Interviews

Devon Lomayesva: Making Constitution Reform and Tribal Law Work

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Native Nations Institute
Year

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

Resource Type
Citation

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

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

Veronica Hirsch:

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

Devon Lomayesva:

Thank you for having me

 

Floyd "Buck" Jourdain: Constitutional Reform and Leadership at the Red Lake Nation

Producer
Native Nations Institute
Year

Floyd "Buck" Jourdain, Chairman of the Red Lake Nation from 2004 to 2014, discusses his nation's constitutional reform effort and the supporting role he played in helping to get the effort off of the ground. He also talks about how comprehensive constitutional reform will empower his nation's elected leaders to effectively tackle its biggest problems and identify and then achieve its strategic priorities. 

Resource Type
Citation

Jourdain, Floyd "Buck." "Constitutional Reform and Leadership at the Red Lake Nation." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Walker, Minnesota. July 9, 2014. 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 Floyd Jourdain, Jr., a citizen of the Red Lake Nation in Minnesota. Floyd, otherwise known as ‘Buck,’ served as Red Lake Nation Chairman from 2004 to 2014. An advocate of Native culture and living drug and alcohol free, Jourdain has spent the past three decades working as a counselor, community organizer and educator. Buck, welcome and good to have you with us today.

Floyd Jourdain:

Miigwetch. Thank you.

Ian Record:

I’ve shared a little bit about who you are, but why don’t we start off by having you tell us a little bit more about yourself. What did I leave out?

Floyd Jourdain:

Well, you didn’t leave out much I suppose. It’s a good nutshell there. I grew up on a reservation, Red Lake, northwestern Minnesota and was educated there, graduated from high school, went off to college for a couple years and got involved in chemical dependency and recovery programs, and working with youth and youth councils and those type of things. Started studying sociology and racism and trying to combat those type of social factors in Indian Country, and then somehow it led me to be the chief of the tribe. I don’t know how it happened, but it did and I was the chairman for 10 years.

Ian Record:

We’ll talk about that, your tenure as chairman a bit later. What I wanted to start off talking about though is constitutional reform. In August 2012, the Red Lake Nation approved a plan to review and revise its constitution. That’s an effort that’s still unfolding, it’s very early on in terms of its, in terms of the process. From your perspective what prompted the nation to go down the reform road?

Floyd Jourdain:

Well, it’s been a topic of tribal elections every two and four years. You hear catch phrases like 'separation of powers,' 'constitutional reform,' and candidates never really elaborate on that or what it is and people are left with this big question mark. I think that finally somebody came along who said, ‘This is something that really needs attention.’ I think my background in studying political science had something to do with that and also the culture of the tribe and the history and the treaties and our government structure and how we’ve evolved over time. So leading up to it, it just fell right in step with some of the things I was interested as a tribal leader, so I was right from the early on get-go interested in pursuing that.

Ian Record:

So you were chairman at the time that this effort, this initiative was formally given the green light by the council. And I’m curious, what role did you play in your capacity as chairman in terms of getting this movement going, to getting this effort off the ground?

Floyd Jourdain:

That’s one of the advantages of being the chairman is you’re able to carry out some of the vision and some of the things that the people are wanting to see happen. Over my lifetime, I’ve seen some political train wrecks and tumultuous times that had to do with the constitution within our tribe and others and being able to instead of pointing planners in the direction of saying, ‘Well, hey, let’s get some immediate things going.’ No, let’s try to embark on something that’s long range and constitutional reform is one of those things. It was a priority when I came into office and actually before that I was dabbling and studying it and going to school studying political science and those type of things. So I was pretty excited about finding some people who were interested in taking that on and then just letting them go.

Ian Record:

You talked about finding some people and letting them go. From what I’m hearing, there was a sense of your own place and how the extent of your involvement could be perceived by certain folks. Did you have any sense that, ‘I need to be careful about just how fully I as the chairman, as the chief elected leader of this tribe, get involved in the reform of the nation’s constitution and government?’

Floyd Jourdain:

Indian Country can be so divisive, especially when it comes to politics and you have to be respectful of someone’s, what you perceive as a bad idea at one point was somebody’s good idea and to build something lasting. You don’t want to have your name tied to, directly to it. And I think empowerment is key by planting that seed, finding the right people to carry it out, support them, step back a ways and just kind of guide things from the peripheral -- if you’re allowed to do that -- because at some point you do more harm than good if you’re directly involved in especially major efforts that are going to be carrying on for quite some time regardless of who the political leaders are.

Ian Record:

Was part of your role being like a source of information for folks who were curious about what’s going with this, ‘Tell me more about this,’ and sort of giving them the 411 on what this constitutional reform initiative is all about and who is in charge of it and things like that?

Floyd Jourdain:

Yeah. Prior to coming to office people would come to me and say, ‘Well, what’s all of the big, what’s all the fighting about?’ And usually it was two political powerhouses fighting over who’s going to control the jobs and gaming and housing and who’s going to do the favors and control everything. And they would say, ‘Well, why are they doing it? How are they allowed to do that?’ And so a lot of the educating of like my family and friends and younger people, youth council, those people; so I was doing a lot of teaching back then about how governments work, in particular tribal governments because not only looking at tribal constitutions, but also the United States Constitution, European history and how all of those...American history affected us. Yeah, those, the education is a huge, huge piece of getting people to understand, ‘Why is there this dysfunction happening? There’s got to be a reason.’ So I’ve always been fascinated by prying and finding out why something happens or why it’s happening and not being satisfied just with that, but now what’s a good strategic way to do something about it?

Ian Record:

It sounds like you had a supportive role to play, you had an information-sharing role to play, also with a keen sense that you have to allow the people to take full ownership in the process. From what I know about the Red Lake constitution reform process, that seems to be the top priority: this has to be ultimately an expression of the people’s will and not, as you’ve sort of alluded to, to be assigned or attached to one political leader. Can you elaborate a little bit more on this sort of mindset that went into that?

Floyd Jourdain:

Well, I can speak for my tribe when I can say the tribal chairman has always had a huge target on them and people come after the chairman, I don’t care who it is, and the same goes for a lot of other tribes as well. And so the chairman, if he gets behind something, a lot of times it’s, of course his supporters are going to say that’s a good thing, but then the other people are going to say, ‘Well, hey, this is something that we’re opposed to.’ You want to get as many people involved and empowered and be neutral and you’re exactly right, we just have to give it to the people and let the people take ownership of it and make it their own. The effort itself is, you basically cut the cord and watch it grow. And I think that’s a good thing because regardless of who the leader is, then the effort stays strong, it stays connected with the people, it has a grassroots feel to it and they will keep it moving. It takes on a life of its own and I think that’s a very, very strong way to go about approaching government reform.

Ian Record:

So can you describe in a nutshell the approach that Red Lake, the structure it created to shepherd this reform movement along, sort of at a macro level?

Floyd Jourdain:

The structure, well, we were hoping to,  I’ve seen like piecemeal efforts in the past to do constitutional reform and usually it’s the people in power will fix a little piece or this or that that’s going to work to their benefit and people were like, ‘Well, what was that all about?’ and it was never fully explained. So by putting together a team of people who are able to have this fervor and this interest and this energy to go after this and not only educate themselves on it, but to go out directly into the community in a strategic, planned out, chronological order, that’s been really effective. And starting with education: ‘What is constitutional reform? Why are we doing it? What is, I’ve heard about it, but I really don’t understand a lot about it.’ I think finding the right team and the right people and just letting them do their thing has been a good approach.

Ian Record:

Isn’t part of that challenge of getting the people engaged, you mentioned making them understand what constitutional reform is, but isn’t there a piece prior to that where you’re actually trying to make the argument, ‘Here’s why the constitution matters to you as a citizen of this nation,’ or, ‘here’s how revisiting and strengthening it can actually improve your life and the life of those yet to come’?

Floyd Jourdain:

Yeah, I believe so. Just basic rudimentary government. A lot of this new generation coming up, some of them have had a misperception that we’re really steeped in tradition and language and we’re carrying on a tradition that has been there for hundreds of years when actually we’ve recreated a template of somebody else’s stuff that has very little to do with our tribe at all -- our identity, our language, our philosophies and our culture and any of that. So I think that’s where a lot of it starts is that people just don’t have any idea. And elections are, I see it as an opportunity to educate people because people will go out there and they’ll say, ‘We need a separation of powers and we need term limits and we need this and we need that.’ And then people are scratching their heads, ‘Is this a bad thing or why are we, ?’ So I think it’s really important to, again I can’t emphasize enough with youth councils, high schools and alternative schools and charter schools to educate at that level. Because in Indian Country I didn’t read anything about any of this stuff until I was like two years into college and on most reservation schools you have public schools or you have BIA [Bureau of Indian Affairs] schools; they don’t teach this stuff. We don’t know anything about it until we get a little older, but what’s encouraging is the next generation coming up, you see they’re more advanced in their thinking, they’re learning about federal Indian law and they’re fascinated by language revitalization. They’re educated at a whole other level now with social media and access to technology. It’s pretty fascinating digging through card catalogs to find out about the Marshall Trilogy and you’re two years into college. Now these young people on youth councils and they’re saying, ‘Hey, we’ve got this thing going on on federal Indian law, would you be interested in coming to speak?’ And I was like, ‘Yeah, sure!’ Whoa, I wish I would have had that when I was younger because there was no such thing."

Ian Record:

Card catalogs. We’ll have to explain to our younger viewers what that is.

Floyd Jourdain:

Yeah, it was cumbersome and a lot of work.

Ian Record:

You’ve alluded to this and I want to talk a bit more about it, but in the vision statement for the Red Lake constitutional reform initiative -- which is overseen by a reform committee that represents a broad cross section of people in your community -- but the vision statement for this initiative and for this basically the charge of the committee is in part to strengthen the ideas of self-governance in its constitution. Can you talk a little bit more about that, about how the current constitution doesn’t truly and perhaps fully enact notions of self-governance and in particular Anishinaabe Ojibwe self-governance?

