Ian Record:

“Welcome to Leading Native Nations, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. I’m your host, Ian Record.

With us today is David Wilkins, a citizen of the Lumbee Nation. He holds the McKnight Presidential Professorship in American Indian Studies and has adjunct appointments in Political Science, Law and American Studies at the University of Minnesota. He is well published in the area of federal Indian policy and tribal governance and recently released a revised edition of American Indian Politics in the American Political System and an edited volume called On the Drafting of Tribal Constitutions by Felix S. Cohen.

David, we wanted to bring you in today to talk about a number of issues and really trace from the beginning tribal governing systems. So I think it’d be best to start at the beginning and talk about, for those people in Indian Country, for those people in mainstream American society who may not be aware, if you could paint a picture for us of the nature, the diversity and the sophistication of Indigenous governance systems in North America before Europeans.”

David Wilkins:

“Well, that’s a very complicated question given the amount of diversity that was evident in what we now know as North America. They estimate over 600 distinctive Native peoples, whether we call them tribes or nations, or increasingly I’m hearing the word bandied about of referring to tribes as 'states,' but the amount of diversity was just tremendous from sophisticated confederacies like the Iroquois Confederacy, the Haudenosaunee, to the Creek peoples of the southeast with their red and white towns spread out over thousands of miles. You had hunting communities, small fishing villages in the Great Lakes area in the northwest, you had the California communities who lived out in the deserts, the many tribes here in Arizona, from the Navajo Nation to the Tohono O’odham peoples and all the peoples throughout the great heartland of North America. And so it’s difficult, there’s no single model, there’s no single framework that can accurately describe this amount of diversity and the very concept of tribal governments itself is a bit of misnomer. In fact, the concept that is most really applicable to describe tribal peoples historically was the notion of tribes as kinship systems because you basically had Native communities who realized that they couldn’t govern themselves if they got too large demographically, so they intentionally kept a lid on their population and tried to maintain a relatively small community because they realized that as long as the kinship system was in place and that only worked when you could remember who your neighbors and your relatives were, that’s when you’re able to govern yourselves and maintain peace and stability and relative harmony. And so the idea of Native peoples and Native communities as governments is a bit of a problematic concept. Although increasingly we refer to Native governments today, there’s still a lot of discussion and debate. And when I’m teaching my classes, I often get my students to really think about this and ask them to consider whether the Navajo people spread out across four states basically over 30,000 square miles of land constituted an actual people or a large extended kinship system or did they in fact constitute a government since they never actually met as a collective body ever until they were essentially imprisoned at Fort Sumner in New Mexico. And so diversity and differentiation all tied into the various value systems of Native peoples and the geographic places where they inhabited and the kind of subsistence that they depended on. All that affected the kind of systems that were in place.”

Ian Record:

“The research is replete with example after example among these traditional governing systems of these various peoples of effective institutions that they had developed over long periods of time to resolve conflict, to advance their priorities as a community, to relate with other groups that were distinct from them. Could you talk about just briefly -- and perhaps provide a couple examples that maybe immediately come to mind -- about just how robust that was prior to colonization?”

David Wilkins:

“Well, my wife is Navajo and so when I married into the Navajo Nation and became an instructor at Navajo Community College, now Dine College, my background was in federal Indian policy and governance and I wanted to teach a course on Navajo history. So I immediately began to collect research about the Navajo people. There wasn’t a whole lot available at the time. There are a few historical studies, a few anthropological studies, but I eventually was able to cobble together enough information to construct a course. And what I learned about the Navajo is that given the breadth of their coverage and how much land they inhabited historically, ¦today the reservation’s 25,000 square miles. Historically, it was much broader than that, possibly twice as large as that. And given that, Navajos who lived around what is present day Tuba City never met Navajos who lived around Farmington, New Mexico. But what they had was a system of governance, and for them I would call it a governance system, which was the '[Navajo language],' which was a regional association, if you will, of extended families who would appoint or elect individual leaders. And every two to four years these 12 [Navajo language] families, extended families would gather together to discuss issues of security, discuss issues of farming, to discuss issues of harmony or whatever the issues were at the time. And the individuals who constituted the leaders of those [Navajo language] extended families were called '[Navajo language]' and they were very powerful individuals. But their power was not based on coercion, it wasn’t based on force, it was based on the art of persuasion, the art of being able to express orally what they wanted their community to do and if the community decided not to do that, they wouldn’t do that and there was no force. In fact, if you can, ¦when you think about a list of attributes or characteristics that could be used to describe tribal peoples generally and it’s not easy to do that, but as someone who teaches this I try to come up with a list of characteristics, but this idea of the lack of coercive power, a lack of authoritative force, because that just wasn’t the way tribal peoples operated. It really was historically a consensus-based system and it was based on this concept of kinship with everyone being related to one another either by blood or by marriage or by association. And so the Navajo, with that system, and it was a very effective system for them, so that when the Spaniards first arrived in the late 1500s and sought to impose their power and their force over the Navajo people, they might be able to militarily defeat this one extended family and then they would sometimes force a treaty negotiation to take place and a week later they would get attacked by another Navajo [Navajo language] realizing that they weren’t subject to the Spanish power or control. And so that’s one example.

