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David Wilkins: Indigenous Governance Systems: Diversity, Colonization, Adaptation, and Resurgence

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Native Nations Institute
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In this in-depth interview with NNI's Ian Record, federal Indian law and policy scholar David Wilkins discusses the incredible diversity and sophistication of traditional Indigenous governance systems, the profound impacts colonial policies had on those systems, and how Native nations are working to aggressively to reclaim and reshape those systems to meet their contemporary challenges.

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Wilkins, David. "Indigenous Governance Systems: Diversity, Colonization, Adaptation, and Resurgence." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. August 6, 2008. Interview.

Ian Record:

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

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

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

Ian Record:

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

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

Ian Record:

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

David Wilkins:

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

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

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

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

Ian Record:

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

David Wilkins:

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

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

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

Ian Record:

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

David Wilkins:

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

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

Ian Record:

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

David Wilkins:

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

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

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

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

Ian Record:

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

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

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

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

Ian Record:

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

David Wilkins:

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

Ian Record:

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

David Wilkins:

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

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

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

Ian Record:

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

David Wilkins:

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

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

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

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

Ian Record:

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

Angela Wesley: Huu-ay-aht First Nations' Forging of a New Governance System

Producer
Native Nations Institute
Year

Angela Wesley, Chair of Huu-ay-aht Constitution Committee, discusses the painstaking effort the Huu-ay-aht First Nations undertook to develop a new constitution and system of governance, and how they continue to work to turn the promise of self-governance embodied in their new constitution into governance practice.

People
Native Nations
Resource Type
Citation

Wesley, Angela. "Huu-ay-aht First Nations' Forging of a New Governance System." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Interview.

Ian Record:

Welcome to Leading Native Nations. I’m your host Ian Record. On today’s program we are honored to have with us Angela Wesley. Angela is a proud member of the Huu-ay-aht First Nation and has worked since 1980 with First Nations communities throughout British Columbia. Since 1992, she has been providing advisory and facilitation services in the areas of strategic planning, community development, communications and community engagement as well as governance capacity building. In recent years, her focus has been on providing assistance to her own nation as well as the other four First Nations that are signatory to the Maa-nulth Treaty. As Chair of the Huu-ay-aht Constitution Committee and member of the Huu-ay-aht Treaty Governance and Lands Resources Committees, she was instrumental in the development and community ratification of the treaty, the Huu-ay-aht First Nations Constitution and a suite of foundational laws that set the stage for her nation’s return to self governance as of April 1st, 2011. Angela, welcome and good to have you with us today.

Angela Wesley:

Thank you. It’s great to be here.

Ian Record:

So I went through your rather voluminous bio and shared some of the highlights, but why don’t you start off by telling us a little bit more about yourself. What did I leave out?

Angela Wesley:

I think you pretty much covered it. Some of the things that I’ve done more recently, or that I’m involved in more recently, involve being involved on some boards. And one of the things that I’m really liking doing right now is venturing into the academic world a little bit and I’m chair of the Nicola Valley Institute of Technology as well, which is a public post-secondary institute in British Columbia that was founded by First Nations in the interior of BC [British Columbia]. So I’m really starting to see my abilities to cross over and start sharing information on governance through that field as well, so really an exciting new eye opener for me and a new venture for me.

Ian Record:

So we’re here to talk about governance reform, constitutional reform and specifically the work that your nation has been involved in in arriving to the point it’s at today. And I’m curious -- let’s start at the beginning -- what prompted your nation to consider going down the reform road to begin with?

Angela Wesley:

Well, I think it’s a bit different in Canada than it is in the [United] States, where we didn’t have constitutions as I understand tribal governments in the States do. Really we were embarking on nation rebuilding. The constitution was one piece of what we were doing in rebuilding our nation. Our nation was involved in treaty negotiations and has been involved in the BC Treaty Commission process since about the early 1990s. So in thinking about where we wanted to go and really thinking about the vision for our nation, that’s what sort of prompted us to look overall at our nation and what needed to change. As we got deeper into our treaty negotiation process, we realized that we really needed to reform our government and start to rebuild our nation into something that meets the vision of our community. We started off I think back in the 1990s -- and not to say we didn’t always have a vision -- but we started to try to articulate that and bring that to our people and to say, ‘Where is it that we want to go as a nation? Clearly we have some healing that we need to do. We need to change the way we do business.’ So we really spent a lot of time talking to our people about what we wanted for the future, and our vision statement is not dissimilar to almost any First Nations’ vision statement, where we want a healthy community, we want to be able to govern ourselves, we want to make our own decisions, we want to set our own priorities, we want to revive and strengthen our language and our culture and we want opportunities for our people for the future. And that really set the tone for an entire nation rebuilding process I think.

Ian Record:

So it became obvious very early on that, 'If we’re going to fully engage in the treaty process and take advantage of that opportunity, we need to jettison the Indian Act system altogether and develop one that reflects who we are and where we want to head.'

Angela Wesley:

Absolutely. One of the biggest pieces that we were looking at or one of the bigger pieces we were looking at in treaty is the ability to have self government. We struggled originally in our treaty negotiations. We were being told by Canada that they wanted to keep self government outside of the treaty and that was a show stopper for us. Unless self government was included in the treaty and protected by the Constitution of Canada, we weren’t going to have a treaty. So on the basis that that was something that was so important to us we realized that we needed to start building our constitution and talking about what we wanted from our government in the future.

Ian Record:

We’re talking a lot at this seminar that the Native Nations Institute is holding on constitutions and the importance of process, that often for many Native nations, whether in U.S. or Canada or elsewhere, that there’s a broad recognition among people in the community that our current system is not working for us, it’s not going to get us where we need to head, but then a lot of folks have difficulty getting from that point to the point of a new system. Can you talk about the process that your nation devised to develop this new constitution, to engage in this nation rebuilding effort?

Angela Wesley:

Sure. I just want to start by talking about maybe there wasn’t such a broad recognition by our citizens of the situation that we were in and I think that sort of formed the basis of how we approached communication with our citizens as well. We started off, we have a general, what we called a 'band meeting' at the time, and I give a lot of credit to our leadership at the time and our former chief counselor Robert Dennis, Sr. was very instrumental in putting a process in place that the people would feel comfortable with. So it was opened up to the floor and it was the citizens that appointed the committee that was going to look at the constitution and we were told to go and find out what people wanted. So we were given a lot of flexibility and latitude in terms of how we approached things. So we really sat down, we talked as a committee about what it was that we wanted to achieve. We talked about our vision, the need to really get people to understand that that was the basis of moving forward was that we all had this collective vision and it was a vision of the people, it wasn’t a vision of a specific government or a specific council and I think that’s how we started. We did a lot of research, we looked at constitutions of other nations, we talked about other peoples’ experiences, and really what we started with was a questionnaire process. Once we had talked we went and did a little bit of interviewing and speaking with our people about the vision and is that in fact what we wanted. I don’t think anybody could argue with that’s what we wanted, we want to change our world, we want a better place for future generations. And everybody agreed with that.

So having said that, then we started to probe a little bit further, what people wanted from their government. So we started with a very intensive questionnaire process, and I always give credit to a young woman in our tribe, Trudy Warner. She was in her 20s at the time and very enthusiastic. She was working with us and she was assigned to the committee to be our administrative support. She ended up taking a questionnaire around, and I don’t think it was so important what was in the questionnaire as the fact that we went out and talked to people about it. So we devised some questions, some of them were good, some of them not so good, but it opened up the doors for people to start to tell us what it was that they wanted. We asked about terms of council, we asked about what kind of ethical behavior we expected of council, we asked about what kind of terms we thought would be appropriate, we asked about how disputes might be resolved, we asked about how to incorporate our traditional hereditary system into our government, which was huge for us. That was one of the things we really wanted to do. So we engaged in a process of communicating with our numbers over a long period of time. We probably did this over five to seven years on and off; it wasn’t consistent. We were a committee and we were limited by finances and what we could do; it was very expensive. We have probably 80 to 85 percent of our people living away from home, so it involved going out and going to the people or bringing them in, which was very, very expensive as well. But we really, we talked a lot to our people, we talked we brought that back and we talked as a committee about what that meant and what did our people really want. I think that some of what we found was that what I started with is that people didn’t really understand the system that we were under. We’re so used to blaming our band councils for things that go wrong without understanding that the Indian Act is behind all of that and that our councils really are structured under an Indian Act system that so clearly does not work for us, that oppressed us for so many years. And that’s what our people grew up with. So a lot of people didn’t know about our traditional systems, they didn’t know how we used to govern ourselves. All they knew was this oppressive system that we’d lived under that had hurt them in huge ways.

So sort of interesting, maybe to back up a little bit to the questionnaire process, our young citizen went out door to door, bless her heart, by herself and knocked on people’s doors and said, ‘I have this questionnaire and it’s my job to come and talk to our citizens about what it is you’d like to see in government.’ And she heard a lot of venting. So we tried to give her a lot of support and told her to not to react, don’t get defensive, don’t feel like you have to defend the council for things that happened 30 years ago, but listen, allow people to say what’s on their mind and bring that back to us, because that’s all relevant to what we need to change in the future.' Along with that commitment from the committee, she also had a commitment from our chief councilor at the time, who said that, ‘If somebody needs to talk to me, come back and tell me. Don’t take it on for me, but I will go.’ And he made that commitment and he did go and follow up with people, which was huge. So once people had a chance to get some of that stuff out that they had been holding on to a lot of times for 30, 40 years -- people had gone been taken out of our community, they’d gone to residential school, they’d seen what had happened to their parents and grandparents in the community and they’d gone from there and never come home. So these are people who have memories from the past that aren’t good memories in a lot of cases. So we were able to get through a lot of that. When people had the chance to just say that and get it off their chest with nobody trying to defend how they feel, then they kind of went, ‘Oh, okay.’ And they would say to Trudy, ‘Well, what are you here for?’ She’d say, ‘Well, I have this questionnaire.’ And they’d say, ‘Oh, come in. Who are you and what family are you from?’ And there was this warmth all of a sudden that, ‘Come and have a cup of coffee and do what we do traditionally,’ is share information. So she was able to, I think, with her personality, with her youth, with her enthusiasm and with the commitments and backing that she had from the committee and from our leadership was able to break through in a lot of cases and make people feel Huu-ay-aht again. We actually had people say, ‘I didn’t think I was Huu-ay-aht anymore, I didn’t think anybody cared about me. But I was important enough, somebody came to my house and talked to me about these things.’ It was a huge breakthrough for us.

Ian Record:

It’s interesting you bring up this thing about recognition. My experience in the many nations I’ve worked with on constitutional reform -- primarily in the United States -- has been that people in the community fixate on the symptoms of dysfunction, which typically means they focus on the council, ‘Everything that’s wrong with us is because of the council,’ when they don’t it’s very difficult for them to draw that connection back to the roots of the dysfunction, which in many cases are an imposed system of governance. How important was it for you guys to shift that focus in your community to show people that, ‘Look, at the root of what ails us, what’s holding us back,’ if you will, ‘from rebuilding our community into something that we think is important and is culturally relevant is this system that is not of our own design.’

Angela Wesley:

It was the foundation of our communications, both in our constitutional communications as well as in our treaty negotiations. We just felt that it was so important for us to realize that there was no way out of that system unless we created something ourselves, and that’s what we were trying to do through treaty negotiations, to be able to get governance tools, access to lands and resources, additional financial boosts that could help us to move forward and to create that economy for our people. So in order to do that, we had to show that there was nothing in the current system that we could see that was going to allow us to dig ourselves out and to be able to change our world. We needed something else to add to it and having governance, having good governance in place through our constitution together with having some extra tools, access to lands and resources, recognition of our rights, the ability to build the economy was what was going to change our situation. And like I said, so many of our people just had no idea what the problems were and when we started to talk about that I think it really opened eyes and gained a lot of support. And the support wasn’t 100 percent. A lot of people were taking a leap of faith. We were creating trust through doing this kind of communications with our people and saying, ‘Can you give us a chance? This is what we think is going to help us to change our world. Let’s do all of this together.’ So that was it was really the root of what we were communicating to our people is that how else are we going to change, how else are we going to change our social situation because it’s not good the way it is right now.

Ian Record:

I wanted to back up to something you said earlier about the importance for Huu-ay-aht of having this new governance system that you were creating be an expression of the people’s will and not necessarily an expression of political will, meaning you wanted to ensure that it was the product of the people as a whole versus the product of a particular council or particular elected official or someone else. And we’ve seen where other nations have succeeded with constitutional development or reform, that recognition going into the process, that we’re going to sabotage our own effort if this either becomes politicized or becomes viewed as a politicized process at the very beginning. Can you speak a little bit more about why that is so critical to sort of make sure that the process itself is an apolitical process in how you guys ensured that you insulated it from sort of the political impulses along the way?

Angela Wesley:

Yeah, it probably was a key to our success in terms of the communication or in terms of the approval and ratification of the constitution. I can’t give enough credit I think to our leadership to be able to have stood back not only from the process of building a constitution, but also recognizing that we were trying to incorporate in some fashion our hereditary system back into our government or at least the ability to do that as time went on into the future. And again our chief councilor at the time is a very traditional individual as well. He’s a historian for our tribe and I think that really helped to show people that we were really trying to do what was best for the nation. So there wasn’t political interference, but there was huge political support for developing that system and I think that the leadership showed that they weren’t afraid, that they weren’t afraid of the changes that were coming up because this was what was the best for the nation. So the separation is good, but the leadership was such a critical element of it as well to be able to stand up and really support what we were doing.

Ian Record:

It’s interesting you keep using the word 'support,' because where we see tribes succeed is where the elected leadership plays a supportive role, not a directive role. Where we see tribes struggle is where the reform process is quickly viewed by people in the community as just another initiative by the current leadership that’s in charge. Do you see that as crucial where do you see that as maybe sending a message to the people in terms of, ‘This is something that’s so critical that it’s got to be bigger than us as a group of leaders, it’s got to be about the nation as a whole?’ Did people kind of stand back and say, ‘Wait a minute. This is a real opportunity for us to re-engage, to have our voices heard,' as you mentioned? You mentioned the one person saying, ‘Wow, my government’s never asked me for my opinion on anything before,’ to say it’s not just a command and control decision anymore, this is going to happen from the ground up.

Angela Wesley:

We really it is critical. We really emphasized that with our people as well to say when and who have you ever seen that’s had the opportunity to say how it is that we want to be governed as a nation. To take advantage, we encouraged people to take advantage of that possibility; we encouraged people to use their voices in a positive way. The system that we were in, I think, really led people to be complaining about things all the time. There was no way out, there was no way to resolve disputes, they just went on and on and on. And to have us going out into our community and talking to people about solutions and to have them feeding into, ‘Okay, if that didn’t work, what can work and how can it work better for us, how can we take how we used to govern because it sustained us for thousands of years, how can we take those principles and those values and move them into our government of today so that we can do things better?’ And I think people understood that and it didn’t even really become a visible issue of, ‘Oh, it’s not the politicians that are involved in this?’ People just started to engage because they liked the conversation. So I don’t think it was so much a factor that people hung anything on the process and said, ‘Well, the politics aren’t involved.’ I think they just started liking having the conversation and started feeling more and more comfortable with it. Probably one of the earliest things that people really responded to was the chapter in our constitution that talks about individual rights, to actually see in black and white that people would be treated equally, that they would have equal opportunities within the nation as citizens of the nation; that really sparked something. So starting there, having that conversation as a basis for our communication on the constitution was really, I think, winning as well.

I think people really felt that it was something that was going to reflect what it is they wanted. Because when you go out we often talk about how you explain such complex matters to people who are just trying to get by in their lives and we really chose to try to make our communications really relevant as opposed to saying, ‘This is what provision 16 is going to say in legal language.’ We tried to keep our constitution as plain language as possible and to make it relevant to people because that’s their question, ‘What does this mean to me and my family? How is this going to change the world? How is this going to protect the assets of our nation for future generations, for those who aren’t born yet?’ Those are the kind of things that were on people’s minds. So having the conversation around those kind of things as opposed to around what the provision is going to say, we tried to capture what people were saying and put it into the language.

Ian Record:

It’s interesting you bring that up because often the refrain that we hear in many Native communities -- particularly those that are struggling with reform -- is a sense among many in the community that they simply don’t understand why they should even care about the constitution. They have no sense of how it impacts their daily life, the current constitution and how a new constitution could improve their daily life, and so forth. And it sounds like that was at the forefront of your mind as you went into this process, is to educate people about and making sure that the deliberations were accessible so they could understand, ‘This is how this new system will improve your situation individually, your family’s situation, and the nation’s situation as a whole.’

Angela Wesley:

I think so, and I think that people saw that this was a way of helping to make our governments, future governments and present governments, more accountable to the people. The way the Indian Act is set up right now, your funding flows from the federal government to the council. So the accountability of councils in a legal sense is right back to the Ministry of Indian Affairs, and there’s really not a whole lot of concern on the part of the department as to whether you are accountable back to your citizens. It’s becoming more and more prominent now, but and it’s also becoming more and more of a practice among First Nations to be accountable to their people. So despite the fact that it’s not really a requirement -- although Canada has paid a lot of attention to that in recent years -- nations are becoming more accountable to their citizens and citizens are demanding that accountability. And I think the constitution strengthens that and allows us to do it  to have councils be accountable in a way that is acceptable to the people. What are you going to report to us, when you are going to report to us, to see that these things have to happen? They have to happen according to our own laws, not according to the Indian Act or Ministry of Indian Affairs. It’s because this is what our people want.

Ian Record:

It sounds like things have gone well with your nation in terms of governance reform, really governance rebirth, if you will. But I’m sure at some point you encountered some challenges.

Angela Wesley:

Oh, absolutely.

Ian Record:

And given that it took you seven years, I’m sure there were lots of challenges, a lot of bumps in the road along the way. Can you talk about some of the biggest challenges that you faced in the reform process and how you worked to overcome those?

Angela Wesley:

Well, I think the whole...in terms of our community, I think what I’ve just been talking about in terms of the understanding or lack of understanding of the reality of our situation was probably the biggest hurdle that we had to overcome in the development process. We did end up with a high approval rate of our constitution and of our treaty, and I think it was just our people agreeing that we needed to take this leap of faith, that this was our chance to try to do something for ourselves and to do it our way. So I think that that was a big leap of faith.

Ian Record:

That sounds to me like that was an initial challenge of getting the people to recognize the reality of their situation, of just how pervasive the Indian Act how it affected them in so many ways that they may not have been aware of. But how about when you got really into the process full-bore, you got beyond that initial education, were there some other obstacles you encountered, external factors, internal factors that threatened to derail the process?

Angela Wesley:

You know, politics will always sort of pop up and matters become more urgent as time goes on, but I think that by and large, given the process that we went through, I think we were able to overcome any kind of hurdles. I think that the committee that was put in place and the leadership that we had in place was able to work together to understand that we were there to support each other and that made a lot of difference, I think, to how we approached when we were getting towards the end when it’s sort of crunch time and you’re going to start looking at going into a vote. There was some apprehension on the part of our leadership and our council maybe that, ‘Where is this going to go?’ They were sort of feeling like any arrows that were going to come were going to come towards them and we said to them, ‘Well, we’re the ones as a committee that should be taking some responsibility, and feel comfort in the fact that we’re happy to stand up in front of our people and explain why the constitution is the way it is,’ and it is entirely because of what it was that people wanted in our government in the future together with trying to build a system of good governance. So I think we overcame those.

The challenges I guess that we’re looking at now, we’re two years into being self-government or self-governing and it’s hard. We didn’t expect it was going to be easy. This I think now is when we’re starting to face the challenges, when we realize what it means to be fair, to treat people equally. When those things that our people told us that they wanted, it now takes much longer to make a decision because you have to go through, you have to be transparent, you have to treat people equally. There aren’t exceptions. If there’s an exception for one [person], you’ve got to think of how that’s going to happen and play out for the rest of the citizens as well. So what all sounds really good and is really good takes a different process and takes a different way to be able to move forward. So I think we’re having those kind of challenges right now.

I’m seeing I’m not working directly in my nation right now, but I’m still always very connected. I’m working with our economic development side now actually, so sort of shifted over into that. But you see our leadership struggling. They want to do things right. They want to follow our laws. And I think if there’s things that can be learned, it’s to really think about what this is going to mean as you’re drafting your laws, because I think in some places we found that we’re almost overly accountable and what we don’t want to do is to constrain ourselves with our own laws. But the beauty of being self-governing is that we can change those things if and when we need to. And recognizing that I think is a big part of our learning curve.

So being self-governing doesn’t mean that everything is working perfectly for us right now -- far from it -- and when will we ever be doing things perfectly? No government ever runs perfectly. But we certainly feel better, I don’t think that there’s a person in our nation that thinks that we made the wrong decision in taking on self-government and doing it for ourselves. It’s hard, it’s going to be difficult for us as we continue to move on but we’re getting better at it every day.

Ian Record:

So it sounds to me given that you’re just about two years now into your new governance reality, if you will, that your nation is still working to grow into its new constitutional skin, its new governance skin, it’s going through those growing pains of actually transforming that document on paper into practice.

Angela Wesley:

Oh, definitely.

Ian Record:

And this is something we hear from a lot of other folks, we’ve worked with a number of tribes who are now three, six, ten years into their new constitution and system of governance and they describe this same sort of dynamic taking place, where it’s one thing to have a new constitution and it’s quite another to actually live that in practice. And I would imagine for you as with other some of these other nations, you’re really the larger task really is to transform the political culture that has been in place in your community for so long, the Indian Act culture. In the U.S., for many tribes it’s the Indian Reorganization Act political culture, where suddenly you can no longer go to the council for absolutely everything that ails you, every problem you have. Now there’s processes in place that you have to follow. Can you maybe shed a little more insight into how that’s unfolding in your community, and I would imagine it entails an ongoing education challenge does it not?

Angela Wesley:

It is. It’s definitely a learning curve. Under the Indian Act, as we’re hearing in the courses through NNI and the kind of sessions that we’re in today, you need to put up the mirror sometimes and see how it is that you’re operating. Councils are expected to do everything. That’s the history of most First Nations in Canada and I assume in the U.S., and transforming at the leadership level into being visionaries and creating the environment to succeed is a really difficult thing to do, because citizens still expect you to go and take care of everything, all of the things that are going on in the community. So it’s difficult for citizens because they can’t do that anymore, and it’s difficult for leadership to try to let that go and to put the administrative systems in place that allow the questions to be answered and that allow give citizens a place to go to get their questions answered instead of to the political side. So it is, it’s a transition; it’s a huge transformation. It’s a new way of doing business and operating our government. So it’s I give a lot of credit to our leadership in trying to get through that and trying to remind themselves every day that they need to show citizens where they need to go to get their questions answered as opposed to coming to them, because that’s the critical part is that you can’t leave our citizens hanging, they’ve got to have somewhere that they can go and that’s the council’s role.

Ian Record:

And I would imagine this clarification, redefinition and then ongoing clarification of the new roles within your new system is absolutely critical, because as you’ve laid out, your governance, your new governance system is expected to achieve far more ambitious things than the previous system was under the Indian Act. You’re tasking your governance system and the leaders who lead that system with creating this brighter future of your own design. And so I think this point that you brought up is absolutely crucial, where you’ve got to make sure that you create the space for your leadership to be visionary and to actually figure out, how do we implement the vision that we’ve created for ourselves for our own future?

Angela Wesley:

Yes, definitely. And being able to feel comfort in the organization that we set up is the other big part of it as well. You can put your constitution in place, but unless you’ve got an effective administration as well to be able to take care of that we had to do a lot of reorganizing at our administrative level as well. We had a typical First Nation operation or band council operation or band administration, where we had our band manager who had everybody in the organization reporting to them. So that person as well needed to be able to focus on making sure that the council’s wishes and directions are undertaken and that’s what their role is as well. So there’s a shift in roles all throughout the organization. People have to learn new things. People who are really good at managing resources now also have to learn how to manage people. So it’s a shift at all levels within the government and that’s going to take time, and I think we need to go easy on ourselves a little bit in these early years and just realize that we need to relearn a lot of things and we need to learn how to do business effectively and efficiently for the benefit of our citizens.

Ian Record:

So a couple things out of that. One is that I think what you’re referring to is what we’ve heard from other folks from Native nations who’ve been involved in reform efforts is you’ve got to in many instances dial back expectations, that just because you have a new constitution doesn’t mean everyone’s problems are going to be solved overnight. There is going to be a learning curve, we’re going to make some false steps, we’re going to do two steps forward, one step back kind of thing, but the idea is that we’re in charge now and if we find that something in the new constitution isn’t working, as you mentioned, that we have the power to change it.

Angela Wesley:

And it’s not  in our case it’s not only the constitution, it’s the treaty as well, which both came in place at the same time. Probably one of the biggest lessons learned is to have not only that reorganizational plan in place to get your government ready, but also to start getting the economic side and getting that plan in place as well and start to make sure that there’s even small steps towards making changes that people will see some of the early things that we’re able to change that made a difference to our people. As we changed things like our education policies, we weren’t able to fund trades before and now we have the flexibility to be able to do that. So we’ve made little changes like that that make a difference to the people and to plan to do things like that to start to address some things that you can point to to say to your people, ‘Yes, things are working differently now. We are making small steps and hopefully as we continue to grow and build our economy, we’ll have lots of successes that we can look at and that’s going to happen over time.’

Ian Record:

The other thing I wanted to bring up from your previous response is you mentioned that the band manager, their reality has changed because of this new governance system, and I think that that’s often lost on folks is that this new constitution, this new system of government, it will definitely change the role of leadership or clarify perhaps the role of leaders and it will transform it will necessarily transform the expectations citizens need to have of their government, but really what you’re saying is that it’s going to change reality for everyone that is either part of the nation, works for the nation, or interacts with the nation. And can you talk a little bit about how I guess compare and contrast the new governance reality at Huu-ay-aht with the old governance reality? Say I came and visited the community under the Indian Act system and I had to work with the band government on something and now I’m getting ready to come back, I call you on the phone and say, ‘What should I expect, how are things going to be different for me if I have to come and work with the nation on this particular issue?’

Angela Wesley:

I think there’s a lot of fundamental differences, and we’re getting used to working within a new system as well. Having a treaty, having the constitution to go along with it and having a whole new set of laws, things have to be done differently. It’s not as easy now as going up and calling all the council members together and sit down and, ‘We have this new initiative we want you to look at.’ There’s a lot of things that need to go into it before it gets to that council level so the way of doing business. Do you need a permit to be able to go out and do certain things on the land? Do you need to be talking with our manager of natural resources to get all of those kind of things in place? Nothing goes before our council now without a full briefing note and some options that are provided to them so that they’re making decisions based on full information. One of the things that’s in our Government Act is a requirement for the way decisions are made and it’s actually written into our legislation of what needs to be considered at the council level in making a decision particular, well about anything, but particularly in relation to things that require money. Have you got all of the information that you need in order to make the decision? Have you looked at what the impact is on other programs? Where is the funding going to come from? Are there other options here? Is there a need to consult the community on this? What kind of impacts there’s a whole list of those things that are in the laws. So it’s our law that requires those things get done and that means a much more thorough process is required. So things are different, things take longer and hopefully we can refine that as things go along, but it’s probably better to walk on the side of caution a little bit first, at the same time being able to move forward economically and be able to make those changes in our nation.

Ian Record:

So I mentioned in the introduction that you have been intricately involved in your nation’s development of a whole new suite of foundational laws. You get the new treaty in place; you get the new constitution in place. Where did you guys focus your lawmaking energy at the beginning? What to you was, ‘We’ve got to address these issues right now. There’s nothing on the books that helps us deal with X, Y and Z.'

Angela Wesley:

What we did in approaching our lawmaking was to look at the real critical areas. We had gone through a process that I described of creating trust in from our citizens that we were going to do things right. So the first laws that we put in place were, we called them 'laws that govern our government,' because people were a little afraid. What are these new laws going to be and are we going to be expected to have all these new laws in place that we need to know. We thought it was really important that we put in place laws that show our people that our government needs to be accountable. So we have things like a Government Act, a Code of Conduct and Conflict of Interest, Election Act, Citizenship Act, all of those kind of really foundational pieces. We didn’t start touching the bigger areas that we now have lawmaking authorities under like adoption, child welfare, education, culture and language. We’ve got lawmaking in a lot of areas, but we decided first that we need to continue to build the trust of our government and allow our government some time to settle in to governing well. So we really put laws, a lot of laws in place that talk about how our government operates and how they’re to be accountable back to the people.

Ian Record:

So basically what it sounds like you’re saying is you worked to enhance the lawmaking engine to then make laws in the areas where you had newfound or newly affirmed powers.

Angela Wesley:

Yes. Yes. Yes and to make sure that there were ways in place that citizens could have an input, that they would be able to always have a say in government, making sure that our Government Act specified for example what the rules were around having people’s assemblies where people would have their voice, what the rules would be around providing financial accountability back to the people. So these were our laws that we promised people when they said, ‘How can we be sure council isn’t going to run off with all the money that we get under treaty?’ Because the constitution says they can’t and because there’s a law that says what they need to do and how they need to report back to the people. So we’re making sure that those checks and balances were really firmly in place before we start venturing off into other areas. Other areas that were really important to us in lawmaking was protection of our lands. So we have a few laws that deal with lands and resources. Areas that still allow our people to exercise our rights, harvesting rights and that kind of thing, so we made sure laws and permitting process and that were in place so that on effective date people wouldn’t say, ‘Well, how am I going to go and hunt now? Where does all of this happen?’ So we worked really hard to make sure there was no disruption in those kind of activities as well.

Ian Record:

So I have a final wrap-up question for you and that deals with lessons. You guys were involved in a process that lasted several years, you’ve managed to come through the light at the end of the tunnel and you have a new governance system in place. What do you feel that other First Nations in Canada, other Native nations in the United States can learn from the Huu-ay-aht experience?

Angela Wesley:

Well, that’s kind of difficult to say. You never really want to say what we’ve done that other people should do. We’ve done what we think is best for us. We’re happy to share our story and to see if what we’re doing can be of any assistance to others. We are grateful to those who came before us as well, there’s now 10 First Nations in British Columbia that are no longer subject to the Indian Act. We learned from them. We learned from the Nisga’a, we learned from Tsawwassen, we learned from other nations that are self-governing under self-government agreements as opposed to treaties. So I don’t know how to answer that except for to say it’s really important to bring the people along because if they don’t understand the change that’s coming up, nothing really changes for them. It’s just a shift in power from one to another and they won’t see the difference unless they’re involved in that. So I think that’s probably the biggest thing that I feel proud of that we did in our nation is we really did our best to bring the people along.