Floyd Jourdain:

I think self-governance is inclusive of the people and that’s one of the things that’s been lacking. Elected officials --again I can speak for our tribe -- have no job descriptions. Nobody knows what they do. They’re not required to really do anything. You get on the tribal council, you’re elected to that position and there’s a misconception of what the role of a tribal leader should be. So basically we’re saying, ‘You write our job description for us. What are your ideas, what is your vision, what do you think a tribal leader should do? Is it to control all the housing and the jobs and bring all their political people in and do this and that and do favors and comps and all this kind of stuff?’ No, that’s not what a tribal leader is supposed to be doing. ‘Well, it doesn’t say they’re not supposed to be doing that.’

So in our particular situation, there’s job descriptions for the three executive officers: the chairman, the secretary and the treasurer, but the representatives, nothing. There’s nothing in there that says what the chiefs are supposed to be doing. There’s no criteria, there’s no qualifications that they’re supposed to have, there’s no code of conduct, ethics, no bill of rights and under that particular arrangement the people are detached from government; there is no empowerment. And I think with constitutional reform, it’s going to allow people to say, ‘These are the expectations of our nation. We expect better. We expect a higher level of representation. We expect to raise the standards of our tribe and what our nation is aspiring to be.’ And with a lack of that, you can do anything. You have these elections every two and four years, there’s a lot of upheaval, there’s no accountability. You have people perpetuating a system that is...basically contributes to sometimes, unfortunately, chaos and a loss of any potential and progress. So I think those are important. You just call it what it is.

When you start to point those things out, people will [say], ‘I had no idea. I thought a tribal council member was supposed to be the director of our gaming,’ or, ‘I thought they were supposed to oversee. I thought we could go to them and get money from them and those kind of things.’ So minus that, you get these people who are, they become almost in a sense sometimes enablers and they perpetuate it after awhile. I don’t know if it’s a sense of, ‘People are relying on me, they’re dependent of me, they need me,’ and next thing you know you lose focus. Our nation needs leaders and our job is to be, set the direction of the tribe, the vision to move our nation forward and be forward thinking. We’re supposed to be looking over here, not just right here and I think that that’s a huge part of constitutional reform is, ‘What are these leaders doing? They get bogged down in all these other things and what about us?’

I ran for office and I was a younger person and there was a lot of squabbling and fighting and the constitution was, ‘Oh, well, this person here is doing this and that one, we’ve got to have a recall and we’ve got to get this one out of here and we’ve got to, ’ and there was a lot of finger pointing back and forth and anger and emotions and tempers flaring and people marching around with petitions and all this kind of stuff and people were like, ‘This is crazy. What’s going on?’ Meanwhile, we had youth suicides and crack cocaine was infiltrating Indian Country, enormous, ridiculous amounts of diabetes with youth and juveniles and chemical dependency issues and joblessness and homelessness. But then you have all of these people fighting over, citing the constitution. ‘They’re not doing this, they’re not doing that, according to the constitution.’

So those are things that I think will contribute greatly to healthier communities, to more effective leadership, better education, better systems and it’s a huge, huge undertaking, but it’s one that has to be approached in a manner where you can just continually pass the torch, pass the torch, pass the torch. Sometimes it might take generations. It’s nothing something I don’t think that will happen really fast, but it’s something that definitely is happening now.

Ian Record:

So in this process of redefining self-governance and what that means and people are taking a full participatory role in that redefining process, how valuable is it for -- and it sounds like this is what the Red Lake constitution reform committee is getting the people to really focus on -- but how valuable is it for people to go back and realize and investigate that, ‘Hey, we as Red Lake, we had this self-governance thing figured out a long time ago. In fact, that’s the reason why we’re still here and maybe if we more fully examine the key principles that served as the foundation of that traditional governance system, there’s things that we can bring forward and make it more ours, make it more Anishinaabe.’ Is that a current you’re starting to see taking root within the community as sort of a topic of conversation?

Floyd Jourdain:

I think it is, because incorporating the language and culture into tribal courts, into tribal leadership, into education and melding that into a governmental instrument that’s effective for everybody is something that’s going to be, greatly enhance the quality of life for everybody. And the Anishinaabe philosophies and those principles and ways of living, they were minus a lot of the, how do I say, suppose ‘keeping up with the Joneses’ and ‘getting a leg up on somebody’ all the little catch phrases. But yeah, it was, that is not reflected in the constitution that we have now. There’s absolutely nothing in there that pertains to Anishinaabe values, traditions, language, anything. And in fact, one time I was listening to a college president at a tribal college say, ‘When our elders wrote our constitution, they were thinking about us,’ and I had a copy of the constitution and I was flipping through it going, ‘Our elders didn’t write this.’ This was a college president. It was one of the boilerplates and I was like, ‘Well, they might have adapted it or basically modeled after it, but an Indian person didn’t write this. I know that.’ I didn’t say anything, but it was, so we really have come a long way from the way we, our traditional customs and systems were applied to leading a nation.

Ian Record:

You mentioned who wrote the constitution and that’s a topic we often see a lot of general understanding among people who are concerned about constitutional reform and the inadequacies of their current constitution in Indian Country. They’ll say things like, ‘We’re an IRA tribe and we have an IRA boilerplate constitution.’ But what we’re seeing I think in a good way now more and more is that more tribes are going back and gleaning the origin story of their constitution, going beyond just analyzing the words on the page, but saying, ‘What was going on at the time that this constitution was formed? What can the elders tell us about who was in charge and how, just how dominant the BIA or some other outside entity was in the formation of this document?’ Because as you said about Red Lake’s constitution, in most instances you can read this and realize in a heartbeat that this was not written by an Indigenous person or this does not reflect the voice of an Indigenous person. This was obviously someone else’s product. And it sounds from some of the video work that the reform committee’s doing that that’s precisely where they’re focusing is, ‘We’ve got to bring to the people a sense of context for where this constitution came from.’

Floyd Jourdain:

Well, some of the, at one point there was dozens of people on the tribal council and of course there was one central figure, again. Somewhere along the line you see just where respect was lost for chiefs, a total disregard for tribal chairmen and they were viewed more as adversarial people and maybe coopted by outside entities and not basically viewed as a person. This is a person who’s looking out for all of us. I went to NCAI [National Congress of American Indians] in Tulsa, Oklahoma several years ago and a young man stood up there in general assembly. He said, ‘I really got to hand it to you tribal leaders, especially chairpersons.’ He said, ‘My dad was on a council for many years and we saw what he went through as a family, what affect it had on him and on us as a kid growing up in a home of a tribal leader, and the toll it took on him and how much he poured into it. I really got to hand it to you. It takes a unique breed of person to step up to the plate and take the arrows in the back and take the bullets from the front.’ So the fight is out there, but you’re just getting hammered from fighting. Sometimes it’s so, so hard to try to do things for the people when a lot of times you’re perceived as somebody who is not looking out for their best interest, regardless of how much progress, what you’re doing.

So those definitions I think again really need to be re-evaluated and that’s where the lack of culture, the lack of, like in our language: [Anishinaabe language]. That’s, ‘There’s a man standing out in front of his people.’ All the people are here and there’s a man standing out there. That’s my Indian name that was given to me by an elder many years ago. I wasn’t a chairman then when I received that name, but somehow it happened for me. That’s part of our traditions and our teachings. I believe that the Creator up there has a plan for all of us and things do happen for a reason. So just the, how that factors in, the leaders are chosen not because he’s going to promise me a raise. Leaders were chosen because you say, ‘Well, this leader has a good heart and I know that he’s going to give everything that he can for the people.’ That is lacking in constitutions now so I think that the, if you connect those two together, then they’ll perceive tribal leaders to be more as human beings and more of caring individuals and not so much, ‘We’re fascinated by watching this individual topple,’ or ‘we need to get our guy in there.’ And then sometimes unfortunately across Indian Country, you have some pretty good things going on that are toppled because of an election and then later on the people are like, ‘Oh, geez, maybe we shouldn’t have, ’ And sometimes there’s others who need to have the next one come in and take over.

Ian Record:

So it sounds like in talking with some of the other folks that are involved with the Red Lake reform effort that it’s beginning to take root and more and more people in the community are beginning to get engaged, the turnout at some of the community meetings has been really strong, people are beginning to share their aspirations for what a new constitution and ultimately a new Red Lake future will look like or should look like. But I assume that you’ve observed,  I assume you’ve observed some challenges. Has there been some blowback to this reform effort? Are there people that are perhaps looking upon it negatively for whatever reason? And is that to be expected and perhaps how do you see the reform effort sort of dealing with those sorts of challenges?

Floyd Jourdain:

I think some of the people who are actually assigned to do or appointed to do the reform effort too, they have their own renditions or their own ideas and, some of the things I’ve seen is, ‘Well, we need to create new policies for human resources,’ and, ‘the programs need to be, ’ which has absolutely nothing to do with constitutional reform. And there’s others who have their own idea, who want to impose their own vision and not the collective of the people, Anishinaabe. Some want the language incorporated in, succession, those type of things and others have just adamantly said, ‘Well, you know what, I don’t know about that. I think this is, we don’t know if we trust this. This has worked up to this point so far.’

As far as the leadership, some of the leaders are like, ‘Hey, great. Anything that’s going to take away power from one individual,’ like the old Lord Atkins and immortal law, absolute power corrupts absolutely. If power’s concentrated in one figure for a long period of time, eventually the individual will become corrupt and those type of things. And so those type of things have been talked about is term limits and so there’s, it’s good healthy discussion. All of it is really, really good healthy discussion.

