National

Honoring Nations: Juana Majel-Dixon: The Violence Against Women Task Force

Producer
Harvard Project on American Indian Economic Development
Year

Juana Majel-Dixon, Chair of NCAI's Task Force on Violence Against Women, reflects on the work of the Task Force on Violence Against Women and their efforts to push for passage of the Violence Against Women Act in Congress.

Native Nations
Resource Type
Citation

Majel-Dixon, Juana. "The Violence Against Women Task Force." 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.

Heather Kendall-Miller:

"This is Juana Majel-Dixon, who is Chair of the Violence Against Women's Task Force, a 2006 honoree. So we'll see how far we can get with Juana before she has to dart out of here. I want to again say my, send out my deepest appreciations to all of you here in the room, and especially Amy [Besaw Medford] and all of the staff that have worked so hard to pull this together. It's been a great experience and I will see you in another year or two. With that, Juana."

Juana Majel-Dixon:

"Thank you. [Luiseño language]. I just told you I was a tropical chick from California. I can't resist that. They always think I'm Samoan or something when I'm over there. And when I go to Hawaii, they think I'm Hawaiian. I went to Tahiti, they thought I was from Tahiti. When I was in New Zealand, they thought I was Maori. But they didn't think I was Aborigine when I was in the bush in Australia, but that's where I was heading to. What I did say to you, in our traditional manner, I greeted you in the language of my people, the [Luiseño language] people, means ‘western' people. My clan group; I come from the [Luiseño language] family and my language is [Luiseño language]; it means 'dove clan.' As well as the matriarchy of our system is [Luiseño language], which is the bear; so I have the peacemaker and the protector. And in traditional concepts it's little wonder why I do what I do, ay? I also ask you to acknowledge the strong-hearted women of our nations. [Luiseño language] means ‘acknowledging the good of the strong-hearted women of our nations. I also asked you in my language that the words that I speak be of a clear mind and a clean heart. And I also reminded myself that when I give breath to the words, they no longer belong to me, they belong to the people.

I am a traditional appointed leader. Back many years ago, I guess in the old style of youth groups, I was given a provisional license to drive my mother in daylight hours to tribal gatherings and she drove home at sunset because I was too little to drive. And I can remember looking through those big steering wheels. And I would sleep in the back of the car and I would sleep at the meetings. But little did I know, I now have almost 35 years with the National Congress of American Indians. They call me an NCAI baby. I don't know what to think about that. But when the leaders start saying baby to me, I think it's mighty fine. Us Indians we've got good humor. And they don't care what shape our Indian women are in; they just love us. I like that about our guys. I don't care what shape they're in, I just love them. Maybe it's just an Indian thing. Or we're small in number. That's just wonderful about our nations.

I've come to learn so much as a leader. As an appointee I was 19, and I'm going to be 57. I think I'm going to have to die in my leadership position [because] it's a traditional position. There are five us from our five clans, one from each clan. And we're waiting for the next three. Three, of my generation, have died and there are only two of us left. So I've been a traditional councilwoman --legislative council, predominately -- to the tribe for 28 years, 28-plus years, I guess. I stopped doing the math so I figure at 30 I'll leave it at that. As a result, my role with the tribe has a great longevity and I'm a professor for 25 years now, actually 26 years this month at the University for U.S. Policy. I teach U.S. Policy and Federal Indian Law, which is probably why I do some of the things that I do.

But I'm here to share you the impact leadership has had. And I was at the senate, I wanted to be with you. I have a certain part of me that ached for not being with you for the last couple days. But I got to witness something that -- I commend the women of our nations, our community grassroots people who are part of this whole honoring system. They selected people to speak before the Senate Indian Affairs Committee [U.S. Senate Committee on Indian Affairs] and they chose our women. Isn't that great? Isn't that incredible? That is powerful. And these weren't women who were leaders in the sense of tradition or election, you know those things that happen, but they had done such grassroots work that they became the voices of all our nations and of all our women about the violence against Native women. It was not an easy testimony 'cause we also had to deal with [???] in the room, which is a very gentle, big gorilla in the room, but we love them. They're just not of our clan, you know. I'm just kidding. No, I'm not. They're good people, but I just think that they got in after we did all the work, and I think you know what that is -- and what you have taught me in order to even sit at this table with you that it had to be something, that she so eloquently said, can be done with that particular person left out and be sustainable. And to witness that and to sit behind them as a leader, told me, yeah, this worked and that the Senate heard them and that was so powerful. You can get on CNN and dial it up or however you do it on the Internet and you can see them. Tammy Young from [Sitka, Alaska] and Karen Artichoker from Sinte Gleska [University], Pine Ridge I think, Kyle [South Dakota] area; very, very, very powerful speakers.

But then what followed that, was a series, a barrage of meetings with senators, and then ending that evening with the Indian -- No ending, actually, the evening with NAHASDA [Native American Housing Assistance and Self Determination Act of 1996] and HUD [Department of Housing and Urban Development]. But just before that, we finished with the Senate Indian Affairs staffers. And there are things that have happened, and the leadership in the room who have attended some of our gatherings with NCAI and the consultations that followed -- We even created a new Blue Book in case you wanted to know what some of the money went towards. As we left you in Sacramento, we got hit very aggressively by the Adam Walsh Act -- it was the sexual assault registry. And to me I think that's a very talented, very clever example of your researchers that are out there and people who might get the ‘ah ha' when you see a flag go up. Where was Adam Walsh sitting all those years? It was what, 20-plus years before John [Walsh] got his -- It's his son that was killed, Adam, who was brutally murdered and harmed -- It took 20-plus years for that act to follow, but it came right after VAWA [Violence Against Women Act], because inside of that we had a national sexual assault registry.

And one of the things that we accomplished with the women of our grassroots area and our leadership coming together -- I just wish there was a way to capture on film this incredible year, since we last saw each other, of the leadership, listening to your own people, and the people speaking. When we were at this last consultation, they certainly called the woman, Mary Beth Buchanan, to task, but it was -- for me, you see, I'm a California Indian girl. We've always had this standing joke with our Pueblo governors, because we have a lot of female leadership in California and they don't have a whole lot of female leadership in Pueblo country, in the same manner as elected leaders or that kind of a thing. So they tease us mercilessly and tell us how we should be in their areas doing these kinds of duties. And we take the ribbing with great heart and great respect. But I have to tell you, the leadership of the Pueblo councils, of the governors in that room, that set the precedent of the day, was phenomenal. And they even had, there was four designees, Nambe had someone, their judge, and Santo Domingo and I can't remember all -- but they had designated women in their communities that were doing this grassroots effort. And I knew that was at a great of respect but also the recognition of their expertise. That's another transferrable, sustainable evolution of the work that was done and it was humbling and honorable to watch them cause it was their nation that we were in. And so setting the tone, to hear those governors speak and then to be so passionate and understanding of what was going on and how hard it is to implement this law within our own nations. But we're going to take that journey together.

But one of the most powerful things that came out of there -- well, there's going to be a lot of powerful things, so let's just say that everything that we did was powerful. It blows you out of the water, and I'm going to make sure that all of you get this book. And I'll give it to Amy [Besaw Medford] who can give me a list of people. Just give me the number and we'll send it to you. But we got -- in the midst of Adam Walsh, we got our national sexual assault registry funded for $1 million per year for the next two years. Does that make any sense? And out of the clear blue -- now we need to talk to Jim Casey about this. It just so happens that the exact amount that he pulled out of JOM [Johnson O'Malley] is the money that Adam Walsh has. So it's a leadership thing. You follow that stuff. But we need to talk to him. And my leaders are in the room, please make note of that 'cause he kind of squirms a little when you bring it up. My sisters over there, we know nothing. Oh, yeah, Jim Cason. What did I say, Casey? Well, that's probably why. It's just me slipping. Get the right guy, okay? Cason, okay.

We get this book going and we then get another $500,000 for the next two years for the cost of injury study on violence against Native women. That's in the title. We get $1 million for the next two years for the national baseline study. No, it's not $2 million for the tribal sexual offender order of protection registry. We get $1 million per year for the next five years so that's $5 million. And so here Adam Walsh is coming up and -- then they're making it a competitive application, by the way, for the leadership. They did Op 10.

But I wanted to tell you -- oh, three minutes does that mean something? I'm sorry. It's not your fault. We out white the Whites sometimes. It's not a bad thing, but I understand that but it doesn't make sense to me right now. I'll hurry.

One of things I realized in doing this journey is that -- I need you to read the book because then there are the things that we need to do follow up with VAWA [Violence Against Women Act] for the leadership of the community. But I sat in a meeting yesterday following this with the Senate Indian Affairs Committee and, as you know, Dorgan's doing the Omnibus Crimes Bill, which is unheard of. This statute has done so many things. And I got this three pages -- and I let Heather have a look-see, Joanne looked at it, and it's like, wow. There are sections -- one is alcohol substance abuse, reauthorization to amend, to address methamphetamine. They want to amend the Indian Alcohol Substance Abuse Act. That's amazing. The section on Indian Law Enforcement Act; the big one there is the mandated declination reports and data collection. The current law authorizes but does not require FBI [Federal Bureau of Investigation], BIA [Bureau of Indian Affairs], U.S. attorneys to report to the tribe's tribal law enforcement when they decline to investigate or prosecute a case. That's amazing.

But who's sitting with me when this is being done? These women from the grassroots community to help affect this change. So it's a combination of the leadership and some incredible journey. We've looked at the violence against our women, which we know we will have to look at the fact that it is happening also from our own men. But we went back and asked our elder women, how far back can you go? And different nations we went to, and I can probably get a list of the nations, but the consistent answer, after World War II. So at least we have something to work with and our men of our nations have something to work with, [because] we as strong women support them. They can affect the greatest change amongst their own selves as men. And we're looking at ways to acknowledge -- This law is about reasserting and re-acknowledging and increasing tribal authority to protect its women. So it's a powerful law.

But we've also been hit, just been hit, by the strongest arms of this nation that they have come up with the Adam Walsh -- We are reauthorizing FVPSA, the Family Violence Protection Service Act. There's great things involved; but we've come together to create this tribal core group that was mirroring now the original core group that helped move VAWA and they're wanting to do the same with FVPSA. So it's like, just when we settle down, something else to happen. And then they have Tribal Law Enforcement Arrest Authority, Law Enforcement Information Sharing, Law Enforcement Training; reauthorize/require DOJ [Department of Justice] to appoint tribal prosecutors as special U.S. attorneys to Indian Country; Indian Child Protection Act, Tribal Justice Support Act; reauthorize consultation and institutionalize this U.S. tribal liaison; also, domestic violence pilot project, establish a pilot project; authorize non-Indians to voluntarily enter into drug courts, tribal drug courts; establish federal crime for violation or tribal court protection; reaffirm tribal authority to enforce jurisdiction protection orders. And they're talking about doing it over non-Indians.

And as we have talked, my brothers and sisters that are leaders in the room, of the MOUs [Memorandum of Understanding] that we must do, with all that intermarrying we did with our relocation and boarding schools, and through a few other wasicus and Spaniards -- and they're okay. But the stuff we've done, we now have to take some responsibility and authority for. And then I also have urged our leadership; with this work with women who have influenced me greatly, is that I must enter into a full faith and credit relationship with you, my nation to your nation. And I think that is one of the most powerful things that we have done, reacquire this great nation of America to do that with us and at the least we can do it to each other.

Okay, I'm going to wrap it up. I have more to say but I really missed a lot out here. Maybe I'll write it down and you can read it. I shared a joke with Regina Schofield yesterday, because it was her last day yesterday. And they have created several task forces, which will be federally mandated, which is the VAWA Task Force, the Adam Walsh Task Force, the DOJ Tribal Leadership Task Force and SAMSA [the Substance Abuse and Mental Health Services Administration] is doing a task force, which is coming from this work. But I said to Regina Schofield, ‘Okay, now that you're out of DOJ, you don't have to worry about the party line and being bushwhacked later.' If you're in Indian Country and you saw Mr. and Mrs. Big Left Hand over there and they come to you because they're stealing in the tribal store, they're elders. And she asked them, ‘So, Mr. Big Left Hand, why are you stealing?' They just kind of look at you as elders do, volumes are said, but you don't get to ask much more 'cause they usually have a sign that says, ‘When did you say you were leaving?' I said, ‘All right, Regina.' I said, ‘You ask that guy, Mr. Big Left Hand, what did you steal?' ‘A can of peaches.' ‘How many peaches were in there?' ‘Seven.' ‘Well, Mr. Big Left Hand, you've got to do seven days in the tribal jail.' A little hand goes up. Mrs. Big Left Hand is up and Regina looks at her. I said, ‘Now Regina, pay attention. This is Indian Country. Yes, Mrs. Big Left Hand.' ‘He stole a can of peas, too.' So I thank you for having me."