Ian Record:

Make sure they’re on board the nation rebuilding train before it leaves the station.

Angela Wesley:

Absolutely. Absolutely, yeah. So it was a healthy experience for us. We’ll talk to a lot of our citizens who aren’t happy with the way things are going, I’m positive of it, but that will never go away either. But I think what we’ve learned through the process and what our citizens have learned is to use our voices and to try to be positive in terms of saying how things can be better. If it’s not working, let’s not just complain about it, because we can fix this if we want to. So I think that’s something that we’ve learned and that we’ll continue to learn as we become more comfortable in governing ourselves once again.

Ian Record:

Well, Angela, I really appreciate you sharing your thoughts, experiences and wisdom with us and good luck to you and your nation on your new governance journey.

Angela Wesley:

Thank you.

Ian Record:

That’s all the time we have on today’s program of Leading Native Nations. To learn more about Leading Native Nations and the Native Nations Institute, please visit the Native Nations Institute’s website at nni.arizona.edu. Thank you for joining us. Copyright 2013. Arizona Board of Regents.

Jill Doerfler: Defining Citizenship: Blood Quantum vs. Descendancy

Producer
William Mitchell College of Law
Year

Scholar Jill Doerfler (Anishinaabe) talks about the colonial origins of blood quantum as a criterion for determining "Indian" and tribal identity, and explains how the federal government imposed that criterion upon the White Earth people in order to divest them of their land. She also stresses the need for a return to citizenship criteria that protect, enact and strengthen Indigenous cultural core values, and details White Earth's recent effort to abandon blood quantum in favor of lineal descent as the primary criterion for determing citizenship.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

People
Native Nations
Resource Type
Citation

Doerfler, Jill. "Defining Citizenship: Blood Quantum vs. Descendancy." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"[Anishinaabe language]. Thank you so much to the Bush Foundation and also to Sarah and Collette for helping with the organizing today. I'm really honored to be part of the program. As Sarah mentioned, I did grow up at White Earth, that's where I'm from. I'll just make a note that I'm not a White Earth citizen. I'm what we call a first-degree descendant, which is that my mother is enrolled at White Earth and I am not enrolled due to the current blood quantum system. So that's part of my legal political identity, my personal identity as Anishinaabe transcends political boundaries I think in many ways.

We've heard some wonderful presentations so far today and today what I'm going to do is talk a little bit more about blood quantum, a little bit about the history of blood quantum and what's been kind of happening at White Earth the past few years. My research is on citizenship and identity and I've been working on it for a number of years. Ultimately what we know and I think what we'll come to talk about in our discussions is that there's no perfect system. All of these systems have pros and cons and we have to think about what can we work with that works best for each individual tribal nation and that is your decision to make so we're just here to share some information.

I always like to start out with, what is blood quantum because even though it's something that we're all familiar with and probably everybody here could sort of go around the room and tell us your blood quantum, what it is officially and then maybe what you think it is correctly, what the Bureau's [of Indian Affairs] gotten wrong. Ultimately, blood quantum is this western concept. Initially it was a literal concept at the turn of the 20th century where scientists thought that they could literally measure blood. Today we're sort of slipping into maybe a little bit more metaphoric understanding of blood quantum. We understand that blood can't literally be measured in that ancestral sense, but that it's a metaphor for affiliations that our ancestors had historically that then parcel themselves out through time and genealogy. So it's literal, it's metaphoric, it's a measure of race, maybe politics, maybe nation, maybe Anishinaabe blood, maybe White Earth blood, maybe...so there's that slippery concept as well between Indian blood, Anishinaabe blood, or White Earth blood. How is all of that measured out? How does culture fit in there historically? It was thought that that was part of the measurement that those kind of cultural affiliations and loyalties were literally in the blood. Today we don't believe that so much, but it's part of the history of blood quantum.

So originally, it's a scientific calculation of degree of percentage of an individual's either racial and/or national ancestry. It assumes that cultural beliefs, language, intelligence, political loyalties, all types of certain behaviors, all of that was thought to be transmitted biologically and to be held in blood quantum, and so blood quantum assumes that those things are transmitted literally or metaphorically in the blood. And as we've talked a little bit about, it's an attempt to racialize American Indian identity. It's an attempt to kind of undermine political status and turn the tables and say, ‘Oh, you're really a racial group. This is really about race versus about political identity.' So how is and how was blood quantum calculated, how have we seen this change over time to some extent? I'm going to share here a little bit of the history of White Earth and I would encourage each tribe to think about their own history of blood quantum, how they got their initial blood rolls and to look at how that happened.

This is a photograph of Ransom Powell, who was an attorney and hired as a special investigator by the United States government to look at blood quantum at White Earth and figure out the genealogy and the blood quantum of 200 families, about 5,000 people at White Earth at the turn of the century in the 1910s. And so here he is posing with three ladies at White Earth. And he came to do this investigation, to figure out White Earth blood quantums because at that time it was tied to land and so that's what it was about: figuring out who was a 'mixed blood' and who was a 'full blood.' The legal definition at the time was a mixed blood meant any drop...one drop of white blood meant mixed blood and so that's the definition that Powell was working with and he's sent to do this investigation and figure out who's a mixed blood and who's not. And so what he does is he starts by asking a variety of questions to people at White Earth, asking them about their blood quantum or the blood quantum of people that they know. Was Person X a full blood? Was so-and-so a mixed blood? And the answers that people gave at White Earth I always say are better than any answers I could ever even make up. So the historical record on this is very rich. So Powell asked these questions, he and his little team of investigators, and what people would do at White Earth is basically avoid his questions or refute them time and time again. So I'm just going to share a few quotes from the investigation.

One person said -- in response to these questions about blood quantum -- she said, ‘There was never no question about blood in them days, no sir.' Not just within recent years talking about blood, so here the lady who is on the stand is saying, ‘This is something totally new, we haven't really talked about that before. It's only come up within recent years, only within allotment years when blood quantum is coming to matter for land sale.'

Here's a nice quote where we see the investigator being quite accusatory saying, ‘Many of those...isn't it true that many of those who are known to have White fathers were living as Indians and considered in the tribe as Indians just as though they had no White father?' So you see here the investigator trying to get somebody to admit that there are people at White Earth who have White fathers and they're just like other Indians at White Earth and one person says, ‘Yes, sir.' And we see this time and again in the record. In fact, there are many people in 1910s at White Earth who had white fathers who were living in the tribe as Indians and they weren't excluded for that fact.

Another person asserted that there was no mixed bloods, that there's no such thing. That wasn't a concept or category. Part of this is also translation that's going on here between people who may be speaking Anishinaabemowin and English speakers and translating. It may also be refuting the category, that that's a U.S. government kind of category and we're not willing to use that category here. There's no such thing. That's something the U.S. made up. So there are different possibilities for interpretation on those.

Other people talked about how Anishinaabe people created their identity, they made themselves who they were through their actions and so a woman was being asked about her husband in this case and she says, ‘He was a full blood. He made himself a full blood.' And the investigator goes on to ask, ‘Oh, you mean by living like an Indian.' And she says, ‘Yes,' and they go on and she explains that through his actions he creates his identity. It's not something that he's born with, that he's locked into, that he has no control over. He has the control to create who he is by what he does.

Then those questions aren't going that well for Powell, right? This is like not helping him create his blood roll so he's like, ‘Let's move on. Let's also think about phenotype. Let's start asking some questions about skin color, complexion, hair, that type of thing.' And he gets an equally array of colorful answers. Here's an example. The person was asked, ‘Is so-and-so light skinned?' The person from White Earth says, ‘Yes, she was light. Some Indians are light, but she was an Indian.' And so here again, not using a category of mixed blood or full blood, just using the term 'Indian' and just saying that skin color doesn't necessarily determine identity.

This one is similar, but the person does choose to use the term 'full-blooded.' So in this case the man says, ‘Yes, he was light but he was a full-blood Indian.' And then there are an array of answers where people say, ‘I never took particular notice,' ‘I can't remember,' ‘I can't recall,' ‘I can't say what they were,' ‘Who knows,' ‘They were a medium shade,' and so there's all kinds of evasive answers going on and Powell is not getting anywhere really with these questions either. And so ultimately what has to happen is we need some anthropologists, right? We need somebody to come in with some scientific knowledge and help.

So Powell brings in Dr. Ales Hrdlicka and Dr. Jenks and they come and they do physical examinations. They measure heads, they scratch skin, they do hair analysis. Hair analysis samples were sent down to the University of Minnesota to the College of Ag [Agriculture] and Animal Sciences to be analyzed and they start working on their blood roll using that because they're not going to get the answers they want from the Anishinaabe people at White Earth. So ultimately we get our base roll via that process and then once you have your base roll you are free to calculate your blood quantum...here's a handy chart created by the Bureau if anyone wants to utilize this, it's available to them. So you have your base blood quantum and then you take both of your parents and you calculate on down the line and that's how we've gotten our blood quantums. I know other tribes have similar stories. You got a base roll somehow and then you calculate from there.

So, what meaning does blood quantum have? That's a big question for tribes to think about. Is this a good system? What does it tell us? How can it...is it useful in citizenship? What meaning does it have? We can think about people with an array of different blood quantums, maybe they have Oneida blood, maybe they have English blood, Ojibwe blood. What does it tell us about that person or Person B who has a little more variety of ancestry here? What does it really tell us about Person B? Do we know where they live? Do we know what their belief system is? Do we know what language they speak? Do we know how they were raised? No, it gives us this ancestral kind of picture, which may be useful to some tribes, but it doesn't really give us a whole lot of information.

What does blood quantum do? How has it functioned? Practically, it's functioned in a variety of ways. It's ultimately designed to erase and eliminate American Indians. The feds used blood quantum to try to reduce the numbers of people that legally are native. A couple of quick quotes. Scholars have done lots of work on how blood quantum has functioned and what it's done. Eva Garut has said that the ‘ultimate and explicit federal intention was to use blood quantum standard as a means to liquidate tribal lands.' Definitely the case at White Earth. ‘And eliminate government trust responsibility to tribes.' Dr. David Wilkins and Dr. Heidi Stark have said that ‘blood quantum is a new form of federal termination of Indians who are eligible for federal aid and services.' We also heard some comments about that earlier today.

So, nations are faced with those questions about blood quantum. What is it, what does it do, how does it work? And in looking at citizenship requirements, we've been, as was mentioned, we've been going through a process at constitutional reform at White Earth. The current effort started in 2007 although there were other efforts in the late ‘90s and also previously in the ‘70s and ‘80s as well at constitutional reform. But the effort I was involved in got started in 2007 and when we talked about citizenship, we talked about the history, we talked about how the Minnesota Chippewa Tribe came and White Earth came to use blood quantum in the ‘60s, what happened before that, look at that history, think about our values. And we asked many, many questions and here's just a few things that we talked about in our discussions. And citizenship was something that we probably spent the most time on during our constitutional convention process. Delegates found this was an emotional issue, it's an issue that impacts everyone and it really sets the foundation for the nation: who are we, who do we want to be, that type of thing.

So we asked questions like, ‘What kind of citizenship requirement will put our beliefs, values and culture into motion?' ‘How can we enact those values?' The things that John was talking about today, those big picture things, love...we talked about love as one of our primary values. How can we put that into action? How might our values of love and family be expressed in citizenship regulations? Which citizenship requirement will strengthen our nation? At that time we had a variety of options in front of delegates to take a look at, but these are the types of questions that some of you are thinking about changing citizenship requirements, replace your values in there and think about what can we do, how can we best express these things. Ultimately, the constitutional delegates at White Earth felt that lineal descent was the best option, that it allowed people choice where people create their identity, they have the choice to apply for citizenship provided they can bring the documentation necessary, but it puts that back on families, it puts a focus back on relationships in families. Is it by any means perfect? No, but that was the route that was decided to go with.

Sometimes we get this question when it comes to lineal descent. Won't there be too many of us if we kind of go with lineal descent? And here's a round dance event with lots of Indians. ‘Isn't this too many Indians here?' That's something for tribes to think about. How do we think about citizens? Are they assets to the nation? In what ways can a larger population be a positive thing?

What about resources? This is the other thing that comes with lineal descent. What are we going to do? We can't...we don't have enough for everyone as it is now, we're not going to have enough for more people. Citizenship and resources, entitlements, programs have to be to some extent divorced and they are already in tribes now. All these programs and services generally have requirements, an income requirement, a residency requirement, why not do a nice reciprocal requirement where if you're going to get a scholarship you have to volunteer a number of hours at the tribal pre-school in the summer? Why not require learning the language? Why not require taking courses on history? So I would encourage tribes to think about how qualifications for programs can be a little bit different than citizenship and how those can be parceled out, because not everyone is entitled to something and the chairman shared earlier the entitlement issues and that came up at White Earth as well. ‘Well, how are we going to have enough houses for everyone?' Well, the tribe isn't responsible for providing everyone a house. As Anishinaabe people, we have the responsibility to take care of ourselves and we have the responsibility to care for our families and so you end up bringing back some of those traditional values as well about our own responsibilities that we have. How can we keep our culture alive is something that we also talked about. We have to do that, speaking of responsibilities and actions and making our identity. It's not passed down in blood, it's not literal in that sense. That's our responsibility with our families and our communities to do that sharing and that teaching.

A few bits of information: how to move forward with your decision. Ultimately, I think what helped us was an inclusive and open process. All of our meetings were open; people could say and share anything they wanted. We looked at the history of citizenship in quite a bit of detail and then we looked carefully at how we could practice values within governance. And then ultimately patience and perseverance, right? This isn't an easy decision; you're not going to figure it out in one day. We worked on the initial constitution for two years, even though we had drafts from efforts previous to that and then of course now the decision is in the hands of White Earth citizens who are voting as we speak. It's a by-mail voting process that's going on right now and we'll be counting our votes next Tuesday to find out if we will move forward with a new constitution or if we will continue under our current structure. [Anishinaabe language]."

John "Rocky" Barrett: Constitutional Reform and the Citizen Potawatomi Nation's Path to Self-Determination

Producer
Native Nations Institute
Year

In this wide-ranging interview with NNI's Ian Record, longtime chairman John "Rocky" Barrett of the Citizen Potwatomi Nation provides a rich history of CPN's long, difficult governance odyssey, and the tremendous strides that the nation has made socially, economically, politically, and culturally since it began reclaiming and reforming its governance system back in the 1980s. He also shares his and his nation's working philosophy when it comes to economic diversification and the building of a self-determined, sustainable economy.

Native Nations
Resource Type
Citation

Barrett, John "Rocky." "Constitutional Reform and the Citizen Potawatomi Nation's Path to Self-Determination." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. March 28, 2009. Interview.

Ian Record:

"Welcome to Leading Native Nations. I'm your host, Ian Record. On today's program I am honored to welcome John "Rocky" Barrett, Chairman of the Citizen Potawatomi Nation. Chairman Barrett has served as an elected official of his nation since 1971, serving first as vice chairman and then becoming chairman in 1985. During Chairman Barrett's tenure, the Citizen Potawatomi Nation has experienced tremendous growth. With about 2,000 employees, the Potawatomi Nation is the largest employer in the Shawnee area and is a major contributor to the economic well-being of Potawatomi County. He was instrumental in the creation and adoption of the Citizen Potawatomi Nation's current constitution and statutes, which have provided the foundations for the nation's extended period of stability and progress. Chairman Barrett, thank you for joining us today."

John "Rocky" Barrett:

"Thank you for having me, Ian."

Ian Record:

"Well, I've introduced you, but if you'd please take a minute or so and just introduce yourself."

John "Rocky" Barrett:

"Well, as you said, I'm John Barrett, Rocky Barrett. That's a nickname my parents gave me at birth. My Potawatomi name is '[Potawatomi language].' It means ‘he leads them home.' I am a lifelong-almost resident of the area where our tribal headquarters is located, and have been on the Native Nations Institute Board [International Advisory Council] for I guess six years now. But it's an honor to be here. Thank you."

Ian Record:

"Well, thank you. My first question is the same first question that I ask of all of our guests, which is what is Native nation building, what does it entail?"

John "Rocky" Barrett:

"There was an interesting perspective that we heard on...from a number of tribal leaders today. It appears that the... for Native nations in general, that answer is as broad as the spectrum of individual tribal needs and wants, the way the tribes meet the needs of their people and their cultures. There are some commonalities. The common struggle of how we overcame the internal structural deficits that were imposed on us by the constitutional forms that the Oklahoma Indian Welfare Act, the Indian Reorganization Act gave all of the tribes around the country and the imposition of this quasi-corporate structure and the creation of these council authorities that didn't give a separation of powers -- how we overcame that, how we overcame the opposition of the states in asserting governmental authority and how we've...really how we've overcome the resistance of the free enterprise system in developing our assets have been...I think those are commonalities. The common attributes I think of successful nation building are stable governments, expanded representation, lawful behavior, and something that lends itself to consistent performance. All of those go back to constitutional forms, but they also...those are really accomplished by diminishing nepotism, which is...since everyone is related in an Indian tribe, that is an issue. Financial accountability is a huge one. Separation of powers seems to be a common attribute, and most importantly to make all that fall within a cultural relevance that means something to the culture of the tribe and the people."

Ian Record:

"A tribal leader...a fellow tribal leader of yours once said that the 'best defense of sovereignty is to exercise it effectively.' Can you comment on that statement based on your own experience?"

John "Rocky" Barrett:

"I will never forget the night that F. Browning Pipestem, a fairly famous figure from Oklahoma in promulgating the concept of Indian sovereignty and fighting for the sovereignty rights of Indian tribes, and William Rice, who's an attorney, who's a law professor at the University of Tulsa, gave a speech to our tribal government late one night back in 1983, and it was as if a light bulb went off, because [of] the idea that the exercise of sovereignty is what makes one sovereign. Browning ended up explaining it to several people that if it walks like a duck and talks like a duck, it is a duck. The business of the exercise of sovereignty...one hears too often this phrase, ‘We don't have to live up to our responsibilities or our contractual responsibilities because we're a sovereign and can't be sued.' Equally balanced with the responsibilities...or the authorities of sovereignty are the responsibilities of sovereignty. Our exercise of sovereignty really was a chain of events, I think, for our tribe and the concept of tribal sovereignty has certainly been interpreted differently in every single tribal environment. Our...the first opposition in my first election as chairman -- because I ran on this concept of tribal sovereignty in 1985 -- my opponent sent a letter to our congressional delegation in Washington saying that we don't want to be sovereign, we're citizens of the United States, which is completely outside of the point and displayed a clear misunderstanding of what sovereignty means or the historical context of pre-constitutional entities that were in place as functional governments before there was the United States and certainly before there was a State of Oklahoma."

Ian Record:

"How can leaders -- you've been through the ringer as a tribal chairman for more than 20 years now -- how can leaders manage the often overwhelming pressures that they face, things like citizen's expectations -- that's kind of the ever-present challenge -- social ills, onrushing events, never enough resources to do everything that you want to do. Then you have the other jurisdictions like the feds, the state, etc., and then you've got this big thing looming ahead of you, which is called the nation's future. How do you...how can leaders manage all those often overwhelming pressures in order to lead effectively?"

John "Rocky" Barrett:

"Of course everyone has a style of leadership and certainly every culture demands a certain pattern of behavior. Our tribe has a very unique history, having been relocated three times and then being subjected to a tremendous number of disincentives to stay on the reservation; the 1950s urban relocation program, the effects of the Dust Bowl days in Oklahoma, the fact that the area in which our reservation is located was...in the 1920s and ‘30s was an oil boom area and when the California oil boom happened a number of our people moved west for that purpose. Quite a number of things that caused our current population distribution to happen and leadership...I think leadership can lead to challenges of office and they're both internal and external. The only real way to meet that is by building a competent and professional management structure and then direct it with a clearly articulated plan of action and goals. And then I think any tribal leader, once you get that done, you should use all of the authorities of your office to protect that organization from...what happens with most tribes is that someone comes in whose objective is personal gain, and I think protecting the organization from people who have that agenda rather than the agenda of the greater good of the tribe. The other is to praise those that have a diligent work ethic and most of all I think to persevere in the face of adversity because it's a fairly...it is a constant that you will hear more from those who either have problems or oppose you for a number of other reasons. What's interesting in Indian tribes, the political oppositions are generational. Some of the folks who don't vote for me or don't care for me were folks who did not vote for or care for my two uncles that were tribal chairmen, my grandfather who was on the business committee, my great-grandfather who was the tribal chairman. I think that, unfortunately, there are some of those generational enmities that are there and there are those that believe that during that period of time when we had a very, very small group of people who exerted an undue amount of influence on the tribe's government because of the form of government when we had to govern by meeting in Shawnee, Oklahoma, and all elections and other decisions were made in that meeting, before we extended the absentee ballot privilege and allowed representation in a national legislative forum, that small group of people who exerted an undue amount of influence on the process of the tribe who were deprived of that undue influence, they are the ones who currently oppose whatever progress is being made. Some of that's human nature, it's understandable. I think our tribe in the...we had to make some extraordinary efforts to bring our people back into involvement in the tribal government because we had some extraordinary historical events that dispersed our people and there was a detachment from the tribal culture. We have 27,000 members. Nine thousand, basically, of them, 9,500 are in Oklahoma. The remaining are in eight sort of enclaves around the United States in California, in Kansas and well, here in Arizona there are about 1,500 in this immediate area, where there are these groups of folks who have been two and three generations removed from Oklahoma, bringing them back into the culture and making the tribal government something of value to those people that would make them or make them want to reassert their culture, become a part of it. The tribe has to make itself of value to its people and to accomplish that you have to reach them first. And so this structure of government that we have now and that we have been evolving into since 1985 is unique in that it was...that was required because of this distribution of people of where our membership is located."

Ian Record:

"One of the things I'm drawing from your answer to the last question is this issue of leaders as educators, that a major part of a leader's job is to educate and engage their people to essentially mobilize them, to get their input, to get them engaged in where the nation is heading as a nation."

John "Rocky" Barrett:

"Yeah, very much so. I haven't thought of myself as an educator, but as a motivator or of getting someone involved with the tribe. There seem to be two distinct kinds of rewards that our membership seeks: those who don't have physical needs that need health aid or need assistance with housing or education or some other form of assistance. Those are the folks who are most rewarded by the cultural aspect of the tribe, that go to the trouble to learn the language, to learn ceremony, to get their tribal name, to involve themselves in that culture that was a part of their heritage. Our tribe doesn't have a religious elite. Everyone in our tribe is enabled to perform any ceremony that we use because those ceremonies are their individual birthright and so because of that...and we have a long, over 300-year Christian tradition and the tradition of using our traditional ways, particularly a prayer...in our Christian prayers of using [Potawatomi language] and the using of sweet grass and cedar and sage and tobacco in those ceremonies that...those folks that seem to be most rewarded are those that rediscover the culture. The two often go hand in hand, someone who is helped by the tribe financially or physically often at that point is attracted by the culture of the tribe and begins to realize the value of, if nothing else, learning it so they can pass it on to their children. The system of meetings -- that we've been holding now since 1985 -- around the country are half cultural and half the business of the tribe. And watching people's attention in the audience, the cultural things seem to always generate more interest."

Ian Record:

"As I mentioned in the introduction, you first came into elected office in 1971, which is, by coincidence, the year I was born."

John "Rocky" Barrett:

"Ouch!"

Ian Record:

"Yeah. But I was curious to learn from you what you wish you knew...what you know now that you wish you knew before you took office in the first place?"

John "Rocky" Barrett:

"Well, hindsight's always 20/20. I think from the perspective of the '70s, the early understanding of...I'd like to say that I had these revelations in '71, '72, '73 of what was going to become of Indian...this was prior to the passage of the Indian Self-Determination Act. I was a 26-year-old vice chairman, my uncle was the chairman and he was -- along with my mother -- was an agency kid. My grandfather was the tribal...I mean, was the BIA [Bureau of Indian Affairs] marshal, the BIA police, and they lived at the agency across the street from where the tribal headquarters was and grew up as 'BIA kids' and my uncle believed, God bless him, but he believed that one could not have a formal meeting of the tribal government without the agency superintendent in attendance and that's what formalized the meeting. And I remember not finding the relevance in having the superintendent there because I had seen a number of instances where the superintendent's interests ran counter to those of the tribe and it was a period of time where...my realization that there was a...the Bureau was asking us to give them advice on the agency budget and then when we would, they would ignore us as far as the advice. And there were, almost at every stop, there was some deliberate statement of policy that the United States government and the Bureau of Indian Affairs job was to represent the interests of individual Indians and not tribes or tribal governments. And that had certainly been manifested almost entirely in the 1948 Indian Claims Commission settlements and it had forced us into a situation of closing our rolls in 1962 except for some arbitrary blood degree cut-off. The concept of blood degree was foreign to our culture and we did away with blood-degree determinations in constitutional amendments in the mid-1980s, but that period of time between '62 and '80 disenfranchised an awful lot of people and led to, on the whole, a great deal of the separation that the people felt from the tribe and its culture. It became all about splitting up this 'poof money' that was coming from the government, these little payments, and less about the fact that here we are a people with its own language and art and history and culture and territory and government that had been there for thousands of years, and suddenly we place these arbitrary stops in our system over a $450 check. In retrospect, it seems insane, and it was, just real truthfully it was. And Indian tribes around the country got caught up in this per capita business that is foreign...I know it's foreign to our culture, and I think it's foreign to most Indian tribal cultures. The very basis of tribal culture is uniting with a common purpose for the general good, and that doesn't mean cutting up everything into equally-sized pieces. Our tradition has always been those in need get served first, the mothers, the children, the elders, those people who are most needy are who are served. That has always been our tradition. The concept of...we had a [Potawatomi language], the word means ‘first hunter.' We had a man, who if there was a prolonged winter in the ancient days, who was best hunter who was sent out to kill game to relieve the famine in a village and in adverse circumstances. And when he brought that game back, if there were 150 people in the village, it was not cut into 150 pieces, it was distributed according to those who were most in need. That tradition hasn't changed. Earlier you mentioned a saying that we have adopted in our tribe about ‘don't eat the seed corn' as being our oldest tradition, and in our gaming establishments the cast iron railings around the balcony and in several other forms of symbolism are corn plants to represent that concept, that if you eat the seed corn you'll get one meal, but the village will starve because we won't have the crops in the future. And I think of all the things...of the two things that probably have led to the economic success and the governmental successes of the tribe has been that I have been empowered by the people of the tribe to take, as a first priority, to return our investment and to perform as a profitable business and an efficient governmental entity and take those returns and provide services. If the objective of our business is to employ unemployed Potawatomis or unemployable Potawatomis, without paying attention to whether or not that is a profitable behavior, what we've effectively done -- since 9,000 of us live in Oklahoma where they could get the jobs and two thirds of the population, another 18,000 live outside the state -- we have deprived the two-thirds of our population of the benefits of our revenues. So we can't make it about the one third who lives in Oklahoma. In order to make an equal distribution, you have to make the businesses operate at a profit, then invest those businesses, invest those monies wisely and then make a distribution according to need of the services. Always in every election, someone runs for office saying, ‘Let's take a portion of the money and hand it out as a per cap.' I mean, we have...I have an opponent in this election who's saying, ‘Set aside a third of the money of the earnings of the tribe and put it in some form of investment.' Well, we're already doing that, but the benefits that the individual tribal members are receiving now are in the form of some 2,000 college scholarships a year...a semester, the distribution of free pharmaceuticals for everyone in the tribe over 62, a burial benefit, health aids benefits, mortgage assistance. All of those things more than exceed what would be our total net profit divided by 27,000. Take any number and divide by 27,000 and then make it taxable -- which distributions are taxable on federal income taxes -- it's not a significant number. So much more can be accomplished by reinvestment, of putting that seed corn back in the ground, than can be in this distribution game because...I made, earlier I made a statement that per capita payments from tribal income are like feeding the bears at Yellowstone. When you run out of cookies, then the bears start to eat the people who are handing out the cookies. They're in the car with you. That's the same thing with per capita payments, it's a slippery slope. When 10 percent's not enough, if the revenues go down, then 12, then 15, then 20 then on up to where the consensus becomes, ‘Let's sell it all and send us a check and be done with it.' It has been a curse around Indian Country what's happened with per capita payments because it has not generated prosperity anywhere that I know of. It's been mostly about creating unemployment and destabilizing families and in many cases keeping people with an incentive to stay poor and stay in dire circumstances. We have become what we have become, because we've come a long way -- starting out in 1973 we had $550 in the bank and we had two-and-a-half acres of land held in common. We basically didn't have anything. We didn't even own the building in which the tribe was meeting. It belonged to the Bureau of Indian Affairs and was an abandoned structure that had belonged to the [Army] Corp of Engineers as a construction shack. We've come from that to the current economic impact of some close to $400 million in the local community, a couple thousand employees, and we've come to that simply by reinvestment and by leveraging the assets that we have into growth. It's certainly not all me. There has been...there have been a great number of contributors in the tribal government and an incredible cadre of loyal employees who have performed well. But the key to this is the tribe's consent to reinvest and if that consent somehow gets overridden by some folks who can't divide by 27,000, it would be a shame."

Ian Record:

"So that credo of reinvestment, is that something that could have ever taken place, taken root with the Bureau of Indian Affairs still in the driver's seat? You made reference to the early years."

