And so it was imperfect. And actually although it's kind of slidden away, there were some good things in the Constitution from my point of view about the relationship of the United States, the fledgling United States, to Indian nations. There was a great deal of respect actually in the Constitution as originally written for tribal sovereignty. There's a recognition in the Indian Commerce Clause that Congress only had the authority to recognize and regulate trade with Indian tribes, not to regulate the trade of Indian tribes. The Constitution recognized that the fledgling United States didn't have the authority to go into Indian country. It said basically, ‘You're sovereign, we make treaties with you. You're sovereign, you're separate.' Commerce is important to us, and so in our distribution of powers, that power was granted to Congress. So it was Congress who had that authority, and also an important issue in the context of the Constitution was that there was tension and battle between the fledgling federal government and the states who would have authority to deal with Indian tribes. The United States Constitution placed all that authority in the federal government, none in the states. And within the federal government, they gave all that power strictly in the area of commerce to the legislative branch. But this segues into the next thing about interpretation. Unfortunately it was a case decided by the United States Supreme Court in 1903 called Lone Wolf v. Hitchcock and all that stuff that I just said, the Supreme Court at that time just leapfrogged the plain meaning and the historical backdrop to the Indian Commerce Clause and said somehow, ‘Congress has plenary authority in Indian affairs, complete, untrammeled authority.' But it takes some work to get that from the text of the Constitution and from its history. And so this notion of legitimacy is absolutely central.

And when I think about legitimacy, I think there are three components to it in the context of Indian Country. Legitimacy comes primarily from the people. Tribal citizens who need to be consulted and hopefully participate directly and often in developing their constitution and/or amending that constitution when it's necessary. Because I think the ultimate source of power for any sovereign is ultimately not really in the government but in the people. Because the thing that's often left out when we talk about or learn about the United States Constitution in basic civics is the power comes from the people, and the people reserve that right to make changes in the Constitution, to amend it, to bend it however necessary to meet contemporary standards. And so my understanding in working with tribes in South Dakota that they have basically the same view is that the power is ultimately in the people, not in the government. And so one important component of legitimacy comes from the people. So when a constitution is being discussed and when it's ultimately voted on, how many tribal people are participating?

And two is part of that, the second group that's important, is the leadership. Official, unofficial, elected, not elected, traditional, non-traditional, people who are perceived as leaders. This is what leaders do. The best definition I ever heard of leadership is, leadership is managing learning in a group. That's what leaders do. They manage learning in a group, whether it's in a family, whether it's in a classroom, or whether it's being chair person of the tribe or president of the United States. And so authentic leaders -- and this idea of legitimacy -- they're the ones that manage in a good way the learning that takes place. That's what good leaders do, whether elected or not, none of that.