And you have examples like the Iroquois Confederacy that I mentioned earlier, with their 50 chiefs with powers that were laid out in wampum belts historically. The earliest constitution in the world most people now acknowledge, even though people that write about U.S. constitutional history don’t quite want to acknowledge that just yet, but when their constitution was in fact written down and non-Iroquois began to study it and examine the kind of provisions that you see laid out in there, you see initiative, you see referendum, you see equality for women, you see equal suffrage, you see checks and balances and you see the amendment process and you see all these kind of provisions that many of which show up in the U.S. Constitution that was developed in the late 1700s. And so you have different, ¦with so many different tribes you have multiple possible governing arrangements that were out there, but many of them sharing again common values based on mutual respect that is the system of kinship, a system of shared spiritual values and traditions, a shared language, a shared history, sacred history and most importantly, a shared sacred landscape that constituted their original homeland. And so those were the major factors that I think you can say linked Indigenous peoples together historically. And while those were important, the distinctions and the differences were still rampant, which is one reason that you would have conflicts on occasion, which then led to early treaty-making processes. So by the time Europeans finally arrived and began to want to negotiate treaties with us, we knew all about the treaty process because we also had engaged in it because tribal nations were never the idealic, pristine communities that we’re sometimes depicted as. We were human collectivities and human beings by nature and by human nature are going to engage in conflict at times.”

Ian Record:

“You mentioned 'checks and balances,' which is a term that is -- if you spend a lot of time working with tribal governments, working with elected officials, spending time in tribal communities, particularly those that are kind of wrestling with this issue of governance and is their governing system effective or are there some shortcomings to it -- you hear it a lot as tribes work to reclaim their systems of government from colonial systems that were thrust upon them over the course of the decades and the centuries. Another term you hear a lot is 'separation of powers' and you’ll sometimes hear this refrain around those two critical issues that, ‘Oh, that’s the white man’s principles. That’s something that they have,’ but that’s really not the case. If you look back at traditional governance systems and the Oglala Lakota are a perfect example, they had checks and balances, they had separation of powers to ensure that there was a rule of law and that no one was above that rule of law.”

David Wilkins:

“Absolutely, and that’s something that tribes were never given credit for until very recently, and we’re still sometimes denied our legitimacy as governing systems because we’re ¦outsiders who look at our communities still don’t see us even when we have very clear separations of powers and checks and balances in our institutions of governance today. But historically when the first Europeans arrived and met the various Native nations that they did, they came in of course with preconceived ideas and only their own Euro, European mindset and cultural paradigm to draw from and so they couldn’t see any immediate resemblance in our societies to what they exhibited, coming from the very feudal system that they did. The kings and queens that governed their countries, you see certain tribal leaders in the East Coast named 'King Powhatan' and 'Prince So and So' when those simply did not exist. And yet, certainly as you were saying, there were inherent checks and balances that were laid out. They weren’t called legislative and executive and judicial, but the essence of them, of what those three different branches do and how they check one another to maintain some relative power was quite evident, and it’s especially true for a number of tribes where you had peace-making powers and war-making powers separated. You had that in Iroquois, you had that in the Creek, in the Cherokee, you had that in a number of tribal communities, because they understood that someone who’s skilled in the art of diplomacy would not necessarily be the individual that you’d want to lead a war party on and vice versa. Someone skilled in the art of taking a scalp wouldn’t be someone that you would want, or would have the skills necessary, to negotiate a treaty of alliance with a neighboring tribe. And so tribes had all sorts of these institutions of governance that were in place, although they were rarely articulated formally and they certainly weren’t articulated in writing, but they were articulated in the stories, in the origin account, in the creation accounts and had Europeans taken the time to listen to us, they would have heard this. Whether or not they would have respected it is another question and we’ll never know that, but it’s important for your listening audience to realize that checks and balances and separations of powers were clearly evident even when you would look at a community of say 300 members, 300 citizens or 300 clan beings and see, you wouldn’t be able to see a separation there and yet in the roles, in the responsibilities that were clearly articulated in the various customs and traditions and duties of both the elected officials and the officials who would be appointed, given their ceremonial knowledge, they were clearly present.”

Ian Record:

“That’s a good segue into my next question, which really delves into what happened to those traditional systems of government, governance that were so vibrant in these communities when Europeans came and just how profound was the transformation?”

David Wilkins:

“It was obviously profound. It had to be an absolutely devastating period of time, from the initial influenzas and waves of diseases that swept through Indigenous communities and just wiped out entire nations. The depopulation figure is roughly around between 80 to 90 percent, and so when you lose that many of your people in one fell swoop and sometimes it would be a swoop that would be a recurring kind of swoop because it takes generations for communities to build up any kind of immunity to diseases that they historically had not experienced. So that was the first devastating blow and so you lose your elders, you lose those individuals who had the weakest immune systems because of age and yet they’re the ones that were the repositories of all, of most of the knowledge, the traditional knowledge, the songs, the ceremonies, the tradition, the values in all of that. And so that was the first factor, and then of course with the conflict that then ensued as the various European powers competed for a permanent foothold here -- the Spanish and the French and English and the Dutch and the Swiss and the Russians and others. Those conflicts in which they would try to play off tribe against tribe, sometimes segments of tribes against other segments of tribes, caused additional severe problems. Trade goods and the items, the material goods that Europeans brought with them was another factor that affected how we operated amongst ourselves, how we governed amongst ourselves, and how we engaged in intergovernmental politics with other peoples.

Then, of course, you had the religious dimension, the missionaries, the Jesuits and the Franciscans and the Catholics and the Presbyterians and all the various Protestant denominations all competing for the souls of Indigenous peoples, because they thought that we were the peoples who were heathens and savages and who had no bona fide religions that they had to show any respect for. And so it was a combination of these factors and many others that weighed in. Boarding schools come in at a later date and the general assimilative process and the coercive power of that assimilative process, it really kicks into high gear in the 1870s when the federal government decides that they’re going to 'de-Indianize' us culturally speaking. They had given up on the extermination phase because it wasn’t economically sensible to them and it also violated and contradicted their own Christian and democratic heritage, and so they decided they would try to civilize us and Christianize us and Americanize us by allotting us and doing the various things. And so all of those forces weighed in variably on various tribes of course, but every tribe was impacted.