John "Rocky" Barrett:

"The Bureau of Indian Affairs, after the trust fund payment was made, the '48 Indian Claims Commission payment was made, they managed our money for about 15 years and had just over a one-and-a-half percent return. I used to be able to pick up the Wall Street Journal and if I read about some financial scandal around the country, I could be absolutely certain that's where the Bureau had invested the Citizen Potawatomi's money. They had a legal obligation to earn at least treasury bill rate and they did not meet that legal obligation. And then Congress passed a law that said we could take those monies away from the Bureau of Indian Affairs, those of us that were part of the Cobell suit, suing the government for mismanaging the money and we did so. Intriguingly, about that piece of federal legislation involved several hundred tribes that are suing the government, only two have taken their money away from these inept investors, which I really don't understand. We put our money into a trust account at the First National Bank and Trust Company, which is the tribe's nationally chartered bank and invested a substantial portion of it in the stock of that bank, which we've had overall more than 20 percent return on that original investment each year for some 20 years or 18 years. Actually it's been more like 15 years because of the period of time that the Bureau had our money. It has been certainly a higher return than the Bureau got. The Bureau of Indian Affairs, as far as the attempts that we've made to get just some very small incremental gains in creating...you always hear the catch phrase, ‘the level playing field,' the criticism that comes from the ultra conservative side of the free enterprise system is that because Indian tribes don't pay taxes, it's not a level playing field. If you were truly going to level the playing field, then Indian tribes should be allowed to leverage their capital expenditures. We are the only corporate entities in the United States who make investments in capital assets: hospitals, office buildings, casinos, grocery stores and those assets can't be used for collateral to borrow money to expand. We're essentially cash operators because the trustees...solely because the trustee, the Bureau of Indian Affairs, will not tell a lender that, ‘We will on your behalf -- in the event of a default -- allow you to operate that business or take control of that piece of property.' And that doesn't require a change in law, it requires a change in policy at the BIA and is not, doesn't seem to be, after some five years of lobbying for it, a policy that is something the Bureau of Indian Affairs intends to change. If the Obama administration did anything else to increase the availability of capital to Indian Country, to increase the availability of collateral to lenders in Indian Country and to help Indian tribes leverage their existing assets, it would be to simply call up the Secretary of the Interior and say, ‘Tell whoever you have this week in charge of the Bureau of Indian Affairs to say to any lender in Indian Country, if the tribe defaults,' and there are appropriate documentation, ‘the tribe defaults, you can come in and run that business until you're paid back.' Simple. You would think it would be easy, but we can't seem to get that done. The other issue is of all the non-profit entities in the United States who...we are a tax-exempt entity. Of all the tax-exempt entities, 501c3 corporations can own Sub S entities [Subchapter S corporations] where the tax liability generated is passed through to the stockholders, except Indian tribes. We need the ability with our tribal corporations to create Sub S entities so that if we do a deal with the city, for instance, in building a sewer line or a water line and we don't want to expose ourselves to the vagaries of the state courts and the state doesn't want to expose themselves to tribal courts -- it's kind of like that Jimmy Buffet song about the ‘down in the Banana Republics,' they know they can't trust us and we know we can't trust them thing. At any rate, if we had this Sub S corporation, then we could consent to state court jurisdiction because we could limit our exposure to that contract with this Sub S entity and you don't have some avaricious lawyer getting through to the tribal treasury because it's...he's a tort claims wizard. The other, the third one is the only government contractors in the United States who do not have the power to use their government contract for collateral for operating funds are Indian tribes. The Assignment of Claims Act is being denied to Indian tribes on the flimsiest of reasons. And those three things would generate more capital than all of this impact money that the administration is putting in Indian Country now, just those three changes and I hope that happens."

Ian Record:

"It essentially sounds to me like it's about taking the shackles off of economic development for tribes."

John "Rocky" Barrett:

"A level playing field, to borrow a phrase."

Ian Record:

"You've been quoted as saying in the past that, ‘if you're not talking constitutional reform, you're not in the economic development ballgame.' Can you explain what you mean by that statement and particularly with respect to the path that your nation took?"

John "Rocky" Barrett:

"The Oklahoma Indian Welfare Act of 1936 gave every tribe in Oklahoma a constitution that described this business committee, which was a governmental entity that was supposed to be a representative body that had a presiding officer called the chairman, vice chairman, secretary, treasurer and two other members. And then over that, it put this thing called the general council, which I assume someone in Washington dreamed up this ideal picture of all of the Potawatomis gathered around the campfire and we'd democratically go from person to person and everyone voices their opinion and then there is this consensus, which is not how organizations work. Pure democracy hasn't functioned since ancient Greece, and the imposition of this thing called the general council on us caused us to reinvent the wheel every 12 months. The quorum for a general council meeting -- at which everything can be decided virtually, elect all officers, all rules, disposition of property, everything that was basically a tribal decision could be decided at this annual meeting -- and it had a quorum of 50 people. Now there were 11,000 of us on the tribal roll at the time that I took office and a quorum of 50, we had difficulty getting a quorum of 50 because the meeting over the years had become...we didn't have much business, we didn't have any money, we didn't have anything else going, but we did manage because of our unique natures to turn that into a six- or seven-hour adversarial conflict. And over the years, it had become so confrontational that the elders quit coming and there were so few people attending that basically 26 could decide for all 11,000. And to borrow a [H.L.] Mencken phrase, ‘It was the circus being run from inside the monkey cage.' It wasn't about government; it wasn't even like government. We didn't have laws, we didn't have a court, we didn't have anything other than this meeting and it was contrary to our culture. Our tribe had governed itself for thousands of years by having the clan heads elected a village chief, the village chiefs all met to elect an overall leader, who was there circumstantially. If we had a war, then the best tactician or the best leader was chosen. If there was a negotiation with a foreign government, the person who spoke that language obviously was one of the higher choices for that circumstantial leader and then those individual leaders went back to their respective villages or jurisdictions. We've always had a tradition of representative government. The imposition of this general council on all of the 39 tribes in Oklahoma led to a constant turnover of government, a constant system of chaos, it held us back for many, many years, and it was tremendously abused and it gave an undue amount of weight to those folks who lived there locally after the Bureau of Indian Affairs and circumstances had provided all these disincentives to leave. The policy of the government to erode our trust land base, in particular, incredibly erode our trust land base, caused most of our people to leave the area or to not participate. And that form of government stayed with us until 1985, and until we made that change in our constitution, we didn't get much accomplished. It was self-defeating and it gave...it also gave people who had another agenda an undue amount of influence within the council. Also the...not having in our constitution independently elected courts and a set of statutes and the ability to enforce the law on this end, and an independently elected executive where the money of the tribe is concentrated in the legislative appropriations process, but the legislative body can't run the day-to-day affairs of the tribe, they control the budget, and then the executive who has the authority to run the day-to-day affairs of the tribe, but have to do it within the confines of that budget. And then over here, the third party is an independently elected judiciary with a set of statutes and the ability to enforce the law. A government without law and the willingness to enforce that law isn't really a government. That's the ultimate act of sovereignty is not only enforcing the law, but be willing as a people to put themselves under the rule of law is the ultimate act of sovereignty. We didn't have any of that in our prior constitutions and I think any tribe that doesn't do that, even though...and I think if they look hard enough, it is within their traditional forum. There has always been some form of law in Indian tribes, in any social structure, but particularly in Indian tribes. Incorporating that traditional law into your statutory law is important, but the absence of law is not more traditional than a set of written statutes by anyone's interpretation."

Ian Record:

"So for your nation it wasn't just about economic development, constitutional reform was about, 'we need to put in place a process and a structure by which we can make effective, efficient decisions that are binding'?"

John "Rocky" Barrett:

"Absolutely, that we assume the responsibilities of sovereignty, that we have uniform commercial code, that we have a full faith and credit agreement with the states in which we do business, that we acknowledge that contractual obligations are enforceable under our law. That's responsible behavior in the community of governments of all kinds, not just Indian tribes. We didn't have any of that in our prior forms of government and the federal government fought us for three years before our first constitutional reform in 1985, particularly the issue of allowing our tribal membership to vote by absentee ballot, which is the worst kind of self-defeating behavior the Bureau could have imposed. And then when we came along and wanted the separation of powers within the tribal government, we wanted this newly formed legislative body. They resisted at almost every point. What a shame that it didn't happen sooner. Of all the things I regret in being in office for many years, in 1985 when we passed the new constitution, we created a separation of powers and it gave the chairman specific authority to run the day to day affairs of the tribe, it gave the legislature the authority to exclusively manage the money and the budget process and created the courts. At the time, I had been in office for quite some time and used to having this five-member body where if you were any good you governed by consensus, you tried to find something on which everyone in that group of five appointed, which they could agree. And so you became accustomed to rather than asserting executive authority to putting the things that were clearly executive decisions in front of this body and depending on your powers of persuasion. In 1985, I should have made a clear-cut definition of, ‘These are executive authorities and they're not subject to review of the legislative body and these are clear cut legislative authorities and they are not subject to the powers of the chairman.' In 1985, the day that passed, I should have made that absolutely clear, but in the interest of not changing the way we had done things for a very long time, I rocked along and didn't do that. And so when the constitutional revision came for the most recent constitutional revision, we weren't prepared for what was the inevitable constitutional confrontation where the majority of the business committee would usurp authorities that were obviously executive powers or attempt to. In this case, they attempted to simply fire me and say, ‘You're still the chairman, but you can't run the tribe. We're going to run the tribe based on the majority of three of us of the five, our majority decisions, we're going to make all the calls, hire someone to function in your place and pay them a salary.' And that was an obvious...there it was, there's the confrontation. So luckily we did have a court system, we did take it to court and what has become the essential decision on how our tribal government functions, our courts ruled on that issue that there is a division of powers, there is a separation of powers, there are separate constitutional authorities and that was the basis for the 2007 constitution, which memorialized or I guess defined the decisions of the 2001 Supreme Court decision of the tribe. But what a wonderful thing that we did that within the processes of the tribe, within our court system rather than the confrontation or the way we used to, the confrontation on the floor of the general council where after the low blood sugar kicks in about 5:00 it comes to blows and you have ensuing chaos. We did it in a lawful manner and that being accomplished, we did it to the successful outcome of the whole distribution of powers within the government and set the stage for what we have now in the 2007 constitution."

Ian Record:

"The Citizen Potawatomi Nation recently developed what has been termed a virtual legislature. Can you explain what that is, how it works, and why your nation developed it, and I guess, we were talking a little bit earlier this morning and you made allusion to some of the challenges that you're facing with that virtual legislature."

John "Rocky" Barrett:

"Which are a part of growth. The challenges that you face in anything new, as long as they don't destroy the essential function, are often healthy. They certainly were with the '85 constitution. The 2007 constitution created a legislative body of 16, eight from inside of Oklahoma where we have approximately 9,500 members, a third of our population, but all of the tribe's territory, all of the tribe's assets, all the tribe's revenues and all of the areas of the territory over which it exerts governmental jurisdiction. And then two-thirds of our population are outside of Oklahoma where we have for a 25-year period had a form of tribal consultation that we have promised would eventually be represented in the tribal legislative body and have some input on funding and how the tribe performs its services. The concern on writing the constitution was how do you balance this territory and assets and jurisdiction with this population issue? The compromise was to put eight in the legislature from Oklahoma, eight in the legislature from outside of Oklahoma and force a deadlock if the two can't come to a meeting of the minds, and that's basically what we have. It is a mandatory compromise between the interest of the larger portion of the population and where the larger portion of the assets and revenues [is]. And that has so far for a year has worked quite well. It's a virtual legislature because we built a closed or internal teleconferencing system, a relatively expensive one, between the eight regional or district offices around the United States where these district offices are located; one in Southern California, one in Northern California, one here in Phoenix or close in Phoenix, one in St. Louis, one in Topeka, one in Arlington, Virginia and one in Houston, I'm sorry, I mean Dallas, Texas, Dallas area. Those cover the whole United States. I'm sorry, one in Oregon, Washington and Oregon. Those eight districts cover all of the 50 states of the Union in their representation and we have a nine-segment screen and I'm the presiding officer as the tribal chairman and I have a touch screen in front of me and there are nine segments of the screen, one large one is whoever has been called on by the speaker or the presiding officer that has the floor and that turns on that person's microphone. The cameras stay on all the time so you can see all eight legislators and the room in Oklahoma at the tribal capitol where all of the Oklahoma legislators sit on the bottom. So this let's each member of the district legislators see and be seen, hear and be heard on a real-time basis in the legislative body. And all of that is simulcast or streamed over the Internet so that all of our membership can watch that, potawatomi.org, for the public to watch as well. What we didn't anticipate would happen is that the live broadcast over the internet of those proceedings in a new legislative body that has not adopted a set of rules under which it governs its behavior, that a member of the legislature would take over the campaign management of his brother to run for chairman and use the auspices of his office and that broadcast to promulgate that candidacy. That's an interesting development. It will certainly lead to the legislature adopting some form of ability on how it regulates its own behavior, what is or isn't allowable behavior as a legislator and within that format. It also goes to the heart of the overlap between executive and legislative powers or authorities, whether you can use the resources of your legislative office in a campaign for tribal chairman. Certainly, the Congress is no example to follow here because every congressman involves himself in the election of the president of the United States in some way and the president goes around and poses with, in a partisan manner, with members of Congress. So the United States Congress certainly has worked that out and every state legislature seems to have that same overlap between the legislative body and the executive office of states. Ours will probably reach that same compromise, there just has to be...the decision has to be made within that body as it develops its body of rules, what resources are allowed to be used within that context. It's healthy in some ways. It's not a disruption of the political process. The only problem is with a nationwide simulcast, what's said is said over the air. So one can, is protected by legislative, under tribal statute what's said in the legislative body is protected. Theoretically, it hasn't happened, but theoretically someone could say, ‘This candidate for office is a murderer' and that goes out over the Internet and there's no one to say, ‘King's X, take that back,' but that behavior, which is clearly libelous or slanderous, is protected. So we have some rule making to do, we have some things to take care of there. The internet...as a virtual legislative body, the internet and its impact on tribal government was something I don't think any tribal leader, even the ones of the folks elected of your generation who are certainly tuned into media and most certainly not of mine, of us baby boomers, we weren't prepared to how dominant that the internet and all of its manifestations would be in tribal politics. We earlier heard an explanation by an elected tribal official how a blog of the tribal council meetings has become the dominant tool in manipulating opinion on the reservation. Isn't that an amazing thing to hear? And speaks volumes as to what's happened within the life on reservations as we become all...we're all into that...virtually, I would assume less than probably five percent of the Potawatomi Tribe, Citizen Potawatomi Nation, probably don't have computers or email addresses. Communication in that medium, campaigning in that medium, and it's something we really ought to be embracing for the way we develop our cultural outreach, the way we spread our culture, the way we engage the elders and the way we engage our young people. If we're not fully aware of and in command of this tool, we are remiss as tribal leaders because it's as important as anything we've ever done because it is the dominant media."

Ian Record:

"So just a follow-up question, the move, the constitutional amendment your nation took in creating this virtual legislature was a concerted effort to reintegrate all of Potawatomi citizens as full citizens in the nation, was it not?"

John "Rocky" Barrett:

"A distribution of power. To my knowledge of any tribal government in the United States that's ever put power back into the hands of the people in a larger way by allowing elected representation for anywhere in the continental United States, it is a passage of distribution of power back to the people in an unprecedented manner. But we'd been 25 years planning it and talking about it. It wasn't a spur of the moment thing and each of those regional council meetings had been going on for 25 years, all had a different nature, they all had a different set of families, they all had a different perspective. South Texas is certainly a lot different than Los Angeles area, different approaches to things, and we knew what we were getting into when we did it and we did it very carefully. It will be interesting to see what it looks like in five years or what it looks like in 10 years. The formal legislative process that we adopted certainly is a big change from what we had under the five member business committee. The whole concept of tribal legislative committees with specialties, the committees meet by Skype and then once a bill has passed out of committee, if it doesn't involve an appropriation, goes straight to the floor of the legislature. If it does involve an appropriation, then it goes to the appropriations subcommittee. Once all that process, formal bill process is really fleshed out, we're like I say one year into it, I think that the legislative process is going to take on a whole new nature. We operated for many, many years, since the '70s, with basically an open agenda that someone was free to introduce a subject from the floor and the chairman could or could not sponsor an ordinance or resolution to that effect and the issue was discussed and then the process of drafting those pieces of legislation that became enactments or pronouncements to the government, pretty informal process. Because we've gotten as large as we have, that has been much more formalized. To see the history of how the State of Arizona from the time of its formation how it got through...how it formed its legislative processes, how a bill goes through the state legislature -- in Oklahoma in particular, because of its unique and often bizarre history of impeaching governors and the legislature meeting outside the state capitol and the governor chasing them around with the state militia, all of those things that are uniquely Oklahoma that formed the legislative processes there, we'd still have that history to go, but I think we're off to a start. We have -- with very few exceptions we have -- the vast majority of the tribal legislative body are educated, they have experience in tribal affairs in business. They are all, with a couple of exceptions, experienced and accomplished business people, all with at least an undergraduate degree. We have one attorney, we have a member of the Oklahoma legislature who also is a member of our legislature, we have government contractors, we have really accomplished people that I'm very proud of this group of folks who are very dedicated to making it work. And the fact that we have this hiccup going on right now is...it's politics."

Ian Record:

"It's a part of growing. We have just a couple minutes left and I have one final question to ask you, which actually picks up on a theme you mentioned in your last question, which is this issue of strategic visioning and planning, essentially that the success your nation is seeing now and has seen over the past several years didn't happen overnight, that it was the result of long-term thinking, a long term focus and planning for that long-term future that the nation as a collective wanted to see for itself. Can you talk about the role that strategic visioning and planning has played, in the couple minutes we have left, in terms of your nation's economic and community development?"

John "Rocky" Barrett:

"Well, the model that's imposed on us by the very structure of Indian tribes functioning within not having a full tax authority and not having any jurisdictional authorities where you have to parallel economic business development and government side by side. The long-range vision that -- I'm certain we didn't have a crystal ball, but economic independence has always been philosophically, for our tribe -- and my deep belief -- that you leverage the resources that you have. We...first time we ever made any money, we sold cigarettes across the counter in the tribal museum because that rule came along that we could buy cigarettes without the tax on them and collect the tax. And the only available counter that we owned was in the tribal museum. So we leveraged our counter into cigarettes as well as the part of the tribal museum furniture and once we got...we had enough money from the sale of those cigarettes, we started a little bingo game in the tribal council room because that was the only room we had large enough. We leveraged that asset into enough money to build a bingo hall, a building and once that bingo hall...high-stakes bingo hall happened and we had ensuing court battles to keep, to get control of it from outside influences, but once we were in command of those revenues, then we bought the bank. We bought a failing bank from the FDIC [Federal Deposit Insurance Corporation] at the worst year in the history of American banking to date in 1989, we bought that with bingo proceeds and we had built a convenience store and we went about the business of saving that bank, of rescuing it from failure and getting in the banking business. And all of that has been leverage on existing assets. We had a piece of swamp land that the highest and best use -- we couldn't build on it -- so the highest and best use for this piece of swamp land was to make a golf course with 15 holes, the water in play, and it has become one of the premier public courses in the state. We basically leveraged assets that we had, but with the idea that each leveraged asset would at some point dovetail into a combined asset on which we leverage, and it's leverage on leverage. We did that with the Community Development Corporation and the bank, we did it with...every business we are in has been as a result of markets where we defined the market and we build that market and then we come up with a product or service to meet that market and then once that market's established, we come up with another product or service that meets that market. It's laddering, it's leveraging, it's not a unique business strategy, but it is something that...that and the idea of the service mentality that everyone who is at the Potawatomi Tribe when you are in front of your customer or constituent, you are the tribe and you should be empowered to satisfy that person. That is something that we go through, even I go through it, everyone at the tribe, all 2,000 employees every six months, go through customer service training, where that's something that we do and believe in, that our job is to represent the nation in making our customers or constituents understand that we're there to make them happy as much as we can. The old saying is first come sales, my training in school and most of my professional training and professional experience has been in marketing or sales and any business's success has to be that and on the other side we have been as a government about keeping good books, about accounting for the money, of having externally auditable transparency in financial management and avoiding personal conflict. That's a simplistic answer and it's a difficult thing to come to, but the closer a tribe gets to that, the closer they'll get to success."

Ian Record:

"Well, Rocky, I could ask you questions for days on end. There's so much more I'd like to learn, but we're out of time unfortunately. I'd like to thank you for taking the time to share your nation's story and your personal experiences with us today."

John "Rocky" Barrett:

"It's an honor. Thank you for inviting me. I appreciate the opportunity."

Ian Record:

"That's it for today's program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute website at www.nni.arizona.edu. Thank you for joining us. Copyright © 2009. Arizona Board of Regents."

Matthew Fletcher: Defining Citizenship: Blood Quantum vs. Descendancy

Producer
William Mitchell College of Law
Year

Michigan State University Law Professor Matthew Fletcher compares and contrasts between Anishinaabe conceptions of citizenship and belonging historically and today, and proposes that conference participants consider taking some innovative approaches to redefining citizenship that address the complex cultural, legal and political landscape that Native nations face.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Resource Type
Citation

Fletcher, Matthew. "Defining Citizenship: Blood Quantum vs. Descendency." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Sarah Deer:

"So this session will highlight the major issues that arise in this debate about whether to require a minimum blood quantum for tribal citizenship or base citizenship decisions on lineal descendancy and understanding that there's many other factors that a tribal nation can use to define citizens. We're going to focus on these two issues for the remainder of the morning. We have two speakers, both tribal members.

We have Matt Fletcher from the Grand Traverse Band. He's a professor of law and Director of the Indigenous Law and Policy Center at Michigan State University. He's Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He's a member of the Grand Traverse Band of Ottawa and Chippewa Indians and in 2010 he was elected to the American Law Institute.

Dr. Jill Doerfler, Associate Professor at the University of Minnesota Duluth grew up on the White Earth Reservation in Western Minnesota. She earned her B.A. in History from the University of Minnesota-Morris and her Ph.D. in American Studies from the University of Minnesota. Her areas of focus were literature, historiography and politics. She has extensive credentials that you can read in your materials, but I'll note that in 2011 Dr. Doerfler was awarded a faculty fellowship from the Institute for Advanced Study, University of Minnesota. In 2010 she won the Beatrice Medicine Award for Scholarship in Native American Studies. So please join me in welcoming our two speakers for this panel."

[applause]

Matthew Fletcher:

"Good morning everyone. [Anishinaabe language]. My name is Matthew Fletcher and I teach at Michigan State University School of Law and though 'Sparty' pays the bills, I have to say too [Anishinaabe language], which means 'Go Blue!' And I have a lot of relatives going back to the 1890s who have been going to Michigan so I have to recognize them as well. I'm going to be talking to you a little bit about some of my experiences in working in Indian Country on tribal membership issues. I will touch upon certainly questions of blood quantum and lineal descendancy, although I think it's pretty clear if you were at the morning session that Steve [Cornell] in particular really covered sort of the foundations there, and so I may jump off a little bit from what he had to say and I'll certainly jump off from what John Borrows had to say. So let's just kick in right now.

I'm a member of the Grand Traverse Band of Ottawa and Chippewa Indians, which is located in the center of the universe, Peshawbestown, Michigan, and I am also a descendant, a Potawatomi descendent and eligible for membership at three Potawatomi tribes in Michigan, which is Pokagon Potawatomi, Gun Lake, and Nottawaseppi Huron. Most of my relatives frankly are Potawatomi...Pokagon Potawatomi descendants and so I'm going to talk a little bit about one of my ancestors who's a guy named Leopold Pokagon. He's I think great...three great-grandfathers ahead of me and he is the...actually for whom the Pokagon Band of Potawatomi Indians is named in many ways though he is actually not a Potawatomi guy. The story goes is that he is from the Grand Traverse Bay area so there's double my Grand Traverse Bay lineage there to some extent. It's not totally clear if he was Ottawa or Chippewa, but let's assume he was Ottawa and he moved down state. Either as a young person, he may have been adopted as a young person, as a child or married into the family down state. He married a Potawatomi Ogama who's name was Topenabe, married his daughter and I don't remember her name. And eventually in the 1820s and 1830s, after his father-in-law passed away, he became the Ogama for what would become the Pokagon Potawatomi, the St. Joseph River Potawatomi group and negotiated treaties on behalf of the tribe. And in fact, one of the...they were the...this Potawatomi band was one of the only Potawatomi bands able to escape removal out to the west into Kansas and later on into Oklahoma. You may have heard of the Prairie Band Potawatomi and Citizen Potawatomi, they're from southwestern Michigan, northern Indiana area. The Pokagons were able to stay back and were able to avoid removal.

What's important about our story here is that as I said before, Leopold was an Ottawa guy so the real question is, if he's Ottawa, how the hell did he become the chairman of an entirely different tribe, if not just the chairman, the member of that...a member presumably of that tribe? And it really goes to the Three Fires Confederacy in the Great Lakes, especially Michigan, the Ottawas, Potawatomis and Chippewas, very close-knit communities at the same with individualized leadership structures and geographic entities. We call them 'bands' or 'tribes' or 'communities' now and in many ways they had some of the same political distinctions between them in the 18th, 19th and early 20th centuries as well. I think it's important to note that one of the reasons Leopold did not stay back at Grand Traverse Band is a very pragmatic one, it would have been -- if it were him and definitely in my own experience it is with me -- you hang around your own village and you're a young man growing up, it's very likely that you're going to have to leave. Otherwise, you'll end up marrying one of your own cousins and so that is why people move around, why there's a lot of intermarriage between the Anishinaabe communities in Michigan and elsewhere. And this is a perfectly reasonable and culturally justifiable way of measuring and determining, I guess, what we would call 'membership' or 'citizenship' now. Again, I'm going to have to use those words because I don't speak very much at all of the Anishinaabemowin and I am an English-language speaker and I've obviously been taught in the English language for my whole education including my law degree. So I just mentioned Leopold because I think it's important that how far away we've moved from what would have been very non-controversial, relatively speaking, membership or citizenship decisions made in the 19th century to where we are now. There's no way Leopold could ever become a member of his own tribe, the Pokagon band, at this time and it's a very strange, long road as to how we've gotten to that part.

I want to talk about a second story, which is a case I litigated as in-house counsel for the Grand Traverse Band, a case we'll call En re M. And M. was a young kid. He was a descendent of Thames Band Oneida. His mom was Thames Band Oneida. She claimed to be full blood. And as a tribal attorney for an American Indian tribe, we are -- and the enrollment office will tell you this, too -- we are taught that when just because a Canadian Indian says they're full blood doesn't necessarily make it so because of the Canadian Indian Act where either you're full blood or you're no blood whatsoever, at least that was the paradigm under which so many Canadian Indians were forced to live under. And so he claimed to be Thames Band Oneida, which didn't do him much good in trying to become an enrolled member of the Grand Traverse Band, but his father was one-eighth Grand Traverse Band. And if we were able to count any of his Canadian Indian blood -- at least one-eighth -- he could have gotten bumped up to a quarter and therefore be eligible for membership under our criteria at that time. And it was my job to fight this young kid's application. It was not a fun case in any way. It was quite a disturbing case frankly. Easily the hardest case I'd ever had to do. Most of my work as in-house counsel litigating cases in tribal court -- and I did enjoy litigation a great deal -- was mostly litigating against tribal members or in this case someone who wanted to be a tribal member -- a kid, basically a kid who was in high school at that time, and I had two arguments in objection to his claims. Number one, the Canadian Indian blood was indeterminate, we couldn't know for sure as a matter of law and number two, we couldn't count Canadian Indian blood anyway because it was from Canada. Both of these rules, both of my arguments, are as a matter of law, Grand Traverse Band law, were the prevailing arguments. I won. The tribe won the case. We were able to keep this young kid out, but I will tell you now that I have moved on from my job as in-house counsel that both of those arguments are horse sh**, and I think everybody in this room realizes that this kid probably was...had more blood quantum in him than the vast majority of our own tribal membership, although it's hard to say, who knows what that means.

So I bring these two questions to you, these two anecdotes or cases to you as examples of how far we have gone wrong to some extent when we talk about tribal membership criteria in American Indian tribes. You know that there are some tribes who -- and Steve again, thank you, great job putting up the PowerPoint talking about the wide variety of membership criteria -- but I think it's safe to say the two paradigms of tribal membership in the United States are blood quantum and lineal descendency. And sometimes there's a combination, but generally speaking the main criteria for tribal membership is one or the other. And as we often say in law schools, these criteria are over- and under-inclusive. Blood quantum includes people who may or may not have any connection whatsoever to the tribe and excludes people who may live from the reservation, who speak the language perhaps even as their first language. They may even dream in the language and participate in the ceremonies and participate in the cultural life of the community and the polity of the community, but for whatever reason are not tribal members. And then lineal descendency, as you all well know, may include people who have never been to the state in which the tribe is located or it may include people who just have no connection whatsoever. There are anecdotal stories in Michigan of members of the tribes who are of lineal descendency who, for example, in Upper Peninsula of Michigan, there's the Sault Ste. Marie Tribe -- which is a tribe of lineal descendency -- participated in the fishing wars of the "˜60s and "˜70s. The tribal members fought against a bunch of people trying to stop them from exercising their treaty rights and then after the treaty rights wars are over, treaty rights survived and became regulated and more predictable, the tribe suddenly was inundated by some of the same people who had fought against them demanding an application for membership and some of them were eligible for membership and so they were brought into the tribal community and recognized as treaty, card-carrying fishers. I'm not saying that's a good or a bad thing. It is obviously a bit ironic, but it gives you a sense of how some of these membership criteria can be very arbitrary. Although I won't say capricious, I won't go that far.

I've passed out a couple of law review articles and I haven't really been able to take the time to really write down all of my thoughts about tribal membership. These are very incomplete articles, but I have a couple of ideas when it comes to tribal membership, what I would like to see more tribes think about. I want to second something that Steve said, which is, 'Don't let the federal government tell you what to do.' That was part of my problem with the En re M. case. I was actually able to persuade the tribal court that if he recognized this Canadian kid that the federal government would come swoop in and take our federal recognition away from us and the reason I was able to persuade the court of that is because we had multiple letters from the 1980s from a guy named Scott Keep in the Department of Interior who said exactly that. "˜I will make sure that if you accept these other people in that Congress will strip you of your federal recognition.' So there's that, and I want to second a whole lot of what John Borrows said about recognizing that the law is in the heart of the language. That's the most important part, really the most important talk I'm sure you will hear today, but a couple of other things. And I come to you and I say these things, these recommendations with my very incomplete and superficial understanding of [Anishinaabe language], which I think is an encapsulation of the natural law of the Anishinaabeg communities. And something that I think that I would like to think more about in terms of incorporating how we take these concepts that John called vague and make them into legitimate and real legal concepts and legal structures. And I think the first place we can go is immigration law.