And then finally, I don't know if Joe's still here, Joe, no, Joe's not here. I'm coming to the defense of lawyers. Yes, indeed. The third group that is important, and I mean this quite seriously and I'll explain it, that lawyers are important. No, strike that, good lawyers are important, because it is true that ultimately in the modern world, constitutions at some point have to be drafted and written in a very, very thoughtful, complete, precise way, and the persons on balance who should have those drafting and expressive skills are lawyers. But it's also important to remember -- and I always tell my students this -- the people who have caused the most destruction in modern Indian law today are largely lawyers. Because lawyers, I tell my students, if a tribe is represented by a lawyer, and the tribe asks the lawyer, ‘Can we do this? And the lawyer says, ‘No, you probably can't do it because you haven't checked with the federal government.' That lawyer should be fired. He's just engaged in malpractice. But on the other end are lawyers, a tribe asks, ‘Can we do this?' And those lawyers say, ‘Well, you can do anything, you're sovereign.' I also believe they should be fired, because you can get people off the street to give you that kind of advice. It takes a lawyer with understanding, nuanced understanding, of what the tribe wants to do. But it's not a blank slate. History is out there. It doesn't mean you cave in to history, but good lawyers can help tribes navigate the treacheries of past and current history and their interaction with the federal and state governments. I don't believe you can pretend that that reality doesn't exist, and that's what good lawyers can do. They can help. They never tell tribes what to do, but they can help tribes get from where they are to where they want to be in the best possible way that avoids difficulty down the road because tribal attorneys who say, ‘You're sovereign, you can do whatever you want, now pay me and I'm going to leave.' And the tribe is left with that legacy when that advice turns out not to be too reliable in today's real, complex world. So I think lawyers are important. But more importantly, good lawyers are important. And good lawyers in Indian Country, I think there are two essential characteristics that they need. They need to be good lawyers, they need to be smart, they need to have the skills to navigate the law and to draft, but they have to understand the tribe they work for. They have to understand its history and its culture and perhaps more importantly, this is a dangerous word, they need to have affection for the people they work with, because without affection I don't think you can really accomplish the important things that tribes are kind of struggling to do. So this thing about legitimacy is absolutely essential, because it will happen -- and I'm going to give some examples in a minute -- that tribes are faced with very difficult questions, and the notion is, once a decision has been made, a tribal constitutional decision has been made, is there enough legitimacy -- that as Joe was suggesting -- if you're on the side that lost or if you're on the side that doesn't like the result, because it's legitimate, will you accept a decision that you disagree with? It's easy to accept decisions that you agree with. That's easy. We can all do that. But it's very, very difficult sometimes for citizens, particularly when a constitution is new, is to be able to accept decisions that you disagree with. That's what legitimacy is. It means that the constitution and its values and its structures are more important than your individual feeling or the feeling of any particular group with the tribe. Because without a sense of legitimacy, constitutions are just a bunch of false promises, and I guarantee that to be true. If a constitution doesn't have legitimacy, it's false, because as soon as the tribe faces its first most difficult decision, if there's not legitimacy, the constitution will be finished. Because the constitution really only works, any constitution only works is because it's legitimate. This is what oftentimes we mean by -- though it's a phrase that's been overused and misunderstood -- about the ‘rule of law.' You always hear that phrase in Indian Country. Do tribes have the rule of law? Actually, you hear it more in sort of foreign policy discussions. Whenever we're helping out foreign nations, the two things that are always parroted is, ‘We want to bring the rule of law to this country.' Well, it's sort of a yes-and-no proposition. If you're bringing bad law to those countries, what good is the rule of law if it's bad? So the notion about getting the rule of law is that your commitment, as others have suggested, both from your mind and from your heart and from your tradition, is that you believe enough that you can accept a decision that is contrary to your own interests. And without that, I think constitutions are yet another set of false promises. So legitimacy is key, and it doesn't just happen one time as you're going forward to the constitution, but legitimacy is always at risk. You don't learn this in high school, but in the context of American history there have been instances involving the United States Constitution when its legitimacy was actually at risk, and no guarantee that it was going to work. And strangely or not strangely enough, the first genuine constitutional crisis in American history involved two Indian law cases decided by the Supreme Court in 1830 and 1831: Cherokee Nation v. Georgia and Worcester v. Georgia. Most of you have probably heard about them. But the background of those cases were the state -- can you imagine this today -- in both of those cases the State of Georgia did not even appear to argue before the Supreme Court? Can you imagine that, that one of the constituent states to the Union in early days of the Constitution said, well, I won't use that word, but I'll use a nicer word and just say, ‘We're not going to appear before the United States Supreme Court, because it doesn't have any legitimacy to tell us, the State of Georgia, what we can or can't do in Indian affairs.' So you had amazing tension in those cases between the federal government and the State of Georgia. But you had even another tension. You had a tension between the executive branch and the judicial branch. You know, when the Supreme Court makes a decision, everybody plays by the rules, it's just enforced. But what happens -- particularly when it involves someone who's in prison -- if you don't play by the rules? Worcester v. Georgia, United States Supreme Court said to the State of Georgia, ‘You didn't have jurisdiction to convict these two non-Indian ministers who were preaching on the Cherokee Nation reservation and you wrongly convicted them. You have to let them go free.' And who would that be carried out by? Then-Chief Justice Marshall didn't go marching to the capital of Georgia to let those folks out. That's the responsibility of the executive branch of the federal government. That's the Marshals Service. Ultimately, it's the President of the United States. And what did the then-President of the United States say? Some people think it's apocryphal, but President [Andrew] Jackson said, ‘Whatever. Chief Justice Marshall has made his decision, now let him enforce it.' Meaning that the executive branch wasn't going to support a decision of the United States Supreme Court. Do you think the republic could endure if states felt free on a regular basis to not appear before the United States Supreme Court? Do you think the republic could survive if the executive branch on a routine basis said that it would not enforce judgments of the United States Supreme Court? And the answer is no. Fortunately -- or maybe unfortunately depending on your point of view -- is that what happened is that the court went into recess, President Jackson realized the republic was becoming unraveled. South Carolina passed the resolution they were going to leave the Union. And so he realized that he couldn't be, refuse to enforce a judgment and let the State of Georgia get away with its disrespect for the Supreme Court. And so he convinced the Governor of Georgia to pardon those two defendants who had been convicted. So right from early Indian law history there was a genuine constitutional crisis about whether the United States Constitution had enough legitimacy to survive that crisis. And it's important to realize I think, without inviting it, that sometimes tribes will face crises of their own about the meaning of their constitution. But my thinking is that you have to hold fast to the values and the structure that you can accept the decision, work with it, even when that decision seems to you to be against your interests and may seem to you quite wrong as a matter of constitutional interpretation. Because without legitimacy, constitutions cannot continue to function and that's the most difficult thing to establish at the front end, and it's the most difficult thing to maintain. And so it's important for tribes as they go through adopting constitutions or revising constitutions to insure that they have legitimacy. Legitimacy means what? Talking all the time, being respectful [of] what others say, particularly others that you disagree with, and that they're respectful of you and that you remember that you are united in your support of the values, you're united in the support of the structure, even though you might disagree with a particular decision.