Some of the drawbacks I think from the leadership is that, ‘Well, geez, if we do this, does that mean we’re not going to have the power that we had or we’re not going to be as effective and what is our job then? The people elected me to provide for them and do this and do that and they have expectations of me and if I’m in a position now where I don’t do those things for them anymore, then I’m probably not going to be around here for very much longer.’ So the education piece also starts to radiate out to the leadership where they start to see that empowerment is a good thing for the nation, but it might necessarily be a good thing for them if they’re of the mind that they want to hold on to power.

And one of the things that I experienced being a younger chairman coming in, there was no Chairman 101 and all of the tribal council members who were there, they were not falling over each other to come and educate me on what it’s like to be a tribal leader. I don’t think they had expectations of me being there very long. So why are we going to do that?

So a lot of it is, you can go to school, you can get educated in American Indian history and law and federal Indian law, policy, sovereignty, treaties. You can study tribes all over the place, but when you walk into the office on day one, it’s like all of that is like, ‘Oh, okay. Well, that's not really what I’m doing here. The people have expectations that are aside from that.’ And a lot of times leaders come in and they see it that way. It’s like, ‘Well, hey, I’m here to satisfy people.’ And those are the ones that, they’re a little more resistant to empowering and allowing the nation to grow.

Ian Record:

You touched on one of the major challenges that I think a lot of tribes get sort of a cold splash of water in the face or a wakeup call is when they actually ratify new constitutions, there’s sort of a sigh of relief. ‘We cleared that hurdle,’ and then it hits them that now the hard part comes. ‘We’ve actually got to implement this thing.’ And part of the challenge then is you’ve got to educate not only the people about how the new government works, but you’ve got to educate your leadership about what their role is and how that role may have changed. And from what you’re saying, it sounds like that means that people have to take a whole new approach to how they govern, how they make decisions, how they view their role, how they interact with their constituents. It’s potentially a completely revolutionary process, right? And from what I’ve heard, Red Lake is considering comprehensive reform and not what you’ve talked about that’s happened in the past where there’s sort of these piecemeal little changes here and there, but we’re looking at the whole thing.

Floyd Jourdain:

Right. Yeah, I think it is, a more comprehensive approach is why just change one tire when you can change them all and the leadership taking a look at, ‘Well, if this happens, ’ And I give one example where a tribal council member said, ‘Well, then what are we supposed to do? If we’re not running the programs and we’re not overseeing the businesses and we’re not calling all the shots here, ? The people elect us to do these things and so then what are we supposed to do?’ So you can see how far reaching the influence of tribal leaders can be when they do not have a specific set of duties that they were elected to do. And changing that culture, it is a process and it would be like a fish out of water. They walk out of the ocean, they’re on the beach and they say, ‘Oh, yeah, this is not good. I can't adapt to this.’ Two minutes later they’re going to want to run back in the water. So it’s again passing down, and our elders teach us this. They say, ‘The knowledge that you have acquired in your lifetime, you have a duty to pass that on to the ones that are coming. Because you’re connected to your children, your grandchildren and just because you might be in the position you’re in right now, doesn’t mean you’re always going to be there. You might flop over tomorrow and take everything with you. So you have a responsibility to educate the ones coming up.’

So I’ve always been fascinated by demographics and numbers and political science and statistics and watching trends, especially in Indian Country with the generations coming up in the education systems that are happening. They are going to inherit everything. We have a massive reservation, hundreds of thousands of acres of woodlands and lakes and lands and resources and a government system that is very fragile. I had an elder one time tell me, ‘Buck, it’s really refreshing to know that some of these younger people coming up or even some of the older ones that we’re not really in tune with what is going on, now they’re getting interested, they’re getting involved and that makes me feel good as an elder because I know I can go off to the Happy Hunting Ground, lay my head down, knowing that our tribe is in good hands and it’s moving in a positive direction.’

Ian Record:

One of the issues that Red Lake has been focusing on in early stages of the reform effort deals with whether and how to remove the Secretary of Interior approval clause from its constitution. Why the attention to that specific issue do you think?

Floyd Jourdain:

I think that’s always been like a myth that we have to check with the Great White Father every time we do something. And over time with Red Lake, the sovereignty and the uniqueness of the government there, they’ve always maintained that, ‘Hey, we really don’t have to check with anybody? Do we really?’ And whenever there was a political fight going on, one party would say, ‘Well, hey, you guys can’t kick me out of here. I’m going to tell the Secretary on you.’ And then finally one group said, ‘Go ahead.’ And nothing happened. So I think over time is a misconception that just because we basically modeled ourselves after an IRA constitution that we had an obligation, a congressional mandate or something from the Department of Interior that, ‘Hey, you can’t do anything until you check with us,’ and Red Lake didn’t do that. So we haven’t been checking with the Secretary of Interior all of these decades, why should we start now?

So I think over time the Band itself, I don’t know if it’s lawyers or historians or chairpersons or whoever said, ‘Well, let me check that out.’ They checked it out and they said, ‘Well, no, it’s not in fact true. We don’t have to get the consent of the Secretary of Interior for anything.’ We have some code of federal regulations. We did away with those. We’ve done some things with business and courts and done some amendments over the years and there was no tribal chairman sending a, or secretary sending a letter off to the Department of Interior. So I think that’s an easy start and it is a start, I think just to get something going. Let’s do this, just to get the momentum going to say, ‘Look, we’re going to eliminate that from our constitution. It’s something we know we can do. It’s a slam-dunk for us. So let’s start there.’

Ian Record:

And it sounds to me like that’s a productive approach to take is to, in knowing that there’s going to be some really controversial issues, constitutional issues that are going to come whether it’s blood quantum or citizenship criteria, what have you, that you’ll ultimately have to deal with.

Floyd Jourdain:

Well, removing the Secretary of Interior clause is important because it also, that’s pretty monumental in itself because at one point, being a self-governance tribe, the Red Lake Band had certain agencies that had federal employees on the reservation for so many years. And those federal, Band members who work for these federal agencies -- IHS [Indian Health Service], BIA and law enforcement, nurses, what have you -- they were like, ‘We don’t want to be under the tribe. We like our government jobs. We want our pensions. We want to be under that safety and security net.’ And the Band has always maintained that at some point we have to strive for self-determination and self-sufficiency and we have to manage our own affairs and at what point are we going to pull ourselves out from the cover of this almost a demeaning subsidiary of the federal government itself.

Ian Record:

I know it’s still early, but looking forward, what in your view, when all’s said and done, will success look like for Red Lake in terms of constitutional reform? If everything goes right from your perspective and the process reaches its fruition, the outcome will be successful if what?

Floyd Jourdain:

I think if you have a new generation educated on the tribe, treaties, history, the role of government and also have a comprehensive plan and diagram of what the nation should, a healthy nation should look like. That in itself would be a huge, huge victory for the people. The empowerment is important and the education and the empowerment of the people is important because there’s certain things that people want. They want to be healthy. They want to be safe. They want clean water. They want land. They want their leaders to be looking out for them and they want their children and the generations coming up to preserve what we have: our culture, language and our traditions and our land. And I think that’s important and if we have a document or a guiding, some guiding principles and rules that not only the people have to go by, but also the leadership has to go by as well and that’s tempered, is balanced, it’ll build trust, it’ll build stability in government. It’ll be, it’ll contribute greatly to building an economy, strengthening our tribal courts. Because otherwise, if you have, there are no definitions, then you have a lot of the dysfunction that happens in Indian communities.

Ian Record:

I’d like to switch gears now and talk about governance and leadership and the relationship between the two. We’ve talked about leadership a lot already, but just recently, in May 2014, you lost in your bid for another term as chairman of the Red Lake Nation. I was following that election closely and was struck by how graciously you accepted your electoral defeat and in particular how you worked to ensure a smooth transition from your administration to your successor’s. In fact, at the council meeting just on June 10th, just about a month ago, where you handed over the reins to the incoming chair, you were quoted as saying, ‘Anything I can ever do, Mr. Chairman, I will be here for you.’ I wish I could say that is an approach commonly taken by outgoing leaders in any government including Indian Country, but unfortunately it’s not. I’m curious. Why did you take that approach that you did? It sounds like it comes from some of the teachings that have been imparted to you earlier in life, but maybe if you could just elaborate a little bit more on why did you take that approach?

Floyd Jourdain:

Well, you’re right, a lot of that come from my parents, my mom and my dad, my grandparents. And embarking on leadership prior to being an elected tribal leader, I was also a mentor for youth and I worked for youth programs and trying to help people with their personal struggles with addictions and those type of things. So to keep hope alive and to keep dreams alive and to keep a positive attitude, I think that’s important. I’ve served as a conduit between one generation of people, our elders who are starting to leave us now, and the next generation coming up. So to keep that transition going and realizing that our lives are so short, that there’s value in supporting someone who’s coming in and continuing.

And like I said, there was no 'Chairman 101.' Now you can be surrounded by thousands of people and be the loneliest person on planet earth. And I know what that feels like. There’s very few people who know what that feels like and one of the things I spoke to in that inauguration as well was holding the weight of the people. It can be grueling and there are rewards, but there are times when you really have no one else to look to. ‘Who can I talk to about this? Is there anyone that,  Well, there’s Buck over here or there’s maybe Bobby [Whitefeather] and there’s like on this entire planet there might be one or two people that know what I’m going through that hopefully I can call them and consult with them or maybe they can help me with an issue.’

So I think it’s important to keep those doors open and when you’re talking about a nation, there’s a momentum that’s building, there’s a new generation coming, there’s, and a lot of times we like to think that, ‘Oh, geez, just because I’m out of here, I’m going to kick down the house of cards. They won’t have me to kick around anymore.’ It doesn’t work that way. The tribe will go on. The people will go on. The progress, that’s one of the scary parts about leadership is that everything that we’ve built, hopefully it won’t get all dismantled and then we’ll go back several decades to where we were before. I think people like to think that that’s going to happen, but I like to believe that we are good people, all of us.