Immigration law in the United States is highly controversial, but the structure of the thing isn't really all that confusing. Basically, when somebody comes into your community, you take to them and maybe you stop them at the border or maybe you go up to them at some point later on at some entry level and say, "˜So, what do you plan on doing here?' and "˜How can you contribute?' and "˜What are you going to do for this community?' And so we have things like visas and green cards, people can come here and work, they can come here and go to school, many people come here and they go into the military. They don't always become citizens, they don't always have complete voting rights, but they participate in the economy and in the social structure and in the polity of the community, or in this case, of the nation. And I don't see any reason why Indian tribes can't do the same thing with people that come into their reservations, even on fee land owned by non-Indians, they can still exercise some governance authority over them. And the way to do that frankly isn't really all that difficult, much different than what some tribes are already doing.

Somebody comes into your reservation and says, "˜I want a job,' and you hire them. They probably have entered into a contractual relationship with the tribe. There's no reason that the tribe can't then say, "˜Well, now that you're here, when you're on the reservation you're subject to our laws.' It's really nothing more than what a visa is. Or when somebody comes onto the reservation who's a non-member or a non-Indian who's perhaps married or attached to our tribal members and they want to live in tribal public housing or they want to take advantage of tribal governmental services, whatever might be available, those individuals should also be aware and be considered at least 'semi-citizens' of the tribe. That doesn't mean that just because somebody works for the tribe or somebody receives governmental services or lives on trust property that they are full voting members of the tribe. Lots of tribes have differing citizenship classifications. I live off the reservation at the Grand Traverse Band, outside of the six-county service area, I'm not eligible to vote in most elections, but I'm still a citizen of the tribe. So there's no reason why these people who are not blood Indians cannot be brought into the tribal polity. And I think it's important that we consider the possibility that we broaden our scope of citizenship and membership and we can call it whatever we want. We can call them the Anishinaabeg word for 'immigrant' if we can come up with a good respectful name for that. All of these people are something...are people that we should try to bring within the grasp of the tribal community and of the tribal government and in a good way and in a way that is consistent with [Anishinaabe language].

I think there are a couple of different reasons for that. One is very...they're both very pragmatic reasons and the reality of our modern issues arising from Indian Country governance. Number one is, the outside world perceives Indian tribes as being race-based nations. That is the absolute perception. Unless, with incredibly narrow and few exceptions, people cannot be full members or citizens of an Indian tribe unless they have a racial ancestry. And for those of you who know anything about American constitutional law or our history, that is quite a problem even in the United States. There are a whole series of constitutional amendments designed to prevent states and the federal government from doing the exact same thing that Indian tribes do as a normal matter of course. Now, we all recognize there are perfectly legitimate reasons and perfectly understandable reasons why tribes move in this direction, why tribes use ancestry, they use blood quantum, or lineal descendency to articulate and define citizenship. And I'm not saying actually that should change whatsoever, but what I am saying leads into the second major pragmatic point which is, there are people within Indian Country that the tribe cannot control. These people in some instances know that. In context like sexual predators, in the context of environmental dumpers, Indian Country is a target for people like this, people who are non-Indians who know they can get away with it because it's Indian Country and the reason they can get away with it is because the courts and the politicians in D.C. and in state legislatures believe that Indian tribes are less than when it comes to acceptable governments. And one of the main reasons they consider that and they believe that is because of this racial ancestry requirement to tribal citizenship.

Now, I recognize that there is a bit of a hole in my analysis that I'm arguing, on one hand, racial ancestry as a criterion for citizenship leads us into a bad place and limits us as Indian tribes, as tribal leaders and tribal government entities from exercising our jurisdiction. On the other hand, I'm also saying let's not do away with tribal membership criteria that is based on ancestry and so there is a distinction there, there is a problem and I can't pretend to resolve it in this moment. But I do think that a well thought out and creative immigration policy, immigration rules, finding a way to get those non-Indians, those non-members to consent to tribal government, as many as possible, is a way to legitimize tribal governments, to exclude people is actually a paradigm we should move away from. But to be more inclusive is a place we should consider going, more inclusive with practical limitations. Now I've given this talk before and one of our prior presenters, I don't know if she was listening to me, but she gave the exact response that I expected to get, which is, "˜Well, if we do that, then Indian tribes will just become German.' What she went by that -- this is Bethany Berger -- is sort of joking was that there are a lot of German people apparently who would love to be members of Indian tribes. And if you know anything about German hobbyists, you'll know exactly what I'm talking about. That doesn't...actually that's not a very good response to my comment or to my suggestion. I really think that tribes can be much more creative in how they define who is within their polity, who is within their government control.

And the last thing I want to say and this may be, depending on, because of our audience, may be the most controversial thing. I don't know that major change in creativity on the question of tribal membership and citizenship and the questions of inclusion and exclusion can be fulfilled without a major and important reconsideration of our tribal leadership structures. So many times I've read about histories of Indian tribes and especially in the Great Lakes -- because that's what I really focus on -- and also the traditional stories on the question of leadership really give me the sense that Indian leaders in the Great Lakes area, the western or the upper Great Lakes, were not elected leaders. They were appointed for a particular purpose and some leaders are really good at negotiating agreements or treaties with other leaders from other nations or even within the tribe. They have incredible skills and I've seen leaders from lots of tribes, my own tribe -- which I frequently criticize, I will tell you -- who are amazing diplomats, who speak in a way that I would never be able to do. I just don't have that skill. And then there are leaders who are incredible business people who can see through and have a vision about how to make an organization work and how and creative ways to develop an organization and to generate governmental revenue. And then there are leaders who are just amazing at taking the views of their constituents and moving forward with those views and trying to take the issues constituents bring up, it could be anything from employment to housing to anything and find a way to react to those issues and solve those issues going forward.

But too many times, I see people being elected for four years who are good at some of those issues and not so good at other of those issues and we always joked -- and believe me this is a great lawyer joke, a lawyer joke not directed at lawyers by the way. You can make those jokes as well, I'm asking for it. But we used to say at Grand Traverse Band, the only thing you needed to be to be a leader was electable, to have a big family, and sometimes that isn't really the kind of leadership you're looking for. Sometimes it is, but sometimes it isn't and I think we need to reconsider exactly what it is that tribal leaders are good at. We had this proposal at Grand Traverse Band that the tribal council shot down, not because they weren't tempted by it, but because it was too obvious what we were trying to do.

The other lawyer joke we had, and again not one directed at lawyers, but us lawyers directed at our clients basically was, every council member was one-seventh tribal chairman because we had seven council members one of whom was the chair and they all thought they were the chairman. And we always joked about that, so one day we wrote up how to reorganize the tribal government so that they actually would all be one-seventh tribal chairman. And the government is this system of departments that could actually be structured in such a way as to give each of the seven elected officials control, chairman-like responsibility over a discrete amount or a discrete listing of departments, very much like the Secretary of Interior is in charge of the whole series of agencies within what is the Department of Interior. And we thought this was a fantastic proposal, we knew exactly where people would go. One person, one of our council members, our clients was really, came from the housing department. She was elected because of issues relating to the housing department. She should be the secretary of housing and on down the line. Obviously it was shut down, it didn't go anywhere, but I think that more generally speaking a reconsideration of the rules and of the appointment of tribal leadership is also in play and also may actually be a prerequisite to serious reconsideration of tribal membership issues.

Now that I've said that, I'm going to sit down and let Jill [Doerfler] speak and I'm sure she's going to give a much more peaceful presentation. But I want to thank you all and say [Anishinaabe language] to the Anishinaabe people who are here and also to the Dakota and others who...anybody who is from this area or who has listened to me today and I thank you very, very much."

Rae Nell Vaughn: Tribal Court Systems in the 21st Century: The Choctaw Tribal Court System

Producer
Indigenous Peoples' Law and Policy Program
Year

Former Chief Justice of the Mississippi Choctaw Supreme Court Rae Nell Vaughn provides a detailed overview of the growth and evolution of the Mississippi Choctaw's governance system and specifically its justice system, stressing the importance of Native nations providing a fair, effective, culturally relevant forum for enforcing tribal laws and resolving disputes.

Resource Type
Citation

Vaughn, Rae Nell. "Tribal Court Systems in the 21st Century: The Choctaw Tribal Court System." Indigenous Peoples' Law and Policy Program, College of Law, University of Arizona. Tucson, Arizona. September 16, 2009. Presentation.

"Thank you for taking time out today to come and meet me and listen to what I have to share: my experiences and expertise in tribal court systems. Our topic will be the "˜Tribal Court Systems in the 21st Century' and my point of reference, of course, will be Mississippi Choctaw. How many of you have ever heard of Mississippi Choctaw, the Mississippi Band of Choctaw Indians? A lot of people at home in Mississippi, when you say that, the first thing that they equate it to is gaming, casinos, Silver Star, Golden Moon, the bells and whistles of gaming, and they tend to forget there are people and there is a government, a society there. As Ryan [Seelau] said, I served as Chief Justice for the Supreme Court for the tribe. I worked with the judiciary for 11 years. I served for the tribe...I worked with the tribe for a total of 23 years in a wide variety of areas -- in health, education, in culture -- and so I'm kind of like the full-package deal. And so having the opportunity to serve the people as a judge was the most humbling invitation for me to have been offered and to have accepted and it was such a traumatic experience for me. I'm a tribal member. I'm a member of the tribe. I lived there for the majority of my life. I was a bit of an Air Force brat for just a short period of time, lived in Massachusetts. My father was stationed at Otis Air Force Base. Came back home to Mississippi and then we went off to Kansas for a bit and then came back and been there ever since. Where's the southern accent, you may ask? It's there, it'll creep out sometimes when I start really rolling along and you might hear a "˜y'all' after a while, so just be looking for it.

What I want to begin talking about is the history of the tribe. As you know, with all tribes across Indian Country, there were a lot of treaties and agreements that tribes went into. Well, our tribe went through such a process as well, and in 1832 we signed our final treaty. We signed. It wasn't like we wanted to sign, it was more or less, "˜You are signing. Here's the pen and here's the line. Sign on the dotted line,' of giving or seceding all our lands to the government. That was the final secession of our lands. However, we did have a number of people who refused to move, to remove and go on the Trail of Tears and we are the descendents of those tribal members who refused to go. Early in the 19th century, the tribe was hit with an influenza epidemic and our membership, our people got down to under 1,000 in the early 1900s. We had no support from the state. We were living in very terrible conditions, working as sharecroppers in the cotton fields, losing a lot of who we are or who our identity was, living in very poor conditions and again, with no help from the state or from anyone. Yet in 1945, applications were made to become federally recognized and we were successful. And in 1945 that happened, we became recognized as the Mississippi Band of Choctaw Indians. However, in my language the name of our people is 'Chahta,' and that is the name of Choctaw and of course, with the non-Indians translating it to 'Choctaw' is how that came to be.

And so with the establishment and recognition as a federally recognized tribe comes what? The development of a government, the establishment of a government, and one of the very first things you have to do in establishing a government is looking at your laws, your foundational laws. And what's that? That's the constitution. And of course, this is not to say that our own tribal structures were not good, but we were being forced to look at models or not to look at it, we were told to. Okay, let's just put it out there. We were told to do it, that's what it is. It is what it is. And so we adopted an IRA constitution and once that happened, then began the function of the government. Now this government is a two-[branch] government, an executive branch and a legislative branch. They went through a lot of challenges because of course, as you know, you've got the BIA [Bureau of Indian Affairs] agent there assigned to you and he pretty much was trying to run the show, basically trying to tell the government what to do.

I don't know if you are, and you probably are...for those of you who are familiar with Mississippi Choctaw, Chief Phillip Martin, who has for the past 40 years led the tribe. And I had the opportunity to read his book because one of the things...and he is my role model, he has been my mentor; he's known me all my life. It took him forever to finally call me -- once I got married -- call me by my married name. It was always, 'Rae Nell Hockett,' 'Rae Nell Hockett.' I'm like, "˜Chief, I'm Rae Nell Vaughn now. I'm grown up.' It's not that snotty-nosed little kid runny down the dirt road. So anyway, I had the opportunity to talk with him, to read the book, and it gave me so much insight about who he was and how he came to be as a leader, and how important all the experience he had led him up to how he was going to lead. Of course he had the boarding school experience, he had the World War II experience having gone to Germany -- all these different experiences molded him into who he ultimately became to be. And so during this period of time, once the tribe began its structure of government and getting government rolling, Chief Martin then became involved in government. I promise you, this is not going to turn into a Chief Martin story, but he's so interwoven into the tribe I would be remiss not to talk about him. So of course, there's this constant butting of heads in regards to what the people want and what BIA wants or they don't want to give you. And so Chief Martin and the other members of the government began taking control, began pushing back, began looking at the things that they needed to do to help the people and to help the people prosper. Like I said, it was a very tough time.

Ryan and Ian [Record] and I were talking a couple of days ago, and in my memories I have flashes of what I remember. I'm 45 years old, so a lot of what has happened has happened during my lifetime and the things I remember, I do remember being in the cotton fields with my grandparents and family, I do remember lining up to go to the outhouse and that was the last time at night, if you didn't catch it then you were on your own, of living in a home with no heat, no running water. Now think about the time frame I'm talking about here: no transportation, no employment, nothing, very rural, very isolated area, very spread out. Communities were very far apart from one another. It was a very challenging time. A friend of mine said, "˜But you know what, Rae, you never really know how poor you are until someone tells you you're poor.' And I can remember during that period of time growing up and being around my grandparents and my great-grandparents. I had the good fortune of having my great grandmother still with me -- who is a renowned basket weaver and has her pieces out in the Smithsonian -- but having that family network, that family connection was so very, very important and you'll see how it's interwoven in what I'm talking about, the close knit-ness.

So his charge, Chief Martin's charge as a member of the community was to get the government up and going and they began doing that. They began making their way to [Washington] D.C., trying to get additional dollars, trying to get assistance. Now let me tell you, the BIA agent did not like this at all. He's like, "˜I'm the big dog here. I should be the one going up there. If anybody's going to go up there, that should be me.' And so there again was that butting of the heads, of people stepping up and taking leadership. Now you know as well as I do that there are ramifications. There could be ramifications for that, and also think about where we are -- rural Mississippi -- at a time where there's a lot of racial tensions and issues and problems going on. And here we are, this small group of Native Americans, the only group of Native Americans that are recognized in the State of Mississippi and yet we're just an afterthought for anyone. They began strengthening the government. The government then [was] able to receive federal dollars from a program called CAP, and what the acronym stands for fails me at the moment, but it was a very important stepping stone for the tribe to begin laying foundations for infrastructure in the sense of services to the people. I promise, we are going to talk about justice systems but I really want you to understand where we were to where we are now.

So, in the midst of that, people are getting enrolled with the tribe. No one's rushing to do that. So you had maybe by the "˜70s maybe a membership of 2,500 to 3,000 people enrolled. And of course our enrollments were skewed like everyone else. There are some people that are enrolled that are blonde-haired and blue-eyed, but knew the agent and got enrolled. So they're tribal members. We do have a group of people down on the Gulf Coast who are mixed but are questionable, but it is what it is. So as the government began to exercise governing, the population is growing. Then came the need of law enforcement, of services, and then ultimately of courts. In the early "˜70s, we had the establishment of the CFR courts, which fell under the regulations of the BIA. Now this was more of a misdemeanor court, is a misdemeanor court; it was handled by one tribal member judge and one clerk. That was it. One clerk, if you could get a clerk, if you could find a clerk. Temporary housing all over the place, just wherever you could find a spot and it could be shared facilities. They barely had actual physical buildings in the governmental area, but it's just wherever you could find a spot. And so that's how they operated court and that's how they enforced law enforcement. Now let's back up with law enforcement. You had only maybe two officers having to patrol large areas and I know that there are some tribes even today that continue to struggle with law enforcement issues. And so we had this structure set up in the early "˜70s and technically it worked, but it didn't work as well as it could. Of course we were reliant on funds from BIA, so we did the best we could do.

Then, under the leadership of Chief Martin, moving from a member of the council, which he was -- and I failed to state that -- then, ultimately becoming identified as the chairman. At that time, through the governmental process of the council, council members were elected in. Then the council itself voted amongst themselves, identifying who the chairman would be. So Phillip Martin then was voted in as the chairman. And so under his leadership, they began looking at industry once they laid down this foundation of infrastructure. It was a long road, a very long road. There were moments of prosperity early on in the mid...late "˜70s with the establishment of Chahta Enterprise. One of the very first companies that they developed was the construction company Chahta Development, which was the flagship, which was what brought revenue in, which is what supplemented the tribal government. And then as that company took off, they began going into other ventures. In the early "˜80s, we then went into the automotive industry. Under Chahta Enterprise, we did work with Ford, NavaStar -- and I'm talking about companies, I know Ford -- but they did a lot of wire harnessing-type assembly, blue collar work, but it was work. However, in the mid "˜80s, as some of you may know from history, we had issues, we had problems with the economy; even then the automotive industry was up and down. And so the tribe was riding on this wave of prosperity and then the wave would dip, but money was coming in. And so then, as more money began coming in for the tribe, and also you have the [Indian] Self-Determination Act, which also kicked in as well and kicked in additional resources, the tribe then took on managing its own services, managing itself under Public Law 638. One of the very first areas that we were able to manage were the courts, law enforcement, and detention. Now mind you, it was a phased-in process because ultimately you have to find personnel, space, operations, and management. And it was during this period of time that we had a lot of exterior things going on that the tribe was dealing with, for example, in regards to the court. In regards to the court, you had the [Mississippi Band of Choctaw Indians v.] Holyfield case, which I'm sure some of you may be familiar with. This is the adoption case of the tribal, two small tribal children who were adopted off reservation, and this case was the test for ICWA [Indian Child Welfare Act]. And then came 1994, when the Mississippi Band of Choctaw Indians opened its doors to gaming: Silver Star. Just to give you a sense of how successful it was at the beginning, we paid out our loan in six months, of the money that we borrowed to build this facility -- six months. And let me tell you what I heard Chief Martin had said: "˜Well, you know what, if this doesn't work...,' because really we were looking at, "˜Well, is this going to be a bingo hall? What is this going to be? Is this really going to go?' He said, "˜You know what, if it doesn't take off, we'll turn it into a manufacturing plant.' Well, it didn't happen. Silver Star expanded maybe three or four more times after that and they thought, "˜Well, why do we need to expand? Why don't we built another piece of property across the street?' And in early 2000 I think it was, we then opened the doors to the Golden Moon.

And so in the midst of all of this, you had not only your population increasing of your tribal membership, but you also had an influx of people, non-Indians coming through the reservation, vendors, customers. You had a major highway that ran right through the tribal lands, Highway 16. And so in 1997, the tribe then reorganized again and restructured the tribal court system. And I'll get to the specifics of that a little further into the slide, but one of the other things that happened in 1997 was an accord that was signed between the State of Mississippi and the Mississippi Band of Choctaw Indians. And this is very historical and it's very important because this accord recognized each party as a sovereign to say, "˜I recognize you, Mississippi Band of Choctaw Indians. You are a sovereign government and we need to work in partnership.' Some might say, "˜Well, this is just the olive branch, this is just the PR,' but it's significant because once this accord was signed, it opened doors, it began opening doors, doors that we weren't able to open. And I've always said, when we've had positive impact, positive experiences, when the tribe has had the opportunity to see progress, it's always been about who the players are and the timing. And it's key; it's key. And so this was an accord that was signed between the late Gov. Kirk Fordice and of course, Chief Phillip Martin. And it was, it was very historical and we have several historical moments throughout the history of our tribe.

I talked about the organization and structure of the previous court, and I think it's important because one thing that you will learn as practitioners is the importance of support of your court and the makeup of your court. The CFR court structure, as I said, was one tribal judge and one clerk, and then of course in the "˜80s and mid "˜90s, you had a tribal court judge, a member, a tribal member who served on the bench. And then you had a special judge who came in to deal with more of the complex cases that would come before the court and he was a law-trained individual -- I know him -- Judge Vernon Cotton, who's now on the circuit court with the state. Two clerks, a probation officer, and then you had tribal member associate judges who kind of came and went. We never really had a lot of consistency and we'll talk more about that as we go on.

This is the current overall organization of the tribal court system and you'll find that in your handouts. As I shared with you earlier, tribal Choctaw government is set up as two branches and the tribal court is a statutory court, which falls under the umbrella of the Judicial Affairs Committee, which is the oversight committee. They do not participate in the day-to-day operations of the system. We work with them in regards to issues such as budget and code development. They also are the ones who, when there are issues of violations of canons of ethics, things of that sort, they are somewhat of an ad hoc committee on discipline as well. You have the chief justice, who is also the principal judicial officer for the system and is the administrative liaison between the two branches. One of the distinctions of this court or the uniqueness is that we have the ability to create individual divisions of court. So you had a criminal court, you had a civil court, you have your youth and family court and you had -- which we'd never had before -- our traditional form of court, which is the peacemaker court, Ittikana Ikbi. "˜To make new again' is what that translates into. Prior to the Supreme Court, establishment of the Supreme Court, you had what was called the 'Court of Appeals,' which was made up of course of the judges who did not preside over that court, so you had a three-panel court of appeals. But because of the increase of cases that were coming to the court, there was a need to have and develop a separate tier. And so, as Ryan said, that court was established in early 2000.

The Supreme Court consists of course of the chief justice, two associates justices. During my tenure, I had the great fortune of having sitting with me on the bench Frank Pommersheim, Professor Pommersheim as most of you know, and also Carey Vicenti. You don't know the wealth of information those two men bring to the bench: the analysis, the logic, everything. I was just very fortunate to have had the experience of working with those two gentlemen and think very highly of them as well. We also had a pro tem justice who is a tribal member; her name is Judge Roseanna Thompson. She's a linguist, graduated from Penn State and wore two hats: she ran her language program, but she also worked with us in the court. A wealth of experience and knowledge as well; love her to death. Aside from the judiciary, the bench itself, you have the administration of court. Once, of course, you issue a ruling, what happens with all of that and who are all the players that are involved? And this was an expansion of the system itself because we saw more of a need, that the court needed to be more involved and it needed to be more defined and more developed.

And so we established a Department of Court Services and within that service we have a director, school attendance officer, adult and juvenile probation officer, diversion coordinator. The diversion coordinator's responsibility was the development of teen court, which some of you may or may not be familiar with. That's more of a sentencing court for juvenile delinquents. Once they went through formal court and were adjudicated as a delinquent, if the judge felt like the offense wasn't as severe and this young person might be just right at the line of either he's going to go down that road or maybe we can correct it and get him back on the right path. We sent him to teen court. Our very first experience with teen court was amazing. Of course, as you know, with teen court it's made up of their peers, young people who are sitting in different capacities as prosecution, as defense, sitting as a juror, sitting as a bailiff. The only adult in that courtroom was the judge, which could be a member of the community, which could be one of the practitioners of the bar or one of the other judges. I've sat several times in teen court. And so we had our first case and it was a breaking-and-entering case. And it's just like what you may have heard time and time again. They were ready to give this guy a big sign saying that he was guilty of his offense. They wanted to put him out on the road and let everyone see what he was guilty of. They wanted to give him beaucoups of community service hours. And so we had to kind of reel them back in just a little bit, but we had told them and talked with them about how important it is for the juvenile delinquent to understand the offenses that they're committing. That it's not so much against you as a community member, but it's against the tribe, and in essence it's against yourself. And so you have to make this right with the tribe. It's been a very successful program. And that's one of the things with this system that we're looking at is looking at other alternatives to provide justice for our communities in Indian Country.

We also have a youth court counselor who works with juvenile delinquents once they get into the system. We had a receptionist, administrative assistant, custodian, of course, your clerks; we had seven clerks and a file clerk and they are the heartbeat of your system. They are the ones who make the system run. Yeah, the judge can sit up there and drop the hammer, the attorneys come, they argue and there we go, but it's those clerks who make the system run and who cannot allow the system to run. So as practitioners, I strongly suggest you get to know your clerks. You just wait, for those of you who probably are already out there practicing, you know what I'm talking about because you piss a clerk off and you're not getting anything timely, if at all. I assure you. I have seen it. I have received complaints on clerks. So I know. And then again, and I'm not going to belabor the point, but this is the overall structure of the tribe and the court falls here as an independent agency with the tribe. However, yet it continues to be under the executive branch and I want to talk a little bit about that as well.

'Independent agency' -- words are sometimes more cosmetic. A lot of courts in Indian Country are set up the way we are. They're statutory courts, and sometimes aren't given the respect that they should be given. Let me assure you: tribal court is not a program; it is not a social program. It is a form that is established to protect the people and enforce the law. But for whatever reason -- and there are many I'm sure -- there continues to be this tendency of a perception that these are just programs. "˜Tribal court is nothing more than a program like social services, like legal aid, it's just a program.' And until we can, as practitioners, begin changing that mindset...and we have to. We really have to. I'm not quite sure the audience I'm talking to, I know you all are students, the majority of you are and maybe end up working for your tribe or if not for another tribe or for a sovereign nation -- whether it be here or abroad -- but one of the things that, one of the messages I hope to get out and that I hope you take with you is that there needs to be respect for that institution, that it is not a program. And it gets lost in translation in the big scheme of things with tribal government. Tribal governments struggle. You have some governments that are running well, you have others that have a lot of strife going on, but having the ability to exercise your sovereignty by operating a court and providing law and order and justice is one of the very key elements for government. And you, as a practitioner, possibly as an attorney general for your tribe or as just general counsel, you need to keep that in mind, and also protecting your tribe, protecting that sovereign. And it is. It's a term that's used in many senses and much sense abused. We've had that discussion about pulling the sword of sovereignty and wanting to use both sides of it, using it all the time. And I've always told...like I tell my children, "˜You need to pick your battles. You can't fight every one of them. You'll never win the war.' Everybody's heard this but, of course, I'm not going to belabor this. You guys are law students, you know what this is all about, what sovereignty is. If we can go on to the next because I know my time is going here.

And it does, sovereignty begins at home. Again, talking about the exercise of it. And it is truly in a fragile state for Native people. Socially, we have a lot of issues that a lot of these tribes are dealing with and the majority of the time this ends up in the well of the court. That's where a lot of these things are handled. And again, stability and consistency of a good court system is key. You have a high dropout rate of students, high suicide, you have increase in violence -- and this is just speaking in generalities -- you have poor health conditions at times, high poverty rates. They're also factors that we must remedy. And that again goes back to that close knit-ness of the community, of how we can create a more healthy and stable community for all our communities in Indian Country.

Again, exercising the sovereignty and it does, it belongs to the people just like as American citizens it belongs to us. How do we exercise those rights? Vote. I used it. It worked. I'm happy. At the tribal level, tribal members delegate those powers to tribal councils through voting and with electing a chief, which in 1977 the tribe amended its tribal constitution to elect the chief. Chief Martin ran for the very first election of chief and guess what? He lost; he lost. That was during the [gerald] Ford administration, I remember because right after the Nixon administration Ford had a hard time getting things going again and so did this, the first chief, the first identified chief had a difficult time. And then after his four-year term was up, Chief Martin then ran and was successful and was elected the second chief of the tribe. The tribal council then delegated and established the tribal court, as we talked about earlier within the issue of the reorganizational slide that I showed you.

Principles of the expression of sovereignty: the fundamental expression is the formation of tribal government and the determination of tribal membership, which continues to be a pressing issue for all tribes. We've seen it in California of where people get disenrolled. We've seen it in various tribes, even within my own tribe. There have been informal discussions about dropping the blood quantum. Our constitution says a half or more and they'd like to see it drop down to a fourth. Will that happen? I don't know, but it is a strong discussion that's taking place right now. And membership is key. Membership: I have a really big issue with membership because membership, as defined by the federal government, is based on blood quantum. Well, if I'm a full-blooded Choctaw, my family relocated to Chicago, grew up there, never came back to the reservation, don't know the language, don't know the ceremonies, but I'm full blood based on what my papers tell me, aAnd then you have a child who is a quarter Choctaw, family lives on the reservation, family's very well known in the community, they participate with the tribe, they know the language, they speak the language, they're fluent, they're involved in ceremonies. So why is it that we look at a document that tells me that this person isn't qualified to be a Choctaw? What kind of weight does that have? As far as I'm concerned, it doesn't. It holds no weight, because it's who you are as a Choctaw person, who you are as a Navajo, who you are as Eastern Band of Cherokee. It's who you are. There are big conversations, like I said, concerning membership that [are] taking place and it's a hard call, it really is. It's a very hard call.

And then you have the legislative expressions, adopting tribal ordinances and laws, which they do. The tribe meets four times a year, holds their regular business meetings as well as special called meetings. Throughout my tenure with the court, we've developed new codes in regards to domestic violence, having a code that addresses that specifically, and even within that code there were issues concerning who we are as Choctaw people and having to look at these models that we were given and 'Choctaw-izing' it because some of the things that -- which you may or may not agree with --hindered or conflicted with culture. And that's not to say that I'm sitting here a proponent of domestic violence, that's not it, but it's trying to get this message out that when an offense is committed, for example, concerning firearms, because that was the issue at hand, as a tribal man you went out hunting. And so if I am found guilty of domestic violence, I can no longer have a firearm, which interfered with their hunting which is a part of the culture. And it was a really big issue, that code was tabled so many times because it went back and forth, but it finally was passed. They made amendments to it. Instead of not ever allowing them to have a firearm, they penalized them for five years. I, for one, did not agree with that and wanted to stick with what we had laid out at the beginning, but I knew it was a cultural question. And these are hard things, these are hard things and this is just an example of what councils have to deal with. That's just one part of it, that's not even the business aspects of it. And then of course you have your administrative portion of it where your tribal leadership has an administration, which basically deals with the day-to-day operations and execution of social programs and services. And then you have the judiciary, which is the tribal courts, the enforcements of unwritten law and written law.

Well, what is tribal law? For us, in our general provisions, we have our customary law, we also have the tribal code and then when the code is silent we go to federal and state law as well. And if I'm blocking anybody please tell me, I will move myself because I know I can be a big gray blip on the screen. We also have -- as I stated earlier -- a peacemaking code. And I'll tell you, it wasn't very well embraced at the beginning because at that time people...and people in general, in general society, they want their time in court. They want to be before that judge and they want to tell you why that person is guilty, but what does it really solve? Does it really solve the issue at hand? Because sometimes the issue that's brought before the court is just the very tip of the iceberg, you're not really getting the full story. When we began looking at the development of this division of court, we had the opportunity to go down to Navajo Nation and to visit with their peacemaking court and the communities knew this and we brought that information back. And so then we began operating the court. And there was a lot of comment, "˜Well, this is just Navajo court. You're trying to operate Navajo court.' But it wasn't because, as we know historically, living in a society, living in a community, you had rules, you had laws. It may not have been written, but there were laws and rules of your society that you knew. For tribes, it was oral; you knew it, it wasn't written down anywhere, they told you, they talked with you, you listened. And so we got this peacemaker division going.