So let me conclude by giving three examples and three cases that I served on the appellate courts of these three tribal nations. The first case comes from the Saginaw Chippewa in Michigan. People talked a little bit today about one of the critical issues for tribes in the U.S. is membership, enrollment. But nobody talked about the flip side of that and the flip side is disenrollment, a very painful, a very powerful force within a number of tribes. And so a case came up at Saginaw where the tribal council there began to disenroll people and a number of people thought it was just wrong. And so they brought a suit in tribal court raising the question, a very important question, ‘What power does the Saginaw Chippewa tribal council have to disenroll people?' It's a very powerful, though perhaps painful, question. And it would be a good question for all of you to ask yourselves, ‘What power in your own tribe does your constitution say about who has the power to disenroll for what reasons under what circumstances, or does it really address the issue at all? And so the case at Saginaw, and I'll simplify it a little bit, the view of the tribe was -- represented by an excellent attorney -- and the view that the tribe had plenary power to disenroll people for whatever good reason it thought. The challengers -- also represented by an excellent attorney -- took the position, ‘Well, if you look at the tribal constitution, it's an important, really basic question, what is the structure of this tribe's constitution?' And what it meant by ‘the structure' is this, and I think it's a very important question for every tribal member to ask about his or her constitution. And it is this: Tribal constitutions structurally, from an overall point of view, can be organized into two categories. One is what we might call a ‘plenary power' constitution. A plenary power constitution means in the text of that constitution, all the power of the tribe is granted to the tribal government and none of that power is reserved directly to the people, and there are tribal constitutions that do this, I've seen them. There are also many tribal constitutions, in fact probably more tribal constitutions, that are what I would call a delegated powers model, in which the power of the tribal people is delegated in a specific manner to the tribal government itself, and all powers not delegated or enumerated to the tribal government are reserved to the people. And I think, structurally, that is probably the most important structural question for tribes. All the power to the tribal government, or only some and the rest of it reserved to the people. And for those of you who are members of tribes that have tribal constitutions, look at your tribal constitution or look at it again and see how you would answer the question about whether it's an enumerated powers constitution or whether it's a plenary power constitution. So that was one of the big questions in the Saginaw case. And we reached the conclusion -- we being the court -- reached the conclusion that the Saginaw Chippewa tribal constitution, which was adopted in a revised edition in 1986, was an enumerated powers constitution, and the tribal council only had the expressed powers that were set out in the constitution. And so we went then to those enumerated powers, and there was some limited, direct recognition of the power of the tribal council to disenroll people. But they were very limited powers. They were limited to members who were enrolled in more than one tribe, and it also mentioned that they had the power to disenroll people who had been adopted into the tribe and their parents divorced. It didn't seem like the constitution gave the tribal council any broader power. Then the question was, ‘Does the tribal council have any inherent powers to disenroll?' ‘Cause that's another thing that comes up sometimes. It comes up with the United States Constitution, sometimes comes up with tribal constitutions. Even though it's not specifically mentioned in the constitution, does a tribe under some circumstances have inherent power to do X. And we decided in the Saginaw case that the only inherent powers that the tribal council had to disenroll people were for two reasons. If it could be proved that a person became a tribal member through fraud. We took the position that a tribe must have the inherent power to disenroll people if they can prove that those people became tribal members through fraud or mistake, because sometimes mistakes happen in the context of enrollment, particularly in the context of blood quantum, ‘cause blood quantum ultimately is what? It's ultimately a math problem, and so if you have somebody working in the enrollment office that's not that good at math, they might have got the fractions wrong and someone gets enrolled not because of fraud, but because of a mistake, and that's the position that we took. But that's not quite the end of the story, because it all doubles back to legitimacy. We made that decision and we said that the people who had been disenrolled had been disenrolled improperly, and if the tribe was going to disenroll them, they had to have another disenrollment ordinance, they could only do it for the grounds that were identified in the constitution and they had to provide due process, notice and the opportunity to be heard. This is very important from a tribal judiciary point of view. It's how you say what you say, because when we made that decision, the tribe might have said what? They might have said, ‘Go fly a kite.' They might have fired us on the spot.