Honoring Nations: Sovereignty Today: Q&A

Producer
Harvard Project on American Indian Economic Development
Year

The 2007 Honoring Nations symposium "Sovereignty Today" panel presenters as well as members of the Honoring Nations Board of Governors field questions from the audience and offer their thoughts on the state of tribal sovereignty today and the challenges that lie ahead.

Native Nations
Resource Type
Citation

"Sovereignty Today: Q&A." 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.

Ethel Branch:

"Hi. Thank you all for speaking. It was really inspiring to hear all of your words. I guess my question is -- My name's Ethel Branch. I'm a student at the law school. I'm Navajo from Arizona. My question is, Indian policy, federal Indian policy has always suffered vicissitudes going back and forth from an era of termination, extermination, whatever, and switching to an era of revitalization, empowerment of tribes. We've been in self-determination for now over 30 years. Do you see a shift in the tide? What direction do you think the next era is going to go? If you could give insight on that, I'd really appreciate it. Thank you."

Floyd "Buck" Jourdain:

"Geez, I feel like Billy Madison up here. Anybody who's seen the movie, you know what I'm talking about.

Self-governance. We're a self-governance tribe and we no longer have a BIA agent and all that, we deal directly with our appropriations through the tribe. And it's [an] experimental thing that several tribes took on, but we feel it's working to our advantage; we're using it in a good way. And one of the things that we notice with the non, the tribes that are still under the BIA [Bureau of Indian Affairs] -- they do get preference over us, so we have to really fight and arm wrestle every year; appropriations, negotiations, hearings. And it's almost like sometimes there's a safety net there that we need to grow away from. Self-governance is a good thing if it's used in a good way, and it's used correctly, and you have good leadership, and people are really on top of it. I think we just need to pry away from that old era and get away from that. And if it doesn't happen, then you'll see tribes, kind of, falling back into that, which is a dangerous thing.

Like I talked about today, the climate. You talk about the energy push in America, George Bush and the big oil companies. One of the things that -- our tribal treasurer goes to D.C. and brings back these horror stories about, 'There's going to be another huge cut. The [Department of the] Interior and BIA is going to cut, cut, cut, cut, cut.' And you have all these issues in your Indian community. You have methamphetamine, you have homelessness, you have poverty but, 'Hey, here's the answer to all your solutions! Let us come in and build a power plant on your lakeside and that will really help you guys out and get you out of this state.' So right now it's been rights of ways issues, those are huge -- people wanting to build power lines and roads across our land so they can -- tourism can explode and those types of things.

So I think that tribes need to really grasp it, emphasize self-governance, and really use it in a good way, and be aggressive with it. And I think that if more of them start moving in that direction you're going to see a lot of self-sufficient tribes out there doing some pretty good things."

James Ransom:

"I wanted to stand up. I know some of the people over here can't see us over here. I just had two comments on the question.

A trend that I see happening and which is real obvious is one, stay out of court. That cannot be overemphasized right now. Anything that gets to the Supreme Court is going to be an erosion of sovereignty. You can almost be guaranteed that.

What that tells us though is we need to refine our diplomacy skills and we need to negotiate solutions to issues on the local level, on a state level, on the federal level but in a way that is protective of our communities. And again, that talks about responsibility. We need to work on that and bring that back.

I think that's going to be the key to the future is exercising our responsibilities in ways that non-Natives -- the larger society -- can understand and appreciate."

Michael Thomas:

"I can only agree first of all with what's been said in terms of our own responsibilities and how we should not allow a perpetual federal trust responsibility to us to foster dependency. And frankly, the 30 years of the [Indian] Self-Determination Era has, in my mind, fostered as much dependency as self-determination. And frankly, I think that self-determination can be an excuse for modern governments to avoid their trust responsibility to each and every one of the people in our tribal communities. And so it's a balancing act. I think that we will see the lip service toward self-determination continue, but I think that you'll see the pendulum swing back and forth between whether these people are walking the walk or simply talking the talk.

As you watch the composition of our Supreme Court change, the advice about staying out of court becomes more and more relevant. And that is the kind of long-term pendulum swing that we as Indian people can appreciate but the average American cannot. The reality is, unless you are subject to those swings in constitutional interpretation, and Supreme Court composition, and federal Indian policy, and all the other things that create the storm of politics within which we must live, you're not going to get consistent outcomes.

And so that responsibility that both other tribal leaders here have emphasized is critical. Because it's a different approach to say 'They will never fully meet this trust responsibility, therefore we must...' than it is to simply cry over and over and over, 'Meet your trust responsibility, meet your trust...' We end up putting our people in a victim's position, when the reality is that we have all we need to protect and advance our people even in the absence of that fulfilled trust responsibility. I think an increasing recognition of this by tribal leaders can only lead us to good places."

Ben Nuvamsa:

"I'm very humbled to be here among you leaders. Thank you for your teachings and validation of what I also believe in. Chief Ransom, as you spoke, I feel like you were talking about us.

At Hopi, we're going through a tremendous change. I agree with you, wholeheartedly, that along with sovereignty comes responsibility and accountability, and if we can exercise that in the correct way -- hopefully we don't get to the point where somebody tells us what sovereignty means to us, like the Supreme Court. Our constitutions that we have adopted, the IRA constitution -- at Hopi we're very different because of our traditional ceremonies that we are very still actively involved in, in that -- and our values are much different than what an IRA constitution puts forth. And that really creates some problems for us, that we have two different cultures always conflicting with how we operate. And I think that in the situation that we're in, we need to go out and we need to re-evaluate that constitution. And many tribes have done that. I guess what I'm trying to say is that good, bad, or indifferent, however our constitutions are, we need to interpret those in our Hopi ways, in our tribal ways, what does that mean to us in our local customary practices. That's what's going to sustain us forever. I think that's where we're at.

I'm also very humbled to be with a group of our representatives here that are very knowledgeable in our tribal government. Mr. Kuwaninvaya has been on the council for a long time and I look to him for guidance. He's very astute about when we get into a debate at the council -- and he has this unique knack to put things in proper perspective, and he brings our traditional values, our knowledge, and interprets that debate into how we are supposed to be. And it seems like it really clarifies the whole debate. It's very simple. Go back to what Hopi is. Go back to what our beliefs are. And I think that's what sovereignty means to us is who we are as a people, and what our beliefs are, what our customs are. And we speak our language; our language is what sets us apart also. That is our sovereignty.

And so I just want to thank you for the thoughts. We also have certain principles that you talked about. Sumi'nangwa. Nami'nangwa. Kyavtsi. Respect for one another, coming together as one people, putting our heads together and working together. Those are principles and kind of visions that we have, high bars that we have to achieve. But I think that's the kind of a process that we're in right now and we'll need to get to that point. And I just want to thank you for your words of wisdom all of you."

Regis Pecos:

"Thank you for that, what I think is a really profound question. If we go back into the past and reflect upon that time of federal policies dealing with extermination, and where that moved to assimilation, and where that moved to termination, and then the more recent federal policy that defines this time as the era of self-determination, we really are at a critical juncture to be asking some very critical questions with regard to, 'What are we doing differently now, when we are in control, from those times when we weren't and we were critical of that subjection to those federal policies?' Because if we're not careful, I think that we potentially become our own worst enemies at this particular time and juncture in our journey through life.

I really think that this next wave, to answer your question, really is going to be a return to the core values. And that the definition of sovereignty is really going to come back to be defined, redefined, internally and outwardly. And I think part of the celebration, with something as profound as what we've heard all of today, are the incredible redefining of approaches that is coming from and dictated by our return to those principles and core values. I think in this next wave it's going to be part of a process and an evolution that is using the core values to redefine the strength of tribal governments, and the sovereignty and the power of our peoples to define, outwardly, the interrelations of intergovernmental relations, if you will, but defined for our purposes. So that, as we take a circle, and in it are the core values of our land, our language, our way of life, our people, our resources, our water, our air that sustains that spirit of living, to examine the way in which we either are making decisions with governance and our jurisprudence that moves us away from the core values or reinforces the core values; and where decisions are made that's moving us away, how we're contributing to make fragile that institutional framework that otherwise creates for an operation from a position of strength. And if all we're doing in this time of self-determination is simply replicating programs with no conscious thought about how the replication of programs is moving us further away from those core values or reinforcing core values, or the way in which economic development is viewed, to either be supportive and compatible with the core values or moving us away from the core values, and something as critical as education -- If we see education as the means and the process that was never intended for us, but how we find that to be necessary in developing our skills to deal with their external forces, to protect the internal workings of our nations, it becomes critical at this very point to really look at ways in which we strike a balance. And as our young people and our trust for the future are being schooled in the formal education institutions, we really have to be mindful in terms of what we're doing consciously in redefining our own blueprint for the teachings, from a cultural perspective, so that in the kind of challenges from this point forward, we really must operate from that position of strength, that is, articulating our relationships with other governments from those fundamental principles encompassed and defined by those core values.

So I think in this next wave, it's going to be about our redefining relationships with other governments based upon the articulation and the full utilization of the core values moving from within, outwardly, as it's never been done before. And if we're not approaching it in that way, the gaps are going to become greater and wider. And if language and culture is not the focus of what we do in creating the next generation of leaders, ask ourselves, 'Will they have any opportunity to argue the spirit of sovereignty from any other context or perspective?' Because when that happens we're going to be reduced to everything we don't want to be reduced to, as simply political subdivisions of someone else's sovereign governmental framework, different than what we want to do -- to come from within that context that sustains that spirit, that is defined by everything the Creator gave us and blessed us with, that sustains that spirit of living from a totally different perspective, which means that we have to create our own institutions. So that for all of us who've gone through the experience of a formal education, it doesn't take us to move back through a process of being reeducated in the principles of those core values.

So I think in this next wave, we have to be conscious about creating our own opportunities and institutions to strike the kind of balance that results in the kind of training that is necessary for young people to have that kind of balanced perspective, moving the core values as we define the way in which we're going to preserve that sustained spirit of living using those core values."

Michael Thomas:

"Definitely very well said. I would only add one piece, to what frankly, I don't think any of us could say better, which is that one of those core values we have to emphasize, in addition to that which separates us...is our foundation, our language, our culture, our values, the history, this dirt that we are from and of -- the interconnectedness value that we were all given as well is horribly underplayed. As important as all of those things that make us distinct tribal communities are, equally important are the things that bind us from one to the other, the interconnectedness value that every last one of us was taught by our elders is one that we don't walk often enough. It's an area where the way I say it to our council, it's an area where we are not matching our lips with our moccasins. It sounds wonderful, but to really emphasize the interconnectedness means that we would fight less within each of these tribal communities.

And frankly, I've never been to a tribal community, and I've visited several hundred in my life, that is startlingly different from another. As a matter of fact, when people come to Mashantucket, I tell them, 'Don't be confused by the cars and the houses. This is the res.' It might be a little bigger or a little prettier -- same issues, frankly. Wealth has intensified some of those community, social, cultural issues that we face. We're thankful to have the means to deal with those things, finally, but we've got to emphasize connectedness, because all of the other things bring us into our own individual boxes. And everything in this American culture is so individualized and so disconnected from anything, that what that value of 'the connectedness of all things' is one of the most important traditional values we should keep in mind and turn into the action that Regis articulated as well as anyone could. Thank you."

David Gipp:

"Regis, I think you summed up quite a few things today, at least from our perspective and from the tribal perspective, and where we're going hopefully. Let me jump to the next question. And it's a question for you, and other leaders, and everyone here, I think. And that's the question that our Assistant Secretary is posing and he's talking about modernizing the BIA. I don't know if you heard his remarks this morning. And I thought some of them made very good sense as compared to what I heard you say out in...which was the introduction of that thought. And I know you're running around the country trying to get ideas of what that means as well, at least that's what I hear. Comes that question, and that's part of what you have raised is, where are we going to go with this? And how are we going to deal with this? Because the immediate question is, now we have a new trust office that's been put in place, and it's supposedly doing all of these wonderful things for us in terms of managing our trust resources, and being accountable, and somebody mentioned the word transparency, and perhaps we'll see this someday from the U.S. government and truly see what they've been up to all these centuries. But the other issue is, what happens with the rest of the functions within the Bureau of Indian Affairs? Particularly as our tribal nations assume more of these, I'll just say, jurisdictional issues and more of the issues that relate to sovereignty and who and what we're all about. What happens to the government in the meantime, and the U.S. government? And what role does it play? And how will it play that role? And where do we put it in its place, if you will, as we talk about this new, if you will, evolution that's beginning to take place? And I think that's a very real question, because the government can surely be, as we know, stand in the way and create even more problems than it has in the past. Or it can be, indeed, potentially a partner, if we make it a partner. And how do we do that?"