You'd think we would have had the opportunity to have a case that was just minimal, just real basic. Nope, not the case. There's a family in one of our outlying communities, major issues, very dysfunctional family. The father was a very aggressive...he was a bully, he was a community bully and also an alcoholic, which doesn't mix well either. And he was stirring up issues and for people to tell you that they're afraid to be at their home, that they didn't feel safe in their community is hard to imagine, but you had people feeling like that. He was having issues with another family, the Hatfields and McCoys almost, and it was getting to that point. What ended up tipping this entire issue and bringing it to court was that these young boys from this particular family, the bully's family, went into the home of an elderly person, an elderly woman, hurt her, stole from her and vandalized her home. Well, let me tell you, the charges started flying. We had cases being filed, counter filed, it was just loading us up, and it got to a point where we had to sit down and talk with the community because we weren't going to be able to get down and resolve the root of the problem. And so it took some time -- it took six months. It took a long time to finally get a lot of the people in. There was about a total of 35 people were involved in this entire issue and I applauded the peacemaker. He was very diligent and he got...he made it happen. And I think one of the other things that helped him was that he was a minister. But it happened and they sat down and they talked.

As much as people said, "˜Well, this is Navajo court,' and it wasn't. And I respect Navajo court, don't get me wrong and I'm not putting Navajo court in a poor light or anything, but we Choctaw-ized this process and it was a process we already had, but it was a more structured process. We were able to bring in people who would also help facilitate this issue. Six months of going back and forth, of talking, letting people vent, and it does escape me at the moment, but whatever the issue was, it was minimal, it was so minimal, but it grew arms and legs and it took off. And I know how some people can be, they don't forget. They don't forget in the sense of they're angry and upset with you, but they can't remember what it was they were angry and upset about and because my grandma was, I am too. I don't know why she was, but I am too. And so it was getting down to those root issues. And that's how it was very therapeutic, very therapeutic for the community. Another side note to this though: the bully continued. So, unfortunately, we ended up excluding him from the tribe, but we had the support of the community and that's a hard thing to do. You certainly don't want to be excluded from your community, but if you're a detriment and creating an unsafe community, there are no alternatives and that is a part of our code as well, which makes our code unique as it does with other tribes as well.

Of course we have the written laws, constitution, our ordinances, codes, we have opinions and decisions that we have for our tribal courts and is available for review. And then of course the additional laws, written laws that we have are peacemaker resolution orders, which in this instance they do hold the strength and power of an order of court, of formal court, which is a very unique thing. Okay, if we can go on. I want us to have time to talk so you have the handout. These are pretty basic pieces of information that you're very well aware of and I'm not going to go over those things, but these are the types of cases that Choctaw court deals with: of course child adoptions, protection and custody issues, alcohol-related crimes and other social crimes, domestic violence, commercial cases. We have a very strong civil court, which deals with a lot of the cases because of the economic development that the tribe is involved in. One of the first things -- and as practitioners you need to know -- one of the first things that lender is going to ask the tribe is, "˜Well, if there's a dispute, where is it going to be heard? Where is it going to be heard?' And time and time again they say, "˜It will be heard in tribal court. It will be heard in Choctaw tribal court.' Now, if you don't have a stable and consistent court system, and let me tell you, you know as well as I do, our legal community is small. Information goes from one end of the coast to the other. Information goes faster now with internet. If you don't have a stable system, they're not going to do business with you. They just won't do it. We also have, of course, repossession, which falls under civil, you have youth court issues, traffic, and of course our peacemaker issues.

So what's on the horizon? What's on the horizon for courts and for governments? We must be aware of the upcoming policy changes. We know that there can be negative impacts on governments, specifically on courts. We struggle yearly as to the types of funding, well, what are we going to get? As a system, how much money will we get from the federal government? How is this particular act going to affect us? There was the issue of the Tribal Justice Act back in the "˜90s. Sure, you put an act together, but you didn't give us any money and it had a lot of good pieces in it, of strengthening tribal justice systems, but when you don't fund it, it's only as good as whatever the ink you used to sign the thing with. And as we know, federal policy has been characterized by dramatic shifts and you have these here. And of course the Self-Determination Act, which followed after termination. So I say all that to say this: it is critical that you're aware as practitioners of what's happening out there in the landscape because what affects one will ultimately affect us all. And so you must always look at any type of policy development with the backdrop of the tribe, of tribal sovereignty, of the federal trust responsibility, of the government-to-government relationships that have to occur, and that have to be cultivated and have to be perpetuated and continued. And that laws and policies have to be unique and specific for Native Americans. I say specifically for Choctaw because that's the tribe I'm representing.

So, in closing, we must continue this pursuit of self-determination. We have to encourage this with our governments, with our people, with the courts and the protection of our sovereignty not only within our courts, but also outside of our courts is very important. Again, building collaborative relationships within tribal, state and federal governments, through inter-government agreements such as the accord that I talked about and then here on the federal level with the ICWA.

A story I'd like to share with you. When I first came on the bench for the Supreme Court, I sat down with one of my mentors and I said, "˜I want to make a difference here. I want us to take this system to a level of respect because we, like everybody else, got beat up. "˜Kangaroo court! They don't know what they're doing! We need new people!' What is it that we can do?' And we had a really good brainstorming session in talking about the things that I wanted to do. Now, let me again remind you, I live in the State of Mississippi, and we've never had a strong and positive rapport with state government. One of the things I had wanted to do was to open a door and to have dialogue with our counterparts, which had never ever happened. And in early 2000, the chief justice of the Supreme Court for the State of Mississippi came down to Choctaw with his associate justice and we sat down not so much as judges, but as people and talked about a lot of issues. That one conversation sparked a lot of other activity. We began having these exchanges, having the opportunity to go and speak to the judges of the state, having their justices come down and talk to our bar and talk to our government. And it's those types of relationships that many tribes don't have the opportunity to develop for whatever reason.

Also, we worked very diligently with our U.S. District Attorney. Now as some of you may recognize, those are very difficult relationships to have and sometimes you may have a U.S. District Attorney who just doesn't give a crap, isn't going to work with you, who could care less. But we had the good fortune of having a U.S. District Attorney by the name of Jack Lacy who was phenomenal. He retired recently, but he left such a great legacy in the sense of working with this tribe and we were able to have many cases that may have been...that may not have ever been brought before the federal court happen and go through and it was because of his own diligence as well. But it was having that relationship, cultivating that relationship, and that is very important for those of you who may end up working with tribes. It's very key.

And then lastly but not leastly, learning from other tribes and sharing successes and challenges. As you can tell, I love to talk and I love sharing this story and I love sharing other stories, but we learn so much more from these exchanges that we have. And sometimes we're all on the same page, we all have the same passion for the people and for working for the people because these investments that we make, and it may sound like a cliché, is for our future generations to come and it's laying these strong foundations for them. But it's also cultivating this generation that's to come to lead us and they need to have the proper tools, they need to know that there is a strong government, they need to know that there is a strong form of court, they need to understand what it means to vote, what it means to stand up for what's right, and it's having that ability to share these types of things with other tribes, what their successes, what their challenges are and working together because what we fix or are able to do for one has far reaching effects for all of us across Indian Country and it's important. It's important.

So with that, I leave you with this. It's always been my philosophy, the tribal courts are guardians, we are the guardians, we are the gatekeepers, the protectors of the sovereignty, of our children, of our families, of our communities, of our tribe. The strength, respect that you give this system speaks volumes, it creates an atmosphere of trust for the people that it serves and also the respect of those from the outside as well. But more so, it's for the people to feel that when they walk through the door of that justice complex, they know that they have a fair forum that they're going to."

David Wilkins: Putting the Noose on Tribal Citizenship: Modern Banishment and Disenrollment

Producer
Jr. Distinguished Indigenous Scholars Series
Year

The final speaker for the 2008 Vine Deloria, Jr. Distinguished Indigenous Scholars Series at the University of Arizona, scholar David Wilkins (Lumbee) shares his research into the recent and growing phenomenon of disenrollment that is occurring across Indian Country, and delves into the likely motivations behind the efforts of some Native nations to engage in mass disenrollments of their citizens. He also argues that disenrollment is counter-cultural to Indigenous peoples, revealing that his research unearthed few examples of this sort of behavior historically.

Resource Type
Citation

Wilkins, David. "Putting the Noose on Tribal Citizenship: Modern Banishment and Disenrollment." Vine Deloria, Jr. Distinguished Indigenous Scholars Series, American Indian Studies, University of Arizona. Tucson, Arizona. November 13, 2008. Presentation.

David Wilkins:

“Hello folks. Hello folks. All right, you’ve got to be with me here tonight. I’m really happy to be back in Tucson. Tom [Holm] actually had me come in this Sunday so I’ve been here for a fairly long while. But he set it up so that he worked me to death for a day and then I have some time off, and then I get worked to death for another day, and then I have some more time off. So it’s a nice balancing act. First of all, I want to ask does everybody have the tables and the figures? If you don’t, they should be out there at the desk there. You need to have those because this is the data that I really want to share with you tonight and really get you to ponder.

One of the great lessons I learned from Deloria and from Tom and from the other faculty that I had the privilege of studying under when I was here in the early ‘80s was the, Vine especially drummed into us the need and the absolute will to be willing to critique our own. Vine, as you know, from having read some of his publications, he not only attacked the federal government when the government needed to be attacked and the corporate world and various institutions of governance, he would also attack tribal governments when they acted astray or when they violated fundamental norms of justice and fairness. And he drilled that into us as his students and he reminded us to always be willing to challenge injustice wherever you see it. And so I’ve tried to follow his sage advice all these years. And this work that I’m going to be talking to you about tonight is one example of that.

But I really am happy to be back in Tucson and I thank you all for coming out this evening. It’s always nice to come back to one’s alma mater, especially when you’re leaving or fleeing a really cold and already snowy Minneapolis, Minnesota. We didn’t get dumped on like the Dakotas, but we got quite a bit of snow and it’s been really cold up there. And I’m not quite ready for the long slog of a Minnesota winter, but I have to steel up, which I’m down here getting all the rays that I can, trying to absorb as much as I can. It’s nice to be back on this campus and I’ve been piling as much Mexican food in my body as I can. I’m almost bilingual now I’ve eaten so much Mexican food. It’s really nice. There’s not a whole lot of good Mexican restaurants in the Twin Cities as you can imagine. But my wife is Diné, she’s from northern Arizona, born in Tuba City, raised out at Red Lake, Tonalea Chapter. I met her here when I was in my first semester as a student studying under Vine. I wasn’t quite ready to commit at the time, but she came back at the end of my tenure here after I had survived Tom’s seminars and Vine’s seminars and she said, ‘Are you ready now?’ I said, ‘Please take me in, take me in,’ and she did. And so we got married and we have three lovely children who are all practically grown now. But it’s just, she regrets not having come back with me and have a chance to be back here.

It’s been nearly 30 years, as Tom and I were talking over the last few days, since I was, I can’t imagine it has been that long, but there it is. But I thank Tom and Tsianina [Lomawaima], she’s at an ethnohistory conference right now, and the AIS [American Indian Studies] program for bringing me back as one of the speakers. The three previous speakers are hard acts to follow, especially Chief Mankiller, but I will do my best and I appreciate Teresa Spoonhunter for setting up all the logistics for my visit here.

The three concepts that I’ve worked with probably more than any others are the concepts of Indigenous governance, Indigenous activism and tribal sovereignty. And these are also concepts that were close to Vine’s heart and his mind. Although Vine as you know was our -- in using Tom’s words -- our renaissance scholar because he studied virtually everything under the sun. And so we may not see the likes of another Vine for many years to come. But these are the concepts that I work most closely with. They were first brought to my attention when I was a freshman in college in 1972 when I read Custer Died for Your Sins. Hopefully most of you have had a chance to read that. And that book really just sort of pried open my mind and taught me and reminded me of the beauty of our cultures and our languages, of our responsibilities and obligations to one another and the federal government’s politics and laws and so on. And they’re what led me to come here in the first place when Vine called me up and recruited me to the U of A [University of Arizona].

A good friend of mine, Helen Scheirbeck, who’s a Lumbee, worked in D.C. for many years. I had met her at a conference in Raleigh and she said that Vine had just established a program and when she described it, it sounded just what I had been waiting for. And she said, ‘Well, I’ll tell him that you’re interested.’ And I didn’t really believe that she even knew who Vine Deloria was, but she sounded convincing. I said, ‘Okay, well, let him know that.’ And a week later he called me up at my work place. He said, ‘Mr. Wilkins, I hear you want to come to Tucson.’ I said, ‘Is this really Vine Deloria?’ He said, ‘Well, who the hell do you think it is?’ He always spoke very bluntly to you. He described the program and told me Marlys Duchene was already out here and I said, ‘Oh, yeah, I’m ready to come to Tucson.’ And that’s how we got first introduced even though I had heard him give a couple talks in the east.

But as Tom and I were working out the details of my visit here, he told me that I would have a chance to speak to a larger audience and the topic that immediately came to my mind was 'how do our nations define ourselves?' and 'how do we determine who can rightly belong to our nations?' And more importantly, 'What are the grounds on which those relations can be terminated or severed?’So the talk is mine, but the title for the actual talk is Tom’s. He actually came up with the title. He said, ‘How does this sound?’ It sounded very good. I’ve never been very good with titles and have to draw upon my colleagues. David Gibbs, who’s here tonight, has helped me with several titles for some of my work. I’m always looking for title ideas.

But as a Lumbee, the issue of deciding who is and is not Lumbee is one that our nation takes very seriously. It is, we believe, an internal decision that outsiders should have no say so in. But since every individual Native person has been recognized as a citizen of the United States since 1924, if not earlier, and we now have three layers of citizenship -- our Native status, our state rights as citizens and our federal status -- our situation is more complicated than any other group in the country. I’m convinced that if we are not careful in addressing this issue, that the federal government may eventually be compelled or will simply choose to act and will intervene again in profound ways, ways that will I’m sure have a devastating impact on the core sovereign power of deciding who has the right to belong to our nations. They’ve done it many times before, especially during the late 1800s and early 1900s when the Department of Interior on many occasions simply stepped in and told tribes to enroll this family or this group or this individual or told them they had to evict those individuals. Under the IRA [Indian Reorganization Act], if you read many of the IRA constitutions, the issue of membership is left to the tribe, but the Secretary of Interior has the ultimate discretionary authority to override tribal membership decisions. So we should remember our history. And under the self-assumed power of congressional plenary power with the court’s blessing, the federal government maintains to this day that they have the authority to intervene in all of our affairs including that of membership or citizenship. So with that as a rather stark opening, let me get to my prepared remarks and share with you the research that I’ve been doing on this topic and then we should have plenty of time for some question and answers later on.

Native nations are in the midst of some profound changes these days that rival and in fact may well overwhelm those that we face historically. The effects of gaming revenue on our communities and our relations with other governments, the ever-increasing level of Native political involvement in non-Indian elections, something we talked about in Tom’s class the other night and in the colloquium. Were you all Obama or McCain supporters? How many Obama supporters in the room? How many McCain supporters? A couple. Any Nader folks left anymore? Do they still exist? Well, we’ll see what Obama does. But it’s interesting that we have that many people very actively involved in the national elections. The increasing international involvement of Indigenous peoples, the recent adoption by the United Nations of the declaration on Indigenous peoples rights and the ratification two summers ago of the Intertribal United League of Indigenous Nations Treaty that was signed in Washington State, which evidences our continuing national and international status. There are of course the tremendous environmental changes that are bringing about profound changes to our lands, our waters, our skies. Just today in the New York Times, anybody catch what the Supreme Court said just yesterday? They handed down a decision in which the Supreme Court by a 5-4 decision told the Navy, ‘Go ahead and use a sonar and all the other equipment you want even if it causes horrific damage to whales and dolphins and other species of the oceans.’ So again, we see what the priorities are of the Supreme Court. And then we also have fascinating cultural and linguistic developments that are having significant consequences for our nations both good and ill. And then there’s a little thing called Wall Street’s meltdown and the financial distress and crisis that the nation, in fact the world is in the middle of and we’re part of that, aren’t we?

So there’s a lot happening folks and all these developments remind me that we live in an ever shrinking and vastly interrelated world, a world that requires knowledge not only within and about our own cultures, but outside our reservation, trust or urban borders, as well. Vine Deloria always emphasized that we must develop a comprehensive bird's eye view of the world, but we must also be able to see the world from a very localized perspective. What Gunnar Myrdal once called 'a frog's eye perspective' and I think we need to have the ability to have that bird's eye view and that frog's eye view and be able to navigate between those two perspectives if we want to be effective advocates of our nations.

Now as I noted earlier, I belong to the Lumbee Nation of southeastern North Carolina. We’ve got a couple Lumbees in the house tonight. Yeah, there they are, sitting right there. We’re about 55,000 strong. We currently lack complete federal recognition as a bona fide American Indian community by the BIA [Bureau of Indian Affairs], but my lovely wife, Evelyn, as I said, is a duly enrolled member, citizen of the Diné Nation, the largest reservation-base First Nation in the country. So even before I joined the academy, I had already because of my two distinctive east and west tribal affiliations embarked on research to better understand Indigenous nationhood, tribal sovereignty and self-determination. And in fact, when our two, when I hooked up with my wife, with my tribe being so large and hers being the largest, we thought we might have 13 children but we stopped at three. That’s all we could handle.

My Ph.D. is in Comparative Politics, but I tell my students as I told the students yesterday that I’m really a “polegalorian” because I combine politics, law and history in roughly equal parts to try and better understand what makes Indigenous politics and governance and law go round. And one of the best books I read in graduate school was Frantz Fanon’s classic study The Wretched of the Earth. It’s a brilliant study of the physical and psychological damage that colonialism unleashes on those who are colonized and on the colonizers as well. And Fanon made one statement that has always resonated with me. He said, and I’m quoting here, ‘Because it is a systematic negation of the other person and a furious determination to deny the other person all attributes of humanity, colonialism forces the people it dominates to ask themselves the question constantly, ‘In reality, who am I?’ And I think that’s a powerful question and that pithy statement still echoes loudly when I see the ongoing social, economic, cultural and psychological problems that are manifest throughout Indian Country.

Vine Deloria raised a related, but even a more comprehensive question in a number of his works. Vine like Fanon was deeply concerned about the manner in which Native nations went about their psychological recovery after decades of harsh assimilation and the persistence of ongoing disparities in political, legal and economic power. In short, he understood that disparities evident in Indigenous state relations were also forcing Native peoples to inquire, ‘Who are we?’ Vine raised this question in a particularly pithy essay in 1974 and he said this, ‘The gut question has to do with the meaning of the tribe. Should it continue to be a quasi political entity or could it become primarily an economic structure or could it become once again a religious or spiritual community?’ Vine emphasized that historically Native peoples were primarily spiritual communities. But he was troubled by the directions that some tribal governments were veering towards where economic, racial, DNA, political and legal criteria were becoming more meaningful than the kinship and clan based spiritual understandings and relationships that once linked our communities solidly together and that enabled us to endure what we’ve been enduring for the better part of half a millennium.

So let me now turn to an examination of this issue, one that appears to be damaging the collective heart of Indian Country -- the banishments, expulsions and disenrollments. 'Disenrollment' is a legal term of our art devised in the 1930s under the IRA in Indian Country that have increased dramatically in recent years. This issue -- the literal, physical reduction in the size of our nations goes to the heart of Fanon and Deloria’s queries to the essence and meaning of Indigenous membership or citizenship or clanship or whatever term you’re comfortable with and directly deals with social justice, civil rights and human rights in Indian Country. Native nations, as one of our inherent powers of governance, retain the right to remove, to exclude or to disenroll people from our nations, from our lands and from our membership rolls; both legally and culturally enrolled citizens and non-Indian and non-member Indian residents as well.

But it wasn’t until I read a 1996 Federal Court of Appeals decision, Poodry v. Tonawanda Band of Seneca, which held that several Seneca, who had been banished, did indeed have recourse under federal law to test the legality of their tribal government’s actions and that’s what convinced me to take a closer look at this issue. This case raised a sticky question of whether Native individuals had the right to use non-Indian courts to contest what their nation had done to them in regards to their membership status. And this -- as I eluded to at the outset of my remarks -- is one of those areas where it’s becoming clear that some federal courts are willing to intervene in these matters because of the importance of membership or citizenship to those facing banishment or disenrollment. As the court said in Poodry, ‘Banishment was indeed a severe enough punishment involving a sufficient restraint on the liberty of those being banished to qualify as what the court said was detention and to thus permit the federal court to review under the Indian Civil Rights Acts habeas corpus rule.’ The issue of citizenship as a fundamental property right may be in the works as well in terms of when the federal courts will get involved. Since property, as we all know, in one’s person is also fundamental to Americans and the economic system of this nation. More recently, two related cases involving banishment and disenrollment among the Santa Rosa Rancheria in California, Quair v. Sisco 1 and Quair v. Sisco 2 have expanded the scope of federal review and may in fact be a harbinger of things yet to come, signaling that the feds are willing, in certain cases, to intervene if tribal governments don’t provide adequate civil safeguards to those it desires to banish or disenroll.

Now what these three cases show is that the federal courts are increasingly willing to enter into our internal decisions on enrollment or disenrollment like they once did historically and with a great deal of regularity. This has, as you can well imagine, some major implications for tribal sovereignty on this most basic issue of self-governance. So with this legal backdrop let me get into the bulk of my remarks now.

After the Poodry decision in ‘96, I noticed that banishments and disenrollments were apparently happening with much greater frequency in Indian Country. I was struck by the fact that as a number of expulsions and disenrollments continued to increase, particularly of tribally enrolled citizens, that many of our governments were justifying such exclusions on the grounds that this was a power they had always wielded and were simply wielding anew. So I began collecting. Like a packrat, I started collecting all the articles, all the cases, all the newspaper clippings I could to see what I could learn about this. With tribes increasingly engaged in terminating the cultural, political and legal identities and citizenship status of some of their own people, Fanon’s query and Deloria’s question of ‘who are we as Native nations?’ loomed in my mind. Are Native nations still in an era of tribal self-determination inaugurated in the 1960s and 1970s by Indigenous self-will and federal policy in which we make decisions based on Indigenous values that respect kinship connections or have we now entered a frightening and novel state of what I call Native self-decimation in which an ever increasing number of tribal nations are cutting off organic parts, members of their own community body by banishing or disenrolling legally and culturally recognized citizens for sometimes specious reasons?

This is I think a significant question to ask because if First Nations are indeed communities of related kinfolk, which is what we once were, then it would appear to me that the grounds on which to sever or terminate such a fundamentally organic and deeply connected human set of relationships would have to be explicit and would in fact rarely be carried out given the grave threat that such expulsions, the literal depopulation of already small communities would pose to our very existence. Unlike Arnold Schwarzenegger’s "Terminator" character, we can indeed self-terminate, ladies and gentlemen, and this seems to be happening before our very eyes. And those charts that I asked you to, that I handed out gives you some evidence that this is in fact a growing phenomena and it has me scared to hell, to be honest with you.

Furthermore, I pondered how and why it was that the United States government, a secular state with the most diverse population of any country in the world, has in place protections that make it far more difficult for the federal government to strip American citizens of their citizenship status. Federal law does allow for the expatriation of American citizens who join foreign military units or act treasonously against the United States, but only where such actions are done ‘with the intention of relinquishing U.S. nationality.’ In other words, according to the Immigration Nationality Act, American citizens are subject to loss of citizenship if they perform certain acts voluntarily and with the intention of relinquishing their citizenship. And a person wishing to denounce their U.S. citizenship must voluntarily one, appear in person before a U.S. councilor or diplomatic officer; two, do so in a foreign country, normally at a U.S. embassy or consulate; and three, sign an oath of renunciation. So it’s not easy to stop being an American citizen, see? Interestingly, an American citizen cannot renounce their citizenship while in the United States. It can’t be done by mail and it can’t be done through an agent.

In contrast, our nations have what is today virtually absolute power, dare I say plenary power, to banish members and non-Indian residents and to disenroll or disenfranchise otherwise bona fide tribal citizens. So on this critical issue, tribal governments are far more powerful than the federal governments and the state governments. But is this what we want to be known for, that we can wield that kind of power over our own relatives? While we endure and have vigorously protested the virtually unlimited federal plenary power that is exercised over our lands, our resources and our rights, many of our own tribal governments are today increasingly exercising an even more pronounced version of plenary power and this in many cases over their own relatives. I find that a frightening reality.

After completing my preliminary research, I then critically examined several related questions in this ongoing research, and I say it’s ongoing because I continue to receive and analyze data. I have friends that have been disenrolled and that are facing disenrollment and they send me all kind of newsletters and all kind of information, they keep me updated and it really is just mushrooming out of control. A colleague and I have compiled a database of 318 tribal constitutions and these include the IRA constitutions, those established in Oklahoma and Alaska and tribal constitutions that post date the IRA as well. And I’ve also over the years collected quite a few pre-IRA constitutions, some of which are going to be in that book that Tom was kind enough to blindly review for me.

Now while the constitutions that mention disenrollment or exclusion contain a variety of statements about how and why these processes may be carried out, as will be discussed in a moment, we found only one instance in all 318 constitutions where a Native nation has expressly declared that it would never banish its own citizens. Does anyone want to take a guess which tribal nation says that in their constitution? Anybody? The Pleasant Point Passamaquoddy. We’ve got a Passamaquoddy here?”

Audience member:

“Half. Half Passamaquoddy.”

David Wilkins:

“Well, there you go. In their 19, in your 1990 constitution, it says, and I quote, ‘Notwithstanding any provisions of this constitution, the government of the Pleasant Point Reservation shall have no power of banishment over tribal members.’ That’s the only one that says that. And when I first discovered that clause I got on the horn. I called the Pleasant Point and I tracked down one of the authors of their constitution and I said, ‘What compelled you to insert this clause? You’re the only tribe that has this in your constitution.’ And he said, ‘We felt that it just, we had to do this. It wouldn’t be right for us to say we have the power to decide who no longer is one of us. We’re not going to be in office for long. What if somebody comes in after us and decide that we’re not members?’ But he said, ‘I have to be honest with you. We’re having so many problems with drugs in our community we’re beginning to think we might have to revisit this.’ So I don’t know how long even this provision might last.

So as I prepared to write an article about this as I finally felt I had enough data, these are the four questions that I came up with that guided me as I entered this shaky area. The first one is, how do the current disenrollment or banishment proceedings compare or contrast with the traditional means, if that is even discernible from a documentary or oral history available, that First Nations once used to banish or remove tribal citizens, assuming that they did that? Second, why are disenrollments and banishments occurring at the intensified rate that they are? What’s moving that, what’s making that happen? Third, what are the rationales being used by tribal officials to justify the expulsion of tribal or non-tribal individuals and families? And then fourth, how do current disenrollment, banishment proceedings comport with the tribe’s constitutional provisions, if the tribe has a constitution, because half the tribes in the United States don’t operate under constitutions?

So these were the four questions that I was pondering as I moved into it and immediately, having studied this stuff for a number of years, three incongruous premises I was reminded of as I got into it. First, as sovereign nations, our governments retain as one of our central powers of self-governance the right to decide who can be in our nation. The Supreme Court said that in what case? 1978. Come on, folks. Some of you have had Robert Hershey or Tom Holm’s classes. What Supreme Court decision said in 1978 that tribes can decide their own membership? There, thank you. Yes, Santa Clara Pueblo v. Martinez. That’s the linchpin decision on that. Second, many tribal nations, under their powers as governments and landowners, also reserve in their treaties and constitutions, the right to exclude non-members from their reserved homelands with stipulated exceptions for certain federal officials. But then third, and here’s the kicker, the federal government, under the constitutionally problematic doctrine of plenary power, has reserved to itself the power to trump both of those first two premises and to overturn or interfere with any tribal nation’s powers including citizenship, membership decisions when it suits the federal government’s desires to so intervene.

It’s this third premise that our governments must always bear in mind, because nothing we do can ever fully be said to be completely immune from the scope of federal interference, notwithstanding the doctrine of tribal sovereignty or the absence of constitutional markers granting such unlimited authority to the United States government. And more disturbing, as we move deeper into the 21st century, is the fact that state governments increasingly, with the explicit and precedent defying sanction of the Supreme Court, are increasingly moving into tribal territories and jurisdictional realms and are imposing their authority over our lands, our rights, our resources. In fact, the states are beginning to act like they have a form of plenary power over us and if we don’t find some way to deal with that, we’re really going to be caught in a vise, ladies and gentlemen. So as a comparative, let me give you some background to this broad topic of banishment because as [Rene] Descartes once said, although I may be misquoting him here, ‘Intentionally, I think therefore I compare.’ I think that’s what he said. I could be wrong there.

Now, worldwide the political, religious or military leadership in societies have reserved to themselves or shared the power to authoritative expel certain individuals, families or sometimes even entire groups from their respective nations or states as a punitive measure for what they considered grave offenses. As such, enforced removal from one’s Native land entailed a devastating loss of political, territorial and cultural identity for those expatriated since those evicted were utterly deprived of the security and comfort of their own family, community, religious or ethnic group. One of the earliest recorded and arguably the most widely known case of formal exile according to Christian tradition was what? God’s banishment of Adam and Eve. I mean, Eve had to have that apple and God got a little bit ticked off and what happened? They got banished, they got evicted from the Garden of Eden for their act of disobedience. That’s a fairly ominous precedent to follow, don’t you think? Another famous exile also involved God. Cain’s killing of his brother Abel compelled God to banish him and to place a shaming mark on Cain. So that’s where it all sort of begins at least from a Western tradition. Early Greeks and Romans used exile as a form of punishment appropriate to major crimes such as homicide, although ostracism, a milder variant of exile was sometimes imposed for political reasons. Among Romans, physical exile was one way for an individual to avoid the death penalty with voluntary exile allowing the accused to cope with prolonged if not always permanent absence from their country of origin. So along with involuntary exile, voluntary expatriation is another dimension to immigration where what is sought is not primarily the advantages of the place to which one goes, but essentially freedom from whatever disadvantages prevailed at home. Sometimes we just choose to leave. That’s voluntary immigration. Now I’m addressing that particular aspect of Indigenous exile, although it’s clearly a matter that deserves attention because where do 60 percent of us now live? In urban areas. Why have we left our homelands, why have we left our reservations, our trust lands? Well, there are lots of reasons why and that would make for some interesting studies right there. So M.A. students, Ph.D. students, ponder that.