So when a tribal court makes an important decision interpreting the tribal constitution, this is where legitimacy comes into play, because sometimes tribes can, will, although they're less likely to these days, is to say, ‘No, we don't recognize you the tribal court, and we're just going to go about what we've been doing.' And so there are two things there. One is -- and I'll give another example in a moment -- is how well tribal decisions are written, how thoughtful they actually are, how familiar they actually are in talking about tribal tradition and custom, because in the context of the Saginaw case, we looked back to the history of enrollment for the Saginaw Chippewa Tribe. It had a lot of adverse, troubling conditions imposed by the federal government that created a very difficult situation in Saginaw in determining members and it wasn't really the tribe's fault. It was the fault of the federal government who created these kind of crazy rules. But we understood that and we said that. And we tried to show respect to the tribe itself -- meaning the executive branch -- and to the plaintiffs and to tradition and custom. We talked about unity. We talked about respect. And they're just words, but you can make the power of expression, you can use the right words the right way and you can make a powerful expression. And so -- and this is my opinion and I'm not neutral because I worked on that case -- the tribe didn't like the decision. They definitely did not. But what did they do? They accepted it. You could see it in the tribal newspaper. It's incredible. It's like the statement in the tribal newspaper reads like this, ‘We disagree strongly with the decision of the Saginaw Chippewa Tribal Court of Appeals, but we're going to follow it.' That's legitimacy. And so tribal courts themselves have a powerful responsibility, in the way you write your opinions, to show respect, to try to lead the way even when one side wins and the other side loses, is to try to show that there's a way of harmony, there's a way of respect. It might not always work, but you have to do it, I believe, and all good tribal judges and tribal appellate justices do that. You kind of think in the context of respect, and it makes a difference.

I'll give one other...I'll give two more examples. One was a case from Cheyenne River [Sioux Tribe], it's actually an ongoing case. Issue came up at Cheyenne River, because they have a provision in their constitution about redistricting. Their constitution -- as most tribal constitutions [do] -- say that tribal council members will be elected from certain districts. Well, at Cheyenne River the constitution was adopted, it's an IRA [Indian Reorganization Act] constitution. It was adopted in the ‘30s. And so some people were saying, ‘Well, the population and demographic patterns in those communities have changed dramatically and therefore there should be redistricting.' And interesting enough in the Cheyenne River Sioux constitution, it actually expressly says that you can amend the constitution and so you could amend for redistricting purposes, but it also said the tribal council shall redistrict. And arguably the tribal council hadn't redistricted, so there was a challenge saying that the tribal council wasn't carrying out its constitutional responsibilities to redistrict the reservation and I'll just cut to the interest thing. The plaintiffs, the challengers, the relief they were asking for, they wanted the court, they wanted the Cheyenne River Sioux Tribal Court of Appeals to make, to order the Bureau of Indian Affairs to supervise the next election or, in the alternative, they wanted the court itself, the Cheyenne River Sioux Tribal Court of Appeals, to monitor and oversee the election. And the members on the court said, ‘We're not going there. What does that have to do with self-determination to ask the Bureau to come in and supervise an election?' And so despite ruling in favor of the plaintiffs, the challengers, we didn't adopt their proposed remedy. We just said -- and again easier said than done -- we just said that we expect the tribal council, and we set a timeframe, to go forward and come up with a redistricting plan. And so there, there's another sort of cautionary note, that even when you rule in favor of one party in the context of a constitutional dispute, be careful about the remedy that you order to be implemented, even when it's requested by the parties. And again, it takes a certain kind of sensitivity to that.