Oren Lyons:

"Sovereignty is the act thereof. No more. No less. And it's a French word. It talks about kings. It talks about absolute monarchal power, absolute. That's what sovereignty comes from. But we came to understand it to mean control of your own future. When we talked this morning about the landing of our brothers here, and not too far away from right here, and they saw the Indian come standing out of the forest. And they looked at him and the word was, 'We'll never tame that man.' And all they ever saw was a free person. That's what they were looking at, was a free person. And that's what we all were at one time. And it's absolutely [certain] that we have to go back to our original teachings to move into the future because they're fundamental, they don't change. Principles don't change. Everything else changes, but principles do not. So as we move forward, we've changed as well. I would imagine that if we were to talk to our counterparts 200 years ago, if they walked in here, they wouldn't know who we were. They'd say, 'Well, whatever happened to our people?' We change. And 100 years or 200 years from now, we'd look at what's in the future and we'd say, 'Well, whatever happened to them?' But if you keep your principles, the main core principles, you can change all you want and nothing changes.

And so I think that it's true that there's going to be outside forces, this global warming is no joke. It's going to break economies. It's going to break world economies. They're just not going to be able to stand it. They're not going to be able to be spending all their money on wars and fighting because they're just going to be talking about survival. So commonality comes back. The discussion is about water, it's about land, it's about resources. When you talk about sovereignty in a contemporary sense, you're talking about jurisdiction. Who has jurisdiction on your land? And that will tell you how sovereign you are. And so jurisdiction is a very important discussion. How do you maintain that?

The courts have always been unfair but they're extremely unfair these days. I agree with you, it's a very difficult time. There's not been fairness in this country to us, there never has been. Racism is still here, it's still rampant, doesn't take much for it to come up. It does not take much for it to pop right up and look you in the face. So we're in a time, I guess, where we're going to see momentous changes. And so the spiritual strength that comes from our elders and comes from our nations and our old people, they always talk about the old people. I always remember Thomas Banyacya saying, 'Well, the old people said...' I always liked it when he said that because he was talking about our elders and how they instructed us and how they always looked after us. It was never a question about leadership then.

The problem with today's leadership in Indian Country is the system that doesn't allow you any continuity. You're there for two years, and then you have an election, and you fight each other for two years, and then you start again, and two years later you're -- it keeps you off balance. The traditional system, the old system, where the chiefs were there for life, I'm one of them. I've got 40 years on the bench, so to speak. I've seen a lot, talked to a lot of leaders (Nixon), most of them one time or another. Bob Bennett, I knew Bob. All of them actually -- how they had a short time, problematic time, but meantime back home, back home where we live, things remain kind of constant. You do what you can do, but I think the core values are just what we're going to depend on and we have to just get back to that. The ceremonies that Jim [James Ransom] was talking about as a guideline -- ceremony is what kept us going, ceremony is what makes us unique, it makes us different from everybody. If you were to ask who we are, we're the people who give thanks to the earth. That's who we are. And we do it all the time. And we still do it. It's important and we were told as long as you're doing it, you're going to survive. When you give it up, you won't. Simple as that.

So we're coming into times, hard times. We've had changes. On September 13th [2007] the United Nations adopted the Declaration for the Rights of Indigenous Peoples. And for the first time in the history of this world they recognized us as peoples with an "s." We fought 30 years for that. Up to that point, we were populations. Populations don't have human rights. Peoples do. That's why we had such a problem. Well, 143 countries voted for us, four voted against us. We know who they were. But the question is why? The question is why? And you have to really inspect that for a reason. We know each other. We've been sometimes allies, sometimes antagonists, but we know each other very well, especially the Haudenosaunee. Those 13 colonies were about as close to Indian as you're ever going to get, Grand Council, the whole works, instructions from our chiefs, democracy. Democracy is from here. It didn't come from overseas. It was here all the time. We were all democratic.

And so we're coming to a crux and it's a tough one. We're involved in it because we're people; peoples, I should say. That was really a benchmark. Now the problems that we had in that final document, we'll be battling in the next 30 years I suppose, if we have 30 years. That's the question. This global warming is extremely fast, it's coming and it's coming faster than you will think. In 2000, we gave a speech at the UN and we warned them then. We warned them then. The ice is melting. It took them seven years to respond to that, but seven years lost. Time's a factor now. We really don't have the luxury of another 100 years. We're going to see stuff very quickly and we best be ready, as leaders, as responsible people. It's coming now. You can't be red, you can't be white, you can't be yellow, you can't be black. You're people, you're a species and the species is in dire trouble as a species. There's nobody in charge of our fate except ourselves. Human beings have their own fate in their hands and how they act is how it's going to be. So they're looking for instructions and right now the long-term thinking is coming forward and the values are coming forward -- our values. And I say that collectively, because I know we all have the same -- I know that. I've traveled into ceremonies all over the place. It's all the same. It doesn't matter what language. It's the same. That's going to come back again. Now whether we can survive, collectively, is going to be up to us. It's just going to be up to us. That's all. So leadership is now coming forward and I think Indian nations have that opportunity. And the stuff that we're doing right here is kind of what you would call getting in shape. You're getting in shape, flexing yourself, getting back to where we used to be, getting in shape for the big one.

And I'm just really pleased and honored for this collection of humanity: common people, common cause, and we have to work together for survival. That's the way it's going to be. Unity -- that's what the peacemaker said. Your strength is in unity. One arrow you can break, arrows bound together in a tight bundle is strength. That's what we're doing. We're binding the arrows, getting ready. We've got to take care of each other and help our brother. He's in a lot of trouble and when he's in trouble so are we. There's no way to run. You have only one Mother and when you make her mad you're in trouble. And that's where she is right now. You can't make war against your Mother and that's what's going on in this world, and not without a consequence. So I know next year, when we have the meeting again, there'll be more examples of our abilities and our strength and who we are. It's coming forward and I'm pleased to see that.

I just want to say one more thing about sovereignty. In May [2007], in Halifax, Canada, they played the World Games Box Lacrosse Championships, world championships. And Iroquois Nationals won all through the week and came into the semi-finals and we defeated the United States 14 to 4. And we moved in to play for the gold on a Sunday and we were defeated by Canada by one goal in overtime. And I would say bad call from the ref in there, too. But it was our flag, it was our anthem, and our nation and our boys and they did do well. [Thank you]."

Megan Hill:

"Thank you, Chief. I've been honored and humbled to have been in this room with so much wisdom."

Honoring Nations: Joseph Singer: Sovereignty Today

Producer
Harvard Project on American Indian Economic Development
Year

Harvard Professor Joseph Singer makes a compelling case that Native nations' best defense of sovereignty is their effective exercise of it, and stresses the importance of educating the general public -- particularly young people -- about what tribal sovereignty is and means.

People
Native Nations
Resource Type
Topics
Citation

Singer, Joseph. "Sovereignty Today." 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.

Megan Hill:

"We've got an amazing panel today, and we're going to be talking about sovereignty. And so I'd like to start it off by introducing Professor Joe Singer. He is the Bussey Professor of Law at Harvard School of Law at Harvard [University], and a contributing author to [Felix] Cohen's Handbook of Federal Indian Law.

Joseph Singer:

"Thank you. It's an honor to be here and see all of you. I was asked to talk in ten minutes about sovereignty today, which is kind of a daunting thing to do. I was thinking about this and one of the issues is, when people think about this is, ‘What is sovereignty?' The thing that's crazy about that question is, to everyone in this room, it's not a problem to figure out what that means. Everyone here knows exactly what that means. It's other people that have trouble figuring out what that means -- other people meaning the Supreme Court, mainly, a little bit the [U.S.] Congress and some of the American people. So let me just say a couple of words about that.

The Supreme Court, in recent years, has ruled against Indian nations almost all the time. There've been a few times where they've --Indian nations that have been in lawsuits before their court have done okay, sometimes won, but more or less lost all their cases in recent years. And one of the things that is important to note about that is that almost all of those losses involve relations between Indian nations and non-members, usually non-Indians, sometimes Indians who are non-members. Those are the cases that the Supreme Court is very worried about. So one thing that's actually important about this record of Supreme Court case law is that the Supreme Court hasn't really been that bad in terms of interfering with internal relations in the tribes. So in terms of relations among tribal citizens and relations between tribes and their citizens, the Supreme Court has not been so bad over the last 25 years. And that's a pretty significant thing. Sometimes law professors -- we write articles criticizing the Court -- and we sometimes tend to exaggerate the extent of the Supreme Court's attack on tribal sovereignty because we focus on all the bad cases they're deciding, and we don't focus on what's left. And what's left is actually most of what all of you are actually doing and why you're getting honored here today.

The other thing I want to say about this is, is there any way to imagine some way to change the situation? To make the United States Supreme Court more friendly to Indian nations? And the answer is partly yes and partly no. In one sense, I can just say that the answer is no, they are not going to be friendly to tribes, and that is going to be the case for the next 30 years, given how young the people are on the court, and we're all just going to have to learn to live with it. On the other hand, I do think there is one thing that Indian nations can do to affect the way the Supreme Court views Indian nations. And that's what you're all doing. That's what you're being honored for.

My reading of the case law suggests that one of the major things that influences how judges see Indian nations is facts on the ground, what Indian nations are actually doing. And by creating institutions, creating governmental institutions, economic institutions, social institutions, engaging in good governance, and actually creating institutions which are thriving and create relationships with non-Indian governments and with the non-Indian public, actually creating those institutions and having them work well creates factual, what Joe Kalt calls de facto sovereignty, which then becomes very hard for the courts to say ‘can't or shouldn't exist.' Once you actually change the facts about how the world is working, the court has to live a little bit within those facts. So, the more Indian nations can actually exercise their sovereignty and do a good job of it -- that actually creates the best bulwark you can imagine against the Supreme Court limiting your rights.

So I think this is kind of an odd thing to say sometimes because I work with the Native American Rights Fund, and we consult on cases, and the main thing we do is to tell people not to appeal to the Supreme Court. In most cases we can look at the case and say, ‘Look, they're not going to think you should win this case. Don't appeal. We want to have them not making more bad law.' This actually then means being creative and figuring out if you can't do it that way, what's the way that you can do it? Because often, even if the Supreme Court says you can't do it one way, clever lawyers and policymakers can figure out a completely other way to achieve the same ends. I just think that's the things you're being honored for are really -- the best way to protect tribal sovereignty is actually to exercise it and do a good job of exercising it. And that's what you're all doing. So what you're all doing is actually the way to defend yourselves from the Supreme Court.

One last thing I'll say, and this is quite obvious to everybody, but -- and I have no idea and I'm not an expert in this and I don't know how to solve it as a problem -- but one of the big things I think needs to be done is to educate the non-Indian public about tribal sovereignty in a better way -- I think both the Supreme Court and Congress and the American public and then school children. I'm a parent of a 15-year-old daughter, and her third grade textbook in history -- she was joking with me and she laughs with me about this, but she knows how upset I get about her history books, because I read them and they're just wrong, they're just completely wrong. They say, ‘1776: the U.S. declares independence, and then there's a Treaty of Paris in 1783,' and then 1783 – wham! The book says, ‘The border of the United States went to the Mississippi River.' And I'm like, ‘Well, you know, there were millions of people out there. The border actually didn't go for another 50 or 60 years and it took all these treaties.' And the book just says, 'Wham, the border moves all the way out there.' And I want someone to write a different history book or somehow figure out -- we've got to educate kids when they're eight years old, nine years old about the history, and somehow figure out -- there's a big education project that needs to be done about the American public. And it's partly -- forget about the Supreme Court, we want to get them when they're eight or nine. And so I want someone to figure out how to do that -- and movies, and public relations, and there's just a lot of education things that need to be done to actually transform people's understanding of tribal sovereignty.

And again, this is the last thing I'll say. The things that you're doing that are good in terms of exercising sovereignty -- I see the other major thing is not just protecting yourself from the Supreme Court by creating facts on the ground, but that also has an added benefit of educating the non-Indian public because you create institutions, you run them well, that becomes facts that get in the newspaper -- it just becomes just something which actually then, other people learn from, ‘Oh, that's what tribal sovereignty is!' It's what you're all doing and what you're doing well. So, thank you."