Some were just impacted to where we no longer know who they are anymore or the remnants of them would merge in with other tribes and so you have really a polyglot system that ensues and so tribes throughout all this period, this profound and very long transitional period, are finding, ‘How can we survive this, how do we weather this persistent storm that just doesn’t seem to cease?’ And what you find is tribes engaging in all sorts of strategic and innovative and desperate measures to try and still find some way to maintain some measure of self-governing capabilities and they did remarkable jobs of that. Even in facing the teeth of full coercive assimilation and full federal power, tribes were still relying upon traditional elements and traditional knowledge and vestiges of traditional thought and traditional systems and traditional institutions that still enabled them to remember who they were even when it was thought that they were no longer there and yet they were able to somehow weather most of that. Even though we are certainly not the people that we were in 1492, but then again, no people is the same. So yeah, we were devastated on all sorts of levels, but Indigenous peoples here and abroad are the most resilient of peoples and we found ways to survive, we found ways to manage, we found ways to cope and we did that by altering our traditions, by altering our languages, altering our institutions of governance and still coping.”

Ian Record:

“So I think a lot of historians would agree and scholars such as yourself would agree that that systematic dismantling of traditional governing systems on the part of the federal government in the United States and the Canadian government up in Canada for First Nations pretty much continued uninterrupted until about the 1930s, when there was this kind of -- and people may disagree about the extent to which this shift occurred -- but everyone acknowledges there was a shift in how the federal powers that be were going to treat tribes, the latitude they were going to afford them to make certain decisions about their own affairs, about their own lands, about their own peoples, and that in the United States took the form of the Indian Reorganization Act. Can you describe for us what that process entailed I guess for most tribes, the typical experience of the IRA in terms of its implementation and what that standard boilerplate system, as it’s so often called, looked like and how that perhaps didn’t jive with these traditional systems that we’ve been discussing.”

David Wilkins:

“That’s a very good question and it’s a very complicated question. And as you know, from the book that I just edited that Felix Cohen wrote, although he wrote it as a legal memorandum in 1934, the Indian Reorganization Act was drafted by Felix Cohen because he was hired specifically to write the initial draft of that, hired by John Collier and Nathan Margold, but first let me give you some context leading up to that because it’s important. As I was saying, with all these factors that had devastated tribes, even with all of that devastation and catastrophic loss of life and of institutions and so on, in 1929 [Indian Affairs] Commissioner Charles Burke issued a circular in which he asked every superintendent under his charge to describe what kind of business council or other governing system was in place on their reservation that they were overseeing. He sent it out to over 120 superintendents, 78 superintendents responded in writing, and I was able to secure a copy of their written responses. And as I read through them a couple years ago, I was absolutely flabbergasted at the diversity of governing arrangements that tribes had concocted, sometimes on their own, sometimes in conjunction with well-intentioned missionaries, sometimes through other entrepreneurs who would come in thinking that they had what it would take to help to save this particular tribe. But in many cases you had the agents responding to the commissioner’s call by saying, ‘They don’t have a business council, but they have some form of constitution and I don’t know how they got that, but they have that.’ Or they would say in the case of multiple, of many of the pueblo communities, ‘They have very traditional, very organic governments that I just can’t seem to dislodge despite my best efforts. And as long as they have those, they’re never going to be a civilized community even though they’ve very peaceful people of course.’ And you see all this frustration on the part of a lot of these agents describing the fact that there is still a lot of traditional knowledge, traditional institutions that were still in place in 1929.

Now this is just five years before John Collier comes on the scene to save us from ourselves ostensibly and from Christian missionaries and state officials and so on. But the presumption of a lot of federal policy makers by the time Collier comes on the scene under the [Indian] New Deal is that Indian tribes are essentially bereft of any kind of governance, least of all traditional governance. And yet when Cohen was hired, he also knew virtually nothing about Indians, but he began to travel almost immediately and began to learn, and during the summer months he and his wife bought a cabin in the Adirondack Mountains and he lived near Ray Fadden, who was a Mohawk traditional person who began to instruct Cohen on traditional knowledge, particularly among the Iroquois people. And Cohen began to learn and began to gather together all the evidence of existing constitutions that were still in play in Indian Country. And by 1934, Cohen issued a statement in the beginning of one of his books where he says, ‘There are some 60 tribes that have constitutions and there are lots of other tribes who still have remnants of traditional governance that has somehow survived this overwhelming force of coercive assimilation.’ And he was absolutely enthralled by that and as you read through his legal memorandum, you see him saying, ‘We want to find, I want to find a way to incorporate this traditional knowledge into these IRA constitutions.’

Now of course as you and I were talking earlier, that wasn’t always the case in specific tribal communities. But when Collier ultimately gets hold of the draft that Cohen had drafted in the IRA form, what Collier really had in mind was he envisioned tribes as municipal bodies basically, as 'mini cities' if you will. He had respect for tribal cultural sovereignty, he didn’t have a whole lot of respect for our political or legal sovereignty, even though he realized that treaties should be upheld, that the federal government had a trust responsibility to tribal peoples and tribal lands and resources and rights. And yet when you read through the IRA, a very comprehensive measure by the standards of that period, even though it had been whittled down from a 40-page bill to a four-page bill, by the fact that it stopped the allotment process, by the fact that it encouraged tribes to form a government, a government obviously that would be encouraged by federal officials to follow a constitutional framework, even though they didn’t have to do that. And a number of tribes rejected the IRA, which was in itself a new innovation under John Collier, because all the prior legislation dating back to the 1870s up to the IRA itself, they were unilaterally imposed on tribes, and [with] the IRA, tribes had an opportunity to choose whether or not to come under its rubric. So there were, it’s a very complicated and a very almost a schizophrenic piece of legislation, because you had John Collier and cohort saying, ‘We respect tribes. They should have the right to exhibit their cultural identities and exercise some measure of self-administration,’ really, I wouldn’t call it 'self-governance,' but it was really 'self-administration.' And yet when you read many of the IRA constitutions that were approved, many of the major decisions had to be approved by John Collier and his office and the Secretary of Interior. And so you had the federal government basically telling tribes two very different kinds of things: ‘We respect your right to have a measure of self-governance, and yet it still mush comport with our views on what that might look like.’