Last example -- this kind of stuff hasn't been mentioned at all today -- and I do want to mention it and then I'll finish. This case comes from Rosebud. A lot of tribes in their constitution -- hasn't been mentioned at all today, maybe Joe mentioned it quickly -- but there's a lot of pressure internally and externally on tribes to insure in their tribal constitutions that they have Bill of Rights protections, that there is the right to free expression, free exercise of religion, all that. But also because many tribal constitutions in their Bill of Rights section -- if they have one -- is modeled after the Indian Civil Rights Act. And so oftentimes they'll be like sort of what we call Fourth Amendment protections against unreasonable search and seizure. And so when you have that kind of language in a tribal constitution that is a direct replica of the Indian Civil Rights [Act] protection, this is just an example, against unreasonable search and seizure, and that language also models the Fourth Amendment, and then a tribal member is a criminal defendant in a tribal court prosecution, he wants to challenge his arrest. She wants to challenge the arrest as lacking probable cause. They want to say that evidence was seized impermissibly, and that the evidence should be suppressed and their conviction should be reversed. And this is a very important question for tribal appellate courts. When you have Bill of Rights-like language in the context of stuff that applies in the context of criminal prosecutions, does the tribe intend that that language -- and I'm just using the Fourth Amendment -- do they intend that it be interpreted just like the Fourth Amendment to the United States constitution, where there are warrant requirements, the exclusionary rule, all that kind of stuff, or do they mean something different? And if they don't have anything in the constitutional history or discussion when they adopt that language, they're not providing very much direction to the court itself about how it, that is the people, think about these constitution-like protections which have very similar language to the United States Constitution and oftentimes the Indian Civil Rights Act. And the tribe needs to speak -- when they're talking about individual rights because my experience has been with the tribes in South Dakota, tribes are interested in individual rights. To me, it wouldn't be accurate to say that tribal people are all sort of communal, they have no sense of individual rights. It's a balance, and the people who are adopting the constitution, if you're going to have that kind of language in the constitution, you need to provide some background for the court about do you mean just like the Fourth Amendment or not quite like the Fourth Amendment? So whenever you're copying language I guess, borrowing language that comes from the United States Constitution or from the Indian Civil Rights Act, it's really important that there be discussion, documents that show is it just the values that you're interested in, fairness and privacy, or are you inclined to want the exact rules that come from the Fourth Amendment to the United States Constitution, particularly in the context of prosecuting tribal defendants? If you believe that exclusionary rules should apply, that means X number of tribal convictions are going to be reversed. Is that where the tribe stands as a matter of value or not quite, [it] may have something else in mind.

So those are just sort of three examples in three different contexts. Disenrollment, district representation and the rights of criminal defendants, where those are from three real cases [from] three different tribes that I've worked with in terms of interpreting. They're all about interpretation, because that's ultimately what courts do, because however well a constitution is drafted, and the well drafted the better, no doubt about it, but ultimately there are going to be issues of interpretation. And so you have to think about interpretation. And one of the ways the tribal people can aid the court ultimately in interpretation is not just simply adopting the constitution and the language but the stuff that goes with it. Are there tribal constitutional debates, meetings, that are recorded that become part of the tribe's constitutional record, so that when a case comes up and people say what the people really meant was X, that there is testimony, oral history reduced to writing about how tribal people -- the people who give the constitution legitimacy -- how they were thinking about that particular provision of a constitution. Because it's totally inaccurate to think that a constitution is simply going to be interpreted based on the bare bones text that's in the constitution, however well it's been drafted. And so to me two key things that bracket constitutional thinking is legitimacy now, forever and always, and interpretation and an ongoing kind of commitment of tribal people to their constitution. And it might need revision at certain times. The United States Constitution has been amended any number of times. Very few constitutions survive and have authenticity and legitimacy without the necessity of being amended at certain times. And again it's a very powerful notion in terms of education, because education is a very valuable component that gives legitimacy. Because too often the education that people get in high school and even in college about the United States Constitution I don't believe is very effective or fair, because it's too, it's too self congratulatory about the constitution is great, we're great, duh. There's got to be more to it, because a long-lasting constitution is not inherently great. It takes legitimacy, it takes mistakes, and that's what tribal people themselves I think have to realize, and your children and grandchildren, about it's an ongoing process to be educated to think about any constitution, but particularly a tribal constitution.