 

Honoring Nations: Oren Lyons: Rebuilding Healthy Nations

Producer
Harvard Project on American Indian Economic Development
Year

Onondaga Chief and Faithkeeper Oren Lyons urges Native nations to continue sharing their stories of success, learning from each other, and working towards creating a better future for the next seven generations.

People
Native Nations
Resource Type
Citation

Lyons, Oren. "Rebuilding Healthy Nations." 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.

Amy Besaw Medford:

"Welcome! My name is Amy Besaw Medford and I'm the Director of the Honoring Nations program. I'm Brothertown Indian from Wisconsin and Korean. I come from two wonderful, beautiful cultures and I'm very happy to serve in the function as director here. I work under Professor Joe Kalt, who's the Director of the Harvard Project on American Indian Economic Development. That's the home for the Honoring Nations program. All of you, the honorees, create the raw material with which the Harvard Project produces research. You also impact the lives of the students here at the [John F.] Kennedy School of Government and the greater Harvard community, as being opportunities for them to hear on-the-ground examples of good governance practices, particularly in the fields of health and education and justice. So you've reached a broader audience than you possibly could imagine, and we thank you from the Harvard community.

Before we begin the day, we'll have a series of folks to start the general conversations about tribal governance. We don't say 'tribal government' in just the hard sense because a lot of the things that happen here are about governance, about community-driven models, about things that come from citizens' involvement. But then the key piece of it is is that it's coming through government function, that you're building stable institutions of good governance practices, that you're serving the needs of your citizens. And so tonight we celebrate, or today we celebrate governance. I hope you all will join me in welcoming our fearless, fearless leader, Chief Oren Lyons, who -- what do you say about a man who is known throughout the world for his Indigenous leadership, for his thinking, for his advocacy work, and for his lacrosse playing? Rumor has it he's also wearing the new Nike© shoes. So without further adieu, Chief Oren Lyons."

Oren Lyons:

"Thank you, Amy. Indeed, I have the new Nike© shoe on, and we'll talk about that. This is the important gathering where we celebrate the accomplishments of the Native people of North America, your accomplishments. It's all positive. It's a recognition of the abilities of our people to meet the problems of the day, these contemporary times. And it's important when we come to a new land -- the Wampanoags are the leaders here. They had to deal with the English the first time, the great leader Massasoit, [King] Philip (Metacom). There's a great history here that a lot of people don't know. You hear about Thanksgiving. There was, there was a great meeting once, and then it seemed to disappear. And then Colonel Bradford, sometime later after the Wampanoag Wars and after they had killed Metacom in a swamp with 16 men fighting to the end, he declared that day a Day of Thanksgiving. So the history here is the first in the old, in the westward movement of our Brothers from across the water, engulfed all of us sooner or later, from here to the West Coast. And our Brother kept going. He went on to the Philippines and he was stopped there. Later on, he went on to Vietnam and he was stopped there. Now he's gone east, having quite a bit of trouble.

Meanwhile, here we are. We're still here, we still have our nations, we still have our leaders and certainly, we accomplish things. Our young people are struggling in these times, as all the young people are in this world. It's not an easy time for anybody. And in Indian Country we can name the problems, but today we're going to celebrate the positives and what we can do and what we accomplished and what you have done for your nations, for you have represented them very well. Honoring Nations is a very difficult program to choose winners. I always feel bad because of the many programs that come forward and we wind up with 14. But it was so difficult for all of us to come to these 14 because they're almost all equal. And it's a tribute to our people, to our resiliency and to our ability to adapt and at the same time keep our traditions, keep our cultures, which is our identity. That is our identity -- cultures, the language. That's your best issue of sovereignty. You keep your cultures and your language, remain who you are, they can't beat you, no matter what. You remain to be who you are. In these times, we have land rights, land claims. We have battles going on on a daily basis. From every nation that we come from, you know what the problems are as leaders. When that phone rings, you just never know who's going to be on the other end of it. Nevertheless we prosper and we're -- you, I would say, are the living proof of the abilities of Indian nations in this country today. They're turning back to us now. International leaders are now reaching for the philosophies of the Native people. And why? Because we have a long-term perspective, as we have on this Nike© shoe, N7©. That's the seventh generation. That's a very direct relationship with one of the largest corporations in the world, and they have now espoused the philosophy of all of our nations, seven generations. From our directions and from the instructions given to the leaders of the Haudenosaunee when they say -- among many other instructions -- we are reminded and the words are direct, 'When you sit and you counsel for the welfare of your people, think not of your children, think not of yourself, think not of your family, not even your generation. Make your decisions on behalf of seven generations coming.' Now that's an instruction on responsibility, a very serious instruction on responsibility. Peacemaker said that, I don't know, a thousand, maybe two thousand years ago. It resonates today. Today it resonates. Be concerned about the seven generations and how we are going to survive and we survive by doing on a daily basis. So that's what your accomplishments are. You have proved to everybody that you can do and you will do, and serve as an example to the rest of the Indian nations and share. Probably one of the most important instructions that we have is to share. They've tried and tried and tried to beat the Indian out of us, which is to share, but we still continue to do it, because that's our fundamental survival basis. And now it's starting to resonate around the world. It's no longer business as usual. That's over because of global warming. We are now facing very, very serious times and we're dealing with a timeframe which is quite short, a lot shorter than people are talking about. We have to be ready. So programs like yourself and what you've produced are how we prepare ourselves and instruct ourselves. And remember the instructions of all of our leaders. Every one of our leaders always looked out for everybody. That was the quality of the leadership that we had. Every single one of them stood for the people.

And so here we are today in a great program, the Harvard program Honoring Nations, and I'm honored to be serving with an amazing board who gives of their time. There's no remuneration here for this board. The only thing that we receive, I think, is to see the accomplishments and to promote that. And we're going to have to step up, too, as we move along. We're going to have to take charge ourselves. Our nations are going to have to own this business. It's up to us. It's an amazing thing. And I just take my hat off to the leadership here, Joe [Kalt] and our staff, tireless staff, and then our board of governors, a tremendous group to work with. So it's a privilege for me actually to be here. I don't know -- you can be pretty fearless when you've got help like that I think. So I think today this is celebration time, presentation time. Tell the world what you've done, explain to the world what you've accomplished and say, 'We're here to share.' That's what I have to say. Thank you."

Honoring Nations: Joseph P. Kalt: Rebuilding Healthy Nations

Producer
Harvard Project on American Indian Economic Development
Year

Harvard Project Co-Director Joseph P. Kalt provides a general overview of the Honoring Nations program and illustrates how people all over the world are learning from the nation-building examples set and the lessons offered by Native nations in the United States.

Native Nations
Resource Type
Citation

Kalt, Joseph P. "Rebuilding Healthy Nations." 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.

Amy Besaw Medford:

"It's my pleasure to introduce to you all Professor Joseph P. Kalt, who is the co-director of the Harvard Project on American Indian Economic Development. Over the past 20 years, he's been dedicating his life to serving Indian Country and telling stories and fleshing out nation-building themes, and I'm grateful to be able to work underneath him and to learn from him and to have him influence my thinking and my life. Thank you. Joe Kalt."

Joe Kalt:

"Amy always talks about working for me -- I'm her ‘boss.' I want you all to watch over the next couple days how the staff treats me. ‘Joe, go here. Joe, go there. Joe, sit down. Joe, stand up.' Who's the boss? Today's session is all about, as Oren [Lyons] said, sharing, learning from each other. And as Oren says and as Amy says, the impact that your programs are having, as other tribes learn from what you're doing, is absolutely phenomenal. These two books that we're pumping -- which we don't make any money on, we're just trying to get the information out there -- are just full of your stories, so that other tribes can learn from you. But rather than focusing on that, I thought I'd talk about another theme, that Oren just put on the table, in the international arena and the impact that you all are having. Sometimes you sit at your desks, right, and you're working real hard and you feel like no one's noticing and you're too tired at night and you've got to go to sleep. Well, people are noticing. Let me give you some examples. Every one of these is absolutely true. I started making a list of these kinds of examples, and I'd be up here for five hours if I did it all.

A couple months ago, I had a very interesting experience. I have a former student of mine who is a lieutenant colonel in the United States Army and teaches at the Marine Corps University. The phone rings and he calls me. I haven't heard from him for 20 years. He says, ‘Joe, how you doing?' He says, ‘I'm part of the kitchen cabinet for the on-the-ground military leader in Afghanistan.' And apparently, he's now been replaced, but apparently the on-the-ground military leader has a kitchen cabinet, and at night he emails and they all have an email conversation about the current problems of the day. And he sends an email out to these colonels and teachers around the Marines and Army and so forth. And essentially the email says, ‘Help! They're telling me I need to build a nation, but all they ever taught me to do was shoot guns.' They Google on the phrase ‘nation building' and they come up with Honoring Nations. ‘We've got to talk to those people!' [Because] as Oren says, the whole world is paying attention now.

What do they want to know? Well, in Afghanistan, why did they want to talk to the Honoring Nations program? Because they want to know, for example, how did the San Carlos Apache Elders Council help stabilize a nation that was rocky? They want to know, how did the Hopi Two Plus Two Plus Two High School program get its act together and rebuild education at Hopi? They want to know, how did the Lummi Nation build the best sewer system -- not the best Indian sewer system, the best sewer system in North America? Because they're doing all of those things in Afghanistan.

I've got a former student who -- we teach a course here at Harvard called 'Nation Building, Native America at the New Millennium.' I see some former students here, a number of them here. A former student calls me the other day. He's in Washington, DC on business. He'd been a student five or six years ago. He's a Masai warrior from Kenya. He's now a member of the Kenyan Parliament. What does he want to know? He wants to know -- Think of Kenya in Africa. ‘Joe, could you remind me of that information about how Jicarilla and White Mountain Apache managed their wildlife. I read about that in that Honoring Nations program. Could you tell me how Fond du Lac set up that foster care program? We've got a lot of foster kids, essentially, in Kenya.' And on and on.

Poland in Central Europe. They were recently decolonized, too. The Soviet Union went away. What did they do? They did the same thing many Indian tribes did. They pulled the constitution off the shelf. It wasn't called the IRA [Indian Reorganization Act] constitution. It was some British parliamentary system. It didn't fit them. They wanted to know about Navajo and Choctaw courts. We have people here today from the State of New Hampshire. Who's here from New Hampshire? Rural economic development -- I've been doing work in Wyoming, Arizona. People from New Hampshire here today, what do they want to know about? They want to know about Kayenta Township. How did that place take off? They want to know [about] Citizen Potawatomi Community Development Fund. How'd you get all those small businesses going? They want to know about ONABEN and the business development efforts there.

Another story -- this goes on and on. I was supposed to go to North Korea this summer. It got cancelled at the last minute, delayed actually, we'll eventually go, because North Korea fired a couple of test missiles toward Tokyo, splashed in the water without nuclear warheads on them. Sort of put a damper on our trip. Why did the Russians, the U.S., South Korea and Japan -- who are trying to calm down a rather crazy individual with missiles in North Korea -- why did they want to talk to us? Because they want to understand how in the world you take a country where people are dying daily of starvation, absolute starvation, and turn it around. They want to know, how did Oneida Farms do what it did, Honoring Nations award-winner. They want to know, how did Ho Chunk, Inc. take unemployment from 70 percent to 7 percent in about five years.

The Maori of New Zealand visited us this summer. They want to copy the Honoring Nations program. The Maori, a fishing people, they want to know about Red Lake Walleye Recovery and they want to know about Lac Courte Oreilles and the Chippewa Flowage Management Plan. The Aboriginal people of Australia have already copied Honoring Nations. Did you know that, by the way? You are being duplicated, almost everything about it. Even some of the signs and so forth has this feel, although it's very Australian flavor. Why are the Aboriginal people working on this? They don't have even rights of self-determination in the smallest form, but they're trying to run their communities. They want to know how Flandreau Santee Sioux set up that police department. They want to know how Miccosukee and Swinomish and Umatilla were able to solve so many land-use problems.

We're talking to Canada, trying to duplicate the Honoring Nations program. The World Bank now chasing this information from you, what you're doing. They want to know about the Winnebago Community Development Fund. They want to know about the Sisseton-Wahpeton Professional Empowerment Program, because all around the world the World Bank runs into this problem of, how do you take people who've never had work experience and break [them] into the job market?

The little country of Suriname in South America writes us a touching email. They're looking at the Honoring Nations program, they go on the website, and this email basically says, ‘Thank you for showing us you can turn a place around through your own efforts, Indigenous efforts coming right out of the community.' And the phrase was, ‘You have revitalized us, you have given us hope.'