These campaigns, they can be brutal, they can be ugly. The people a lot of times, it takes on a life of its own that they get so caught up in all of these things and at the end of the day, tribal leaders, though, they don’t wish each other harm or, we don’t want the next ones coming in to do bad because if they do bad, then we all do bad. So I think it’s just something that was taught to me was that, ‘Don’t go stomping off muttering and hanging your head and kicking a can.’ Just, you move to the next chapter and hopefully another door will open.

Ian Record:

So I’m curious, I know it’s, you’re what about two months now into your post-chairman existence, but how do you conceive your role now as a former elected official in terms of nation building and contributing to some of these nation-building initiatives like this constitutional reform effort that’s currently underway? Because you spent 10 years building up an incredible knowledge base. Not just in terms of about the needs of the people because you’re a public face and people come to you and share their problems and share their aspirations, but also because of your knowledge of how your current system works, the governance system and perhaps what could be improved. How do you view your role now that you’re no longer in the position of chairman?

Floyd Jourdain:

Well, the transition is tough, especially if you go from 100 miles an hour to 20 overnight. And you go through certain stages of, ‘What’s my role now? I’ve been doing this for so long.’ I think passing that on is what I talked about. There wasn’t anybody that I could come to and say, ‘Well, I’ve run into a huge, huge situation here. Who do you turn to?’ So all of those experiences, the life experiences and the knowledge and all of the things that have happened over time, I think it’s important to share that with people, whether that be teaching or writing a book or just being in the community maybe as an elder or trying to get involved more again in the grassroots just to pass on what it is, in a good way, to pass on to the next generation some of the things that they otherwise wouldn’t know.

Ian Record:

Well, Chairman, we really appreciate you taking some time out of your retirement, your hopefully short-lived retirement, and sharing your thoughts and experience and wisdom with us.

Floyd Jourdain:

Thank you. I appreciate the opportunity.

Ian Record:

Well, that’s all the time we have on today’s program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at nni.arizona.edu. Thank you for joining us. Copyright 2014 Arizona Board of Regents.

Justin Beaulieu: The Red Lake Nation's Approach to Constitutional Reform

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Native Nations Institute
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Justin Beaulieu (Red Lake Nation), coordinator of the Red lake Nation Constitution Reform Initiative, provides a detailed overview of how the Red Lake Nation's constitution reform committee has designed and is implementing a methodical, strategic, comprehensive approach to reviewing and reforming the nation's constitution that puts primary emphasis on full, meaningful participation by the Red Lake people in the process.

Resource Type
Citation

Beaulieu, Justin. "The Red Lake Nation's Approach to Constitutional Reform." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Walker, Minnesota. July 9, 2014. 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 Justin Beaulieu, a citizen of the Red Lake Nation in Minnesota. Justin currently serves as Coordinator of the Red Lake Constitutional Reform Initiative and earlier this year he was chosen by the Harvard Project on American Indian Economic Development to serve as one of three members of the inaugural Cohort in its Honoring Nations Leadership Program. Justin, welcome and good to have you with us today."

Justin Beaulieu:

"Thank you, Ian. It's a pleasure."

Ian Record:

"So I've shared a little bit about who you are, but why don't you start off and just tell us a little bit more about yourself?"

Justin Beaulieu:

"Well, I'm a father of two beautiful children with my wife Anne and pretty much my job and my kids are my life. I spend a lot of time in the outdoors. I like to hunt, fish, trap, do a lot of the cultural activities, go ricing and maple syruping. It's...just kind of live the old way and I learned from my grandpa and my dad."

Ian Record:

"That's great. The reason I wanted to sit down and have a chat with you today is because of your involvement in Red Lake's constitutional reform effort, which is still very much early in its development and we'll talk about that, but I wanted to start at the beginning. And based upon your knowledge as a citizen of the nation and obviously your involvement as coordinator of the actual reform initiative, what in your view prompted Red Lake to go down the reform road to begin with?"

Justin Beaulieu:

"I think -- and this conversation's been going on for a long time -- we had a discussion with Chairman [Darrell] Seki, our new elected chairman, the other day and he was talking about how his grandfather and grandma used to talk with other elders in the tribe and this was probably in the late 20s, 30s and they were talking about how our constitution then, the 1918 constitution, it didn't align with our cultural values or who we are or what we're about to what we felt was important as a people. So then as a nation, I think that has been passed along from parents to children to grandchildren to great grandchildren and finally we did a GANN [Governance Analysis for Native Nations session] in 2010 with Native Nations Institute and I think that was one of the catalysts that kind of drove that conversation into the forefront that said, ‘Okay, we can do this now. We've been talking about it for a long time, let's go ahead and do it.'"

Ian Record:

"So I should mention a GANN is a Governance Analysis for Native Nations session. It's a tool that nations use to assess their current governance systems and constitutions being part of that. When I first met you, you were a member of Cohort 2 of the Bush Native Nation Rebuilders Program and at that time you were working for Mille Lacs Band."

Justin Beaulieu:

"Yes."

Ian Record:

"And you've since returned to your own nation, Red Lake, and I'm curious, how did you become...how did you come to serve as coordinator of this constitutional reform initiative, and maybe shed a little bit of light on what your role is within this effort?"

Justin Beaulieu:

"Sure. Okay, we'll start at the beginning. Sam Strong, he went to Cohort 1 and he was part of the participation that did the GANN analysis and he was part of the team that brought me back to Red Lake. He had made a phone call, we had met through the Rebuilders. I didn't know Sam from anybody. He grew up in North Carolina and he went to school out east so we didn't have any previous history. So we met through the program and he called me and he said, ‘Would you mind coming home to work?' And I said, ‘Yeah, I'd love to. I've been planning on trying to find something.' I'd actually applied for three other jobs and the way it worked out I didn't get those...I didn't even get interviews for most of them because they would just fill them with whoever they wanted to at the time. So when he said, ‘Do you want to come back home,' I said, ‘Yes, I would love to.' And then he told me what it was for and I was really excited because with the conversations with my dad, with my relatives and with other people, we identified that the constitution is the first step in reassessing our governance and restructuring it to what we need as a nation to move us into the next generations. So that was kind of how I got involved in the process.

And my job as the coordinator is, we have a committee of 13 members who are...they're identified into each individual group. We have Redby, Red Lake, Little Rock and Ponemah. We have two from each one of those districts and they're the representatives that represent those people there. So they're the liaison between the people and their voice and then the committee. And then we also have a chairperson and we have a cultural advisor and we have a legal advisor. So those people are all citizen-members of Red Lake and my job is to help them to engage the community, is to get out there and do the grassroots, hit the ground running, try to figure out what they want.

But initially when I first came on, I was hoping everybody would be at the same level of education that I was with...and that wasn't the case. So we did probably like six to eight months of just real intensive training on what is a constitution, what is our constitution, researching our history, how did we get those constitutions, what was the relationships between the tribes and the governments, whether it be the state or federal during those times and what was...what were the catalysts of why they wanted to make an actual constitution in the way they did. So we did a lot of research and we put a lot of time and effort into figuring our what other tribes have done, what our tribe did in the past, how they made decisions and it was really an enlightening and learning experience for the whole committee.

So from there then I get to connect them with the community. So I coordinate community events, I coordinate... we do like powwows or celebration feasts. We also do just small group meetings. We do an advisory meeting. So my job is to make sure all of those go well, get all the people there, do all the coordination, get all the food. So it's a really intensive job, but I'm pretty good at it so I hope I'm doing a good job so far."

Ian Record:

"So you mentioned when the group first got together and you guys were trying to wrestle with, ‘How do we tackle this and this challenge that's before us and how do we develop a process,' that there was some internal learning that needed to take place and it started with developing a constitutional history of Red Lake. How important is that and what is the constitutional history of Red Lake? Where is your current...I guess first and foremost, how did Red Lake come to have its first written constitution and how did it come to have the current constitution that it governs by?"

Justin Beaulieu:

"Okay. So in 1918 we created a constitution and that constitution, it's basically identified a chieftain system, which we had the clan systems before then so it was similar to the same kind of system. But we needed to identify people to go to to make decisions about resources, about...because the government wanted trees, the lumber barons were there, the railroad was trying to come through. so there was a lot of people that needed to get access to those and also needed resources to go in and out of what we had as the current...the reservation. So when...they didn't have...they didn't know who to go to like, ‘Well, what clan deals with this or what clan deals...?' Instead they just created the constitution so they knew, ‘Okay, this is who we go to when we need to make a decision based on do we need to...require X amount of land or we want to get these trees from here so who do we talk to?' So that was one of the ways to limit the confusion between the federal government and also the businesses that were trying to do business with the tribe.

And then ultimately in 1958 we created a new constitution. This was a boilerplate IRA [Indian Reorganization Act] constitution and, that's essentially what it was, but they had been proposing since 1937, 1938 to get that constitution in place, but the BIA [Bureau of Indian Affairs] was dragging their feet and saying, ‘No, the way it's going right now with Red Lake, we like it. We like the way it's going.' They did a big land grab with us. They got 11 million acres and we got to keep our tribe intact. We fought the Dawes Act so there's no allotment. Red Lake is one whole parcel, which I think that the foresight that our ancestors had for that was amazing. But in retrospect, looking back at it, the BIA had their hands in a lot of things for Red Lake, but Red Lake was a champion of sovereignty so they were pushing back and so they didn't want...’No, we don't want to implement this constitution because then there's democratic rule, then there's going to be some...we like the way the chief system works so we can just go, ‘Hey, we need this,'' and it was easy to work. So ultimately in 1958 they finally pushed it through and they adopted the revised constitution for Red Lake and that has been what we have been governed by since then."