And so...but the IRA is a piece of legislation that’s been written about a lot, but not enough people have really closely examined how it came to pass, what the actual mood of the country was at the time and more importantly, how the IRA was implemented on the reservations that did in fact adopt it, because it’s a much more variegated process than tribes are given credit for. And so this concept of the IRA and a model constitution that was a boilerplate that was simply thrust down the throats of tribes, my research of Felix Cohen’s papers disputes that entirely, as did Elmer Rusco’s wonderful book, A Fateful Time, that came out in 2000. And so we have a growing body of evidence, which suggests it’s much more complicated than that. Certainly there were some tribes that faced a tremendous amount of pressure from Collier and cohort to adopt the IRA, like the Navajo Nation, who ultimately still rejected the IRA and don’t have a constitution to this day, over Collier’s strenuous objections. And yet in other cases, you have situations in which the IRA was very quickly -- and very easily it seems -- adopted and it has become the basis of their governing system and they’re doing quite well with it. And so until we have much more detailed individual case studies of all, both the IRA and the non-IRA tribes and what was happening in the mid-1930s, we’re not going to know for sure, we’re not going to know definitively what really transpired.”

Ian Record:

“As with everything across Native nations, it’s very, very difficult to generalize or to oversimplify the complexity of experiences, of governing institutions, of expressions of sovereignty and the rest of it. There were across a number of IRA tribes these common provisions that were derived somewhere in Washington in some office. And one of those that you commonly see in numerous IRA constitutions is this question of judicial function and judicial authority, which more often, not more often than not, but oftentimes was neglected or was left up to the council to decide. And I was wondering if you could talk about some of those common provisions that are so often studied and researched in the context of IRA, particularly in the context of contemporary governing systems among Native nations and what some of those legacies are of some of those common provisions.”

David Wilkins:

“Well, when you look at constitutions of not only tribes, but of states, when you look at the U.S. Constitution, when you look at international states and their constitutions, you’re going to find common provisions. In almost all constitutions around the world you’re going to have an executive entity, you’re going to have something that performs legislative functions, in many you’re going to have something that performs a judicial function, you’re going to have in many cases an articulated Bill of Rights or something like that, you’re going to have something dealing with elections. So you’re going to find common provisions in constitutions no matter at what level of governance you’re looking at. But when you look at the IRA constitutions, certainly in the book that I edited of Cohen, I found a copy of a model constitution that he or someone on his staff, on a tribal organizing committee, had developed. Again, we don’t have any proof that all tribes received this. In fact, all we have is a bit of evidence that some tribes received it. In fact, Cohen himself goes out of the way on the first page of this legal memorandum to say, ‘I’m not going to, I don’t want this canned constitution sent out because many tribes will simply adopt it wholeheartedly.’ And so that didn’t take place to my knowledge, and I’ve researched his papers pretty darn thoroughly, but we do know that some tribes saw that model and we know that Cohen and his organizing committee staff held a number of congresses, 10 congresses throughout the country in which they explained the IRA, in which they explained the constitutional process and got a lot of feedback from tribes. Again, this was another major innovation from all the previous 50 years of legislation, tribes were given an opportunity to respond to this law and the law was in fact amended based on many of these tribal comments.

But for example, with the judicial branch, you’re right. If you look at many of the IRA constitutions that were in fact adopted, became law, most of them lack a separate judicial function. Cohen addressed that specifically in his legal memorandum. And his argument was that most tribes, at that time, he thought, were so cohesive, were small enough that basically a unitary government would suffice. He said it would be expensive, it would be duplicative and it would really cause problems if tribes that are very small tried to create three separate branches of government. He said historically, most tribes didn’t have that articulated clearly and that’s true. And I’ve heard someone as knowledgeable as Sam Deloria make a similar argument. ‘If you have a tribe that has less than 1,000 citizens and living on a very small patch of land, does it really make sense to have three separate branches of government and to try and, how do you staff those? Where do you get the actual human power to make that kind of thing happen?’ And so I think that’s one reason that most of the IRA constitutions don’t have judicial systems. They weren’t told they couldn’t have them and some in fact do incorporate them in their governing systems. And yet again, we need additional detailed case studies to really examine and articulate why some have them and some don’t.

But the idea of provisions and comprovisions is an important element. And the thing that’s always bothered me about the IRA, given John Collier’s obvious respect and support for tribal cultural sovereignty and cultural authority and identity, is the fact that before the IRA, tribes had to get the Secretary of Interior’s approval less than they did after the IRA was adopted. So that’s a telling statistic that Vine Deloria and Clifford Lytle revealed in their study of the IRA. And so in fact John Collier and the Secretary of Interior’s office had more discretionary power over tribes who adopted the IRA after that law became functional than they had over tribes before that. And so that’s a telling statistic and that’s one that always had rubbed me wrong and it’s always left me very concerned about John Collier’s real intention, because if he was really intent on supporting a measure of tribal self-governance or self-administration or self-rule, why would he require absolutely most tribes to consult with him or get his or his boss’s, the Secretary of Interior’s permission before they could sell land, buy land, do anything involving trust resources. It just doesn’t make any sense. And yet there’s that mindset of federal paternalism that was still very powerful, still very regnant in the 1930s that will continue to persist up into the present day, although it’s not quite as intense today as it was back then.”