Well, just two more. We teach this course, as I mentioned, here at Harvard called 'Nation Building.' About half the students in the course are from non-U.S., non-Canada [nations/countries]. I always get a slug of students from Israel, for example. Why Israel? Because they have a sizeable population of Palestinian Israelis -- mostly Christian -- living in a Jewish country, and they're trying to figure out how not to do to them what was done to Native Americans.

I also have a slug of students from China, from China. Why China? Because they're trying not to have happen to them what happened to the Soviet Union. They've got a billion people out there, communities spread across thousands and thousands of miles. They want to know about the Northwest Intertribal Court System, 'cause they've got to try to set up a system of a rule of raw, not a rule of the Communist Party. They want to know about the Siyeh Corporation of Blackfeet. How could we get some small [corporations] -- everyone's reading, in China, about the big corporations -- all these little towns need some help.

So all around the world, what you're doing is more and more being noticed, more and more being the source of information for change, information for rebuilding communities. So when you're sitting in your office and you're frustrated, just think of it, the whole world is riding on your shoulders.

Why this attention right now? Let me just say a few words about this. Well, the times are changing. That book right there, there's a section in there, basically it's entitled, 'Still Here.' The winds of oppression have blown over Native peoples in North America as fiercely as anywhere in the world, yet [you are] still here, still running things, still trying to take control of the communities and doing it. Economically, the data say Indian Country, gaming tribes, are growing three times more rapidly than the U.S. economy. The same data tell us that non-gaming tribes are growing three times more rapidly than the U.S. economy. There's a revolution going on out there, and it's not just the economics of course. It's what you do with those economics. It's Citizen Pottawatomi saying, ‘Yeah, we pay per caps [per capita distributions]. That ballpark, it's your per cap. That dental clinic, that's your per cap. That new house, that's your per cap. You get to use them as a person, you're a per cap. We're rebuilding these communities.' Why? What is the secret or what seems to stand out? What's working out there? You guys live these things every day. Well, in a short talk you're not going to explain everything about how a nation turns itself around and rebuilds itself, but there is a pattern out there and that pattern's pretty common.

First, what we see in programs that work, and communities that work, and nations that work, is an attitude and a practice of sovereignty. Oren has on the Nike© shoes. We sometimes call this the Nike© strategy. What's the Nike© motto? ‘Just Do It.' Well, every one of you here just does it, in a sense. Lots of times, the laws around you, the federal law may not exactly say you can do [it]. You just do it, and that attitude of -- an attitude of sovereignty and self-determination, and then putting it into action, marks those communities, those programs, those Indian nations that are turning themselves around.

The second thing that we find, in addition to that Nike© strategy, that Nike© attitude of ‘Just Do It,' is that you back up the attitude with the ability to do it, and by that I mean, you build good systems. You use the tools of -- some of it's boring. It's this public administration we teach in this school right here. It's boring. 'You set up a good personnel grievance system.' 'We have a good accountant and good computers.' But also, it's more fundamental than that. It's finding the cultural roots of your own government. Every government in the world, every government in the world ultimately only stands on its culture.

I tell this story: some of you have probably heard me give speeches about this in various places. I come from the White Yuppie tribe. I like the 'Y' in yuppie, okay. I'm hanging onto that. This elder thing isn't too comfortable for me. In my tribe a couple years ago, we had two guys who both claimed to be duly elected tribal chairs. This guy named Bush and this guy named Gore -- you remember those two guys? If you look at world history, of what usually happens in that situation -- and I'm trained as an econometrician, a statistician -- what would you predict would happen? What you would predict would happen is that Al Gore would lose at the Supreme Court and then go get some tanks and Army generals and come up Pennsylvania Avenue and give it a shot, see if he can take over. That's what happens in the world. Now I'll ask you a question. Why didn't it happen? Why didn't it happen? And I can guarantee you two thoughts just ran through your mind. One thought was the institutions. You've got the constitution, the courts, and all that stuff. Another thought that ran through your mind was a feeling. It's like, 'Well, we just don't do it that way. Al, don't do that. We just don't do it that way.' And only the second answer is accurate. It's only the culture that glues us together.

The night that guy who wanted to be tribal chair stepped down very graciously on national television -- the United States constitution was sitting in a little box at the National Archives. [It] couldn't have gotten out of its box and run over on its little legs and stopped a tank or anything. It's only culture that holds all of us together in our societies, but that's our own cultures. This is why the world is watching what's happening in Indian Country is because what you're doing, the programs you run, the systems you run under, are increasingly of your own making. Indeed, if you think about what you're doing, think about the old days when everything was a federal program. Do you think you'd be seeing this success? Do you really think you'd see hundreds and hundreds of homes being built around Indian Country, for example? Honoring Nations award-winners? The Chickasaw, and so forth? Does anyone think it would happen that way? No. It's really founding everything for each of us in our respective cultures -- even the White Yuppie guys -- on the culture, because it's ultimately only us human beings, and the institutions aren't really there. They're just ways we use to talk to each other, and you've got to find your own ways. And that's what the successful tribes are doing and it's the third key. We call it cultural match: finding systems, the big governmental structures, the small program structures, the linkages to the community, to the elders, to the civic leaders, to the religious leaders. Finding things that are legitimate and work within your own culture. So this sovereignty attitude, the Nike© strategy, backed up by the ability to run things and founding that ability on your own values, your own core values, your own community values. Those are the keys.

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

So we thank you because -- and the whole world is starting to thank you, sincerely -- because these lessons are critical for all of mankind. Thank you."

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

Producer
Native Nations Institute
Year

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

Native Nations
Resource Type
Citation

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

Stephen Cornell:

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

Joseph P. Kalt:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suzan Shown Harjo: Nobody Gives Us Sovereignty: Busting Stereotypes and Walking the Walk

Producer
American Indian Studies Program
Year

The first-ever speaker in the Vine Deloria, Jr. Distinguished Indigenous Scholars Series, Suzan Shown Harjo (Cheyenne/Hodulgee Muscogee) shares her personal perspective on the life and legacy of the late Vine Deloria, Jr., and provides an overview of her work protecting sacred places and fighting racist stereotypes that demean Native Americans. She also calls for all Native Americans to commit in some form or fashion to joining the struggle against enduring colonial forces that seek to destroy tribal sovereignty and self-determination.

Native Nations
Resource Type
Citation

Harjo, Suzan Shown. "Nobody Gives Us Sovereignty: Busting Stereotypes and Walking the Walk." Vine Deloria, Jr. Distinguished Indigenous Scholars Series. American Indian Studies, University of Arizona. Tucson, Arizona. September 9, 2008. Presentation.

“Thank you so much, Tom [Holm] and Tsianina [Lomawaima] and Tarissa [Spoonhunter] for getting me here and arranging things. I met Vine Deloria Jr.; I met Vine Deloria Sr. first in South Dakota and then in New York in the early 60s. I met Vine Jr. in 1965 in this state in Scottsdale where the National Congress of American Indians [NCAI] was having its convention. And I came down to Gila River because I have relatives there on our Cheyenne side, a boarding school alliance between a Cheyenne relative of my mother’s and a Pima woman and he was captured and taken to Gila River after boarding school. So I have a lot of relatives at Gila River who are also Cheyenne. And so I had my first child and took her to Gila River to see some of our relatives there. And while there, saw that NCAI was meeting in Scottsdale so I went over to talk with Vine Deloria since he was the executive director. And I had had a problem with some sacred objects that were in the Museum of the American Indian in New York and I wanted to get them out. So with my baby on my hip I went over and talked to Vine who was our most important Indian on the national scene and I was kind of skeptical about him. I thought, ‘Well, this is another politician and he wouldn’t have gotten in that job if he hadn’t been a politician,’ and I was skeptical of all politicians at that moment. And so he took a moment to talk with me and I asked him about, ‘How do you go about getting a sacred item back from a museum?’ And he said, ‘I really don’t know. I have no idea how to do that.’ He said, ‘But what I’ll do is help you think about it.’ So he had my attention because he said, ‘I don’t know anything about that’ and that he would help me think about it. I thought that was just wonderful and that was the beginning of a very great and long friendship.

We worked together on all sorts of things. I worked with Vine on guerrilla actions that had nothing to do with my background or experience and he did the same and we taught each other a lot. And I think I learned a lot more from him than he did from me but I taught him a few things as well. And when years passed and I wanted to, I’d been asked by Joe De la Cruz who was a friend of ours, very great leader from the Quinault Indian Nation in Washington State, if I would be director of the National Congress of American Indians and so I was really inclined to do it for a lot of reasons. The two most important ones were because Joe had asked and because Vine had been director of NCAI. So I talked to Vine about it and asked if I should do it and he said, ‘Don’t do it. It’s a terrible job.’ And he said, ‘What happened to me will happen to you. I found myself under my desk crying, just sobbing because I knew there was so much to do for the Indian people and I could do so little about it.’ And I thought that was just an amazing thing to say and said so much about his humanity and I thought about it for awhile and then I called him and said, ‘Yeah, I’m going to do the job.’ And I was a little concerned about what his reaction might be but instantly he said, ‘Great! Let’s get to work. Now here’s what we need to do.’ And whenever Vine said, ‘Here’s what we need to do’, he meant, ‘Here’s what you have to do.’ But he always meant too that he would help you think about it. He would help you figure it out.

So I did that job and Vine was my closest confidant in that job and he was right about it being a terrible job. So no matter who’s in that position, I never say a bad word about them in public. So if you want me to say anything bad about NCAI director you have to catch me in private in a weak moment. But in public, it is a terrible job and you are aware of so many needs and how little you can do to address anything and everything. But I have to say that on my watch we did a lot of amazing things including getting the National Museum of the American Indian, getting repatriation law, getting gaming law, not small stuff, all of that. So I’m very proud of my tenure there and I have to say that I didn’t spend any time under my desk sobbing. That’s because I couldn’t fit under my desk. But that’s not to say that it was without tears.

We all in our traditions have a formality that we need to go through and I have to say before going farther in this public talk how I have to greet you with condolences. The Iroquois have something called The Wiping of the Tears ceremony. All of our peoples have that in our traditions and I’m reminded just by watching television of what happened here not very long ago between one Navajo young woman who is no longer alive and another who has lost control of her life forever. And I see that the one who is living and must be living in a hell of her own devising is on trial right now and so I did ceremony for all of you here who knew them, who know them, who were here at the time or who are feeling the ripples of that emotional onslaught that occurred on this campus. So I offer you my condolences and I hope that you will do what’s proper to do with all broken hearts, that you just surf on the top of negative energy and use it to accomplish something, to dedicate yourself to doing something about anything. No one can do everything about everything. You can do something about something and you just have to make a pledge to yourself to start and to do it in the name of someone or someone’s. And it would be good to dedicate yourself to the memory of people who had so much promise unfulfilled and to do something about the eradication of jealousy and envy, which are probably our two most important substantive enemies in Indian Country. And not just in Indian Country, you see it all around. A rising star shows up on the political scene and is immediately the target of people who are so envious that they are beside themselves and they do lose their mind, these people who have, who are guided by that kind of energy. When Shakespeare had a character say that jealousy was the green-eyed monster of despair that was so apt, it was so important. I have never heard a better description of jealousy. It eats away at you and it does consume you and take over your life.

Tom mentioned Hank Adams, the very great Hank Adams. Vine Deloria once wrote an article about Hank calling him ‘the most important Indian.’ And he was and he continues to be for many of us and for many reasons. Hank Adams is Assiniboine and Sioux and grew up in the Pacific Northwest and he thinks for people. He really is just a thinker. He wrote the '20 Points,' which you see on a lot of websites as an anonymous document or as the AIM [American Indian Movement] manifesto. Well, that was actually written by a person. Nothing ever just falls from the sky full written. That was written by Hank Adams. And one time I asked him, ‘Does it bother you that no one knows that you wrote that?’ And he said, ‘No, not at all.’ He said, ‘And that wasn’t the point was it?’ That’s right. The 20 Points give a good snapshot in time of where we were in the early 1970s, where Indian affairs kind of stood and what in some people’s minds could be done about it at the time. So Hank Adams is a very important person to research and read and if you’re looking at documents that are unattributed from the late ‘60s, early ‘70s and into the late ‘70s, you’re likely to find that Hank had a hand in writing those or some sort of, or maybe wrote all of those documents but you find a lot of them along the way. One time I was in a meeting of the Affiliated Tribes of Northwest Indians on the Pacific coast by Quinault Nation and it was very late and people were just talking as people do when it gets very late. And one man from the northwest shouted out, as Hank Adams was talking, ‘You have my international reputation.’ And he yelled it and everyone went, ‘What?’ And the man repeated it and said, ‘You, Hank Adams, have my international reputation.’ Well, what an odd thing that, you have to sort of put yourself in the mind of this man who was saying that to Hank Adams. What would make him in a social setting say something that was so bizarre but that to him was not at all bizarre? He had righteous indignation about Hank Adams and then he used the word stole, ‘You stole my international reputation.’ This is really strange. That’s how far jealousy can go. It makes you lose your sense of discernment; it makes you lose your sense of proportion of what’s socially acceptable in polite society.