Historically, some Native nations occasionally exercised the power to banish members. However, there’s not a whole lot of documentary or even oral data on this. I searched real thoroughly because I wanted to find out, is this something we used to do and if we did, who did it and why? We do know that the Iroquois Nations, if you read the Great Law of Peace, it has several provisions regarding banishment. If a chief kills another person, that individual is banished forever. And that’s in the Great Law and there’s another provision for regular people if they commit crimes, they can also be banished although they were given an opportunity to be brought back in at a later time. The Cheyenne people on rare occasions also banished individuals who committed horrific offenses. Llewellyn and Hubbell’s book talks about their banishment procedure. But the few available sources that document the power to banish or forcibly exclude show that it was a practice that was rarely used since Indigenous communities focused on mediation, restitution and compensation to deal with problem-causing individuals. No one in tribal society wanted to be ostracized, least of all banished or exiled, and certainly tribal leaders were very careful in exercising power that might lead to such dismissals since in most cases they were probably related to those they were getting ready to banish because we were always about restorative justice, not in a punitive measures.

So with that as a background, I then moved into -- with my computer friend’s help -- a search of our tribal constitutional database to see what if anything tribal constitutions say about this. And what we found was that the terms banish, exile and exclusion do not appear in any of the 318 constitutions. But we did find the phrases loss of membership, the word expel and the word expulsion a number of times. The loss of membership was found in 150 tribal constitutions. So there are ways we can, individuals can lose their membership. Typically it’s for excessive absences if you’re a tribal official or if you have sort of a diluted blood quantum, which is another dimension. Interestingly, the term disenrollment was only found in six constitutions typically involving tribal members who had gotten themselves enrolled in more than one tribe. That’s really frowned upon by our nations, huh? You have to be all Diné or all Yakima or all Lumbee. You can’t belong to two tribes even though many of us have multiple tribal ancestries. Non-Indians and non-member Indians could also be expelled from tribal lands if they were deemed to be disruptive to tribal stability or for other related reasons. In fact, many Native nations retain the explicit right in one or more of their treaties to expel or exclude from tribal lands any non-enrolled Indians or non-Indians except those specifically authorized to be there. The Navajo Nation’s Treaty of 1868 empowers the Navajo Nation to exclude or to expel non-members from their lands if they want to do that. And I’m going to just read you a couple of examples in which, of some of the language in a few tribal constitutions that deals with the issue of exclusion.

The Abenaki people of Maine, their constitution says this, ‘The tribal council may recommend permanent disenfranchisement of any member for serious violations of any of the provisions of the constitution or bylaws made pursuant thereto and the majority vote of the members present at will, will be necessary to call such member to be permanently disenfranchised.’ The Alabama Coushatta constitution says, ‘The tribal council may, by an affirmative vote of five members, expel any members for neglect of duty or gross misconduct. Before any vote for expulsion is taken on the matter, such member shall be given an opportunity to answer any and all charges at the designated council meeting, but the decision of the tribal council shall be final.’ So a number of tribes have provisions in which they lay out very explicitly the grounds on which you can lose your membership; again, the most common phrase in many of the constitutions.

Now what this abbreviated cross-section of constitutions shows is that not surprisingly, there is a significant amount of diversity regarding the rationale used by tribal officials to formally disenroll or physically expel tribal members. In some cases, those facing expulsion or disenrollment were entitled to a hearing so they could learn the reasons they were going to be forced to leave. More often provisions for loss of membership in IRA and later constitutions tend to emphasize a voluntary angle in which tribal members might decide to emigrate from their nation in order to permanently separate themselves from their birth nation. Now it’s important to note that provisions regarding a tribe’s power to exclude non-Indians or non-member Indians from tribal lands are far more prevalent in tribal constitutions than language regarding the actual disenrollment of bona fide tribal members. In other words, when I lived on the Navajo reservation, I made sure I kept a clean nose because I didn’t want to get escorted off the rez by Mr. [Raymond] Austin or somebody in the police force. So I was always aware of that.

1978 was a watershed year for Indian rights with the Supreme Court handing down two major decisions that affected tribal sovereignty, internally and externally. In Oliphant v. Suquamish, the Court deprived tribal governments of the external power to prosecute non-Indians who committed certain crimes, while the Santa Clara case held that tribal governments retained the internal power to decide their own citizenry. Santa Clara in fact appears to have been sort of the beginning point that has emboldened tribal governments to be more emphatic or proactive or in some cases retaliatory in their efforts to clarify their tribal citizenship or membership roles because it’s in the wake of this decision that we begin to see a slow rise in the number of banishments and disenrollments, a rise that increases dramatically in the 1990s when gaming revenue becomes a major stream [of revenue] and when crime in Indian Country just takes off dramatically.

In studying contemporary law and literature, there appear to be four major reasons relied on by tribal governments to justify the banishment or disenrollment of tribal members. One, family conflicts; two, racial criteria and alleged dilution of blood quantum; three, criminal activity including treason or drug sales or gang activity; and then fourth, and finally, financial issues, whether it’s the distribution of per capita gaming assets or judgment funds or something like that. Of course in some disenrollment cases, enrollment committees, tribal councils, judicial bodies, may invoke more than one reason to justify the disenrollment of individuals or families. In other words, disenrollments may be politically motivated, economically motivated, racially motivated or culturally motivated or some combination of the above. For example, just last month the Mille Lacs Band of Ojibwe up in my wintery state banished four band members for five years based on a number of assaults and weapons violations. In this instance, the banished individuals are still entitled to receive their yearly share of casino profits, about $7,000 a year, although they can’t actually set foot on the reservation to collect the revenue. Someone had to send the check to them, it had to be mailed to them or something. And they can request reinstatement to the tribe in 2013 if they’ve lived a clean life and held steady jobs. So this was just last month, four people up in Mille Lacs.

Throughout Indian Country banishment and disenrollment proceedings have indeed increased, and as you know from the table, one of the tables in California alone, especially Laura Wass's table, you can see that at least 16 native communities have or are currently involved in the process of disenrolling sometimes significant numbers of enrolled tribal citizens. And California’s joined by Nevada, Iowa, New York, New Mexico, Minnesota, Washington, Rhode Island and other states as well. And not surprisingly, the reasons for contemporary disenrollment or expulsion of tribal members -- not to mention the disenfranchisement or expulsion of non-Indians or non-member Indians like the Black Seminoles or the Cherokee Freedmen in Oklahoma -- coincide with the ones discussed previously ranging from those steeped in traditional philosophical values to those that reflect new economic and societal forces. Each Native nation that is actively engaging in expulsion or disenrollment of enrolled citizens or non-enrolled citizens of any country deserve specific and detailed assessment. But time and the lack of comprehensive and comparative data does not permit such a systematic and comprehensive inquiry at this point. I’ve tried, but it’s not easy. Efforts to secure factual information about banishments and disenrollments is not an easy process and tribal governments are sometimes reluctant to share this kind of data with outside parties, especially nosy Lumbees, because they say, ‘Hey, you’re not a member. You don’t have the right to know.’ Moreover, the role of Bureau of Indian Affairs is vital on this issue, but attempts to secure information from that body are equally difficult since the Bureau generally insists that those are internal matters to the tribe. And of course given the Cobell litigation, I don’t know that we could even trust the information coming out of the BIA if we were able to get any information from the BIA.

So what is evident is that historically the power to banish or disenroll tribal relatives was utilized, but only in the rarest of circumstances and even then, with the expelled usually having the opportunity to be readmitted if certain conditions were met. Since Native nations were in effect extended families of related kin, the idea of permanently expelling one’s own relatives was not a decision made lightly since traditional values and norms sought strenuously to use much less traumatic forms of punishment to restore proper social behavior. However, as tribal nations continue to expand, with our citizens becoming more differentiated through intermarriage, exposure to and appropriation of certain western values via popular culture, mass media, democratic institutions, and with the oftentimes disruptive role of capital generated from gaming institutions, smoke shops, claims settlements, some tribal governments have felt compelled to consider more dramatic sanctions like banishment and disenrollment as one means to cope with an ever-changing landscape.

There are a number of brazen examples where tribal governments have acted maliciously and I believe unjustifiably to disenroll or banish some tribal citizens on the most spurious of grounds including inter-personal feuds or grabs for raw political power or sheer economic greed. In one of the harshest cases that’s on some of the tables that you have in front of you, the Picayune Rancheria of Chukchansi Indians in California have disenrolled 900 of their 1,500 citizens. Now think about that, ladies and gentlemen. More than half of the nation has been disenrolled. They no longer exist for political and legal purposes as Chukchansi. Now what does that say about this community? And those individuals have lost not only their tribal citizenship, but also their primary source of income, health care benefits, etc.

And a few months ago there was an article describing a recent ordinance by the Rocky Boy Tribal Council in Montana that makes it an offense ‘for any person to engage in communication that harms the reputation or integrity of another.’ And according to the ordinance even the mere allegation of slander or liable are sufficient grounds for the tribe to take action. And that action might lead if convicted to loss of all that person’s real property and a five-year exclusion from the reservation and a fine of up to $5,000. And a second offense is punishable by relinquishment of enrollment and permanent exclusion from the reservation. When I first heard about this, I researched that a bit more and I learned that apparently that ordinance was passed after several anonymous letters were passed around the reservation alleging that some tribal council men were buying trucks and four-wheelers with tribal funds and were misusing tribal credit cards. So there you have it. Someone has since told me that they think that that ordinance has been rescinded. I haven’t been able to verify that. I hope it has.

Now when Native nations overreact like this, such actions I believe violate not only tradition of values, but they also profoundly violate the basic civil and human rights of those disenrolled, if the disenrollees have been wrongly disenfranchised. Yet today, a wave of banishments and disenrollments have been unleashed, leading to the legal, political and cultural exile of thousands of bona fide Native citizens. As our nations continue to evolve, it is imperative that we carefully consider and follow our own traditions and values and consider those of other enlightened communities that focus on fairness, justice, moral equality and respect before engaging in behavior, disenrollment of duly enrolled citizens, that profoundly violates our peoples’ human, social and civil rights and further exposes our already vulnerable nations to outside forces ever intent on limiting what remains of tribal sovereignty. Finally, as John Maynard Keynes once said, and I’m quoting here, ‘While the means we use may be molded by the ends we seek, it is the means we use that mold the ends we achieve.’ So we'd better be careful. Thank you very much, ladies and gentlemen.”

Constitutions and Constitutional Reform - Day 1 (Q&A)

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Native Nations Institute
Year

Presenters and moderators from the first day of NNI's "Tribal Constitutions" seminar gather to field questions from seminar participants on a variety of topics ranging from dual citizenship to the relationship between a nation's constitution and its economic development environment.

Resource Type
Citation

Cornell, Stephen, Jill Doerfler, Robert Hershey and Miriam Jorgensen. "Constitutions and Constitutional Reform - Day 1 (Q&A)." Tribal Constitutions Seminar. Native Nations Institute for Leadership, Managment and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A Session.

Justin Beaulieu:

"Okay, I have a question. It's kind of three parts. So the first part is citizenship. This is important to me personally because my kids and myself are involved. Citizenship, is there any tribes that have identified dual citizenship with another tribe where, like historically where, I can be a citizen or a member of like Mille Lacs, White Earth, Red Lake, etc., and then what impact does that have on federal status? If I'm federally recognized from one tribe, can I not get...I don't understand that. So the second part of the question is, are we putting the cart before the horse when we talk about putting this in our constitution not knowing if that's going to pass or not because how do we consider the next generations when we haven't defined really who they are yet? And then the third part is, has any tribes faltered with their constitutional reform because citizenship was included in there?"

Robert Hershey:

"What was the third part again?"

Justin Beaulieu:

"Has any tribes faltered with constitutional reform, like not passed it because there was a citizenship clause in their constitution, was it not ratified and what not?"

Stephen Cornell:

"So, who's going after that?"

Jill Doerfler:

"Well, I can say a couple things, I guess, probably with regard to White Earth. We don't have a clause that says anything regarding...that precludes dual citizenship, but we didn't really address it specifically like citizenship among multiple tribes and we felt...there was a question at White Earth if citizenship should be considered separately and that was sort of considered separately in the late "˜90s' efforts for reform where we kind of talked about those different options. And at that time, in the late "˜90s, the plan was to put up the new constitution and then put up citizenship sort of at the same time, but then have citizens vote on all those options. And as we worked on our effort more recently in the 21st century, we felt that it was better to put it up as a whole because then you can see the scope of the government because if you have a different type of citizenship that might impact other parts of the constitution and we felt that it would actually be better to put it up as a whole than to separate it out. So that's what we kind of came to."

Stephen Cornell:

"The only thing I'd add -- and this comes to a portion of your question -- there's nothing out there that says you have to redo a constitution all at once. And there's sometimes issues that people find particularly difficult to deal with, and as Jill was saying, this was an issue for them and they decided to put it altogether in a single package, but you can imagine a situation where a nation might say, "˜We need to make some critical changes; it's being held up by one issue over which we have real concerns. We're having trouble resolving that issue. We're going to set that issue aside and deal with it later.' Now that gets complicated for exactly the kinds of reasons Jill talked about, but there's nothing that says you've got to do it all at once and that's what most tribes seem to try to do, but this is your constitution and you're the ones who know whether some issue is going to derail the entire effort and whether one option should be to hold off on that until you can get some consensus over what it should look like. But in the meantime, let's do what we can do because we need to make these changes. So I just wanted to point that out."

Robert Hershey:

"Let me add one other little point to that. The majority of constitutions that we've looked at -- and we did a study of about 200 membership ordinances in different constitutions -- and the majority, the vast majority prohibited dual membership. And I think you'll see that more common than not. One of the tribes we were asked to assist, the question of membership was not even a part of the proposed amendments, but there was a suspicion that it was somehow part of the proposed amendments when it was not at all and that derailed the entire constitutional process. And I agree with what Steve said too, it's probably the trickiest part in there. It may be better to develop some sort of a consensus on the things that seem...like removing the Secretary of the Interior approval language at least initially on some of the ordinances to get that forum going. We have a tremendous amount of constitutional conventions that took place with White Earth to go ahead and inform the public and yet your turnout was a fraction of the people that were involved in the community so I think really it's about the process of education to where it becomes familiar because you're asking people to try and adopt something different than what they know what the status quo has been."

Miriam Jorgensen:

"I don't know of a tribe that has dual membership, although I heard that it was possible in Oklahoma. So I was glad to hear from Mike Burgess that is the case and I think one of the things that's important to think about is to go back to the fundamental idea of what matters to the nation in terms of its citizenship. If it's valuable to them because that's the way that many people see themselves or that there is a segment of the population for which dual citizenship is really important about what the definition of that community is, it might make sense to include it and I wouldn't be surprised if that's part of the reason in Oklahoma where because the Oklahoma Indian history and what, 45 nations relocated to Oklahoma, something like that..."

Herminia Frias (moderator):

"...Thank you. Marcelino?"

Marcelino Flores:

"Thank you to all our presenters, and what I'm understanding so far is that each tribal nation needs to come to an understanding of who they are and how they will govern themselves, but none of this happens in isolation. And I can appreciate Jill beginning to mention that where we're going is one of those questions and Stephen Cornell mentioning perhaps firewood issues and probably appropriate at the council meetings, but the question that I have is there are some things that just cannot be ignored and I think they need more clarification and understanding and that is the role of economic development, health care and housing, particularly for health care. We're largely dependent on the federal system and it's changing, it's very different now. We really don't know what it means to be under Obama Care, especially within the State of Arizona. So how do you address these larger issues in the context of constitutional reform?"

Stephen Cornell:

"I think that's a great question and I'll take a first shot at it. In some ways, I think in the areas you're talking about and I'm going to circle around and come back to your point. We had a tribal chair who said to us once, "˜We get a lot of money from the federal government for programs, a lot of that is treaty-based obligation and our attitude is, 'They owe that to us.'' But he said, "˜I pursue economic development because in my experience every one of those federal dollars is a leash around my neck and it restricts my freedom.' He wasn't talking about himself when he said "˜my,' he meant "˜my people.' 'It restricts our freedom because in order to get that money we've got to agree to year evaluation criteria, we've got to get your permission on how to spend it, we've got to spend it in the way that you think is best for us, not the way we might think is best for us.' And he said, "˜So economic development to me is a freedom program. It's how do I create the resources that allow me to escape that federal leash?' And he said, "˜Don't get me wrong. They owe us the money. They'll never pay us enough money to pay for the land they took, but I don't want to be sitting here having to ask their permission to do the things we think are important for our people.' Now you imagine getting, let's say he reached the point where he could afford health care for his people and where he could provide the housing and there are some nations that are doing that right now, that are pursuing tribally managed health care, for example. The real question is, if he got to that point, has he got the governing tools he needs to deliver on that responsibility? If you say to the U.S. government, "˜Treaty says you're responsible for health care, but you don't do a very good job of it. And I could sit here and wait for you to do a better job of it, but the chances are I might die waiting. So instead, we're going to take responsibility for that because I've got people whose lives are at stake and now we're getting the money to do it.' And now the question is, "˜Can I do it well?' That's going to depend on your constitution. That's going to depend on whether you've got the governing tools in hand that allow you to deliver the things you want to deliver to your people. Now you can get bogged down in the treaty argument and who should pay for it argument and all of that, but at some point you have to say, "˜There are things we want to do for our people and we've got to show that we can deliver.' So that to me is where all these things come back to constitutional questions. They come back to, what do you want to govern and do you have the tools to do it well."

Robert Hershey:

"This is where the Secretarial approval clause comes in too. If you're an IRA [Indian Reorganization Act] tribe, does that say something about your ability to get bank loans and foster economic development? You have the Supremacy Clause of the United States Constitution, the United States government behind you. Some lenders might look at the fact that you're an IRA tribe and they may go ahead and say, "˜Well, you're legitimate,' as opposed to another form of government, too. So that's something that...I said I wasn't going to give you a preview of tomorrow, but that's something I'm going to bring up."

Miriam Jorgensen:

"So now we know everybody's going to come back, Robert, because we're all excited about what you're going to talk about. I just want to say one thing and it's kind of to back up what Steve was saying and I will say that this comes from sort of thinking about what governments are structured to do. If your government is structured to provide health care to citizens and to seek funds to do that from the federal government, to provide housing to citizens and to seek funds from the federal government to do that and to provide streams of income to citizens and to use...rely on particular federal structures to do that, you have a government that's structured to do those things. But if you have a government that is structured to provide greater freedom and opportunity to your people and greater freedom and opportunity for the nation itself to be a self-governing, self-determined, sovereign entity, all those other things are likely to come, but you're going to have the government capacity to do it. So you have to think, "˜Have I built a government that's just about service provision or have I built a government that's capable of doing lots of other things and in the process, is therefore able to underwrite economic development, to underwrite the freedom of individual Native citizens of my nation to be able to access more streams of capital, to be able to have more opportunities and at the same time, yes, maybe I as a government am providing those things to them, but I'm structured to do much more.' So I think that's really the question that nations have to wrestle with -- are you going to limit yourself at the outset by saying, "˜I care so much about service provision that that's the only way I'm going to structure my government,' or, "˜I know that governments have lots of things that they need to do and if it does all those things well, it's going to be able to do service provision well as well.'

Herminia Frias:

"Thank you. We have a question in the back here from Nimrod? Oh, one more response from Jill."

Jill Doerfler:

"I'll just make one quick comment relating to that about services and citizenship and sometimes a concern that comes up is if we increase citizenship then what about services, what about putting strain on that and in a lot of ways our goals are to create strong nations with strong citizens who don't necessarily need housing assistance, but who, because there's good job opportunities and economic development within the nation, don't need to access those, but instead are maybe pumping resources back into the nation rather than extracting them. And so we talked about that quite a bit at White Earth as well. We want strong citizens who contribute and in some ways that don't need certain services maybe."

Mohammed Fardous:

"Hello, my name is Mohammad Fardous, and actually you already answered part of my question, but the question is that is it important to address the economic development in the constitution? If so, what factors should be addressed? Thank you."

Herminia Frias:

"What was the question?"

Mohammed Fardous:

"That economic development, is that important to be addressed in the constitution?"

Herminia Frias:

"Oh, is economic development important to be addressed in the constitution?"

Stephen Cornell:

"To me, that's something for an individual nation to decide. You may be in a nation where you feel the culture of dependency that has been forced on you by subordination and so forth is so deeply entrenched that you want to say -- and one of the things that you may state in a preamble or somewhere in a constitution -- one of the things you value as a people is to be able to support yourselves, to have control over your life, which in this modern time and in this country is going to require dollars. They speak. If that's important to you, you may want to say, "˜One of the things we want this constitution to do is to support prosperity, economic growth for our people so that we can be truly independent of some other government and their control of the purse strings.' I don't know, but to me that's up to an individual nation. It depends what you're most concerned with, and I don't think there's one answer, just as on so many of these issues we've been talking about there's no one answer. The answer is, what resonates with your sense of who you're trying to be and of what needs to change and of what you're trying to protect? That's what a constitution's about. Who are we, what do we need to change, what are we trying to protect? How do we do that? So it's really up to you."

Miriam Jorgensen:

"I think at the same time, though, every constitution is about economic development, but not explicitly. This goes back to the notion that we know that regardless if you're a tribal community, you're a state or provincial government, you're an international nation state, there are fundamentals that support economic progress. One of them is the fair resolution of disputes, and if your constitution sets up that process, it is fundamentally saying something about economic development. You have to have laws like I was talking about that people will abide by so that you can be a society that is a rule-of-law society, and that's not in an oppressive kind of way of, "˜Here's the law and you have to follow it and I said so,' but rather, "˜Do we have laws that we together as a nation agree on that these are the highest expression of ourselves and the way we want to live our lives and to some extent this is how we want to do business?' So does the constitution put in place processes that allow for rule of law to exist? And those are not necessarily saying anything directly about economic development, but they're structuring a governing authority that can support economic development."

Robert Hershey:

"I just want to reiterate the thing that you said about having a dispute-resolution mechanism. That's having a tribal court that has an independent judiciary because you're going to have to have people, if you're going to have investors coming from off the reservation, you're going to try to raise money for economic development projects, they're going to have to have confidence in that dispute resolution forum."

Stephen Cornell:

"And we're going to talk about that tomorrow."

Herminia Frias:

"Jill, did you want to add anything?"

Jill Doerfler:

"No."

Herminia Frias:

"Okay. We have another question in the back."

Jamie Henio:

"Hello. My name is Jamie Henio with the Navajo Nation and my background is primarily in housing and criminal prosecution, but the idea of government reform and constitutions is new to me right now. And I've started working for the Speaker's office about seven, eight months ago and this is...the idea of government reform is pretty much a hot topic on the Navajo Nation right now. So I'm thinking here, listening to everybody and the term 'IRA tribe,' what is an IRA tribe is my first question, what's that? And then the other thing is Navajo Nation, they're looking at...well, there've been attempts in the past, 1930, 1955 and 1960 to develop a constitution, adopt a constitution, but it failed every time. So right now that's where the movement's at again, too, is to develop a document that will govern the Navajo Nation. So if the Navajo Nation should adopt a constitution at this time, would they be considered an IRA tribe and under the control of the Secretary of the Interior? That's my other question."

Robert Hershey:

"Okay. An IRA tribe...well, first of all, after the terrible policies, after the terrible schizophrenic policies of how non-Native society has intruded upon and committed acts of aggression and genocide against Native peoples and then through the allotment period in the late 1800s to the 1920s, in 1934 some of the Solicitors and some of the people in Washington felt that they could go ahead and foster a restructuring of that terrible allotment period where Native peoples lost about two-thirds of their lands. They created what was called the Wheeler-Howard Act in 1934 and that was the Indian Reorganization Act and that basically then from that the BIA [Bureau of Indian Affairs] went out and issued pattern constitutions for the tribes to adopt. I think...it was nothing that the tribes or the nations asked for at that time. What it was, I think it was a convenience mechanism for the United States government also to go ahead and foster its relationship and its so-called trust responsibility with Native nations at that time. So that's the genesis of the IRA. Navajo came about in...and I know that you've had three attempts at constitutional conventions and reformations and that has not passed and I have a historical document written by a Navajo student of mine that I can get you too that talks about that. I think it may have been lost somewhere from...that was given to the nation, but I have a copy of that for you. The fact that you would adopt a constitution does not necessarily make it so that you would be adopting it under the terms of the Indian Reorganization Act. You can adopt a constitution in another way, by yourself. The way Navajo came through the Navajo Business Committee in the 1920s was by virtue of Standard Oil coming to the Secretary of the Interior and basically saying, "˜We want your oil and your shale,' and therefore they established a series of business agreements that then became the councils, which then became the series of concessions and agreements with the Secretary of the Interior and a lot of mismanagement. But it was motivationally driven by non-Native people trying to seek Navajo mineral royalties at that time, out of which then your statutes and laws have evolved keeping in mind the fundamental laws of the Diné. So it does not mean that you have to become an IRA tribe."

Herminia Frias:

"Thank you. Kevin? Which mic is that? Six."

Kevin:

"The gentleman that was talking about economic development, I think every one of the constitutions that are in place in one form or another discuss it in a manner and you were talking about disputes. Well, the issue is if self-determination is applied through a lot of federal programs, that's also under that principle of economic development and the right to govern ourselves. But we have to remember that it's not an act that gives us that right, it's our birthright. So as we can all understand that it's our right as human beings to go in that direction, it's already applied. We just have to apply it. It's already there, written in probably everybody's constitution in one form or another, in the programs that we receive, the ones that do receive them, the monies are there for that principle. Thank you."

Herminia Frias:

"Thank you. We have a question, yes."

Audience member:

"I kind of...I have a question, but I don't know if I'm asking to you guys or maybe to the tribes, because in 2000 we went and passed our new constitution, 2000, the year 2000. So we had an IRA and we made changes. We made it to fit us as Yavapai people, to fit how we're going to do economic development, how we make laws, how we interpret and how all these things happen. But today I think our constitution, when you look back, we're having problems with membership, and I think that's one of the things as tribal people and leaders that you need to look at, what's going to affect you in 50 years. Because me as a leader, I try to look out for 50 years ahead of time or the babies that aren't even born yet. I don't look for today or tomorrow, that's what...that's how I was raised and one of the things, I know that's what we're struggling with is membership and we're working at it but I know like you...one of you speakers presented today that the U.S. Constitution hasn't been changed and it's hard to change and sometimes you don't want to always change your constitution, but as Native people we change every so many centuries and we don't know how many people are actually of our descendance or have just came in and moved in our territory. So I think really the question goes...I don't know if it goes to you guys or us as people. We're the ones that identify ourselves and define ourselves. How many years do you let go by...because here we're...this is year 13 for us with our constitutional change from 1934 and it's been working, but the membership part has been hurting us because we...like this lady here, she's a teacher and she sees all the children that she knows are going to always live within our reservation and their parents are tribal members, their grandparents were tribal members, but we can't enroll them. And I sit there and I argue with my council because I will say, "˜Let's just enroll them. We know who we are. I know that baby's never going to...or that baby's going to live here or that baby may be doing something good in the future and we're not even going to be a part of it,' but it's because our constitutional change that binds our hands and that's why it's so important like what the...like what you did with your community when you had all your forums and meetings and...our committee is doing that now and this is learning for them and I'm glad that they're here, they're learning from you that this is what we need to do is to identify, do everything you can with your community, involve them because in 2000 our community was not involved in this change of constitution. And it is a good constitution and we're tweaking it now. So like I said, I don't know if it's up to...I know it's up to us, but because you guys are the professors and you guys know the rule of thumb or you know the U.S. Constitution, how do we go as citizens of changing them? Do we look every 10, 15 years or do we just not do it and just say, "˜Hey,' cause we do have some elders that say, "˜Just leave it. Just leave it. Don't change it.' So how...what do tribes do that you guys have worked with, I guess is what I'm asking."

Stephen Cornell:

"Well, I was going to ask Miriam because I can't remember whether it's Cherokee or Osage who built into their --Cherokee -- who built into their new constitution the provision that they would revisit it every 20 years I think."

Miriam Jorgensen:

"Actually, it was in the 1976 constitution, that's what motivated the..."

Stephen Cornell:

"...The change, yeah. So it's a...you'd have to think what the appropriate interval is for you, but it's certainly one thing to consider is to say, "˜The world changes and do we wait for a crisis to arise that forces us then into some quick forced constitutional reconsideration or do we say, no, we're going to revisit this document every 10, 15, whatever it might be years, and we'll prepare for that and we'll know it's coming. And therefore it won't be this process that happens in crisis conditions where you don't have time to think about what you're doing adequately because you've got to respond to something that happened. Instead, this will be part of our deliberate, continuing growth of our government.' The world changes; your nation's changed. We sometimes have...I think the anthropologists are probably to blame, but probably all of us are, this notion of these unchanging forever communities that lived in North America. Well, heck, there were trade relations, people had new ideas, people tried new things, people discovered that the climate changed or that you moved because you were following a resource and you had to do things in new ways and the rules changed because you said, "˜Ah, we've got to come up with a new solution for this, deal with the situation we're in now.' Why shouldn't that be part of your new tradition of how you govern, that we're ready to change when the world demands that we respond to new conditions."

Herminia Frias:

"If I can add to that, I think that sometimes we get fixated on that this is done and we forget that this is really a living document, this is really something that we need to adhere to and pay attention to as our society changes. So thinking about it, how is it that we do things today, how is it that we do things tomorrow, and how is it that we're going to do things 25 years from now? It changes."