Ian Record:

“I’m glad you just mentioned the present day, because that’s where I wanted to move next. I think it’s good to move now from essentially trying to read the tea leaves of what these architects of the IRA were thinking back then to what’s the legacy of IRA today? Again, it’s impossible to generalize, but one of the things I’ve been struck by in my work with the Native Nations Institute is, as you get past the mid-1970s and the passage of the Indian Self-Determination Act and you see tribes beginning to aggressively assert sovereignty and strategically think about how best to do that, how best to exercise that, you’re seeing a groundswell of constitutional reform, particularly among those tribes who had IRA systems of government essentially unchanged since the 1930s. What do you think really sparked, what was at the root of that? And have many tribes just simply outgrown the IRA governing system?”

David Wilkins:

“I think peoples do. Governments that don’t have amendment processes that allow their communities to mature and to grow and evolve don’t last. And I think as a part of sort of, as a part of that mindset of federal paternalism that even after the IRA and even after tribes had adopted a constitution -- and I think again this was over John Collier and Felix Cohen’s heads -- I think many local Indian superintendents still refused to recognize and respect the inherent sovereignty of those tribes, to respect their constitutional validity as valid governments. And so that was an ongoing problem. And so it really wasn’t until the 1950s in the wake of the termination era, which really galvanized Native peoples throughout the country, those that faced immediate termination and thought that they might be facing it somewhere down the road, that created a backlash and really fired up Indigenous peoples led by the small fishing tribal communities in Washington State, but that spread to the Iroquois of New York State and spread throughout the country. My own people, the Lumbee, routed the KKK [Ku Klux Klan] when they tried to come in there and burn a cross in the 1950s. And so you had this surge of, ‘We’re just not going to take this kind of racism and discrimination anymore.’ And so that begins to mount the relocation effort in which the federal government had tried to forcibly get many Native peoples to leave the reservation to go into urban areas, sort of the last systematic federal policy. That led to a major pan-Indian movement -- not unlike the boarding school period from earlier generations -- and so that also galvanized Indigenous peoples. And then comes the War on Poverty and the Office of Economic Opportunity and various federal programs that provide its funding to tribal leaders who began to take advantage of various media opportunities and various media venues in the urban areas. And so it was a combination of things, the environmental movement, the Black Power movement, the birth of the American Indian movement, the Alcatraz takeover in 1969.

So it was really a beautiful and powerful and completely unheard of confluence of events that just sort of coalesced and all of that, out of all that ferment, I think it convinced tribal politicians, tribal community activists, ‘We have the power to do more for ourselves if we’ll just do it.’ And so some tribal communities began to do that and many of them began to turn their attention to either their constitutions or to a desire to try and create or recreate traditional governing systems or to do something about their general council or whatever system they had, but it was this confluence of events that I think really encouraged tribes that, ‘Yes, you have the authority’, and then when Congress passes the Indian Self-Determination Act, when Richard Nixon issues his Indian policy statement, they then had federal support and federal recognition for these Indigenous self-determination efforts. And so all of that I think convinced tribes, ‘We need to take charge of our own governing systems and we need to do that by really closely examining what kind of governing systems we have in place. And we need to begin to fine tune it or throw it out and start over or do whatever we need to make it, to get it to match what our community’s needs are right now, rather than what they were looking like 40 or 50 years ago.’”

Ian Record:

“You talked about a lot of this movement kind of taking hold, I guess the realization setting in in the ‘50s, the movement really taking hold in the ‘60s and then crystallizing in the ‘70s with the Self-Determination Act. And you mentioned Richard Nixon’s statement and other events, but this movement is not slowing down, is it? It’s really gaining momentum, not slowing in momentum. Can you talk about, I guess, in broad terms how tribes are remaking their governing systems and reclaiming their governing systems and not only their systems, but maybe specific governing tools to better reflect their cultures, to better advance their priorities and essentially regain ownership in the decision making seat in their own communities.”

David Wilkins:

“Well with the Indian Self-Determination Act of 1975, that was the first major law. And so in addition to that, a couple years later you have several Supreme Court decisions come down the pipe, decisions like Santa Clara Pueblo vs. Martinez, which recognize that tribes have the right to decide who their citizens are and there were other decisions as well. Those were of course counterbalanced by negative decisions like, cases like Oliphant vs. Suquamish, whose tribe learned they no longer had criminal jurisdiction over non-Indians, which historically, we did in fact exercise, despite what the Chief Justice said at the time. But you really had this development taking place that really sort of started with Nixon and then it began to build through Congress with the Trail of Broken Treaties and some of the activism that took place. It sort of culminates with the ‘75 Indian Self-Determination Act and then some later Supreme Court decisions.

And so that combination of things takes place and then comes Ronald Reagan of course. Reagan comes in slashing everybody’s budget, but particularly the budget of vulnerable groups like tribal nations, and out of that, someone in Nixon’s camp encourages tribes, ‘You should look to gaming as an opportunity to do some kind of economic development.’ So the Seminole started a little bingo parlor and all of a sudden it explodes and other tribes say, ‘Hey, if they can do it, we can do that.’ And so the California tribes start theirs. They’re challenged of course by the State of California, it goes to the Supreme Court and the Supreme Court tells tribes in the state, ‘If you allow it, the tribes can do it.’ And so before you know it, tribes across the country are establishing casinos, which begin to bring in a steady stream of revenue, which we hadn’t seen the likes of ever really, dating back to the fur trade probably or the buffalo period.