Here Hank Adams just being kind of quiet, scholarly, intellectual Hank Adams scribing away for everyone and informing movements, writing what became the basis of the legal briefs that results in the Boldt Decision that upheld treaty fishing rights, doing that kind of stuff to benefit a whole lot of people and here someone else thought he had somehow stolen his international reputation. You never know what’s in the mind of a crazy person. Jealousy is craziness, envy is craziness and you never appreciate the limit of that kind of mind and the limitations of that kind of mind and the capabilities of that kind of mind. So be very cautious around crazy people. In our ceremonial ways, we’re always told not to go out in public when you are preparing for ceremony because you’re in a very vulnerable, receptive, weakened state, that you’re making yourself strong to be able to make offerings, to be able to withstand the rigors of whatever kind of ceremony you’re going through but you’re also in a very weakened position because you have no defenses, you’re not expecting any onslaughts, any assaults so you’re not supposed to go out in public, not supposed to go around lots of people, only people you know and trust, very small, doing things in a very private way while you’re in that state of making yourself receptive to visions or messages or just your own meditation [because] you never know when you go out in public where there’s someone lurking who is about to stand up and say, ‘You stole my international reputation.’

When you take on causes, it’s also done with some ceremoniousness and you have to be very careful because it means you are taking on enemies that you never had before and enemies you will never meet, enemies that will try to do things to you from the sidelines, through other people, through your job, through your school, through your nation, through your circle of friends so you have to really prepare yourself and understand how you could be vulnerable and if you are vulnerable to get rid of your vulnerabilities. If you can be taken out by booze, stop drinking. If you can be taken out by women or men or, what are your vulnerabilities, just eliminate the possibility of being used or undermined by people who will see any kind of weakened situation that you’re in. If you think that it doesn’t take courage to stand up to authorities or to something official or to something that’s wrong, then you don’t know what courage is. Vine Deloria was one of the most courageous people I have ever known and why? Because he would stand up and say, ‘This isn’t a good thing to do, let’s just cut it out shall we?’ And he would back it up.

He was the first person I thought of when, and the first person I asked to be a part of a lawsuit that I was contemplating bringing against the Washington football team, [because] I knew that we shared the same thoughts and we had worked on some projects together to get rid of Native references in sports in a variety of areas. In Louisville, Kentucky, for one, got rid of all of the elementary and middle school and high school Native references in their sports world, which took some doing and Vine was a great help with that. And it was done and when it was done, ‘Okay, that’s the end of that.’ Getting it done though we faced a lot of flak, mainly from the alums. And they would yell at us and say, ‘Don’t you have anything more important to do?’ Well, we’d look at each other and say, ‘We’re the ones doing the more important things. We’re the ones getting land back. We’re the ones doing religious freedom. We’re the ones doing these hugely important things -- getting health clinics, getting education programs. We are doing the more important things.’ And no one who has ever used that line, ‘Don’t you have more important things to think about or to do?’ has ever done anything for the Native people. I haven’t heard of anyone and it always makes me laugh whenever I see that.

Vine was the first person I asked to go on that journey of litigation that is now 16 years old. And if this were a child we would be preparing this child for college. Sixteen years. Now why has it lasted that long? Because the other side has employed a really old tactic against us, which is trying to starve us out. They’re trying to make us use whatever money we have by using all the money they have. And it’s not just the Washington football franchise that we’re up against, the National Football League, the NFL, has paid for every penny of litigation on their side, even though they’re not a named plaintiff. We didn’t sue the NFL; we only sued Pro Football, Inc., the owner of the Washington football team. So we have these huge monoliths that we are fighting and I miss Vine at my side on that fight but I can hear everything that he said so well and why he wanted to be involved in that fight was because, he said, ‘We owed it to our grandchildren, that this was a burden that we as the responsible adult population could not pass on to our children and grandchildren.’ So what’s ironic about that is that the courts are now saying that we waited too long. ‘Yes, you were the responsible adult population but you waited too long to file the suit.’ So they’re saying we’re too old in a world where we thought that’s what the elders were supposed to do was step up and lead the way. So now I recruited six young Native people to file our same lawsuit and they have done that. And our lawsuit remains alive, but it could be dismissed through the loophole of latches, passage of time, and it could be that they will never reach the merits of disparagement in our case. In the case of the 18 to 24 year olds, they don’t have a loophole of latches to hide behind and so they have to reach the merits of the case. So it’s going to be interesting to see how they address the merits of the case either in the case that’s captioned with my name or the case that’s captioned with Amanda Blackhorse’s name, Blackhorse et al. versus Pro Football, Inc. So it’s very interesting to have this kind of lawsuit.

In the meantime, we’ve been changing and getting changed these Native references with regularity since the '60s. The very first one was the University of Oklahoma and that fell by the wayside in 1970. That was the very first Native reference in American sports to be eliminated, was Little Red. Now why was Little Red, Little Red? Because in the beginning all of the schools didn’t have mascots, they only had colors. And Oklahoma was red so Big Red. It went from Red to Big Red and then Big Red had to have a Little Red. And once they had a Little Red it became a diminutive Indian, sort of Indian, mascot who used to dance around. And the Indian kids in Oklahoma like me would call Little Red the dancing idiot and Little Red was always a white guy in some sort of Indian outfit or supposed Indian outfit that became more and more authentic over time but the White guys could never dance. They still didn’t know how to dance like Indians. So then they had an Indian guy, their concession to all the clamber to get rid of Little Red was to make Little Red an Indian guy. And he was someone from my hometown who didn’t know how to dance either. And he, my cousin had a crush on him when we were little kids and he spat on her because he didn’t like Indian girls. And so of course we did not hold him in high regard in our town and he wasn’t Cheyenne or Arapahoe and we didn’t have a whole lot of tolerance for people who weren’t one of those two, in El Reno, Oklahoma. And when he became the University of Oklahoma’s Little Red, he went to my cousin, who was the brother of the girl who had had the crush on him and he knew Little Red, asked my cousin who was Junior Powwow champion, Junior Fancy Dance champion, which means something in Oklahoma and he asked him, ‘Would you sell me your outfit and would you teach me how to dance?’ So my cousin without saying a word took everything, his outfit onto the front lawn and set it on fire. Now that’s a Cheyenne response. That’s why we don’t have too much. It’s why we don’t have any museums and we had to build a national one. It was a heck of a thing to do and something that I’ll always be proud of my cousin for having done. The guy didn’t understand what that gesture meant. He knew it meant no. But he didn’t understand it and there was nothing he could do about it.

So he was Little Red and there was another Little Red and then there was a third Little Red who was also a Native person who was Navajo at the University of Oklahoma. And he accepted the job as Little Red but he really liked Indians. He liked the Indians in the Indian club and he wanted to understand what all this was about. This was his first year at OU and all of a sudden he’s the target of everyone. So what his friends told him, his Native friends was this, ‘Sit in the stands, just don’t go out for the big game.’ This was the homecoming game. ‘Don’t go out, just sit in the stands and see what happens when you don’t go down to dance.’ And so he did that and what he heard was, ‘where’s Little Red? We want Little Red,’ and everyone cheering and saying, ‘Yay, Little Red.’ And then the crowd turning and saying, ‘Eh, the Little Red, that dirty, ’ Calling him names and being angry with him because he wasn’t out there entertaining them. So then he really got it and he turned in his Little Red credentials or whatever you do and that started the University of Oklahoma in the direction of getting rid of the tradition of Little Red altogether because he had the courage to say, ‘Okay, let me try it. I’ll sit in the stands, I’ll sit this out, I want to hear what’s really being said.’ And so he got to understand what it was to be objectified and what it was to be the target of negative stereotyping. He had thought it was fine because it was a good stereotype but he came to understand that there’s no such thing as a good stereotype. There’s no such thing as a good stereotype. So even if people are saying, ‘Oh, we really like what you’re doing, we really like what you’re saying, you’re a good Indian,’ be very careful if someone’s calling you a 'good Indian' [because] where that comes from is from someone who chased our Cheyenne people all around the Plains after he had burned the south, Philip Sheridan. And what he would say is, ‘The only good Indian is a dead Indian.’ And he’s the one who sent Custer out to kill the Cheyennes on the Washita. And then Sheridan and Custer at the Washita were the reason that the Cheyennes went to Little Big Horn, where they did not lose.

I am enormously proud of my Cheyenne ancestors who were at Little Big Horn. I’m enormously proud of our Cheyenne people who resisted in whatever way they could resist the onslaught of 'civilization,' the efforts to change them into people they weren’t, their efforts to make treaties to provide for me. I’m here because someone could not kill Bull Bear. Chief Bull Bear was my great-great grandfather and he was the head of the Dog-Man Society at a time when the Dogmen Society families comprised more than half of the Cheyenne Nation. And the Cheyenne Nation at that time included, the Dogmen Society camps included Lakotas, included Kiowas, included Arapahoes, included some Comanches. It was a real United Nations. And the people were tri-lingual, quadra-lingual and they were called 'uncivilized' and 'savage.' And when they talked about the 'bad Indians' or the 'hostile Indians' or the 'fomenters of dissent,' that’s my family. I’m so happy for that. They created the civilization regulations that were in place, that were tools of religious oppression, cultural oppression, family breakup for over 50 years from the mid-1880s to the mid-1930s outlawing the Sun Dance and all other so-called ceremonies, outlawing the pagan and heathen activities of a so-called medicine man, prohibiting Indian parents from interfering with the education of their children. That meant as their youngest children were being taken away to boarding schools they couldn’t stop it. Outlawed dancing, outlawed roaming off the reservation with no apparent point in view, outlawed ponies [because] that was a mechanism for roaming off the reservation and stopped Native people from going to sacred places and then confiscated the places for the public domain. And that’s what you have a lot of court cases about today is those places that were taken in the name of 'civilization' that were stolen from the Native people where the Native people were prohibited from going to pray, to have ceremonies, to celebrate passages in people’s lives. Some of those places are now on federal lands and only the Native people can’t go there, only the Native people can’t control those places.

One of those places is Mount Graham and this university teamed up with the Vatican and with other entities, educational and religious, to desecrate it with the huge telescope project that exists now at the top of Mount Graham. And the people, the Apache people who opposed it and said, ‘That’s a holy place, that’s where we go for vision questing, that’s where the Gaan dancers live.’ They would say, ‘Oh, you mean the devil dancers?’ Now any place, any time you see a map or hear about a place that sounds sort of negative biblically, you know that that’s a place that was sacred or is sacred to Native people. Anything that the white people came into and called the devil-- a devil dancer, Devil’s Tower, Hell’s Canyon -- any of these places that have that kind of name -- Squaw Peak -- any place that was given a pejorative or a devilish kind of name, you know it’s a sacred place for Native people. So here at Mount Graham where the Gaan dancers live, where there are burials, where there are living objects of religious importance, where people have to go for emergence, not just one time in their life but many times in their life through any sort of passage, this university, the Forest Service, the Vatican all teamed up against the Apaches and called the religious practitioners crazy. I was in the chief of staff, in the [President Bill] Clinton Administration, I was visiting Leon Panetta who was chief of staff when one of the lobbyists for this coalition for the telescopes, which they originally called the Columbus Telescope -- which I thought was really rubbing it in -- they came, the lobbyist came in and said in front of me that ‘the Apache people were nuts, were crazy, were demented.’ And it reminded me so much of the way our Cheyenne people had been treated. And then on my father’s side how our people had been treated by the non-Indian people and by the good Christian people who moved everyone out of their homes in the Southeast and into Indian territory without asking permission and doing so against law, against any sort of morality.

These are huge things that are being done to Native people and they’re the same things that have been done to us throughout history. No other people have had their religions outlawed, no other people have had a final solution against them as we have had the Civilization Regulations, no other people have had these things done to us in the name of law and justice. And now when Native people are trying to do something about it and trying to get back into court, into legal processes to regain some of this territory, especially our sacred places, we’re being tossed out of court with regularity. A recent court decision was rendered against Navajos and Hopis and Apaches and Pueblos and Havasupais and Hualapais in the San Francisco Peaks case. The Ninth Circuit, after having decided on the side of the Indians in the San Francisco Peaks case, then were requested for an en banc decision for all of the Ninth Circuit judges, not just the three, to look at the case. And of course the minute that the Ninth Circuit accepted the petition for en banc consideration everyone knew that was the ballgame, that they would not have accepted had they not been about to overturn the three-judge unanimous decision. So in the en banc decision what are they saying about San Francisco Peaks? Well, they said it’s okay to use wastewater for snow, they didn’t permit the question about health, ‘Would you permit a baby to eat snow that has just this little one to 10 percent of sewage in it?’ They didn’t permit that. They permitted the religious testimony but not anew, they only permitted an argument and they decided that what they were dealing with was damaged, spiritual feelings. Now that’s sort of like saying, ‘You Indians are whiners, you just have hurt feelings and you’re trying to get us to stop using sewage water for snow at the top of your holy mountains.’