Honoring Nations: Theresa M. Pouley: The Tulalip Alternative Sentencing Program

Producer
Harvard Project on American Indian Economic Development
Year

Judge Theresa M. Pouley of the Tulalip Tribal Court discusses how the Tulalip Tribes reclaimed criminal jurisdiction from the State of Washington and then developed the award-winning Tulalip Alternative Sentencing Program, which she explains is a more effective and culturally appropriate approach to the administration of justice for Tulalip citizens. 

Native Nations
Resource Type
Citation

Pouley, Theresa M. "The Tulalip Alternative Sentencing Program." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 27-28, 2007. Presentation.

Duane Champagne:

"Our first speaker will be -- well, it was supposed to be Gary Bass, who is the head judge at Tulalip and he is one of the founders and sustainers of the Alternative Sentencing Program. But in his place, he's sent us Theresa Pouley, who is associate judge and who actually made the presentation at the Honoring Nations final program. They're 2006 honorees and have a very outstanding program, which I'll let Theresa tell you about."

Theresa M. Pouley:

"Well, I want you to know first that Judge Bass really wanted to be here and he is here in spirit, but he's also here in form. If you look at the 2008 applications [brochure], his picture's right here, standing next to me. And I thought a little bit -- except justices and judges are supposed to be more serious -- that I'd wear it as a little mask today so it was really Gary Bass, but then I changed my mind. I'm Theresa Pouley. I'm the associate judge. As chief judges often do, he delegated this responsibility to me to talk to you about Tulalip's Alternative Sentencing Program. And I was actually delighted. When I talked to Amy [Besaw Medford] and she called me on the phone, she said, 'Oh, this is going to be the feel good section,' and I was like so excited [because] nobody says 'feel good' and 'tribal court' in the same sentence ever. So what I'm going to do is just remind you that when I start out, it's not going to feel very good, but when I get to the end, just like Amy's been for this whole conference -- she's totally right, it is going to work.

I always start, when I do presentations like this, by thinking about words from our ancestors, from different tribes. And in this particular case, I thought about this saying from a Shenandoah proverb that says, 'It's no longer enough to cry peace. We have to act peace, live peace and live in peace.' And Tulalip's Alternative Sentencing Program is really geared towards doing those things. How do you act peace?

You look a little bit at the history of the Tulalip tribes  -- and this is not the feel good part of my presentation -- crime on the Tulalip Indian Reservation, which is located in western Washington, traditional fishing tribe, about 3,500 tribal members now -- the reservation by the time the 1980s and 90s came around was characterized by everybody who knew it as lawless. That's a pretty serious, and makes you take a serious sigh, about how the criminal justice system is operating at Tulalip. Now why is that? It's exactly the same as it is all over Indian Country -- the federal government took over traditional Native problem-solving and replaced it with a system of punishment and prison, and not a surprise, it didn't work at Tulalip. The main road that goes through the Tulalip Reservation was designated by the Washington State Patrol and virtually every other agency as 'blood alley' because of the number of drug- and alcohol-related deaths on its highways. In 2001, the Tulalip Board of Directors said, 'Enough is enough. We're tired of having state law enforcement on the reservation, we're tired of sending tribal members to state court, we're tired of having this reputation of lawlessness on the reservation, and we're going to take our community back. We are going to solve the criminal problems that happen within the boundaries of the Tulalip Reservation.' And they did.

They got a State [of Washington] piece of legislation, which retroceded all of their criminal jurisdiction under Public Law 280, and they took over and went about the business of adjudicating its own tribal members as guilty of crimes and holding them accountable for those crimes. Now, 2001, you had a huge influx of cases. So Tulalip Tribes never has heard a criminal case, never had a criminal defendant come before the bench before, and in a two-year period of time, they had 1,100 criminal cases filed in tribal court. Zero to 1,100. Imagine, if you will.