Ian Record:

"So it sounds from talking with others that are involved in the Red Lake reform effort that there's a sentiment among many in the community -- including, as you mentioned, some of your own relatives -- that this current document that we govern by, it's not a product of us, it's not reflective of who we are. How much of that is driving this current movement for reform?"

Justin Beaulieu:

"I think a lot of that is. We look at our culture and our values that we hold to high esteem and none of those things are involved in that constitution. There is nothing that talks about our children, there's nothing that talks about our elders, there's nothing that talks about our language, our culture, the ways that we made decisions in the past. It's essentially a business model constitution on how to run like say for example a board of directors like Target Corporation. So it takes into account nothing that we hold near and dear to us and talks about our culture, none talks about our land. Our lake is one of the things that we're very much proponents for and stewards of and even that isn't included in there and unfortunately because of that we have lost a portion of Upper Red Lake due to mismanagement of how they did the survey and nobody was held accountable because nothing said in our constitution that ‘We are going to protect our lake in its entirety,' in the whole thing and that's going to be first and foremost. So ultimately we lost because of that."

Ian Record:

"I wanted to go back to the initiative in terms of how it was established. Can you briefly give us an overview of what this initiative looks like, how is it structured and why was it structured in the way it was and what is its I guess ultimate charge?"

Justin Beaulieu:

"Sure. Our charge is in the committee and that's who I help, is they're responsible for getting information to the people to give them a reason to kind of respond to stimulus. So if we want them to talk about something like land and natural resources, we put out a survey and ask them for information and then they respond back. And then based off that information we can kind of mine down the next questions to make them...to get kind of a smaller scope of how we're going to detail parts of the constitution and that's worked out well for us. We're separated completely from the tribal government, we're insulated in the fact that they signed off saying that they're going to be hands off for the committee and we also have contracts with each one of the committee members that states that they can't have a direct...somebody in their direct family that's either on the council or is going to serve on the council. So if like say somebody gets voted into office in our upcoming election, we have the runoff, then that means that if they were on our committee they have to step down then because that's in their contract. So that I think is...the way that is structured is good in the sense that it gives the people in the...the citizens, your average every day citizen, it gives them that sense of ‘Okay, this isn't the tribal council's idea. This is ours. This is our document, this is something that we can get behind, this is something that we can put our fingerprints on so to speak and it'll be ours.'

So it's, I think...we learned that from a couple other tribes who have done it differently and it didn't work out so well for them. It either...they either extended their time period that they...some of them even got basically...for lack of better words got their throat cut. They couldn't do constitutional reform anymore so we wanted to make sure when we set it up initially, that was one of my first questions to Sam when he asked me I said, ‘Is the tribal council going to be involved?' and he said, ‘No.' Then I said, ‘Okay, then perfect.' And I think that's the same...I don't think that I'm alone in that. I think a lot of the community members also have that kind of mistrust and it's not to say that our leaders are bad, it's just been over the years things have happened here, things have happened there and that trust has been broken and trust is very hard to build. So then to limit that, kind of the naysayers, or whatnot, we decided that we're going to keep the tribal council out of it and they're going to just allow the people to have this thing and it'll be ours."

Ian Record:

"And how important is that to send that clear message to the citizens who you're trying to engage, you're trying to get them interested in this discussion about reform and get them to offer their input, how important is it to send the message then that this is bigger than any one single elected leader or this is bigger than any current crop of leaders? It's got not just an independent nature to it, but it's got a larger, longer term nature to it, it's got a longer-term purpose to it than just who are the holders of the power right now."

Justin Beaulieu:

"I think the legacy of our forefathers -- like I talked about -- fighting the Dawes Act and that kind of shines through. And then when you tell them, ‘Hey, this is about us,' then they don't feel...they feel safer to share their ideas. They don't feel like there can be repercussions or, ‘My husband or my brother might lose their job or whatnot,' because that has happened in tribes over history that if you start political turmoil then things can happen to your...you can lose your spot on a housing list, you can lose some resources, you can get fired from your job. So making sure that there's that insulated barrier there, people will feel a lot more free to share their ideas and that fear isn't there and then that's where you get that real raw feedback and emotional response to some of these things. Where we talked about our children who are not enrolled because of our own standards of membership to the tribe, they are not covered under the Indian Child Welfare Act. So if something happens to like say myself and when my kids, they're not enrolled right now because they're 1/100th of a percent off of blood. They have enough Native blood to be enrolled in other tribes, but not just in Red Lake. They're not covered under that. They can be taken and then given to...anywhere. They can be sent anywhere in the states or whatnot and that's something that a lot of them it resounded with them like, ‘We need to protect our kids and we need to protect our land and we need to protect our people.' But none of that is covered in our current constitution. It just essentially talks about building a tribal government, a makeshift tribal government and how the resources can be divvied up then."

Ian Record:

"So I've been to the website for the constitutional reform initiative; very impressive. And I know some of your colleagues on the committee are doing a lot of...developing a lot of educational materials that will enrich that site moving forward, but I want to talk a bit about the vision statement because something in there struck me that explicit in that vision statement is this idea of strengthening ideas of self-governance in the constitution. Can you provide perspective on that and what is the nature of the conversation around strengthening this idea of self-governance? Because if you read that the implication is that, ‘Our current constitution doesn't fully enact our sense of what self-governance means.'"

Justin Beaulieu:

"Well, self-governance, deciding what we're going to do and where we're going as a nation is important. And one of the things that we suffer from is the fact that we have to chase grant money and federal dollars and things like...we always have to jump through other people's hoops. So we're not really governing ourselves. We're governing by dollars or governing to whatever extent that a grant source wants us to do to get some money funneled and to try to help alleviate some of the hardships that the citizens face. So self-governance is taking that accountability, creating our own government, creating our own future, creating what we're going to do for economic development, what we're going to do to create better institutions and governing structure, how do we align our schools with our tribal government and how do we align our schools to be able to help our citizens become entrepreneurs if they want. It's creating a place where our tribal leaders can actually worry about what we're going to do in five years, 10 years rather than worry about who's going to get a job tomorrow or who's going to get a raise next week. Those are the things that...the decisions that they're making on a constant basis, and those are management-level decisions that should be made by the directors and managers. Those are not governance issues. Those are things that I believe and a lot of other citizens believe that those should be dealt with on those managerial levels, not necessarily on a council level. So they're dealing with every day, ‘Who's going to get their lights on,' those kind of things, when they should be worrying about, ‘What are we doing strategically to move ourselves into the next 10 years, next 20 years?'"

Ian Record:

"So you've touched a bit about...you touched on a bit already about some of the things that you guys are doing, some of the activities that the reform initiative and the committee members in particular are engaged in. Can you talk about some of the strategies you and the committee are taking to engage the people and sort of hook them in and then keep them engaged throughout what could be a multi-year process? From everything I've heard from you and others, you're going into this knowing that this is going to take a few years to get done if we want to do it right."

Justin Beaulieu:

"Yes. So we started off and once we got the information that we thought was going to be relevant to us to start the process, we started off by doing an initial survey. We did some excerpts in the papers, we did some kind of op-eds and discussing what we're doing, what the project looks like, what the timeline is so people could get an idea of, ‘Okay, if you ask us some questions, we're not going to expect you to give us a new constitution in two weeks or in a month, something like that.' So they understood the process and the timeline. And then we also first initially started talking about things that are near and dear to people's hearts. So we talked about language and culture, which is very important to us, to our tribe, to our nation and we also talked about our natural resources, which is another thing that we hold very dear. So that was the thing that we could get everybody to rally behind. So it wasn't a polarizing thing, it wasn't like talking to them about membership or something like that where you've got people on extreme opposites of that continuum. It was easy for us to transition everybody into getting behind the project and see what it is and then give them feedback on that level. We also met people where they were so if they couldn't come to a meeting, we offered the website, we got a Facebook page, we got a YouTube site that we up materials on. So if we have something that we think is really important, we'll put it out on those mediums so that they can see it on the phone when they're in the car or at their house. If we've got elders that can't make it into a meeting, we can bring them a DVD of what we did. So it's really important that we find out who needs to be at the table and then find out how to get them there or find out how to bring that table then to them."

Ian Record:

"You've talked about some of the strategy you guys are employing to get and then keep people engaged and I'm curious, what are some of the challenges that you've encountered thus far? I know it's early, I know you guys are in terms of full-bore implementation of this reform process you're about a year in or so, but what are some of the challenges you've encountered and how are you working to overcome those?"

Justin Beaulieu:

"I think life is the biggest challenge. People have lives, people have things that they're concerned about. They're concerned about keeping food on their table, their lights on. Those are real-world issues and we're not a rich tribe. We don't have money coming in from casinos, and so we're just trying to combat what the I guess side effects are of that, then try to keep people engaged in that. And it's hard when you're looking at something that's a grandiose idea like a constitution versus, ‘How am I going to get food in my fridge for my kids.' And then also get them to say, ‘Okay, now I need to stop what I'm doing over here and invest some time into this.' So it was hard to initially capture their attention, but then keeping them engaged is something that's been very difficult. I think being transparent and continuing to kind of not so much bombard them but keep them up to date with information has been the easiest way. Posting things on Facebook, questions, throwing ideas out there. If somebody comes by my office and they have a really great idea, I'll put that out on Facebook and put it on our website and say, ‘What do you guys think of this?' And it gives people an opportunity to weigh in and then those things get shared by a bunch of people and pretty soon it's kind of like this landslide of things coming in. So it's easy in that sense where if using a tool, a technology like Facebook that something can happen like this and next thing you know 10,000 people have seen it. So just kind of capitalizing on those things has been an easy way to try to alleviate the issues of life happening.