This is something that I encountered with the Forest Service in 1978 right after we had gotten the American Indian Religious Freedom Act passed and I went into the [President Jimmy] Carter administration and was made the person in charge of implementing the Religious Freedom Act and working with all the 50 agencies in the first year’s implementation and reporting to Congress. So the Hopi elders asked me to convene a meeting with the Forest Service and I did and they talked about San Francisco Peaks and how this recreation was causing turmoil in very important places in the peaks. And the Forest Service people just wanted to know, ‘What are we talking about, how much territory, how much land do you need?’ And the Hopis were saying, ‘It’s not like that. All of the San Francisco Peaks are sacred. It’s a landscape, a sacred landscape. It’s not to have skiing over here, religion over here. It’s not like that. You can’t pollute one area and expect the rest to remain unpolluted.’ So the Forest Service people were trying everything they could to get the Hopis to answer these quantification kinds of questions and in exasperation at one point a Forest Service man said, ‘Okay, you say your gods walk around the San Francisco Peaks. How big are their feet?’ And even for the Hopi elders who were speaking English, they knew they were talking a different language. How big are their feet? That was, there was no more meeting after that. That was the equivalent of my cousin having taken his outfit to the front lawn and set it on fire just because he couldn’t bear contemplating the request. The Forest Service people did not understand why that ended the meeting. They just didn’t get it. The Hopi elders felt that there was nothing more to discuss and that they had made their point and that they certainly weren’t in a position to say how big their god’s feet were or even if they had feet. It was just another way of looking at the world.

So that’s the kind of thing that’s going on right now. At Bear Butte, a holy mountain to the Cheyenne people, there are all sorts of things that are happening there that are disturbing the people’s vision questing, disturbing the people’s meditation, their prayer, everything that’s done there by all the 60-plus nations who go there, whose traditional people go there, has to be done in quiet. There’s nothing that can be done with loudness. It’s just right next door where the town of Sturgis has the motorcycle roundup and where the people, at one point we almost had to make a treaty with them [because] they were driving up Bear Butte and throwing bottles -- beer bottles, pop bottles -- and hitting our people who were in meditation, who were in prayer, who weren’t allowed to do anything or even move from dawn ‘til dusk. And they made a game of trying to disturb them and then made a game of them just being targets. So we finally stopped that sort of thing but the roundup has gotten louder and louder and louder and now they have lots of music events. One of the candidates for president, John McCain -- who knows better -- went to Sturgis for this year’s roundup and said, '250,000 motorcycles, that’s the sound of freedom.’ And then he said, ‘Drill here, right here, drill here.’ Here is Bear Butte, this holy mountain to so many Native people. It’s acknowledged as a holy mountain by the federal government, by the state government of South Dakota, some of our people own part of Bear Butte. We’ve been trying to buy it back when it’s been under threat of development. Our Cheyenne/Arapahoe people, our nations own 120 acres. Lower Brule Tribe owns about that and others are contemplating buying up some of the buffer zone. And it was shocking to see a sitting senator go to the base of our holy mountain that is so huge in our history and to talk about, to encourage this roar of 'freedom' and to invite people to drill; ‘drill here, drill here.’ And he wasn’t pointing to any other place. He wasn’t saying generally or offshore, he was saying, ‘Here, here.’

In the southeast, because so many of our peoples have been removed from our sacred places, they are being plowed under, dug up -- burial grounds, worship areas, mounds, all sorts of places that you would think people would have respect for, just a little respect -- and those are being destroyed by the thousands each year, by the thousands. So this is something that is a crisis in Indian Country and it should be a crisis for America and is not yet. I think it’s because not enough people understand what happened and that there are too many people who understand but simply don’t care and who are fine with it, who are fine with it and would like to see an end to the Indians forever. Something we faced before and something we faced in the Civilization Regulation period, but now I think a lot of politicians rightly perceive that once we lose our language, once we lose our culture, once we lose our religion, if those things are no longer in existence then we are no longer Native people. Then who are we? And we will cease to exist. So I think that we are in for it, I think we’re in for it and that that’s the era we’re in right now.

One of the things that Vine did that was so very important was to work his heart out for sacred places protections. And he went to a lot of these places I’ve been talking about and really helped us out, tried to do what he said he would do when I met him in 1965 to think about it, to think how we could do it. Well, we thought a lot of, we figured a lot of stuff out. We figured out the repatriation laws, we figured out the whole line of cultural property rights laws and I’m very happy with what we have done. The only thing that we were not able to achieve was full legal protections for sacred places so we’ve had to cobble together protections made of other laws, cobble together protections made of people in corporate America and people in government at all levels who have a conscience and who have just done things irrespective of laws that say you can or cannot do this certain thing. Because in the end everything comes down to people -- it comes down to you and you and you and me -- to get something done. And here’s the good news about it, it doesn’t take many people to get something done. It doesn’t take many people at all. Any time we have a campaign on an important Indian law and we have five Native people on Capitol Hill, you’ll hear from all over Capitol Hill, ‘Indians are everywhere in town.’ So it doesn’t take long, it doesn’t take many people, but it just takes committed people and people who look around and say, ‘I can do something over here. I can help out over here. People need a helping hand here. People need my thinking about this. I need to be a part of the conversation.’ Maybe you don’t have 10 years of your life but maybe you have 10 minutes or you have 10 months. Any kind of time you can give to the Indian public service, is all to the good. Whether you’re Native, whether you’re not Native, but especially if you’re a Native person, you should pony up and say, ‘This is what I have to do to serve Native America.’

I want to open this up for questions but I also want to read a poem that I wrote for Vine Deloria’s celebration of life. And it was right after, it was a public event. I’d been asked to speak at it and I knew we were going to say our final farewells to him in a small setting and then go into this larger setting. So I was trying to figure out what I should say and I was at my computer typing in the morning and nothing was coming out right. And then I could hear Vine’s voice in my head saying, ‘Just write a poem for Christ’s sake.’ So I did and this was the easiest poem I ever wrote and the hardest one I ever read.

This is called 'Sing Your Song for Vine':

Vine was our sacred mountain and raging river and gentle rain. Healing sage after Sun Dance sacrifice. Cool, calm waters after a hard day’s work. He was that wicked funny thought at the least appropriate time, whip smart and coyote clever tossing banana peels beneath the feet of the pompous. He was our Atticus Finch who defended us to the death. He was our teasing cousin who never let us get away with pretention, our kind grandpa who wanted us to love each other, our warrior leader who lifted us up for counting coup, our stern teacher who made us sit up straight, our good-time uncle who took us to old timey movies, our kid brother who always wanted to play another game. He filled our horizons and now we see him as a mirage, but sing your song for Vine and call him to your side, a Yanktonai song for the longest journey, an honor song of praise and thanksgiving, a traveling son by the Sons of the Pioneers. Then he will be there as a shadow of an eagle overhead as the glint of silver medicine flying from the corner of your eye, as a distant sound that commands your attention, as a sudden realization you might think of as an original thought, as the turning aspen leaves in the peace and glory of the dying moment, as a gentle voice telling you things will be better when you know they never will be, as maybe just a sigh, ah, hello my dear friend, I have a song for you.

Frank Pommersheim: A Key Constitutional Issue: Dispute Resolution (Q&A)

Producer
Native Nations Institute
Year

University of South Dakota Professor of Law Frank Pommersheim fields audience questions about the importance of civic engagement to constitutional reform, removing the Secretary of Interior Approval clause from tribal constitutions, and other important topics.

Native Nations
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.

Q: "How do we decide if [constitutional reform is] best for the whole and not just a few? I really get nervous about that."

Pommersheim: "Well, I think that's an excellent question. I guess my suggestion is that in matters of constitutional revision or thinking -- it's one word I didn't use -- is sort of patience. It's an incredibly important process, and so patience to me is really a watch word, is to not rush to constitutional judgment, to amend a constitution or change the constitution. Patience. And I think it's patience with, easy to say, but patience with openness, that is on the council, for example, if somebody is proposing that there needs to be a revision to the constitution or an amendment, I guess one approach is to have some open kind of hearings on it, is just to have the opportunity for people to say who are in favor of wanting to change a constitution kind of where they're coming from, what is in the constitution that they think is harmful or doesn't work and how a change might be beneficial. And to have discussions, not only at the council level, but tribes that I'm familiar with have communities, you go out to the communities and you have hearings about it, and you have to have, I guess, belief that patience and openness and transparency will eventually lead to the best possible idea. I don't want to be naí¯ve, because obviously when you're on a council you can be catching a lot of grief, and I actually don't have an answer for that, but I think being patient is always something that is appropriate in a constitutional context. And your way of putting it is, is this really best for the tribe? Because constitutional revisions are not meant to benefit a small subgroup of the tribe, they're supposed to benefit the tribe as a whole, and I think that's a legitimate, not in a confrontational [way], but that's a legitimate response of a tribal council member, that we have to take a look at this and see if it's really going to benefit the whole tribe. What is the overall benefit of the change? Very much so. And again, I think for tribes that have these institutions, oftentimes there's just the tribal council and then there's the people. There's no mediating kind of institution, and I think, for example, tribes that have community colleges, they are a tremendous kind of benefit because the colleges are basically independent, they're not really politically affiliated, they're educational in nature, and to me it seems they are the appropriate bodies to host these kind of discussions about proposed amendments. Because I think it is important for tribes to have -- and they could be community groups as well -- but to have some kind of intermediate organizations that mediate between the council itself and interested tribal members. You need something I think in between to kind of facilitate the communication in a fair-minded way."

Q: "Reform versus amendment -- is there a huge difference between the two?"

Pommersheim: "Amendment is the technical process that allows you to change the constitution. Every tribal constitution that I've ever seen has an article that deals with amending the constitution. That's how you change a constitution that has already been adopted. You amend it, and how you amend it is contained in the constitution itself and that can lead to reform. But you cannot reform a tribal constitution -- or the process for reforming a tribal constitution is the amendment process. And an extreme amendment, which is permissible under the Indian Reorganization Act and others, is that you can do away with your current tribal constitution. But amendment is the technical, constitutional way spelled out in the tribe's own constitution -- not from the federal law or anything -- about how you can change the constitution. Most tribal constitutions that I've seen require either a petition by X percentage of tribal voters and/or approval by X majority of the tribal council, and then it gets voted on by the people. So in your own tribal constitution, go back to it, it should have a section for how you amend the constitution and that's how any change will be effectuated."

Q: "So we actually have to go by the current constitution that's in place right now in order to go through the processes of changing it."

Pommersheim: "Yes."

Q: "And the next question I have for you is what is your advice for removing the Secretary of Interior from making any decisions for our government?"

Pommersheim: "I'm all for it."

Gwen Phillips: "Search and replace!"

Pommersheim: "But, I'm all for it -- two parts. I'm all for it because that's what tribal sovereignty is about. Tribal sovereignty can't be about having the Bureau [of Indian Affairs] approve your most critical, organic document. It's just too inconsistent. But, you have to think it through about how it will work, because it is true that if you do away with the approval powers of the Bureau of Indian Affairs, you're taking on, in a good way -- but you need to think about it -- you're taking on a new responsibility. You're not going to have the Bureau to fall back on to actually run the elections, and you're not going to have the Bureau to fall back on to complain about when you don't like what happens. It's all going to be on you -- I don't mean you personally -- it's going to be all on you. And so yes, it's a step forward for tribal sovereignty, but I think thinking requires that to ask yourself, and this may be an unpopular question, do we -- of your tribe, any tribe -- do we have the infrastructure, do we have the capacity to monitor our own constitution? And that might be a painful kind of question, but I think it's a little bit irresponsible to go marching forward to do away with the Bureau's approval process without asking the coordinate question about whether you have the infrastructure and resources and legitimacy to do it on your own, because sometimes people get caught up in the rhetoric and the abstraction about sovereignty. But sovereignty has a subset of questions, which one of to me includes, "˜Do you have the institutional capacity to carry this out?' And your answer might be, "˜No, we don't.' But then you can develop a plan. Say, "˜Okay, let's not do it right now. Let's develop a plan so in three years we have developed the resources and the institutional capacity to do away with the Bureau's supervisory responsibility.'"