By 2003, Chief Judge Bass came to one conclusion that should have been easy for any judge to see all along, which is, his clients were all the same clients. And why were they committing crimes? Were they committing crimes because they had criminal behavior? No. They were committing crimes because 95 percent of the time, they had substance abuse issues. Over 60 percent of the time, they had mental health issues. Many of them suffered from post-traumatic stress disorder because they were removed from their family's homes, because they were sent to boarding school. The issues that were bringing those clients to court simply were not being resolved, not on any day. So Judge Bass decided, in a Nike© kind of way, 'Just do it.' We can do it better than that.

So he created a special criminal calendar where he had clients come into court on a weekly basis and he asked them the question. 'I asked you to get a drug and alcohol evaluation. Did you get one?' And if they didn't, then he'd say, 'You're going to get one by next week and if you don't, I'll throw you in jail.' Throw you in jail for a long time like they would in the state court system? Warehouse you off 365 days? No. One day, to make the point. That's how important it was that you should get a drug and alcohol evaluation. Combined with that -- you know, modern technology is a wonderful thing. He used a system of urinalysis testing. It's a big joke at Tulalip, by the way. If you come in to get a will at Tulalip, you better be prepared to take a UA. You want a divorce, we're going to hand you the cup. Because, here's the key, early identification of drug and alcohol related issues and constant monitoring of sobriety is critical to your ability to comply with court orders. If the judge tells you that you have to get community service, that you need to get a job, you need to get a GED, what is the chance of you being able to accomplish that objective if you're addicted to drugs or alcohol? All of the state statistics will tell you exactly what the chances are: seven in 10 Native Americans in jail today are there because they did not comply with their probation. Why not? Because they're addicted to substances.

So a concerted effort was made by Judge Bass to change the way business got done. It was so successful on individual clients that the police were seeing, that the Chief of Police of the Tulalip Tribes went to the Board of Directors and said, 'I think you should pass a resolution. That resolution should require that we all investigate alternative sentencing and that we have a drug court.' And they passed a resolution implementing those things. So that's the history of how we get there. So now we know how we act peace. So how do we live peace?

We have Tulalip's Alternative Sentencing Program, which incorporates all the best values of the Native culture into a modern and traditional court system. First of all, you have regular and frequent reviews with the judge. And the judge is there not to punish you, the judge is there to encourage you to make better choices. If you do a good job, the judge is going to come off the bench and give you a hug. If you get your GED and graduate, your case is going to be closed. If you get a job when you haven't been employed for the last 20 years of your life, a round of applause is going to break out in the courtroom. That's how alternative sentencing works. We still had a group of clients that we couldn't reach, our repeat offenders who had been in court now five, or six, or seven, or eight times. And that particular system wasn't working. So the question became, what do we do with those clients? And the answer is, change. Change everything. And you start with changing the name. [Salish language]. The court 'giving the means to get stronger' is Tulalip Tribes' wellness court. Wellness court coordinates all of the services of the tribe. They all meet together once a week and those clients come forward and visit not just with the judge, but with all of the institutions of the tribe. Drug and alcohol counselor is there, mental health counselor is there, GED provider is there, Northwest Indian College is there -- everybody who has a vested interest in this person's life and in the requirements for that person sits at the table once a week. But remember, you have to change everything.

So imagine the courtroom. Now the courtroom is an entirely different place. They all sit in a circle. They start the proceedings and they open with a prayer. And everybody sitting around the circle, client, public defender, prosecutor, police officer, treatment provider, we all take our turn giving a prayer. And then all of the clients take turns doing closing prayers. Now Tulalip isn't a homogenous society. We have a variety of religions that are there, but we all get to learn and respect one another. These proceedings which happen in a circle, you don't sit on the bench–which is a problem for me when I do [Salish language], because I'm a little short, so sitting around in the circle sometimes is problematic, so I like to get up and wander around. You all sit in a circle, you open with a prayer, you close with a prayer, and they all watch out for each other.

When we first were awarded Honoring Nations in 2006, we'd just started [Salish language]. Now, we've had our first two graduates. The most rewarding thing, and this is what Amy's right about, is that I have a grandma who is a grandma to her grandchildren again, and a mother to her children again. The most rewarding thing is that I have a young mother who's 25 years old, who has four children who have all been removed from her care. And not only has she been clean and sober for eight months [because] she's got to come visit with the whole team every week, but now she's starting to get her children back. The Tulalip Tribes is planning on moving for an in-home dependency within the next couple of months. And not only that, as if that wasn't enough, her husband has always been a problem child. Since 2001, he was one of our very first criminal cases. And in 2006, he's still racking up charges. And in 2007, he's out of jail and on probation again. And guess what? He also is doing fabulously. The family's in family counseling, there's in-home services. We just gave them a congratulations card because, for the very first time in their life, they have a home with their children in it. You can just change everything and you do it just one at a time.