Another thing that's recently happened is we went through...we lost our chairman. We lost 'Buck' Jourdain and that's not to say that the new Chairman Darrell Seki isn't going to do a good job, but he [Jourdain] was a big supporter of constitutional reform, which isn't bad or good; Darrell Seki is also a big constitutional reform proponent. And so he comes along and says, in his statement he says, ‘I'm going to support this fully.' But there's other people that are on the council that may not like the idea of losing kind of the way things are...change is a hard process for anybody, it's hard for me. So then if you go in and somebody identifies, ‘Uh oh, this might change the way we do things.' ‘Well, we've been doing this...I've been on council for 15, 20 years. What are we going to do? I won't know what I'm doing.' So that's kind of scary for them. So it's easier for them to kind of sit back and not help us with it and in the same sense we did tell them to kind of stay out, but those have been two of the things that have been kind of the hardest to keep people engaged because of the idea that once you...when you have an election, it is a polarizing thing. Families start fighting and people who are husband and wife start fighting. It gets down to that molecular, granular level that we have to try to keep these people focused on the big picture and not just the here and now."

Ian Record:

"So keeping them focused on the big picture; and you mentioned people have real issues in their lives, people are busy, in many tribal communities there's a lot of poverty, there's a lot of social ills that people are wrestling with, it's very time consuming, it distracts their attention from these sorts of things. Isn't part of the way to combat that though is instructing people on the role the constitution plays in their lives currently and then how a stronger constitution could benefit their lives, enhance their lives, enhance the lives of their children, that sort of thing? Is that part of the argument and the education that you guys are sharing with citizens in these community meetings and through other ways to say, ‘Look, the constitution matters. You may not see it operating in your lives every day, but it matters and on many levels'?"

Justin Beaulieu:

"Well, when we first started, probably about 85, 90 percent of the people had never even read the constitution, didn't really know what it meant and didn't know how it applied to their life. And that was one of the questions, like you said, we got was, ‘Why does this matter to me?' So then finding out that tie between where we're at now and some of the problems that have stemmed from us not having a constitution that matches our culture and then identifying with them some places that have changed their constitution and look at the things that they've been able to do now. They've been able to grow as a nation, they've been able to implement new procedures that helped them get new economic opportunities, that helped them revitalize some of their language where they were losing it, get some more fluent speakers. These are things that people really, really want and these are things that our current constitution isn't going to allow to happen. So that aligning their ideas of what they want in their own lives with what the big picture is that'll help the tribe is something that we've done as a committee and is part of my job, yes. And it's been very important on keeping people engaged and also identifying with some people who were the ones sitting on the back like, ‘Oh, I don't think that I really want to get involved in this.' ‘This matters to you.' ‘Why does it matter to me?' ‘Are your kids enrolled?' ‘Yes.' ‘Are your grandkids enrolled?' ‘Well, no.' ‘Aren't they part of your family?' ‘Yeah.' ‘Are they part of this tribe? Well, I guess not. So let's talk about that. How can we figure this out, because these are problems that a lot of people face? You're not alone in this.' So then they're like, ‘Oh, that's...okay, so the constitution can do that?' ‘Yeah, the constitution covers our government and how it...how we as a people want that government to function.'"

Ian Record:

"One of the issues that Red Lake has been focusing on and discussing in the early stages of the reform effort is whether and how to remove the Secretary of Interior approval clause from its constitution. Why the attention to that specific issue?"

Justin Beaulieu:

"Well, historically Red Lake has been a champion of sovereignty and also pushing the limits of what the government thought was okay and not okay and that's one of the things...if you look back to the Roger Jourdain era, he was going to D.C., he was a very vocal person, he was the "squeaky wheel" that pushed a lot of these issues that other tribes also face into the laps of Congress to say, ‘What are you going to do about this?' So then looking at that, Red Lake has not necessarily asked anybody what to do. They've decided what to do for themselves, but somehow they included that we have to ask for the Secretary of Interior to approve our constitution, our changes to it, our membership stuff. So those are things that people have said, ‘Well, why do we even have that? We ran the BIA out of here a long time ago.' Well, we wrote that into our own constitution, we asked for that to happen.' So they're, ‘Well, why don't we just take it out?' ‘Okay, let's talk about that.'

They decided to do that, they put it up for referendum vote back in 1990...I think 1998 and it lost by over 600 votes and so that was concerning to me. I was asking -- at the time Bobby White Feather was the chairman -- and so I went and asked him, I said, ‘What was going on during that time? Like why were people...why were they not...they were okay with kicking the BIA out, but they were okay with keeping this language in here that says we've got to ask them for approval to do things. Why were there...' And he said he thinks that it was -- and I'm kind of paraphrasing here -- he thought it was because of the mistrust that [people had of] the tribal government had at the time. They had just gone through an era in 1979-1980 where there was turmoil in our tribal government. There was shootouts going on, there was buildings being burned down, a lot of our history was actually lost because our tribal council building at the time was burned to the ground. So we look at, that's where our archives were, that's where a lot of our important documents were.

So the people were like, ‘No, we think the government should be involved in this because we want them to watch.' But they didn't really know that the government's not really caring what the tribe does, they just...’You put that in there in 1930, they cared back then. 1980, 1990, 2000s, they don't really care what you're doing. Look at some of the Supreme Court cases,' they said. ‘You figure out your membership. You figure out what you're going to do with your people. You figure out what you're going to do with your resources. You now have the ability to do your own self-governance stuff so we're not going to have our BIA people in there anymore.' So they kind of cut those parental ties so to speak, but we still have that in there because we thought we had Big Brother watch so ‘The tribal council can't screw us over,' or something to that effect is kind of what I got out of it. And there wasn't a whole lot of education done with it. They didn't go out and say, ‘This is what's going on with this. This is why it's important that we take ownership back of our constitution.' So I think that if they'd have done a little more education behind that and a little more transparency, I think that probably would have passed back in the ‘90s and we wouldn't be worrying about it right now."

Ian Record:

"I know, being a student of a lot of different tribes' constitutional reform efforts, I know that this is a common topic, common issue of concern, and I know that some tribes have approached this as they engage in sort of comprehensive reform to say, ‘We're going to go ahead and take this...we're going to do this as round one. We're going to get rid of this approval clause.' Laguna Pueblo is a good example of that. Back in 2012 they just said, ‘We know one thing that everybody can...we've gotten everybody to agree on, let's get rid of this language. Because we then want to engage in a discussion about what sort of constitution we want for ourselves without any sort of secondary or perhaps even primary consideration of what the feds are going to think.' Where's your nation right now? I know it's early, but is there a consensus yet on, ‘Is this going to be part of the overall package that we ultimately get the people to vote on or are we going to break this out as a separate amendment again?'"

Justin Beaulieu:

"That's the big question. We've been posing that to the community and one of the things we did is we actually wrote to the Secretary of Interior and asked them, ‘Can we just take this out and you guys will approve it?' He said, ‘Of course. Definitely take it out. We encourage you to take it out because we don't necessarily want to be meddling in your business.' So they wrote us a one-page letter that's going to be good for helping us to educate our own people like, ‘Look, this is something that can benefit us. This is some...we don't need somebody else approving any of our documents, approving what our government is and how it works. That's up to the people.' So that was one of the first steps we took. We also polled them. We did a survey, ‘What do you guys think of the Secretary of Interior? What does it mean to you? How do you think that it applies to us as a nation?' So that was enlightening too to kind of get those different responses and kind of get a feel for where everybody's at in the process. That way we can tailor our message to whatever individuals we have to to try to get the education part of it out so they can make a decision, an informed decision on their own versus, ‘I don't know what that means so I'm going to vote no because I know how things go when it is in there.'"

Ian Record:

"You've made...you've discussed...you've touched on some of the issues that have sort of been coming out in some of these meetings: culture, language, obviously the Secretary of Interior approval issue, membership as you mentioned is a big issue. What are some of the issues that have been bubbling to the surface as you've guys begin to engage the community and get their thoughts on constitutional reform?"

Justin Beaulieu:

"It's a lot of the buzz words like the transparency of the government. ‘Why don't they come and tell us in the individual communities what they've been talking about, what they're doing, what they're working on?' A lot of the people, they find out after the fact like one day all of a sudden there's this building going up. ‘Well, what is this? Why didn't anybody tell us there was a...why didn't anybody ask us what was going on?' So transparency is a huge thing. They want the tribal government to be transparent. They also want them to be accountable. They want them to be accountable to the people and to themselves. So that means...I guess it would mean some sort of job description they've been talking about like, ‘What does...what is the secretary-treasurer, what is their job? What are they supposed to do?' Because how can you hold anybody accountable if you have no idea what they're really supposed to do. So it's looking into some of those things.

Also they want to talk about our economic development not just trying to get casinos, but also working with the tribal members to kind of make it where the tribal government will allow the citizen entrepreneurs to actually have their businesses versus making them get a license, making them jump through this hoop, making them do this, making them do that, which is I think was important to them in the past to be able to kind of control what was going on in the communities, but now there's people who are very well educated. There are some very, very smart people in Red Lake that want to start their own businesses, want a culture that has a bank that they can go to. There's no bank, there's no banking system. So a lot of those things that would be extended to you in an outside world or an outside community is not available there so they want to talk about that.

What is economic development for the tribe? What does it mean for our people? Also, what does it mean for our government to get involved in the economic development versus we're doing it on our own or is it a separate entity, setting up tribal businesses like we have right now in Red Lake, Inc. Is it that? We have Red Lake, Inc. and we've had them for quite a few years now, almost four years, and our businesses are turning profits now. They never did before in the past. Not to say that any one person or any one thing is responsible, but to give that back to people who went to school for business, who know how businesses run, who now how to do budgets and who know how to do just anything that has to do with business. It was good for our tribe because we're making money on those businesses where we were just kind of pouring money into them and trying to get them to work before. So it's how do we separate all those different silos and then how do we then created a government that's going to be looking at what's more important for our future, what's more important for our children, dealing with the issues that we have rather than putting Band-Aids on things."