Q: "Instead of doing away with all of it, is there a way to do away with a majority of it?"

Pommersheim: "Well, it comes in two parts. One part is, and this I think is the first part, is to do away...if your tribe's constitution has stuff where the Secretary actually has to approve certain ordinances you pass, that could be done away with immediately I think, and you can do that without worrying too much about the resource issue, although you have to ask it. The broader thing is to basically get out of the IRA constitutional thing completely, and which you're permitted to do under federal law, the Bureau can't stop you. And then you're completely out from the Bureau altogether. So there are at least two parts. If there is stuff in your tribal constitution that allows or requires the Bureau to approve certain ordinances and certain subject matter areas, you can amend the constitution and get out from those. But if you are an IRA tribe or a tribe -- you don't even have to an IRA tribe. This is a little bit tricky because any number of tribes knowingly or unknowingly who are not IRA tribes who never voted for the IRA nevertheless adopted their constitution under that rubric, and would have to amend their constitution to do away with the Bureau's ability to supervise the elections, the amendments. Because it's true -- and you have to hold your local superintendent to the fire -- is that when a tribe is amending its constitution under the IRA, the Secretary cannot tell you that you can't do it. The only thing the Secretary can tell you -- and they have to approve the form of the amendments -- they can only tell you that we the Bureau have a problem with this amendment because it's contrary to federal law, and if they can demonstrate that the proposed amendment that a tribe is considering is opposed to federal law, they have the responsibility to tell the tribe that they're not going to allow you to engage in that amendment because it's contrary to federal law. But that's it. They can't say, "˜Oh, we don't like this amendment, we don't think it's good for the tribe.' No. And it's important that tribal people hold the local Bureau superintendent's foot to the fire. Know what those regs say. So again, where a good lawyer comes in handy. Because local superintendents come in all vintages. Some that know too little and some that know too much, and very few that know the right amount. So you want to have a good lawyer who can, in a good way, a respectful way, make sure that the local superintendent who is the first person that you deal with in these amendments, make sure that he or she actually understands the regs and how they work."

Q: "And then my last question is we have a court system that's separated from our tribal council, but in our constitution and bylaws, there's a portion of it that should there be I guess a conflict or whatever or the courts can't reach a decision it comes back to council I guess, it gives us that power all over again. And there's a lot of us that's uncomfortable with that. And so in working with our constitution now, we're trying to come up with a plan to safeguard the process, and so it's getting to the point where we have to think about these things. At what point do we involve an attorney for advice in this, or is this a thought-out plan that needs to be for our people alone? And -- as I think many people agree in here -- that we don't have educated tribal members, and it's sad, but I see that a majority of our educated tribal members don't come back to help the tribe. They're out doing their own and just living life they way they earned it. There are a few of us that do come back and our heart is where it is and this is what we want to do to...I'm loaning myself to my tribe in order to help them. But the thing with our court system, the concern that I have is that when it comes back to the council, we don't have any codes in place or anything that we can follow to help us make these decisions. Instead, it's going to be a majority consensus or something, and everybody refers to the CFR code, but in actuality I don't think that's followed either. So where's the justice for the person that is in front of the court?

Pommersheim: "Well, two things. You had asked at the stage you're at now, I think you definitely need a good lawyer to help explain to you or you explain to him, back and forth, about the problems you see in the way your constitution is set up where somehow the tribal court, whatever what means, can't reach a decision, it goes back to the tribal council. I think a good lawyer can help you evaluate the pros and cons of that and then if you're thinking about changing it, how you might actually sort of draft something to allow you to do that. It's also true and can be tricky, if you have an IRA constitution, the Bureau is required to give you technical assistance for free. And so you can approach the Bureau for free technical assistance, but be careful about things that are free."

Q: "Thank you for your time."

Pommersheim: "It is true. If you know -- because a number of my former students work for the Bureau -- there are many, many good people who work on the Bureau and if you connect with the right person, they will definitely help you. But there's also the baggage of the Bureau as an institution, but there are many good people who can be helpful."

Gwen Phillips: "He said he wanted me to ask questions cause he didn't think he'd be able to take up enough time. I don't think he's got a problem there. So I was mentioning that we've been at this constitutional, and I'm going to call it reform, because I really see it as a "˜re-form.' It's becoming, it's taking a new shape, where we also did some constitutional amendments or revisions and that was within that Society Act constitution, just to get it a little closer to saying "˜we're sovereign' without the government's knees shaking. Because I had mentioned, we've got the two going on right now. The internal constitution, that's our self-governing constitution that once we get to that point, it will be legislated into effect by the [Canadian] Parliament. And then the other one that allows us to have that certainty for business purposes that we're legitimate and they can sue us if they need to right now as a non-profit entity. I think one of the most important things we went through, I'm going to put a couple comments out and then ask a little bit of question, is because it's been such a long, long process, there's no darn way we could afford lawyers to guide us through the process. And because we have -- you've heard me note -- we have over 40% fetal alcohol [syndrome]-affected individuals -- and for those who don't know that's brain damage, permanent brain damage -- lovely people, but many challenges with understanding these concepts. But they can give you the spirit. Law is basically two components. I'm not a lawyer so please correct me, all of you legal lawyers and attorneys and barristers and solicitors and whatever you all are. But I've come to know that law takes two, there's two components to it. One is called the spirit of the law, the other's called the letter of the law, and that's where interpretation comes in, people, is in between the two of those things. So if you in community spend enough time with your people talking and capturing spirit and documenting it so that that becomes your constitutional record, then when it comes time to actually go to defense, an interpretation of the letter of the law, that your people see themselves in there. So we don't let the lawyers come until it's time to draft the letter, and as they're doing it we make sure they're working with the people who captured the spirit so that they can insure that the spirit is legally defensible basically. So it's critical that you spend enough time just with your people, because I'll tell you that we actually appreciate some of our people having a felony that are on council, because we demand that our council members be ready to defend our inherent right to govern, and the federal government doesn't like that so they'll through our leaders in jail at times. So we've defined basically what it is you can have and what it is you can't have. So it brings again the spirit of the people to the table and people can say, "˜No, we don't want you there, you abused my nephew.' Well, that says, okay, that's a very personal thing, but what they're saying is, "˜We want to protect children.' So if we catch the spirit, embed it in the letter, I think we're okay with this. We have to also I think recognize that process and procedure and regulation goes hand in hand with the law we establish. So if we establish this supreme law so to speak, we have to have at the ready, already, all the regulation that goes sideways from that, "˜cause that's where we get into trouble when we say, "˜Oh, we'll do this,' but we haven't put the process to it or the regulation on how we will go about doing it and then we get stuck. We haven't considered, "˜Oh, gosh, that's going to now lead it back to my desk again, and what am I going to do about it?' Etc. So making sure we've got the good processes in place as we develop these things. And as you were speaking I was getting this picture in my mind of a shield, that a constitution should be like a shield and I'm the battle warrior, we're back to the Star Trek theme. Did you see that? I brought it back to the Star Trek theme. But that shield, to me, shouldn't be a big shiny shield that's really pristine and looks like it's never been taken out of the case. To me, it should be all dented and it should show your battle scars, "˜cause to me your constitution should live through all of those, to be able to take the sideways hits, to be able to stand up to the arrows and sometimes the bulldozers and whatever else, and live through all those things. So sometimes you may actually have to weld on a new little piece to that shield because something's happened in the environment around you that you haven't thought of, nuclear weaponry or whatever or something, I don't know. So you might have to change it a little but if you've done a good enough job of your spirit, hopefully it's not a whole reform we're having to go through again. So my question now is, in our developmental processes right now one of the things I've been asked to do is create an ombudsman-type position. So who's going to hear the challenges of a decision of government? Because those end up back on government's table, and that's what bogs us down in this crisis mode all the time, all the time, all the time. So it's like a deflector, a place to not park those things "˜cause they're very important, but it's the proper machine to actually hear those things. "˜Cause I'll tell you when you put process behind complaint, people stop complaining "˜cause they're lazy about process sometimes, and that's just reality. But if it really is an important thing, they'll find a way, they'll take the energy, they'll take the time. So what tools or how would you actually see embedding or would you see it embedding that piece into the constitution?"

Pommersheim: "Let me see if I can pull that together. To me, this is one of the themes, and I think what Gwen was saying helps to pull it together, is having effective communication. That it's very important in all walks, but certainly in this context, is having effective communication between the government, between the people, between the communities, between tribal institutions, and in some situations having an ombudsperson who can advance or enhance that communication, that might be a way to go. You just have to examine it from your own tribal circumstances saying if we had a person or office whose specific charge was to ease communication or make it more efficient, that's definitely something to carry forward. One other thing about communication, is communication with lawyers, is that lawyers work for you and you should always feel that it is your right and in fact your duty to say to the lawyer, "˜God damn it, I'm paying you and I don't understand what you just have said. So say it again so I as a layperson can understand it.' There's nothing wrong with that, because it is true that part of our training as lawyers is not to communicate in ordinary language because that will strip us of some of the myth that surrounds us and why you're paying us all this money. And so you have every right to demand, and the best lawyers can communicate with people in ordinary ways. Nothing that we have spoken about today or spoke about tomorrow is so esoteric or complex that a good lawyer [couldn't] put in pretty ordinary language. And so you -- it's a two way street. You have to hold your lawyers accountable to you. You can't nod your head to something your lawyer says if you didn't understand it. And it's not your fault, it's his fault or her fault. And the big red sign in the back says, STOP, and I'm lawyer and I believe that means, 'It's finished, Bob, take a hike.'"

Q: "One more thing. You brought up interpretation, which is absolutely critical and you talked about your Fourth Amendment analogy and then borrowing on principles from the federal government and federal judicial opinion to help guide an interpretation, whether that was appropriate. The term "˜separation of power' that we hear around here is another term that we shouldn't just go ahead and adopt wholesale and say that we should have separation of powers. We can have co-equal, we can have distinct branches of government, but we shouldn't just go ahead and say, copy necessarily an interpretation from the federal government in having separation of powers."

Pommersheim: "Yeah, and one last thing about that is this notion about separation of powers. I think what it's about -- and it makes people uncomfortable to talk about it -- but what does separation of powers is to limit the abuse of power. It's easy to talk about values that you share in common, it's a little bit more difficult to say, "˜How are we going to deal with the potential abuse of power in your tribe?' And separation of powers, this is one of the tried and true ways of doing it. But you may have things in your tradition and custom that you deal with the abuse of power. But I think in the modern world the abuse of power is an issue, and I think it is naí¯ve in the extreme to think that, potentially, abuse of power is not a constitutional issue. Separation of powers isn't the necessary way to go, but I think it's a question, a necessary question, that a tribe has to provide its own answer to. How do we, in your tribe, deal with the potential abuse of power?"

How Can Tribes Relate to Off-Reservation Citizens Better? Study Aims to Help

Author
Producer
Indian Country Today
Year

How do you define “home?”

“Home is where one starts from” is one explanation, while another states, “Our feet may leave home, but not our hearts.”

Where you call home is especially important to Native Americans who have left the familiarity of where they grew up among fellow tribal members and moved to urban areas. How they stay connected with their past and what efforts their tribes make to stay in touch is the genesis of a recent pilot study on young adult tribal citizens living off the reservation...

Native Nations
Resource Type
Citation

Allen, Lee. "How Can Tribes Relate to Off-Reservation Citizens Better? Study Aims to Help." Indian Country Today. July 28, 2015. Article. (https://ictnews.org/archive/how-can-tribes-relate-to-off-reservation-citizens-better-study-aims-to-help, accessed July 18, 2023)

Indian Country must put more effort in public relations

Producer
Indianz.com
Year

While sipping my morning coffee I began reading a White House document titled “2014 Native Youth Report.” As with every other tribal member, I am aware of the long-standing socio-economic quagmire we have been enduring.

The fact that we are still alive and well is short of miraculous and thought provoking. In this enclosed Lakota biosphere of ours, we have life fundamentals that should be public knowledge. However, we rely on outside entities to provide skewed numbers or statistics relevant to language, education, and population.

We have a severe need to develop and establish our own data regarding areas of public concern. Such statistics will be local, accurate, and up-to-date...

Native Nations
Resource Type
Citation

Star Comes Out, Ivan F. "Indian Country must put more effort in public relations." Native Sun News. January 22, 2015. Opinion. (http://www.indianz.com/News/2015/016202.asp, accessed July 21, 2023)