Devon Lee Lomayesva

Devon Lomayesva: Making Constitution Reform and Tribal Law Work

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

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

Thank you for having me

 

Good Native Governance Break Out 3: Tribal Constitutional Revitalization

Producer
UCLA School of Law
Year

UCLA School of Law "Good Native Governance" conference presenters, panelists and participants Melissa L. Tatum, Devon Lee Lomayesva, and Jill Doerfler discuss constitutional reform efforts. Melissa describes the purpose of consitutions. Using her own Nation's experience, Devon discusses the Iipay Nation's constitutional reform process. Dr. Doerfler talks about the White Earth Nation's recent consitutional efforts.

This video resource is featured on the Indigenous Governance Database with the permission of the UCLA American Indian Studies Center.

Citation

Tatum, Melissa L. "Tribal Constitutional Revitalization." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Lomayesva, Devon Lee. "Tribal Constitutional Revitalization." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.

Doerfler, Jill. "Tribal Constitutional Revitalization." Good Native Governance: Innovative Research in Law, Education, and Economic Development Conference. University of California Los Angeles School of Law, University of California Los Angeles, Los Angeles, California, March 7, 2014. Presentation.