Ian Record:

"You mentioned this early on about how you, in structuring the reform initiative, 'I'm trying to figure out what's a proven strategy that will work for us,' that you looked at some other nations. Can you talk a little bit more about how you're learning from the constitutional reform experiences of other tribes? And perhaps on the flip side, yes, it's early on but what could other nations that are perhaps just discussing reform right now and when they start reform, what could they learn from Red Lake?"

Justin Beaulieu:

"Sure. I don't know for a fact what they can learn from us, but I can talk about what we've learned from other tribes. We've learned from some experiences that White Earth [Nation] had, that the Blackfeet [Tribe] have had, that Gila River [Indian Community]  have had, that the Cherokee [Nation] have had and just looking at kind of dissecting and mining through what they've done and how they got their process going, how they worked it. Did they have a committee, did they just have like a quorum of people that came together? How did they identify those people? How did...so it was kind of a learning experience for us to first initially set up like, ‘How are we going to do this that's going to be a good way, that our people can get behind and respond to?' And what we came up with is a committee of people who are from each individual community so that they felt represented. Sometimes in our communities, and it's a funny thing, the divide-and-conquer mentality. We have four communities and people identify with those communities more than they identify with the nation as a whole. So we decided, ‘Okay, that's how they identify, that's how we're going to work it. We're going to give them two representatives from each one of their separate districts and then those people will be the ones who they go to or can be a liaison for the committee to bring back the information, to bring back the ideas, also to share them forward. So they're like a conduit for each individual district.

And then like I touched on, we needed to figure out how to engage the community because we looked at, let's say White Earth for example, they got together I think it was about 40 people and they did some sessions where they would kind of hammer out all these details. And they did it with good hearts I'm sure and good intentions, but I looked at the videos of the people in the communities and they were really upset. ‘Why didn't you come to us? Why didn't you ask us what we thought? Why weren't we involved in these conversations?' And that's something we didn't want to answer in the future so we thought, ‘We better get them involved first in the process and then figure it out,' versus bringing it to them after the fact and saying, ‘Here this is good for you.' Because historically that's happened for Native peoples throughout history since first contact is, ‘Here, this is good for you, take this.' So we wanted to get them involved so that their DNA and their fingerprints and everything was on it. So their ideas were in it, it resounded with them, they can get behind it and say, ‘I had those ideas. I shared these ideas. These are now in our governing document. That's awesome!' So that was something that we learned from them.

Gila River, with Anthony Hill, he came in and he did a full meeting. We had about four hours. And so basically he came in and told us everything, how the whole process worked for them, how they started, how they got these road bumps along the way, how they worked past some of them. Then their regime change came and kind of put a kibosh to everything so they had to work really, really hard, but their documentation process was I think the thing that we learned the best from Gila River is they kept everything that they did and they kept record of everything they did so that way they could I guess regurgitate that at any time to anybody, ‘Why did you guys do this?' ‘Well, because we polled everybody in a survey or we had a community meeting and this is the results from what you guys said you wanted to see done.' So that was important for us so that we could, in the future, if somebody came along, even if somebody comes along in 50 years and they had no idea of how this constitution was here, they can go back and they can look through the whole process. We have it digitized, we have video, we have it in a lot of different forms. That way if some...one written form or something gets destroyed, it's always going to live on and it'll always be there so people can go back and say, ‘That's how they did that.'"

Ian Record:

"Isn't that critical also for interpreting the constitution because we hear a lot of attorneys, in particular tribal attorneys, talk to us about, the constitution's typically these short documents. They don't go into a whole lot of detail. They set up the basic parameters and judges say this too, ‘If I'm being asked to interpret the constitution, often it would be really helpful for me if I know the back story.' What was the motivation behind why this provision reads the way it does?"

Justin Beaulieu:

"Anthony Hill came to me and I actually got to ride with him. I drove him back and forth from the city so he got a good 10 and a half hours in the car with me. So I was asking him and he said, ‘The biggest thing is legislative intent. When I'm sitting on my...I've got my judge hat on, I'm sitting there and I'm trying to figure out is this a constitutional issue, how did they make this decision, how do I apply this?' He said, ‘And so I thought, that's the best way to do that is to actually have that in there with our documentation inserts, this is why we decided this. So then when a judge picks that up they can say, ‘Oh, legislative intent -- this is why they did it so this is how we can apply it.' And then if it needs to be changed, then you know why that decision was made so you know how you can change it then ultimately."

Ian Record:

"So I'm curious, I know it's early but looking forward, if this process succeeds, it reaches its fruition, what will success look like when all's said and done?"

Justin Beaulieu:

"Success I think for the committee and for myself, too, is that a new document ultimately gets written that's accepted by the people, but I think the real success is the implementation of that, is getting to that final product, is getting everybody onboard and I think that the way we're engaging the community now and getting their feedback and getting them involved in the process is going to help to expedite that process in the future because then when you sit down and you have a director of a program who's ultimately going to be their daily, day-to-day, basic stuff that they do is going to be impacted by this new constitution, that they're going to know why this stuff was done, how it was done because they are going to be part of the process. So then they can buy into it and everything can move, that transition can happen more quickly and also less painfully, the growing pains of trying to implement that. So I think that for us would be success is when that finished product is done and the implementation is done."

Ian Record:

"And isn't that really critical because when you think about it, when you ratify a new constitution, you're simply changing a document. You're changing paper and then you've got this much larger challenge I would argue of actually having to change the political culture of the community, not just of the elected leadership and those who work within government, but the citizens and how they interface with government, right?"

Justin Beaulieu:

"Yes."

Ian Record:

"It's an on...does that not require some sort of ongoing education, educational challenge to remind and instruct people, ‘This is why the constitution is set out the way it is. This is what we decided at the time and why and this is what it means for you, citizen, program director, council member, chairman.'"

Justin Beaulieu:

"Yes, for example, let's say I'm under a hardship and I need some help paying my light bill. Right now the process is they can go and just kind of ask one of the council members and say, ‘Hey, I need help. I need my lights paid.' And then they can then in turn pay that, but with the new...the way that the government will potentially kind of be set up it's going to have those checks and balances where if I don't do what I'm supposed to do and use my due diligence, then those...I'm going to have to go through the hoops of whatever we have for programs available to help me out rather than trying to just go right directly to one of my elected leaders and saying, ‘I need help. I want help.' So that's going to be a growing pain for some people because they're used to that. They've been doing that now for 10, 15, 20 years saying, ‘Hey, I need help with this. Hey, I need help with that.' So that is going to be very difficult for some people, but I think the overarching goals that we're going to have in place are going to kind of supersede any of those, the little...the intricate things that are going to have to get ironed out in the end. My hope is that that learning curve isn't so hard and it doesn't take as long, but I guess the people will ultimately be the ones to judge that and then the success will be based on how we adopt it and then implementation of it."

Ian Record:

"Well, Justin, we really appreciate you taking some time out of your busy schedule -- I know you've got a lot on your plate -- to share your thoughts and experience and wisdom with us."

Justin Beaulieu:

"Awesome. Thank you."

Ian Record:

"Well, that's all the time we have on today's program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute's website at nni.arizona.edu. Thank you for joining us. Copyright 2014 Arizona Board of Regents."

Brenda Child: The Red Lake Nation: Laying a Solid Foundation for Constitutional Reform

Producer
Native Nations Institute
Year

In this informative interview with NNI's Ian Record, Brenda Child, a member of the Red Lake Constitution Reform Initiative Committee, discusses how the Committee has worked methodically to set in place a solid foundation upon which to engage Red Lake citizens about the Red Lake constitution and whether and how they should strengthen it through reform. She also shares how the Committee began by educating itself about Indigenous constitutionalism in general and the origins of Red Lake's current constitution in particular.

People
Resource Type
Citation

Child, Brenda. "The Red Lake Nation: Laying a Solid Foundation for Constitutional Reform." Leading Native Nations interview series, Native Nations Insitute for Leadership, Management and Policy, University of Arizona, Tucson, Arizona, April 2, 2014. Interview.

Ian Record:

"We're here with Brenda Child who's from the Red Lake Nation, Red Lake Band of Chippewa, and we're here to talk a little bit about constitutionalism and constitutional reform. In addition to being an academic -- as we were just discussing -- a professor at the University of Minnesota, you also have the honor of being a member of Red Lake's newly formed or somewhat newly formed Constitutional Reform Committee. And I guess if you can just start by telling us a little bit more about yourself and how you came to be on...become a part of the committee and then we'll sort of delve into what the committee does as they move forward."

Brenda Child:

"So the committee that formed at Red Lake is a...it's a committee apart from the tribal council, but it was their...the tribe's economic development office was in charge of soliciting applications from tribal members to be part of the committee and so I applied as did everybody else and a dozen or so of us were selected to be on the committee. I was very happy about the way...when they asked me to kind of apply to the committee because they said, you...because I teach in the Twin Cities they said I could apply as the representative from Minneapolis or I could apply from my reservation district, my hometown, which is Redby, and that made me happy because I think we're trying to get away from that, ‘Those of you who work in the city or in urban areas...,' because there's so much fluidity now between people who live in urban areas and on the reservation. But at Red Lake maybe some of that might be particularly strong because we do...Red Lake is one of those places that, as you know having visited there, we didn't lose our land or our land wasn't allotted in the course of the late 19th and the early 20th century. So we have a very large homeland and there is some significant part of our population that does live on our homelands at Red Lake."

Ian Record:

"So can you give me a nutshell overview of what the charge of the committee is? So basically this committee is formed and then they're telling you, ‘Here's your job, here's your task, here's how we expect you to carry it out.'"