And so that money and that stream of fairly secure income because Indian casinos continue to do very well compared to other casino operations, that has given a number of tribes a measure of economic flexibility. So they’ve been able to use that money to begin to rebuild their infrastructure, they’ve been able to use it to engage in language immersion programs and do all sorts of things culturally and with educations and with Head Starts and with all sorts of programs. It’s also taking us down a road, since we’ve never been on it before, we don’t know where that’s taking us. And so it’s also unleashed a backlash of course from envious state governors and envious state lawmakers and envious federal lawmakers who look to tribes now and their successful casino operations to bail them out of their economic problems. And so it’s created this backlash, and you’re always going to have legislators like the late Slade Gorton, who’s no longer in the Senate who was known as an Indian fighter and challenged any exercise of tribal sovereignty among the states in Washington or anywhere in the country. And so we’re going to have this constant sort of battle.

But the constitutional reform efforts that are taking place, I think, are really taking place now largely because of these stream of events we talked about, but also because gaming has accorded certain tribes the financial flexibility to be able to sit back and take a moment and think and ponder and reflect and to really look more closely at what their reservation or trust land or ranch area looks like and to decide, ‘Is the system that we have in place the best one? Can we do better? Do we need to look at revising or remaking or engaging in a revolution to come up with a newer or different system of government that might be more reflective of the way we historically governed ourselves or should we continue down the path of devising constitutions that begin to mimic more the state or the federal system?’ which has certain advantages and perks as well. And so I think tribes are having opportunities now to do things that they didn’t have before because of the economic flexibility that gaming and some other revenue streams has provided them.”

Ian Record:

“Part of your research focus in terms of contemporary tribal governance has examined the trends in terms of constitutional reform and how tribes are reclaiming their systems of governance, redesigning them to meet contemporary challenges while at the same time reflecting more appropriately their cultures and their identities and their core values and so on. Could you share maybe what you view as kind of the most bright lights out there from your experience, some of the tribes that are -- in your opinion -- are really seizing the day when it comes to regaining their governing systems, reclaiming those systems to better suit their own needs?”

David Wilkins:

“Well, that’s an area that I’m just now, I’ve collected with the help of a friend who’s a computer whiz, we’ve created a database of tribal constitutions and right now we’ve got about 318 and I’ve read a lot of these, but I haven’t begun yet to really closely examine what is happening on the ground right now with regards to specific tribes and their own constitutional efforts. I can only speak about my own tribe, the Lumbee. We’re not fully federally recognized, although in the process of pursuing that. We devised a constitution in the mid-1990s that was very contentious because there was another segment of the tribe that had been in power that had started during the War on Poverty and OEO [Office of Economic Opportunity] period and sort of thought of itself as the tribal government. And yet when the tribal community decided they wanted to create an actual constitution and began that very complex process, which took a number of years, that group ultimately was sort of squeezed out and it’s caused a bit of tension and yet the constitutional government is in place now and it seems to be working fairly well. Other tribes, a former student of mine, Deron Marquez, was the chairman of his small California rancheria, San Manuel Band of Serrano Indians. They don’t have a constitution. They have a simple plan of action that’s been in place for some time. They operate under a general council model because they’re such a small community, but they happen to have one of the most successful casino and gaming operations in California. And they’ve been able to parlay those revenues and they’ve become partners and now they are co-owners of a four-star hotel in Washington, D.C. with a couple of other tribes. They own a water bottling plant and they’ve diversified their economy tremendously, but the casino dollars were the basis of that. And so I’m looking forward to doing more in terms of the constitutional, contemporary constitutions to see what tribes are doing what, but I just haven’t got into that fully just yet.”

Ian Record:

“So Dave, let’s dive into a little bit more detail on two acts of legislation, federal acts of legislation that you’ve already touched upon, and the first is the Economic Opportunity Act of 1964 and the second is the Indian Self-Determination and Education Assistance Act of 1975. Could you delve into what impact those two acts of legislation had in terms of transforming the environment within which Native nations exercise sovereignty?”

David Wilkins:

“OEO was a major law. The Area Redevelopment Act was the first law in 1961. I don’t know a whole lot about that, but it was sort of an early forerunner to the OEO, but OEO is credited by most tribal people with being the first major piece of legislation that created an Indian desk in that particular office because there was clear, there was all sorts of empirical evidence that Indian Country was in the doldrums and had been for multiple generations from an economic development perspective. And so the federal government in creating the OEO staffed that, put an Indian desk there and other programs that were started, the Comprehensive Employment Training Act, CETA was an act that I got my first job in when I was still in college in 1973. But OEO and the legal services was another dimension of that. In fact, Peterson Zah was a recipient of that and he was able to take some of that money, get himself to law school, and use that to create the first legal services corporation on the Navajo Reservation that has done wonderful work and still is doing wonderful work.

And so it created a cadre of Native leaders who were able to gain particular jobs and get education, whether in law school or graduate school and they became the ones who went back to the reservation and either assumed political leadership positions or became the grant writers for their nations. And it was that grant-writing process that created a whole new generation, what Sam Deloria once called the 'managerial class of Indian elites,' who helped to sort of begin not to completely severe, but to begin to cut the umbilical cord between tribes and the Bureau of Indian Affairs. And that in itself was a major deal, because as long as tribes were absolutely beholden to the Bureau of Indian Affairs, the Bureau of Indian Affairs was in complete charge and had been for the previous century and a half.