Miriam Jorgensen:

"So I don't think Jill's going to necessarily blow her own horn on this, but I think that their experience at White Earth is probably real similar to what could go on for you guys at Hualapai. Jill's presentations about historically where their blood quantum rules came from, where their membership and citizenship rules came from, and really telling the history of that. I had read things that Jill had written before meeting her and I encourage you, if you never read any kind of an academic article in your life, to read her 2009 piece in American Indian Quarterly. It's beautiful, it works from the point of storytelling and it puts you in the position as if you were community members in 1910, '13 when the Indian agents came around and assigned blood quantum and you get the understanding that it's an entirely constructed idea. And I think that a lot of citizens today in tribal communities don't understand a lot of that history and they think that it's something that's been...that's definite as opposed to something that's more or less made up and you gave that, a version of that kind of talk multiple times, and it really starts to break down on people's understanding of where these rules come from and opens them up to a greater acceptance that there could be different rules and it can be more inclusive of children and grandchildren and great grandchildren and who's going to be in that community."

Jill Doerfler:

"Well, thank you very much, Miriam, for noting that. Yeah, I didn't get a chance to talk at length about it in my presentation today, but as I said, my research has been on Anishinaabeg identity historically, and so part of that was how people were talking about identity and citizenship in the 19-teens and the historical record on it is amazingly rich. And so we have people at White Earth talking about identity and blood quantum and I was able to use lots of quotes from them extensively to say...what they said time and again was A, "˜we don't know what you're talking about when you try to say blood quantum,' and B, "˜that doesn't really matter to us. What matters is our families, what matters is how we live our lives.' I'll just give two quick examples because I can't help myself. One, what happened is they're asking people at White Earth, "˜is so and so a mixed blood,' and they want to know because of land sale. That's what they're really looking at, but I was interested in the identity. So they asked a woman, "˜Isn't it true...is your husband a mixed blood?' and she says, "˜No, my husband is a full blood. He made himself a full blood.' And so we see there her answer being surprising...I don't know how many people would say that today, they make themselves, but at that time Anishinaabeg people created their own identity by their actions, what they did made them who they were and they were really in control versus this idea of blood quantum, which is sort of pseudo science and it's something that we don't have control over, that's just some kind of number assigned to us at birth by our tribe or the Bureau of Indian Affairs or something like that. And the other fabulous quote that I'll mention, as a person was being asked time and again about another person's blood quantum and he finally said, "˜I don't know. That person has been dead a long time. If you really want to know, you should go ahead and just go dig him up.' So Anishinaabeg people always have some good humor and that's one of my favorites because they're like...there's no answering these questions about blood quantum. And so I think I'll leave it with that."

Herminia Frias:

"Thank you. Justin?"

Justin Beaulieu:

"One of the things that I was going to touch on with her question is that I did a research paper about blood quantum too because it was important to me. And one of the things that I identified was that the only people or the only things that are really identified by how much of something they are is some animals and Native Americans. That's the only thing. So if we're going to categorize ourselves into a category with animals because that...it's always kind of been about resources. The federal government didn't want to be babysitting a bunch of Indians so they said, "˜We're going to make...if you have a kid with a white person, they're half,' and then eventually we're going to be extinct before we're dead. So that was good to them. That was good for them and if that's what we want to continue, that's going to be our legacy, I guess that's our choice."

Herminia Frias:

"Thank you, Justin."

Mike Burgess:

"Mike Burgess again. Not to answer the blood quantum issue, but this young lady, you had a question that you made a statement that how often or how many...when should you change your constitution? My response to that would be and a suggestion is, when your leaders no longer honor it. And so when your leadership doesn't follow through with what that constitution abides by, because I was struck by one statement here that was up on the screen that the law must be followed, rightly or wrongly, be followed. So a constitution that does not define how leadership should be held up, it should be a constitution that has generally your bylaws or your rules of behavior or your ordinance for conducting themselves. So on the reverse side of that, leadership that wants to be in office that can't honor those rules doesn't need to be there in the first place. I bring this up because of my own people again. One constitution, it was [Three] Affiliated Tribes, we broke apart in '65, new constitution in '67, been amended 14 times. We've attempted to change the constitution three times in the last ten years, but my people...put it in political rhetoric, you live with the devil you know. So people who are afraid of change have to be instructed, taught and shown that change is good and beneficial. And so the few of us in my people that want to make these changes, we can't get heard and that voice has been squelched. Well, thankfully the internet is there and even that is misinterpreted at times. But there are these things that can be put in place and for one, we are discussing among ourselves not anymore lowering blood quantum, but raising it. And someone asked me, "˜Well, when and where would you have the cut off line to raise it?' So in 1976, every Comanche enrolled at that time received a per cap and I explained to them, "˜When we first got started with this blood quantum stuff on the reservation days, everybody was a full blood and one-quarter of our tribe was not full-blood Comanche. So why don't we go back to that time frame to 1976 and everybody's a full blood and our children come up half or quarter or three-quarters.' So you're not faced with this reducing blood quantum to get more numbers, which hasn't benefited us in the long run precisely because of per cap, educational benefits, and half the people who don't live at home want their medical card, their education and their per cap and never come home. So some of us are discussing this idea of citizen responsibility, coming home to vote each year, being recognized in the community at specific events and times. So we are having to come back to what some of you have now, citizenship requirements and things of that nature. So I wanted to expand on your question of when to change the constitution. Thank you."

Herminia Frias:

"Thank you. Charissa, right down there."

Audience member:

"This is in regards to the blood quantum. I was just...I teach my kids not to be...not to be prejudiced, but I'm also defending myself and my tribe when I say marry your own tribal members so we don't face these kind of issues. We have a lot of benefits, we have a lot of resources on our own land within our own tribe, we have our language, we have our traditions, we have our ceremony, we have our land. In our tribe, in our tradition, you have that umbilical cord when you're born, then it falls off. We bury it where we're from. We pray for it and we bury it and that's why it's important to teach your kids to marry within your tribe, marry within your tribe so we don't face these kind of problems. And it's important; if you start now when they're young, when they're older it goes on and on. And I tell my kids that. I don't want you to marry somebody that's not a non-member. "˜Why?' I said, "˜Because you're going to lose it, you're going to lose the identity of being a full-blooded Apache.' "˜Well, mom, what makes me Apache?' I said, "˜What makes you Apache? Look at all the hills around you, look at the horse you ride freely, look at everything you do; you hunt, you pray, you dance, you play. You do that because you're Apache. If you're out there, you won't do it. You'll be sitting on a city bus, you'll be doing these things. You'll be following the federal government and the state government. On our lands we have our own laws and we should keep our own blood quantum within our own tribe. Thank you."

Herminia Frias:

"A question in the back."

Jamie Henio:

"Thank you again for letting me speak. I just wanted to share a story regarding the constitution and the Navajo attempts at the constitution. Last year, I was fortunate enough to listen to a speech by a former Navajo leader at the Navajo Nation Bar Conference. And he explained the previous attempts to the constitution and he shared a story with the audience and it goes like this. Back in the early days, there was a big movement about adopting a constitution on the Navajo Nation and you have your pro-constitution people here running around trying to convince everybody saying, "˜This is good for you, this is life, this is life-sustaining.' Then you have your traditional people here who were sort of against it. So they had a big meeting and at that meeting the traditional leaders and the pro people met and the traditional leaders were saying, "˜Okay, you're saying this piece of paper, this document is life-sustaining. Okay, let's put it to a test then.' He goes, "˜We'll build two fires here. One here for you and then we'll build another fire here. On this fire, that's your fire. On our fire what we'll do is we'll go to our flock, get a sheep, we'll butcher, we'll make some bread, we'll fry some meat and cook it and stuff. On your fire, get a big tub of water, boil it and then what you'll do is we'll be cooking meat over here and we'll eat. On your fire take the piece of paper that you're touting around and put it in there and boil it and then we'll see which sustains life.' So you get it? He's telling people, "˜Take your constitution and boil it and eat it and see if it'll sustain your life for you.'"

Robert Hershey:

"And you think mutton sustains life? Ooh. No, I'm teasing. I'm teasing. I loved it. I ate it every day."

Jamie Henio:

"Well, the thing is then later on the guy says, "˜You know the reason why they rejected the constitutions? Because we still have that fear of the livestock reduction program.' And that's why they've been rejecting the constitution because they think that might happen again. So that was his point at the end after that."

Herminia Frias:

"Any other questions, comments? Okay, we have one more at least."

Audience member:

"Hello. I just wanted to make one point, something that Miriam said, which I think...I hadn't thought about before and that's when looking at sources of law to put into constitutions this recognition of international law. I hadn't thought about that, but Indigenous people are making progress all over the world when they're back against the wall and no one will listen and courts will not listen domestically that they're starting to make progress in international law with the Rights of Indigenous Peoples, the declaration on rights and obligations of man. I think that the way for this progress to continue is for it to be recognized in tribal constitutions. For example, the gentleman spoke about the birthright and where are you going to find that in a body of law to cite? But in something like an international document where self-determination and the importance of land to Indigenous people is emphasized. I think that's a great point, something I hadn't thought about."

Robert Hershey:

"I'm going to talk about that tomorrow, too. Thank you -- one of my students, an attorney, bright guy."

Herminia Frias:

"Anyone else? Yes, sir."

Roger White Owl:

"Hi. Roger White Owl. Three Affiliated Tribes. One of the things I guess I wanted to ask the panel, one of the things is as we look at this concept of the social contract in constitutions and what they are really about how important is ambiguity in these documents that you have a living document that isn't just technically written because even the great Greek philosophers said that the worst government was run by lawyers. So that is..."

Miriam Jorgensen:

"And I think Shakespeare said it, too."

Roger White Owl:

"Just how important...because as we see...as we see...as we see, as Mr. Burgess said, pointed out is that your constitution should not be too technical to where your people can't understand it. It's the people's document and so that's the reason why that attorneys make the worst lawmakers according to even Greek philosophers and the very essence of what we know as Western jurisprudence. And so as we look at that, it needs to be...our constitutions need to have this bit of room to be interpreted as the concepts of the rule of law in government and everything else is expressed in implied powers. That's what we have within the constitution and in constitutional interpretation. So how do you guys feel, how ambiguous should a constitution be?"

Miriam Jorgensen:

"Well, I can't give you an amount, like it should be 60% ambiguous and 40% not, but I think it is true that a degree of ambiguity is important and exactly for those reasons that you say a living document, that it allows there to be interpretation of that document that moves with the times. I've written a little bit about this and we talk about it as breathing room in a sense in the document, that you don't have to resolve every single issue by going into great detail in the document. That's what I was kind of getting at when I said about the rules of procedure, a lot of those rules of procedure for legislatures are very loose, they're sort of like, "˜Well, we're going to assign it to the legislative body to establish its rules of procedure. We're going to tell them how representation should occur and what the quorum should be. We might even tell them the dates on which they should meet or how often they should meet or the actual way that they establish their rules are going to be a little bit looser, that we're not going to specify this necessarily in the constitution, we'll just give some direction.' And that allows things to change a little bit if they need to. I think however that in order to have one of those constitutions that has breathing room in it, your constitution absolutely needs to specify a body that's responsible for interpreting the constitution because if you don't assign somebody to interpret the constitution, you've got this somewhat ambiguous document without any ability to say, "˜Okay, at this point in time this is what it means.' Our interpretation may change a little bit, we may change and grow like Steve was talking about, we may change to adapt to the times or to changing circumstances or whatever but you still need somebody to do that... that constitutional interpretation. And if you go back and look at the Mohegan constitution, that council of elders, which I said has that funny role, it's both a legislative body with respect to custom and tradition and certain kinds of traditional law, it's also a constitutional interpretation and judicial review body for that tribe. And so it has very clearly assigned this role." 

Robert Hershey: The Legal Process of Constitutional Reform

Producer
Native Nations Institute
Year

Robert Hershey, Professor of Law and American Indian Studies at the University of Arizona, provides an overview of what Native nations need to consider when it comes to the legal process involved with reforming their constitutions, and dispels some of the misconceptions that people have about the right the federal government has to interfere in what changes Native nations make to their constitutions.

Resource Type
Citation

Hershey, Robert. "The Legal Process of Constitutional Reform." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 4, 2013. Presentation.

Robert Hershey:

"Let me just introduce myself just a little bit. I'm Robert Hershey; I was born and raised in Hollywood, California, born on Sunset Blvd. in Cedars of Lebanon Hospital to...yes? I went to Hollywood High School for typing in summer school. I went to John Marshall High School, and the reason we had such a lousy football team is because our mascot was the Barristers. So I don't know if I was destined to become an attorney from the start. However, I skateboarded down the Avenue of the Stars before there were Avenue of the Stars. It was still concrete at that time and growing up in Hollywood as a young kid -- and you might think I'm only 39 with prematurely moonstruck hair -- but really I was born in the late '40s. It was a magnificent time to grow up and to be totally involved in a fantasy world that was very, very difficult to have any concept of racial hatred and discrimination, except when the African-American community decided that they certainly were not getting a fair share of things.

The Indians in my world were all portrayed on television and in movies and it's very important to consider the imagery of American Indian policy, how interwoven it is, because the idea of an Indian is a white construct. We use the term 'Indian and non-Indians' all the time, but at the same time it is something that is just made up. You didn't refer to yourself, ‘I'm Indian.' You referred to yourself by your name, you referred to yourself by your kinship, your family relationships, the nation you belonged to, the societies you were part of, but there's this whole fantasy thing that still dictates today American Indian policy and it paints Indian people with one long, broad brush. Every time there's legislation in Congress it's usually, it's a panoramic landscape of which it paints everybody with the same ideas.

So you come from Hollywood, California, and you find yourself going to big movie theaters that are 10 times the size of houses and you get a really different kind of view of where you were going to be. My grandparents had to leave Europe, they were chased out of Europe because they were Jewish. Fortunately it was before the Holocaust. They went to Cleveland, Ohio, then they came out to California. My parents met there and I was raised there. I went to college at the University of California at Irvine. I studied pre-med. Got tired of memorizing molecules and wound up in law school. I came here to the University of Arizona. When I graduated college at the University of Arizona from law school, I got a job on the Navajo Indian Reservation. How many Navajo speakers are here? Uh oh. I'm in trouble. I was hoping there wasn't going to be any, but we can share mutton together. My mutton story is that where I would go eat mutton every day, one day I was backing up to go back to work and I backed my car into a telephone pole and I still have the muscle spasm from that and that's from 40 years ago. That's my second mutton story. I worked for Diné be'iiná NáhiiÅ‚na be Agha'diit'ahii. So-so? How did I do? I did all right. Thank you. D.N.A. Legal Services, so I was a legal aid attorney there.

And my first experience, and I'd never been on a reservation before, but my first experience, because I was a part of the outdoor life my whole life, and my first experience on the reservation was I rented a house, actually rented a cabin. It was a one-room cabin -- no water, no electricity -- way back in a canyon off the road and the mud chinking was missing. When the wind blew my curtains on the inside of the cabin would blow. I had a two-burner wood stove. I'd fire that thing up, get that stove pipe going red hot, open the front door to a snow storm and I was absolutely in heaven. But when I first went there, my Navajo landlady, my landlord Bertha Harvey, she was about 70 years old, still riding her horses, still chopping her wood and she asked me one day, she said, ‘Robert' -- because she lived much closer to the highway and I lived about a mile and a half back in the canyon -- and she said, ‘Robert, would you...' She called me 'Shinaaí­' and, ‘would you mind taking my goats back to the pen that's next to your place?' Being from Hollywood, what am I going to say, I'm going to say I don't know how to do goats. I didn't know how to do goats, but anyway I said, ‘Sure, I'll do that.' And this one black goat who was the leader of the pack, his name was Skunk and he wore this big bill on him and he took off, he took the whole flock up into the hills and I chased after them and chased after them and chased after them and finally I couldn't get them to come back with me. So I slowly slinked back down the hill after about two hours and I told [her], I said, ‘Bertha, I am so sorry. I lost your goats.' And all she did was start laughing at me. And she says, ‘They know where to go!' So I go back to my house, walk back another mile and a half back and they're in the pen where they're supposed to be. I'm supposed to talk to you today about legal process. My first question, was that legal what she did to me? Then when I worked with the Apaches, they're real good jokesters and they do these joking imitations of the white man. Oh, when I left the Navajo Indian Reservation one of my Navajo friends, she put a thunderbird around my neck, a beaded thunderbird and she said, ‘This will bring you luck in your whole, white life.' And I said, ‘Okay, I got that.'

So I have been very fortunate and I'm absolutely amazed and in wonderment and as I said yesterday, I said, I'm so honored to be with people that care so much and it's been a 40-year commitment on my part to work with and be honored by and in this situation and watch the success of Native peoples. You may get discouraged at times, but look around you, look at the success of Native nations. I am astounded and so happy to be part of that and have based my career on being a participant in that. So thank you very, very much for allowing me that opportunity. So what's legal? Give me a concept. What is legal? Go ahead. I need a mic to give to this young man here. Yes, sir. What's legal?"

Audience member:

"It would be an activity permissible or sanctioned by the people."

Robert Hershey:

"Okay. Who else has an idea about legality? What's legal? Because we talk about legal process, we know...we heard so much about law, but I want to know what's legal. You basically said, ‘It's sanctioned by the community.' It's an agreement. It's an agreement. Who else has an idea of what's legal? Go ahead."

Audience member:

"Like a binding contract between two people."

Robert Hershey:

"A binding contract between...again, an agreement. Right? In reality, [it's] an agreement. Yes, sir."

Audience member:

"A treaty."

Robert Hershey:

"A treaty. A binding contract between two people. Anybody else? You've been talking about reformation of constitutions. You've been learning a lot about constitutions. This is something that you heard before; I'll reiterate. This is nothing that gets fixed in stone. This process of amendments you hear and you hear about, ‘Can we amend our constitution, can we keep it moving forward, can we start a constitution?' It just keeps rolling forward. It's as dynamic as your culture and as your culture rolls and rolls and rolls into contemporary societies that you've created, the constitution supports that and it gives you a greater understanding. Later on I'm going to tell you what I consider also different conceptions of what a constitution might look like. There was one comment that was made to me yesterday by a man who said that, ‘The treaty gave us rights,' and, ‘What about our treaty rights?' Let me tell you, I view things a little differently. Native peoples enjoy all the inherent attributes of sovereignty. Think of it as a big pie. You are inherently sovereign. You inherently control your own destiny. Treaties took away parts of that right. Court decisions take away those rights. Congressional statutes take away those rights. What's left is your inherent ability in addition to your traditionally inherent and aboriginal abilities to govern yourself. That's what's left.

When you hear the word 'sovereign', 'You're sovereign. You have rights of sovereignty,' do you know where that comes from? This is not going to be a federal Indian law lecture, but very, very briefly, in the early 1800s there was a series of three cases. The first case legitimized the Doctrine of Discovery. It basically says that the colonizing power of the United States could go ahead and be unapologetic about subjecting you into their dominion and control. They had plenary authority. The second case basically called you dependent...domestic dependent sovereigns. That's where that term 'sovereignty' came from, which over the years has also been my coin of the turn domestic dependent abuse at times or domestic dependent violence, but that's where that word sovereignty comes from. The third case involves, ‘Well, wait a second, if you are domestic dependent sovereign, then we must have some sort of a guardian/ward relation over you, therefore we have the trust responsibility.'

So since the 1800s, the early 1800s, that kind of relationship has been established and the United States then has taken away lands, it's allotted your lands to take away more lands and then, by the 1930s, that's when it passed the Indian Reorganization Act and those are the types of constitutions that we're talking about now. In addition to the Indian Reorganization Act, there's the Oklahoma tribes' organizing documents, there's other specific statutes for tribes that have organized in constitutional format. Is it all voluntary? And why isn't it voluntary? Because there was not equal bargaining power, there was a conquest, there was a power here and there was subterfuge and there was deceitfulness and dishonesty and saddled you with certain systems of government that you're still fighting against or rallying against today.

Now let me ask you this, and this is something that I would like some participation in, when we talk about the Secretary [of Interior] approving constitutions and having that kind of authority over you, there are a great deal of pressures that the Secretary of the Interior and the BIA [Bureau of Indian Affairs] and through the superintendents in the different agencies they exert over you. I would like you to share some of those stories before I go into what the secretarial process is all about. There have been cases where the Secretary, the agency personnel, they basically say, ‘If you want to go ahead and change your constitution to remove the authority of the Secretary to approve your actions, then you will either lose federal recognition or you will no longer be a participant to the benefits and advantages of the Indian Reorganization Act governments. You will lose that government-to-government relationship,' those kind of threats. In addition, financial pressures, can you say no to them? Are you strong enough economically to say no to them and carry on by yourself? I would like to hear some of you talk about the things that the BIA and the Secretary and the agencies have disclosed to you or have said to you when you've discussed with them the remodeling or the amendment or the reformation of your constitutions. Can somebody tell me some of the stories? Red Lake has its own history. Red Lake was not an IRA tribe. Navajos have no constitution. They've tried. Yes, please. Because I think it's important for us to share at this time the experiences that everyone's had with the Bureau before I get into the scope of what I think their powers are. Thank you."

Audience member:

"In the 1980s when I was tribal chairman, one of the things we became very much aware of was how ineffective and how not responsive to our needs the BIA was. We discovered some of the same things that Elouise Cobell wrote about and we made the BIA rectify those. When we saw how they were dealing with our land and how the land transactions weren't being carried out to the full extent that they are supposed to be, we decided to do something about it. And we didn't follow the same process you're talking about here today. We didn't follow like this very highly democratic process, but what the tribal council did was identify what we needed to do and that was to take away the authorities that the BIA had over us and take over the governance of the tribe ourselves because we knew that we had people who were much more capable than the individuals who were working for the BIA. We came up with the ideas or with the reforms that we needed, and one of the things that we figured we needed to do was to claim jurisdiction over all people in all lands within the exterior boundaries of the Fort Berthold Indian Reservation. And then we gave the authority to carry out those jurisdictions to the tribal business council. And we also went for a name change because the Three Affiliated Tribes was what we called...colonial appellation; it was given to us by the BIA. So we wanted to use our own tribal name. We wanted to call ourselves the Mandan, Hidatsa and Arikara Nation. After they drafted... after the legal department drafted those up for us, we went to every community, every district and showed it to them, we explained it to them. And I know you kind of poo-pooed that idea a little while ago, but it worked for us."

Robert Hershey:

"What was that?"

Audience member:

"Where we wrote out what we wanted, we took it to the community, they gave us our... to the communities, they gave us our blessing. They gave us their blessing and...we answered all their questions, we were honest with them and to me, I think the whole issue at hand was one of trust. Did our people trust us enough to let us do this reform? And by being open with them and honest with them and letting them know what we were doing and why we were doing it, when it came time to vote, they voted overwhelmingly for the changes. And that has helped us immensely down the road. After that we took over all the services that the BIA had. We took over the realty department because they were not doing a good job with realty and we knew that. It worked. These amendments worked out very well for us. I was wondering this morning when you were talking about that Violence Against Women Act and you were saying people need to change their tribal constitutions. Is there something within that Act that says we have to proceed in a certain way or if we already claim jurisdiction over all people and all lands are we okay with that already? That's just kind of an aside I was wondering about. But anyway, when it came down to actually running that Secretarial election, there were other things we wanted to do at the time, but the BIA told us that the people in Washington did not want us to have more than three amendments presented to our people because they thought it might confuse them. So we went along with that and later on we did another secretarial election to get other things done that we wanted to do."

Robert Hershey:

"And is your constitution still, the amendment process still subject to the approval of the Secretary of the Interior? If you wanted to amend your constitution again, do you have to have another..."

Audience member:

"We still have to have the Secretarial election. We were encouraged to leave that in there. One of the things I just want to mention that we found later on is that our...a number of our people, if things didn't go just the way they wanted them to, they kind of longed for the BIA again. And we found that kind of interesting because if they couldn't get their way with the tribe they thought maybe the BIA, if they still had control of the tribe maybe they would have let them have this, that or whatever."

Robert Hershey:

"Thank you for sharing that 'cause I do want to talk a little..."

Audience member:

"I have one other thing I want to say, too. If you're going to do this, you have...the tribe has to be the one to push on these. The BIA is very lax. They don't...they're not going to push things forward for you. We had a young man who was one of our tribal members, Ray Cross, and we had another legal counsel, Kip Quail. But Ray Cross, one of our own tribal members was very, very aggressive and he just...he pushed everything. It was always, ‘Okay, when is our next meeting? All right, when are we going to meet next?' And he was telling the BIA not...he was telling the BIA what to do. We didn't let them tell us what to do."

Robert Hershey:

"Absolutely. Thank you. You brought up a question that many of you might be thinking about. The Tribal Law and Order Act of 2010 and also the Violence Against Women Act. They require certain constitutional rights, United States constitutional rights like the presence of a counsel, in order to go ahead and have increased sentencing authority or to assume jurisdiction over non-Indians in domestic violence cases on the reservation they have to be afforded United State constitutional rights, not just Indian Civil Rights Act cases. So if your constitutions have a provision in there where you have adopted the Indian Civil Rights Act and made that part of your constitution and that has old sentencing authority in it, it does not provide...it may be a limitation and that may be something you have to amend to go ahead to keep in pace with the jurisdictional advantage and the punishment that can be meted out under these two new acts, so that may be something. Yes. Thank you."

Audience member:

"Thank you."

Robert Hershey:

"Anybody else? How about somebody who has a good story about the BIA? Raise your hands. There's a young man over there who's got a good story about the BIA."

Audience member:

"I am not a young man, but thank you. We had trouble in our reservation and some buildings burned and tribal council moved their meetings off the reservation under the Roger Jourdain regime. And I had a friend that worked for the BIA in Minneapolis and she called me and told me to come down. And so I went down to the BIA in Minneapolis and she showed me an order from the Bureau of Indian Affairs. At the time, there was a lot of mineral concerns that are still going on right now, but this was like in the 1970s, late 1970s and the directive from the Bureau of Indian Affairs was to allow oil companies and people that...companies that were looking for minerals to allow them to do that without informing the tribal council that the Bureau, local bureaus on each reservation throughout the United States, giving them the authority to go ahead and allow illegal coring and other matters that was going on. And it did happen in many Midwestern states. So I took that directive and I took it to Roger. Roger got mad at me. He said, ‘Where the hell did you get this?' I said, ‘Well, it doesn't matter where I got this. What matters is the directive from the Bureau of Indian Affairs.' I said, ‘This is what I'm giving you.' And it wasn't too long after that the superintendent of Bureau of Indian Affairs on the Red Lake Nation was booted out and Roger informed other tribal councils about that directive from the Bureau undermining tribal governments. And so that's a story I have about them."

Robert Hershey:

"Okay. Thank you. Someone back here too. Because what I'm getting at here is that there are some sentiments on the reservations that the BIA there is to protect some people from actions of tribal councils and they do appreciate that oversight, as much as they do interfere with the tribes exercising their own self-determination. So there is that kind of split...

...Not only is there dependence on this bureaucracy, but some people are advantaged because of this bureaucracy. And so when you adopt the BIA constitutions, how many people are living today that have not been a part of a BIA constitution from a government, especially if your nation was there from the 1930s and adopted that constitution? So these are very powerful institutions, so that your leaders that are part of the IRA government, tribal council, they wear the clothes of power by virtue of these forms of government. So you're trying to change that, too. Now I've worked with a number of nations in constitutional reformation. One tribe has been trying to amend its constitution since 1975 and they've appointed a committee, a constitutional committee, but we heard yesterday too there's some fatigue that sets in and that fatigue...and so you have attrition, you have people falling out. And I've been at council meetings where there's been a call to the audience, ‘Who wants to be on the constitutional committee now? Who wants to be there?' And maybe one person might step up and give it a go. But we've advised these constitutional committees and some of these constitutional committees think that they are in effect a shadow government. I don't know if that's been an experience there where they think that they should have the power. They say, ‘The council's not doing this, this, this so we're going to change the constitution to make sure that they don't do this, this and this.' There [are] other people that I've worked with that have been trying to amend their constitution since 1990. This is a long, arduous process. Please don't feel that you have to get this done within any quick period of time. Before I continue...Yes, councilman.

Audience member:

"Just kind of a question, if you can discuss or point out the state of the organizations for example like the BIA and their role is changing, but they have some changes that are going on like some generational differences that are being felt and also I've heard that -- Ben pointed out at the legislative level -- where younger leadership is coming in and they're met with these older...at the state level it's become evident as well. There's just a generational gap in the organizations. And how is that changing and where do we see that going because I...one of the things, the good things I was going to say about the BIA is that they just got emails maybe about five years ago, which I thought was remarkable. They've come a long way."

Robert Hershey:

"I talked to some of my students...I've had two students that got a job a year-and-a-half ago at the solicitor's office. They were...I'm very proud of them. They were chosen out of about 1,000 people, there were four jobs open, two of our students from the Indigenous Peoples Law and Policy got jobs in the solicitors and I called them to ask them these types of things. There's still a climate of kind of hush-hush. There's still the politics going on there. Most of your experiences with the BIA are going to be at the agency level and so those experiences are not necessarily resonate all the way up to the central powers in Washington where you're going to get like a consultation policy from the Secretary of the Interior. Well, it looks really nice. They've done a fairly good job, but like all consultation policies, they're usually adopted before they consult with the tribes as to what a consultation policy should look like. And I'm going to come back to that in a little bit, but there may be a generational issue. But being youthful does not guarantee that you're going to have dramatic success. The youthful people on the Navajo Reservation in the 1920s are the ones that wanted to go ahead and start this process of exploration of shale oil development. But again, it's going to be your own individual experiences. Usually it's the agency superintendent levels that are going to determine...and those relationships I've seen have changed a bit to where they've been more supportive. But let me go on and talk about still how they make their determinations. Go ahead."

Audience member:

"[Unintelligible]."

Robert Hershey:

"We can't retire. I'm sorry. We can't. You would all have that experience. One second, sir. I want to get to one other thing. They've given me a sign there and I've got about six hours of material to get through. How many people do not have an IRA constitution here? Navajo, Red Lake does not. Sorry?"

Audience Member:

"[Unintelligible]."

Robert Hershey:

"It looks like it, but it's not under the IRA, am I correct?"

Audience member:

"[Unintelligible]."

Robert Hershey:

"So you still went ahead and had the Secretarial approval. So there are those kinds of constitutions that have not been adopted under 25 USC Section 460, which is the Indian Reorganization Act, but you've put the Secretarial approval language in your constitution, so you're still bound by the Secretarial approval. Yes?"

Audience member:

"With our committee here one of the things we were looking at is to...striking that out of our new constitution and..."