Now that's sort of the anecdotal information, but I'm always reminded, especially when I come to these gatherings, that it's not really my job. Nor do I get the luxury of seeing the results on a daily basis, but every once in awhile I get that reminder. We don't do this work for the mom, necessarily. We do this work to break the cycle of violence and drug addiction in our community that deprives her children and her grandchildren from being able to be tribal chairwoman. Actually, her children are all girls. So if they wanted to be tribal chairman that would be okay, too.

So if you act peace, live peace, how do you live in peace? You have to figure out how to incorporate the custom and tradition and values of the tribe into the justice system. Courts are not popular places. Nobody wants to come to court. I bet all of you when you thought you were going to talk to a judge you're like, 'Oh, man.' And I bet each and every one of you has a relative who's been to court and didn't have anything nice to say about going to court. Remember that separation of powers does not mean separation of solutions, and it certainly doesn't mean separation of problems. The Tulalip Board of Directors passed a resolution that said that we should plan a wellness court, that we should plan alternative sentencing, and the chief judge could have said, 'Absolutely not! You can't say anything about that. Separation of powers.' But he didn't because we have the same problems and we needed the same solutions. The same thing's true for the chief of police. He didn't ask those questions and he wasn't interfering with the province of the court. We need to learn how to work together. We have to quit thinking of our relatives who are in court as sort of the black sheep of our family. We have to love all of our clients and I really hope for every one of my clients everyday -- even when I send them off to jail once or twice -- that they get the message this time. [Because] I never know when I'm going to be looking at the chairman of my tribe, or when I'm looking at the mother of the chairman of the tribe. [Salish language]. That's the judge's role. The court's role is to give people the tools to help them be stronger. But that means everybody here -- this is all of your obligation -- you've got to talk to your local tribal court judge, bring them into the loop. Don't be afraid of passing a resolution. It is absolutely critical to our tribal members that we take the time to figure out how those disadvantaged people in our communities can be made whole, because if we don't, that's just perpetuated into another couple of generations. It's absolutely critical that you use justice systems to change behavior in a positive way. And when you do that, you go back to the more traditional problem solving.

At Tulalip it was like this all the time. From my own family it's absolutely like that. Court becomes a place where there's teaching to be given, not only to the person who's appearing in front of you, but to everyone else in the courtroom and everyone else in the community. Teachings are given. That's how we hand down particular pieces of information for the next generation. So, it's the old Shenandoah proverb right? Tulalip decided 'it's not enough to cry peace' anymore. 'We [absolutely] have to act peace, live peace and live in peace.' Crime rate at Tulalip, a year after this program, has decreased 25 percent -- 25 percent. That's an amazing day. And we get our mothers and our grandmothers back. We get our fathers and our grandfathers back. We do it for the future of our children in the ways of our ancestors. Thank you."

Cass Board, Leech Lake Tribal Council highlight cooperative efforts

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Year

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
Resource Type
Citation

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)

Yurok tribe's wellness court heals with tradition

Author
Year

Lauren Alvarado states it simply: “Meth is everywhere in Indian country.”

Like many here, she first tried methamphetamine at age 12. Legal trouble came at 13 with an arrest for public intoxication. In the years that followed, she relied on charm and manipulation to get by, letting her grandmother down often.

But today, at 31, Alvarado and her grandmother have built a new trust. She has been clean for nine months, she said recently, and is “hopeful, more grateful.”

Her recovery has come through a novel wellness program that puts traditional Yurok values to work to heal addicted men and women from California’s largest tribe, whose ancestral land -- and reservation -- hugs the banks of the Klamath River...

Native Nations
Resource Type
Citation

Romney, Lee. "Yurok tribe's wellness court heals with tradition." Los Angeles Times. March 5, 2014. Article. (http://www.latimes.com/local/lanow/la-me-ln-yurok-wellness-court-20140304-story.html#axzz2vD6GrIw7, accessed March 10, 2014)