But when the OEO and the other War on Poverty programs became available to tribes as granting agents, they began to receive money that didn’t have to go through the BIA, it went directly to them as sponsoring agencies and they were able to then use some of that money to do certain things. There was still all sorts of things attached to that and they still had to follow federal rules and regulations and it created additional problems because tribes under their treaty obligations were getting money as sovereign nations but in under the War on Poverty programs and Great Society programs, they were getting them as simply poverty-stricken groups. And so there were far more strings attached to what they could do with that money. But even within that constrained framework, tribes were able to do things and had a measure of flexibility that they hadn’t had for a very, very long time. And the Indian Self-Determination Act of 1975 really kicked that up a notch higher, and now tribes were able to contract directly and began to take over control of programs and to administer programs, still again attached to federal rules and regulations and stipulations and so on, but still they were gaining and additional measure of self-administration, if not complete self-determination because they’re still, the money is still coming from the federal government, but they now had a bit more flexibility in what they could do with the money and they could contract and still maintain their trust relationship to the federal government.

And then comes 1991, you have Self-Determination, which sort of morphs into the Indian Self-Governance Project and this was an initiative that was actually started by tribal leaders themselves. They took the idea to people in Washington, D.C. So Indians are the ones that got the Indian Self Governance process underway and they brought it to the attention of the people in Washington and said, ‘There are too many strings attached, too many, there are too many, we don’t have enough freedom and enough flexibility to do what we really want with either the OEO remnants or the Indian Self-Determination Act. We want to be self-governing, in which we just get a block of money directly from the federal government and then we just do what we want with that.’ And so you had a number of tribes, I’m not sure how many tribes. I know initially there were like 20 some odd tribes that were part of the original pool of self-governing tribes. I think their numbers now are up into the 40s, maybe even more now. And so you’ve got self-determined tribes, now you’ve got a body of self-governing tribes, and we’re still sort of in that sort of mode right now.

But then of course, once the gaming phenomenon just erupted, now you’ve got the casino tribes and they’re sort of a whole other thing, a whole other level. And yet because, if tribes were going to engage in class C gaming, which is the most lucrative, they are required under the federal law to negotiate a compact with the state and the Supreme Court, unfortunately, has interpreted that to mean that the state essentially has a veto power over tribal decisions. So even when tribes had the, what they think is their largest amount of leeway, federal lawmakers still find ways to give either themselves or to delegate to states a power that essentially amounts to a veto power. And so even there there are constraints. And yet you’re right, as you were saying a moment ago, tribes are having opportunities now to do things that a generation and certainly two or three ago weren’t even on the horizon.”

Ian Record:

“I had a colleague once describe the Indian Self-Determination Act of 1975 in this way, that ‘the federal government cracked the door on the ability of tribes to take over meaningful authority over their own affairs, and that some, not all, but some tribes drove a Mac Truck right through that door, that they kicked the door in essentially.' What do you think has been the difference between those tribes that have really been able to take full advantage of the new environment that...that act and its predecessors created and what has on the flip side held some other tribes back?”

David Wilkins:

“That’s a good question. And even with the Self-Determination Act, even with Self-Governance, I wouldn’t buy that analogy. I wish it were true. I think the door has been cracked and some tribes have widened it a bit and the self-governance tribes have widened it a bit further and casino tribes, the ones that are really doing well, have widened it a bit further, but there are still profound constraints on tribal economic and political and legal and cultural decision-making authorities that states don’t have to worry about, that individual citizens don’t have to worry about, but that we still do because of concepts like the doctrine of plenary power, the Doctrine of Discovery and various other legal ways in which the Supreme Court and the Congress and increasingly states are in positions in which they have the authority and have the power to restrict us, you see. And so while I think it would be nice to try and argue that we have essentially free reign, we don’t and haven’t had that since the John Marshall era in the 1820s, since Johnson v. McIntosh in 1823, where the Supreme Court said we don’t own our own land and the discoverer gained the superior title to that. That doctrine still governs. So Native peoples on reservation land -- even if it’s land that they’ve never left -- still don’t have a superior title to their own territory. And so, I want to see the glass as half full too, rather than being half empty, but as someone who studied federal politics and federal law and policy, I’m well aware of how quickly and how emphatically federal lawmakers can come in and can absolutely lock us down and we have no recourse because we’re still denied full admittance into the international community despite the draft declaration and despite the permanent forum and despite other things. And so we have more freedom today than we’ve enjoyed for a very long time, but we need to be realistic and realize that we still don’t have as much freedom as I think we are treaty and trust base entitled to. And so that’s the reality of that I think we have to be aware of, always cognizant of.”

Ian Record:

“So David, I wanted to finish up with a quote, and this is by a rather well-known Onondaga leader named Oren Lyons, whom you know, and he said once that ‘The best defense of sovereignty is to exercise it effectively.’ I was wondering if you could respond to that and how you see that from your perspective.”

David Wilkins:

“Absolutely. Vine [Deloria] was always saying just that in his many writings about tribal sovereignty, encouraging tribes all along -- dating back to Custer Died for Your Sins and even when he was executive director of NCAI [National Congress of American Indians] -- to quit talking and to get out there and start acting, to start exercising, to start wielding the residual, inherent sovereign powers that you still have. He said, ‘They’re all there and if you don’t wield them, if you don’t use them, in their dormant state they atrophy.’ And when something atrophies in this society, it eventually becomes brittle and it breaks away or someone from the outside swoops in and just takes it away because they say, ‘You’re not exercising it, you’re going to lose it.’ And it’s the old water law doctrine, ‘Either you use it or you lose it.’ And I think that’s what Vine and certainly what Oren Lyons is referencing there. And that’s where I think tribes today are really doing some wonderful things. I think sometimes they go a bit overboard in fact with engaging in certain activities and basing it on the doctrine of sovereignty.