Robert Hershey:

"You want to know the consequences."

Audience member:

"Under the law, and maybe international law, would it still be recognized in international law because it was signed off, our original one was signed off by the government."

Robert Hershey:

"Okay. I'm going to get to that in a minute, the consequences of removing the approval process by the Secretary of the Interior."

Audience member:

"Does that include Red Lake's unique status?"

Robert Hershey:

"That would include Red Lake's unique status as well because it basically...excuse me. Was it by statute or was it by just an inclusion that you put in there?"

Audience member:

"Inclusion."

Robert Hershey:

"Inclusion. You may get some backlash from the Secretary on that; however, you can get it done. There's been some threats that I've been made aware of where the Secretary would basically say, ‘Well, you're no longer going to be federally recognized.' Those of you that have succumbed to those kind of threats, that is not true. You cannot lose your federal recognition under the acknowledgement process by virtue of removing the Secretarial language. What will happen is if you remove the Secretarial approval language, like I said yesterday, in one sense, in one sense that you could remove the language that's filtered through all the language of the constitution that they have approval: attorneys, they have to approve mining, they have to approve leases, things...you can get rid of all that language. It's only when you go ahead and try to remove the Secretarial approval clause, ‘amending the constitution,' if you already have it in the constitution, that then you would no longer become an IRA tribe. It does not mean you lose your federal recognition. Yes, ma'am."

Audience member:

"[Unintelligible]."

Robert Hershey:

"Well, it is related to the trust responsibility and here's how, and that's a reason why some of the BIAs, how they view whether you can go ahead and amend their constitution or not. They're basically saying, ‘We have to support our trust responsibility to you, therefore we have to have oversight.'

Now, for the Secretary to...first of all, in the materials you have are the statutes, the Code of Federal Regulations that talk about the process of what you have to do to go ahead and have an amendment. How many people have...if you've had no constitution whatsoever and you want to become an IRA constitutional tribe, then you have to have 60 percent of the members that are on your reservation petition the Secretary of the Interior to have an election. If you already have, then you get together the people that want to go ahead and have an amendment to the constitution or a revocation of the constitution and then you have to go through a process where you tell the Secretary, the Secretary has 90 days to go ahead and look at your amendments, give you suggestions and advice under the trust responsibility, approve or disprove and then you have to...if they disprove, then you have to decide whether you're going to go ahead with the election or not; I'll tell you the grounds in just a minute. And then, once the election is had, 30 percent of your voting, the eligible voters must show up at the election, a majority of which then determines whether those amendments pass. The Secretary then, if they pass, the Secretary then has 45 days within which to approve or disprove of those amendments. If they don't make a decision within 45 days, they automatically become an amendment to the constitution.

Now here's where the trust responsibility comes in, because prior to 1988 when the Indian Reorganization Act was amended, the Secretary was insinuating itself in all manner of decisions as to whether or not it could approve or disprove your constitutional amendment provisions. And they...basically for any reason whatsoever, and the tribes were really getting hung up. As a result of the 1988 amendments, the Secretary only has the authority to disprove your...if your proposed amendments are in violation of federal laws, congressional statutes, court cases. What the Secretary is also doing is they say that they have the authority to insinuate themselves into the approval process if your proposed amendments violate federal policy. And this is where that trust responsibility comes in because there's no standards that talk about the violation of what the policies are. They can bring anything up. Now this is especially acute in membership issues, when you're trying to amend the constitution in terms of...the regulations are given in your materials under one of the numbers. You can read through that. So it is still unclear and it is not demarcated exactly what the authority is. The BIA Handbook of 1987 is still in use. There are working drafts of later, of 2009 handbooks, copies that I've seen and they're really hard to find, this handbook how the BIA determines whether or not it's going to go ahead and rule whether or not something is approved or not. For the most part the BIA has been approving. The consequences of not being an IRA tribe; if you remove that language, what are those? What else do you have in place at that time? There are communities that want that certitude, that they have the United States government exercising its trust responsibility through the Secretary of the Interior and steadfastly saying that, ‘We have the supremacy of the United States government behind us because they approve what we do.' The Secretary has no authority to approve your ordinances or resolutions, statutes, providing you have not given them that authority in your constitution. It's only in terms of the amendment process.

Now I want to move on because I have a few things to show you here. Somebody asked about the United States, the Declaration of the Rights of Indigenous Peoples, some of the international law documents. I'm not going to run through all of it here but please, all of you should have a copy of the United Nations Declaration of the Rights of Indigenous Peoples in your council rooms, in your attorney's offices because these laws are binding. Now there's no real teeth in them, it's not that if the United States Office of the Solicitor or the United States government in itself violates any of these principles, that you can then sue them, take them to task, but you can incorporate these principles within your constitution should you choose to do so -- I'm sorry these are not well written. I'm going to buzz through these because they're different -- but you have the right to determine your own members, you have the right to control your own lands, you have the right to make decisions about just about anything and no state government, United States -- and when I say state governments, nation states -- can go ahead and interfere with those rights as long as you continue to assert them through this process.

Now, the Advisory Council for Historic Preservation; if some of you are involved in sacred sites litigation, holy place litigation, the Advisory Council for Historic Preservation -- I'm sorry you can't see these -- just put a clause in there, it just came out last month that they're supporting the United Nations Declaration on the Rights of Indigenous Peoples within their advisory council materials. This is an EPA [Environmental Protection Agency] policy. This is just for draft. It says, ‘Do not cite or quote.' Too bad. There's another provision in the EPA draft that basically says, ‘that we support the United Nations Declaration of the Rights of Indigenous Peoples.' This is the Indigenous and Tribal Peoples Rights; this is the Inter-American Commission on Human Rights, one of the international law documents, the International Labor Organization Convention 169. Your attorney should be well versed in this. In fact, on April 19th at ASU, the Special Rapporteur for Indigenous Peoples Human Rights is part of a symposium at Arizona State University on incorporating these Indigenous international law principles into the domestic discourse. Native peoples, Native societies and nations in this country have been reluctant to embrace this because they've held so fast to the trust responsibility. This is the frontier. This is the inclusion of the Indigenous Peoples Rights in the new constitution of Nepal. You will see this. And in Bolivia you will see this. This is the National Congress of American Indians. They have a draft.

Now, I want to think about something other than what you've been talking about, these kind of documents that you try to embrace within a written, English language written structure and whether or not there are other concepts of how you formulate government. How many people have conversations about plants, about place names, about a certain site, about a mountain? What's the story there, how does that envision, how does that help you then translate into what's appropriate to be written rules of conduct? The O'odham here, they basically teach their children, or at least traditionally, they taught their children, they waited until bedtime and when the child was just about ready to go to sleep they would tell them in their dream so they could dream about what was appropriate behavior or when they would wake up.

There's different ways of expressing what a constitution may be -- a land management plan. This is the Poplar River First Nation in Manitoba and what they have done is that they've organized together, they've mapped out their lands, they have a vision statement, which you might consider like a preamble to the constitution. One of the speakers just before me was talking about land management, comprehensive land management. The constitution reformation does not have to come before a comprehensive land management [plan]. One may inform the other. And in the process of developing comprehensive land management strategies, I suggest that you map your intergenerational memories. You probably already have done that. You've taken the statements of your elders. You've archived them. You've protected privileged knowledge. You've put them in your archives, you've created maps, you've created place names, you've gathered stories. These are important not just for whether or not you're going to go into aboriginal title litigation or whether you're going to design a constitution, but whether there's preservation of language because all those stories inform custom and tradition that can be used by your tribal courts in establishing common law.

So what they've done here is they have the vision statement, they spent 10 years working on this comprehensive land use plan. As a consequence, shortly after this they worked in concert with the government of Manitoba. The government of Manitoba passed Bill 6 and Bill 6 basically set aside most of the eastern shore of Lake Winnipeg in Manitoba as conservation area joining the traditional lands of the Poplar River First Nation. You can get there. Go on their website and download this plan. It's magnificent. This is the constitution, according to my colleague Ray Austin, Professor Ray Austin, former Navajo Supreme Court Justice. He's one of our professors. He's a distinguished juris in residence at our college in our program. This is his constitution of the Navajo Nation. ‘Mother Earth and Father Sky and the rights and responsibilities and the protections afford each.' He says he can go ahead and talk about the whole Navajo system of government through this. He incorporates the terms hozho, hozho k'e, nayee, other concepts here.

Emory Sekaquaptewa, magnificent Hopi elder, Chief Judge of the Hopi Court of Appeals, one of my most significant mentors, wrote about Hopi songs and ritual dances as being constitutions, as being the stories. So when we think of a written constitution, we ask our self, ‘Who's it for or to? Is it to show to the external world? Is it for our selves internally? Are there other ways that we can go ahead and express ourselves by virtue of mapping, by singing?' These are all constitutions. These are all rules of conduct. The Maya Atlas, the Toledo Mayo in Belize put together an atlas. I would have you look at their...this is something called 'Dreaming New Mexico' and it's not a very good rendition. A project in New Mexico that got together all the stakeholders, the Native peoples, the Pueblo peoples, the food peoples, the people that were bringing food in, the energy inputs, the ranchers, the farmers, people...all your community, all your neighbors and they visualized and mapped something different because we're all talking about ecological sustainability here in addition to the promotion of self-determination and sustainability of Native identity within your community. So you have neighbors out there as well. I'd like to hear if any of you have any other questions that I might be able to answer or comments. I would love to hear from you please. Kevin? No. Yes, sir."

Audience member:

"This has to do with citizenship. If you were born on a reservation, your allegiance is to that piece of land where you were born, correct?"

Robert Hershey:

"I would hope so."

Audience member:

"And so if you were born off the reservation then your allegiance is to the United States? Is that part of..."

Robert Hershey:

"Me?"

Audience member:

"Yes."

Robert Hershey:

"Am I allegiance to the United States?"

Audience member:

"Yeah. Do you have allegiance...? When you're born in Hollywood...?"

Robert Hershey:

"That gets...that's a political thing. I don't want to go ahead and cast a disparaging comment about the United States government in front of this illustrious audience, but I will if you want me to. I'm much more comfortable with Native politicians than I am with Anglo politicians. That might answer your question there. I've had many more positive experiences on reservations and working with Native peoples. It's been my whole career except for surfing and skateboarding. Thanks. Anybody else before...yes, I knew you'd come back here, Kevin. Give that man a microphone, please."

Kevin:

"One of the questions I have is all the IRA governments, when you get sworn into office, you have an oath to the United States government...when you swear into office, does anybody swear an oath to the United States government? That's one of the issues with the IRA for some of us. So when we swear an oath, even though I was elected in with my own people, I swear an oath to the Constitution of the United States because it's part of our constitution. That, in turn, we become a body politic of the United States government in one form or another. I want to talk about an issue with White Earth, but it involves the Minnesota Chippewa Tribe about the issue with the BIA or Secretary Interior. In our constitution, if we wanted to remove somebody from office, we have a process called Article X. And if Article X isn't heard by or acted upon by the reservation business committee, our tribal council or the tribal executive committee, then it in turn goes to the Secretary of the Interior for review. For the last 22 years, the four petitions that went to the Secretary of the Interior have all came back and said, ‘It's an intratribal matter, deal with it yourself.' In the issue that happened with White Earth years ago on a removal process, the BIA stepped in and let a person sit office early at the tribal executive committee with only two members to run a reservation. So the BIA stepped in and told that person they were able to do that by violating the tribal executive committee and everything that existed under the constitution. So I don't know if that...everybody else in here has to deal with them kind of issues, but we as the Minnesota Chippewa Tribe, that's what we have to deal with. By the BIA stepping in sometimes and setting precedence or telling us, ‘No, we're not going to deal with it even though trust responsibility is ours, we're not going to deal with it, you deal with it.'"

Robert Hershey:

"Some of the things that they say they have authority to do is stepping on electoral matters."

Kevin:

"Exactly."

Robert Hershey:

"They do and they still...and I've seen cases of that right now. And they're very reluctant to do [it] in membership issues, which is striking because the Pala Band of Mission Indians, this case that just came out, it's a horrible, horrible case of disenrollment and the Federal District Court dismissed the lawsuit and basically said the tribe is sovereign, too. They had a sovereign immunity clause there. One other thing, if you go to the BIA website right now and you scroll down in their general thing and they have a pattern constitution you can click onto, just about the same as it ever was. So I suggest that all of you take over the BIA, start writing new constitutions and let's do it right. So thank you very much. I appreciate your time."

Jill Doerfler and Carole Goldberg: Key Things a Constitution Should Address: Who Are We and How Do We Know? (Q&A)

Producer
Native Nations Institute
Year

Presenters Jill Doerfler and Carole Goldberg field questions from seminar participants about the various criteria that Native Nations are using to define citizenship, and some of the implications that specific criteria present.

Resource Type
Citation

Doerfler, Jill and Carole Goldberg. "Key Things a Constitution Should Address: Who Are We and How Do We Know?" Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. April 3, 2013. Q&A Session.

Mike Burgess:

Mike Burgess from Pawnee Nation College. My question is to both either yourself Jill [Doerfler] or Dr. [Carole] Goldberg. In your research and findings, had there been any discussion on consolidation of tribal blood quantum and make it all one tribe?"

Carole Goldberg:

"By consolidation, you mean looking at people who have blood quantum from a variety of different tribes?"

Mike Burgess:

"If a member is not enough of your blood quantum, but they have more than enough to be a quarter blood, half-blood, even full-blood Indian, which is happening to a lot of our children in Oklahoma, they're full-blood Indian, but can't get on any roll."

Carole Goldberg:

"Right."

Mike Burgess:

"So if you're consolidating that and you recognize them as a member of your tribe and make them full-bloods or half-bloods, just your tribe only. Have any tribes approached that?"

Carole Goldberg:

"Not only have tribes proposed that, but I have actually seen it in some of the constitutions in California tribes where it may well be, for example, there are so many Pomo tribes in northern California. And you may not have descendance from this particular Pomo tribe, but in times past there was all kinds of intermarriage and kinship relations. And so the view of some of these tribes is as long as you're hypothetically one-fourth is from some Pomo tribe, they'll make you a member of this particular tribe so long as you don't also try to become a member of some other tribe. It's definitely being done. I wouldn't say it's widespread, but it's definitely being done."

Mike Burgess:

"Thank you."

Robert Hershey (moderator):

"It is. It is in a number of constitutions and membership ordinances that if you are a member of another tribe you cannot be a member of this particular tribe that you're trying to be included in. So that is something you'd have to look at either through your constitution or your membership ordinance and to change if that's the result you wanted. Yes, sir."

Ray Louden:

"Hi. I'm Ray Louden with Red Lake. This is for White Earth. How is the new constitution with White Earth going to affect the constitution with the Minnesota Chippewa Tribe, and then is the ultimate goal then for the White Earth Nation to be removed from...?"

Jill Doerfler:

"The White Earth Nation has tried for many, many years to engage the Minnesota Chippewa Tribe in constitutional reform at the level of the Minnesota Chippewa Tribe and those efforts have not been fruitful. As I said, we've had efforts at White Earth for 30 years and we've tried to engage the Minnesota Chippewa Tribe throughout that time. Minnesota Chippewa Tribe has always -- well, I don't...not always -- they've had for a long, long time had a standing committee on constitutional reform. No actual action has come out of that committee for many years, and so ultimately White Earth citizens felt that we need to move on our own. It's unclear what will happen with regard to the Minnesota Chippewa Tribe, whether White Earth will still participate or how the Minnesota Chippewa Tribe will react to us having our own constitution."

Robert Hershey:

"Thank you. You're Red Lake, yes? Yeah. We have time for two more questions right now, the speakers at the microphones then we'll break for lunch. I want to make an announcement about lunch in just a minute. Yes."

Stephanie Cobenais:

"My name's Stephanie Cobenais from Red Lake. What are you deciding on how...what's going to be a descendant on your referendum stuff? What is it?"

Jill Doerfler:

"We haven't identified a base roll yet, which needs to happen. We sort of worked under the presumption that we'd use our current roll, but that isn't 100 percent clear. So a descendant would be somebody descended from a roll that will need to be identified."

Robert Hershey:

"Thank you. Yes, sir."

Audience member:

"How many tribal members do you have enrolled in your tribe?"

Jill Doerfler:

"Excuse me?"

Audience member:

"How many tribal members do you have on your rolls?"

Jill Doerfler:

"We have about 20,000 citizens right now."

Audience member:

"Wow, that's quite a bit. Yeah, we have 900 enrolled tribal members in our tribe but due to our blood quantum it doesn't allow...a lot of our tribal member...a lot of family members to be enrolled. I have a granddaughter that's six tribes. She has six tribal...she's six tribes anyway right now and she couldn't get enrolled with my tribe so she went to one of the other tribes that she represents and then she got enrolled there. But it was kind of a sad deal. But I liked your presentation and I like the way that you guys dealt with the lineal part and I think we got a lot of good ideas out of that and it made me think a lot, too, about our lineal part because here in Arizona...I know tribes here in Arizona it's a lot different here. I have family members from a lot of different tribes here from Arizona that...even some of these guys like, I'm Tonto Apache, I'm related to these guys over here. I'm related to a lot of people in the San Carlos Apache Tribe. And we have other tribes too like Yavapai, other Yavapais up north. My father is a northern Yavapai and his clan still exists. It's still up there. And then I'm also half, I'm a southern Yavapai too. So there's a lot of this stuff going on here in Arizona, it's like a big melting pot. I see a lot of that, but I saw a lot of good ideas in your presentation that really stood out to me and I think we're going to probably take some of that home to our tribe and just try to present it to our people and see what they think about it. I just want to thank you for your presentation."

Jill Doerfler:

"Well, [Anishinaabe language] thank you to you. That's wonderful to hear. I didn't have time...I'll just make one brief comment. I am not a demographer, I'm more the historian/literature-type person, but the tribe did hire a demographer to do a population study and even though...sometimes it sounds like 20,000 is a lot of people, but we are going to soon be reaching a stage where we just have an aging population at White Earth. Our death rate is going to be outpacing our birth rate and we're going to be moving towards declining numbers and so that's also motivating factor. Even though it seems like we're big, we're still really feeling a lot of impacts of blood quantum."

Robert Hershey:

"Thank you. Carole."

Carole Goldberg:

"There's just one brief observation that I wanted to make. For a very good reason we don't have members of the outside press here but if they were, I think they might be very interested in the fact that the word gaming actually has not appeared in any of these presentations about enrollment because there is such a misconception out there that is driving all of this discussion and it's really not, as I think we've seen..."

Robert Hershey:

"Can you share some of the experiences in your community of what you're dealing with regarding identity, membership, citizenship? Why do we have this distinction between "˜membership' and "˜citizenship'? What does "˜membership' mean to you? What does "˜citizenship' mean to you? These are some of the questions you're going to be dealing with when you...I could call on my students. Can I call on a member of the Pascua Yaqui Nation's council to...sorry, Robert, because you brought it up at lunchtime. There's an issue within your constitution that is kind of contrary to the membership rules that you've set out. Is this something that you feel like that you're going to have to attend to? Is the Pascua Yaqui Council going to have to attend to dealing with some of the divergent issues or the irreconcilable positions within a constitution?"

Robert Valencia:

"There's two things that affect our tribe and our current constitution. One is our tribe was very instrumental in the Law and Order Act, getting that together, but our constitution still is what it is and we...that gives us a one-year limitation on the sentencing and I think it was $5,000 on fines and such, and the other is the Membership Act. Our tribe has been...was recognized in 1978, recognized again in 1994, and with this membership bill it's something that in order to do what we want to because it's in the constitution, it was in the Act, we would have to change that. So those are the two pressing issues that we have, among others."

Robert Hershey:

"Thank you very much. But the reason I asked you to speak to this was because there was a contradiction in the constitution as to what the nation wanted to do with regard to its membership. It went to Congress. Now some of you may have, not the IRA [Indian Reorganization Act] tribes here, but you may have also some other federal act that has designated you into the federal recognition and the acknowledgement process, too. So those types of things are unique where you can get congressional acts to go ahead instead of going through the whole formal process amending the constitution and the Pascua Yaqui Nation has been successful in that regard."

Robert Valencia:

"That's right. Initially the Act establishing the tribe did say that we had to have a constitution and initially it was supposed to be in 1980. We didn't have one until about 1988 and we haven't changed it or modified it since that time."

Robert Hershey:

"Thank you very much. Kevin, we've been looking for you."

Kevin Dupuis:

"I have a question for White Earth and as being a former tribal executive committee member I can understand what you're saying and as a reservation business committee member now, the question I have, if the constitution is done with White Earth, is there a point where the tribal executive committee of the Minnesota Chippewa Tribe has to approve or disapprove that constitution? And the concern I have is this -- that if an individual reservation in the consolidation of the Minnesota Chippewa Tribe writes their own constitution, do they become separated from the Minnesota Chippewa Tribe because the question I would have to that, if they have their own constitution they could not represent the membership of the Minnesota Chippewa Tribe [as] their tribal executive committee member. Because our constitution that exists now, whether it be right, wrong, indifferent, it's the only document we have, and the concern with is if it can't be followed now, how is this going to go with the constitution coming from White Earth?"

Jill Doerfler:

"Right. We're definitely in new legal territory when it comes to the White Earth constitution and the Minnesota Chippewa Tribe constitution and these are questions that we'll have to be exploring, especially this summer in consultation both with MCT staff attorneys as well as TEC members, White Earth attorneys and White Earth tribal council and exploring how can the MCT accommodate in some way. Can White Earth have its own constitution and can other MCT nations have their own constitution and still participate in the MCT in some way. Is that possible? These are sort of questions that we need to be working on answers to."

Kevin Dupuis:

"I understand it and I agree with you, just simple principle of federalism. It was discussed years ago in 2004 and I think all the way to 2006 that the tribe already has its own constitution, can we delegate that authority to the individual reservations to write their own constitution and be under the umbrella of the Minnesota Chippewa Tribe? My concern is this, if you follow a constitution that you write under White Earth and White Earth adopts that, even through the principal referendum I need to ask myself as a tribal member, because I'm not enrolled in Fond du Lac. We're all enrolled in the Minnesota Chippewa Tribe. Our enrollment papers go to the Minnesota Chippewa Tribe, not the individual reservations."

Jill Doerfler:

"Correct."

Kevin Dupuis:

"So an action like this, I'm asking at that point, you finish your constitution, it goes through a referendum vote with your people on White Earth. Is there a separation from White Earth from the Minnesota Chippewa Tribe, because I can't see White Earth representing members of the tribe anymore if they have their own constitution."

Jill Doerfler:

"It will depend on what actions MCT wants to take. If MCT does nothing, that may be your question. If MCT does nothing, does White Earth essentially then separate? I would say the answer to that is most likely yes, but I'm not an attorney and I'm not here to give legal comment on that. These are issues that we're working on exploring."

Kevin Dupuis:

"Okay. Thank you."

Robert Hershey:

"If I may add something too. It implicates some other issues as well. One of the issues is, what is the Minnesota Chippewa constitution, the nations that are involved in it, is it a Secretarial approval constitution, to do amendments?"

Jill Doerfler:

"Yeah."

Robert Hershey:

"So even though there's a referendum, it doesn't automatically result in a new constitution if the new constitution and the...then you have to call for a Secretarial election, and so then there's a whole process that has to be put to the voters. Then that's also going to go ahead and implicate. Whether or not this becomes an example to the other nations or not as to whether they want to go ahead and adopt a new form of constitution, it could be very exemplary in that regard. And there are situations where in constitutions...the Tohono O'odham Nation for one, Hopi Tribe for another, that they have separate and distinct powers that like the districts here on the O'odham Reservation have their own sense. The Hopi constitution allows for the villages to establish their own constitutions as well. So this could be a number of ways to go ahead and satisfy some of the concerns that you were raising there and at the same time allow for that kind of semi-independence or quasi-independence and it could be a united affiliation of nations with separate and distinct constitutions. It could be an example to go ahead and formulate one type of a constitution if that's the way the people go. But it still is going to require after a referendum, it still is going to require a petition to the Secretary of the Interior to go ahead and have a Secretarial election."

Jill Doerfler:

"I should maybe clarify that our referendum, the plan is to proceed with that referendum via a Secretarial election."

Robert Hershey:

"Yes, please."

Pamela Mott:

"My name is Pamela Mott and I'm from the Fort McDowell Yavapai Nation. At lunchtime we sat with Navajo and the other Yavapai tribe and to our question who we are and how do we know, it all came down to a Creation story, "˜cause we all know people sitting here where we come from, how we were taught. The time I grew up, I grew up with a bunch of elders so everybody that I came with, we know who we are and where we're from, but when federal government came and gave us those IRA constitutions that we have today, we have to start changing and identifying ourselves. And I think one of the things at our table that we kind of agree with and I brought up was that when you brought up maximizing your numbers and talking about political, it had a concern to me as a Native American woman "˜cause we're raised like family and we take care of one another. I was wondering, it's so hard for me to understand why other tribes would make one tribal member less important than another one when you said you put restrictions on somebody living off the rez versus someone living on, because a lot of times we don't have the wherewithal to have jobs for educated tribal members and they have to go somewhere else to work or they have to go out of state to work. I have to use my family as an example. I have a nephew that's a doctor in mechanical engineering. There's no job for him on my little reservation, so he has to go. What makes him less of an important tribal member than somebody back home that doesn't have an education but is there working? And I think when you guys teach, as professors when you teach this to people or other Native students that are in your classes, every tribe is different, we're all different, so some of those things I think need to be brought out because I'm a leader for my tribe and when I have to go to [Washington] D.C. and fight for Native American rights or fight for...big one is gaming and you said gaming didn't come up. It is coming up because that's what we're fighting against now but a lot of the things stem...why would you want to make one person less than another when the way we were brought up we had to take care of everybody within the community? And there were adoptions. I know Navajo had talked about some adoptions they had and it depended on your history. If you took slaves in...we weren't mean people. We took care of those people, unlike when they brought the slaves. I understood back east the slaves were more happy to live with the Indians than they were with the non-Indians because they were treated better, they were incorporated as families and that's how we're brought up. So that was one of the things I think our table agreed with, it was kind of hard for me to understand why if there were tribes out there, why would you make somebody different than another based on whether you live within the reservation, whether you don't live in the reservation, because we get a lot of feedback from the people that don't live within my community because they're educated and they tell us, "˜This is what we're doing out here. How can you incorporate with the businesses on the reservation to help us be successful?' And those are some of the things I think that was brought up at our table and I wanted to share that. So I think when you guys are teaching you need to know that. A lot of it comes from our heart and family. We're not like the regular outside non-Indians because a lot of them, they just move. It's easy for them to get up and move one state to another and not have contact with their family members. It's not like that for us. We're always contacting somebody. My sister...I may not...she lives on the same reservation and she lives a hop, skip and a jump from me, but I call her every day or I go see her every other day or something and my children live...I have a son in Oklahoma and he calls me every single day just to let me know how he's doing, how we're talking. So a lot of times you guys don't incorporate that in your teaching, and I think...coming from us now maybe you guys need to start doing that or understanding the tribes."

Carole Goldberg:

"Thank you very much. Actually, I live in Los Angeles. My husband's tribe is in North Dakota, so I'm actually very familiar with the situation of living far away from one's home community. There are places where issues arise involving resource extraction. So there are places where there is a lot of potential money to be made by things like strip mining or various other forms of resource extraction. It has in some places created some tensions, not that people don't care about folks who live far away, not that people don't want to take care of them or stay in touch with them, but just plain old worries that the temptation to do things in the territory might be too great if you don't live there and so that's the source of the tensions that I was referring to over what do you do about folks who live in a place and want to make sure that it's not ruined by various forms of environmental strains and people who live far away and may not experience that. And that...but the variation is tremendous and there are places where that is not an issue and where there are not concerns about treating folks differently. What I was trying to do was give you some sense of the tremendous variety of issues that exist out there and only you can know whether those matter to your own community."

Robert Hershey:

"I'm going to add one thing here, too, just before and this was brought up at our lunch table with my students and they're very passionate about this as well. And if I may just digress just briefly into a little history lesson. Back in Jamestown Colonies with...we hear about Pocahontas, but we don't hear much about her father, which is Powhatan, who was the leader of a number of tidewater tribes in that region. During the treaty ceremonies that would go back and forth whether or not the attempted colonists would be allowed to stay there, there was a ceremony where the English wanted to put a crown on his head and they wanted him just to bend down a little bit so they could put the crown on his head. So the English were taking that as that he was declaring fealty to the crown of England. Now he wasn't thinking that. He was thinking that he was extending his empire. And what I heard from the woman that just spoke, and I thank you for those comments very, very much, is that those educated, those people that are off the reservation, they're contributing and they're bringing things back to your community. So it's very, very interesting how you can extend your empire out there and it doesn't just have to be that people living within a particular area, that's determinative, but it's about those relationships and those contributions that can be far and wide. So that was just something, so I appreciate those comments of what you said. Thank you. Sorry for the history lesson, it's just law professors."

Steve Cornell:

"Steve Cornell from the University of Arizona. For Carole Goldberg, Carole I was just wondering if you had any experience with tribes that are dealing with citizens who live outside U.S. borders with nations that were split by the border. Obviously it's a huge issue right here in southern Arizona with the Tohono O'odham people. There are Yaqui people south in Mexico, but it's also an issue for Mohawks, for some of the Blackfeet Confederacy and others, and have you seen any constitutions that directly try to address the citizenship of people who through no fault of their own are living on the other side of the U.S. border?"

Carole Goldberg:

"I actually have, because one of the communities that I've worked with is the Houlton Band of Maliseet Indians in northeastern Maine and a number of the people from the Houlton community, the Maliseet people are actually living in Canada and it is interesting to note that over time the international border has had the impact on communities or it can have the impact of creating a sense of division that would not have existed had that international border not been introduced. And this is a topic that required a lot of internal dialogue within this community. Are they really a part of us? Even though the kinship relations were pretty obvious, the language, the cultural tradition were common but there was this bit of unease about whether...first of all whether there was something that would be viewed wrong by outsiders of including these "˜foreigners,' I use that in quotes, as part of our tribe and there was also again this sense that there had been some separation over the years. And there was at the end of the day I think more receptivity to saying, "˜These are part of our families, these are part of our culture and community and we shouldn't arbitrarily say that they're outside because they're in another country'. But it was a very hard discussion."