So for example, I’ve been researching the disenrollment issue and the banishments that have really been increasing dramatically in the last dozen or so years, and I hear a number of tribal officials saying that they’re exercising their sovereignty when they act to kick out bona fide members, bona fide citizens of their nations. And they say, that’s not an act of sovereignty, that’s an act of desperation, I think, because historically we found ways as tribal nations through our various adjudicative ways and our various judicial ways to, if there was a conflict, we found ways to restore balance, to restore harmony, to bring people together to negotiate, to arbitrate, to solve the difference. You just didn’t willy-nilly tell someone, ‘You’re no longer one of us,’ because you’re related to those people. If we view tribal nations as extended families, as extended kinship networks, there’s no way that I would kick you out if you’re my brother, if you’re my relative. You don’t cut off your arm. And we were talking earlier today during our meeting about this concept of membership versus citizenship and as I’ve been doing my research on disenrollment and banishment I looked up those two words. And if you look at the etymology of the word membership, it dates back, its earliest meaning means an organ of the body and I think that’s the meaning that John Collier had in mind when he first coined the phrase tribal membership. He saw tribes as one living body of humanity in which all the people were related. That’s how Cohen understood us and that’s how historically we understood ourselves. And so if that’s the case, then that entire body is a sovereign body. And so you don’t act in a way to willy-nilly and arbitrarily cast off a portion of that body, because that’s who you are. And so I’m concerned when I see that kind of thing happening.

And yet as often as that’s happening, many other positive developments are also happening in which tribes are engaging in exercising sovereignty like the United Treaty that was negotiated just two summers ago up in Washington State between various Native nations and the United States and some Canadian First Nations, some Maori and some New Zealand, I mean some Australian Aborigines. And so that’s an act of sovereignty that Vine also encouraged our peoples to do a long time ago to engage in diplomacy amongst ourselves. We’re denied that under federal law currently, but there’s nothing under federal law or our treaties that say we can’t negotiate with one another. And so this is an example of tribes in a positive way exercising their sovereignty to engage in diplomatic relations with other Native powers. And so when I see something like that happen, I smile and so that replaces my frown from disenrollment to a smile with engaging in diplomacy.”

Ian Record:

“You mentioned the positive ways that -- and the strategically beneficial ways -- that tribes are exercising their sovereignty and the ways that those exercises in fact help tribes, empower tribes to defend that sovereignty. And then you also talked about ways that they’re perhaps not exercising it beneficially in terms of advancing their long-term interests. It may make sense now, but in the long run it’s going to be to their detriment. We also see some tribes exercising their sovereignty in ways that are going to invite responses from other entities, other governments, particularly the federal government, state governments, that are going to put them in the legal arena and as someone who’s a student of the U.S. Supreme Court and how it treats tribes in this day and age, that may not be the best place for tribes to try to have their rights recognized, is it?”

David Wilkins:

“Right. Exactly. Exactly. Yeah, my dissertation was on the Supreme Court and most of my first publications addressed how the Supreme Court engaged in and arrived at various opinions that have had a devastating status over tribal sovereignty. And increasingly, as the Supreme, once Ronald Reagan became president, through his two terms, he was able to really stack the federal courts with a number of conservative ideologues. Clinton came in and he obviously wasn’t as conservative as Reagan and yet, his appointees were larger fairly moderate as well. George Bush with his most two recent appointments of Alito and John Roberts, as soon as I heard about those appointments, I knew that we were going to be in for a much longer stretch of rulings that were going to really have negative repercussions.

A graduate student and I wrote a paper in which we examined the Supreme Court decisions from 1996 to about, 1995 to 2003 and we looked at all the major decisions. While there were a couple of decent rulings during that period, for the most part, most of the opinions, over 80 percent of them were negative. And even David Souter, who voted most often in favor of tribes, only supported tribes about 23 percent of the time. Clarence Thomas, of course, is the most radically anti-Indian Supreme Court justice, followed closely by Scalia and now Roberts and Alito and Kennedy and it goes on down the list. And so historically, at least until the 1970s, tribes could turn to that august body of nine individuals to sometimes get a fair shake, but that’s simply not the case now. And so you have a situation where when tribes have a conflict, say a state is attempting to extend their jurisdictional authority over an area that has historically been run and governed by tribes, if they turn to Congress, they’re going to find not a positive ally, if they turn to the president, they’re not going to find a positive ally and now they turn to the Supreme Court, which had historically been their one occasional ally, that’s certainly, that door has largely been closed to them.

And what bothered me most recently, the latest Supreme Court decision, the Plains Commerce decision, which was just handed down a month ago or two months ago, I had read the oral transcripts. And someone had notified me about those and I was able to track them down on the internet and Justices Scalia and Roberts raised questions of the Indians’ attorney in which they essentially were mocking the tribal corporation. And I knew based just on that language and the laughter that ensued, I said, ‘We’re going to lose this case.’ I read some other opinions by other people, other Indian legal scholars who felt that we were going to, that Natives were going to win the case, but I could tell by the tone and by the mocking derision that was exhibited by Roberts and Scalia, I said, ‘There’s no way.’ And sure enough, we wound up losing that in a quite powerful and very harsh decision just two months ago, and so that was a further blow to tribal court authority.

And so until tribal courts are going to be granted the comity, the respect that state courts take for granted and that certainly federal courts take for granted, it’s going to be difficult. So I wonder sometimes when I hear people say the tribes need to develop courts, well, to what end? If they’re not, if their verdicts aren’t going to be accorded any respect, if they’re not going to be granted the kind of recognition that state decisions and federal decisions are, then what is the point of having that? And I say it on my darker days, and I still want many tribes to have some kind of adjudicatory body, it may not necessarily have to be a court system, but we need something in place so that we can provide some balance to the executive power and the legislative power, but if we’re going to have a court system, we need to find some way to convince our neighboring polities, the states and the federal government that they need to show our judges and justices respect just like our justices show them respect.”

Ian Record:

“Well, we’d like to thank Professor Wilkins for being with us today on this edition of Leading Native Nations, a program of the Native Nations Institute. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at nni.arizona.edu. Thank you for joining us.”