Brenda Child:

"The great thing about our charge for the constitution committee at Red Lake is that we were able to secure a really nice grant from the Bush Foundation, which allowed us to have a staff on the reservation to kind of organize a lot of our regular meetings and our community meetings, the first leg of which we've just passed in the last week or so where we've been attending public meetings with the community. But we...yeah, so the idea was...we didn't...because we have a staff and because we had this grant from the Bush Foundation, we were able to really focus and think about this as a long term project, not just something, ‘Let's get in and out, think about a new constitution, write it up and see if we can get a tribal referendum.' And so we've tried to be very thoughtful about how we've approached this work and in the first year...so our committee has been meeting for about a year. Fortunately, we're a very kind of congenial group of people who are very supportive of one another. We've been meeting twice a month over the last year. Usually we meet on the reservation and we meet usually for about four hours at a time. We tend to be very deliberate talkers and we listen very carefully to one another. So initially we thought of our charge as being to learn as much as we could about the history of our own constitutions at Red Lake, to learn more about constitutionalism and then to eventually write a new tribal constitution that will be put forward for tribal referendum."

Ian Record:

"You just mentioned one of the tasks, as you see it and as your fellow committee member sees it, is to understand the history of Red Lake's constitutionalism if you will."

Brenda Child:

"Yeah."

Ian Record:

"Let's talk a bit more about that. Why -- from your perspective and based upon what you've been learning from others and from the elected leadership who saw fit to create this committee -- why now for Red Lake? What is, I guess, in play that has prompted this conversation that, ‘We need to revisit our constitution. We need to make sure that it's going to be capable of supporting the direction that we want to take as a nation into the future.'"

Brenda Child:

"So at Red Lake it's sort of interesting, because we have a constitution that dates from 1918 was the year of our first written constitution. So as a committee we've spent time thinking about why...what was going on with our people in the early 20th century for them to decide to write a constitution at that particular moment in time? And when you look at that document, which isn't particularly long, you can see that people were very concerned about...the government was still trying to allot Indian reservations in the 1920s and even though we eventually escaped allotment at Red Lake, which is an amazing story in itself, that...you can sort of see that's what our ancestors were thinking about in those years and so the fear was very real and present that our reservation would be allotted. So I think that's maybe some of the reason why our people at that time decided at that time decided, ‘Let's commit to writing, think about governance on the reservation.'

And Red Lake has this history of hereditary chiefs and at that time there were seven hereditary chiefs who appointed a general council and so that was what governance was at Red Lake in the early 20th century. So the hereditary chiefs played a very important role. Our tribal constitution was revised in 1958 and this is like, for example, when the first mention of citizenship comes up because 1918 everybody knew everybody in the community, it was a very friendly time, there were probably fewer than 3,000 people that lived in all of our communities on the reservation, so times were changing in the late ‘50s. And at the same time, Red Lake has always been very independent of the other...politically very independent of the other Ojibwe people and other bands within the state. And so at that time they wanted to confirm again that they were a separate political entity and independent of the other Minnesota Ojibwes and so that was part of the 1958 constitution. But I think the feeling at Red Lake now among people on our council as well as in the community is that it's time for a new constitution because a lot has changed in Indian Country since 1958."

Ian Record:

"And obviously you're...I would assume along with that that your needs have changed, the challenges you face today have changed and is that part of the conversation to say, ‘We need to make sure that our governance...our foundational governance document is equipped to meet the times,' if you will?"

Brenda Child:

"Yeah. I think that people feel that the document isn't adequate. People feel that there are areas that need to be strengthened in our constitution. When I was mentioning our 1918 and '58 constitutions and how motivated people were at the time to think about the importance of preserving our land, I think that that sentiment is still very strong. We've just finished our first round of community meetings on the reservation and in urban areas in Minnesota as well. And so that concern is still there but maybe it's expressed a little differently than perhaps it was earlier in the 20th century. For example, people today use terms like, ‘Well, what about the sustainability of our forests?', ‘What about the quality of our water?', ‘What about preserving our lakes?' We were talking at our community meetings last week about because we have not only Upper and Lower Red Lake, but a lot of smaller lakes on the reservation, people were talking about the issue of invasive species. Some of those invasive species have been present in other bodies of water within our region in the Great Lakes, but not in Red Lake. And so these are...there are new ways of thinking about how we need to protect our land and a lot of that would be what you would call environmentalism, conservation, the desire to protect our resources. So I think our concerns are the same as our ancestors 100 years ago when they first wrote a constitution, but it's being expressed in new ways because we have new worries right now."

Ian Record:

"So let's delve a little bit more into these community meetings. I know they're fresh in your mind. I believe some of them happened as recently as last week."

Brenda Child:

"Right."

Ian Record:

"Paint a picture for what that environment, what that dynamic was like. I always use the analogy of Jay Leno when he was on "The Tonight Show." He'd do the 'Jaywalking,' where he'd walk around and ask the average citizen on the street about the U.S. Constitution or some other U.S. civics-type question and most people don't know a lot."

Brenda Child:

"True."

Ian Record:

"And I would imagine that that's part of the challenge you face in engaging the community on this and trying to first and foremost get them to care about this and educate them about the role that the constitution plays, good and bad, in their daily lives and how them contributing to a new constitution could actually improve their lives. Is that kind of where you guys are at in the process right now?"

Brenda Child:

"Yeah. So we just finished our first round of community meetings and we decided that we would...I think this was just a scheduling fluke, but we started in Minneapolis and so we had a large meeting in Minneapolis and then we went to the four reservation communities of Little Rock, Red Lake, Redby -- which is my hometown -- and then Ponemah and all of those communities are very different from one another. We ended up in Duluth on just last Saturday and we still have one more meeting that's going to take place in Bemidji, which is the town 30 miles off the reservation. So in some sense that kind of border town, there are a lot of our tribal members whose kids go to school in Bemidji and who work in Bemidji and live there so we're going to have another meeting there as well. And I guess what I saw with our first round of community meetings is that we as a committee work to be on the same page before we started any round of community meetings. I'm a college professor and so I talked a lot about how we organize discussions in the classroom, that we're...that means you don't just come in and show up. You're very well prepared to run a discussion. We talked about questions in common that we were going to pose. We really prepared ourselves and on the evenings of our community meetings on the reservation and in Minneapolis as well, we did everything the same way.

So we started out with a prayer by one of our elders who's on the committee. We started out with a meal, so everyone ate together. And then we showed a short film that the committee had put together, a short eight minute film called "Aangwaamas!," which is the story of our...kind of the history of our constitution. And so we wanted people to be kind of ready to go to get a little bit of history before we started asking any questions. And I think we...it was very important to kind of set the tone in a good way to establish, ‘We are here not to tell you our opinions, we're not here to be divisive in any sort of way. None of us are running for political office,' that kind of thing, ‘but we're here to really engage the community. We're here to listen. We're here to listen to your ideas and to write them down and we're going to bring them back to the committee.' So that's how we tried to set the tone.

It was really great because we have a member of our committee, Tom Cain, Jr., whose father was on the 1958 committee who last drafted our constitution at Red Lake and he talked about, in this little short film we made called 'Aangwaamas!,' he talked about what it was like to be a five-year-old boy and his father's work at that time when politics was mostly conducted in the Ojibwe language and he talked about, as most of us would be as a kid listening to adults. That was his view of our last constitution, but he said...he described it and it was really kind of a very beautiful political process that his father went to every home on...in his district because he was a representative for the Ponemah District at the time and talked about politics, what should be in the new constitution. And he said when his dad would leave the house he would say, ‘Aangwaamas,' like it's time, it's time. So that's kind of become our...that's become our sort of slogan for our constitution, that it was time for our ancestors in 1918 to write a constitution, it's time in '58, it was for them to revise it and times have changed so aangwaamas, it's time for us again."

Ian Record:

"It's interesting you mention that. In working with a lot of other nations we often hear that one of the strategies, one of the many strategies -- and I think the fact that a lot of the tribes we've worked with have succeeded when it comes to reform is because they've employed different strategies -- but one of the strategies they talk about is going to the people, that you can call a community meeting, you can advertise it, but particularly when you haven't built up that awareness of why this matters yet, that it may require you to go out and seek out the people, seek out the particular... the influential people in any community and make sure that they understand what's going on and they're onboard. Is that something that you guys have as part of your formula moving forward?"

Brenda Child:

"In the past year, even before our community meetings started, we...when we would have any kind of public gathering, we would give our surveys at those gatherings and from those initial surveys we learned the areas that were sort of most...areas of pressing concern to our tribal members and those ended up being land and natural resources, language and culture, jobs and environment and also citizenship enrollment and the blood quantum issue. And so when we started our community meetings, and we're going to have several rounds of them, I sort of suggested at the outset, ‘Let's start with land and resources and language and culture,' because I thought it would be important for us...again, this is setting the tone for community engagement...to start with issues that bring us together as a people. It's sometimes...we know we're going to get to difficult issues that people feel very passionate about, but it's important to really be very thoughtful about how you proceed with community meetings because you want to bring your community together and before...and sort of learn how to work together so that when it's time to deal with these more difficult issues, that we're there, we're ready to go, we feel united and we feel like we're ready to make...have those conversations when it's time to do that."

Ian Record:

"On issues I would assume like citizenship which is the..."

Brenda Child:

"Blood quantum."

Ian Record:

"Blood quantum."

Brenda Child:

"Yes, yeah, when we're going to hear a lot of stories from people who say, ‘This is how it should be' or ‘My grandchildren are enrolled' or ‘This is how we've always done it at Red Lake.' We want to be ready for that and also, even when we engage those topics that are difficult, we want to have already established that we're good listeners. We're not here to dictate, we're not here with a specific political agenda, but we're here to listen to the community."

Ian Record:

"So let's follow up on that political agenda question because often we see where reform fails is because whatever...if it's committee or whatever body is set up to essentially lead the nation on reform is either politicized or is perceived to be politicized. How...I guess how important is it and how freeing is it for you to be on firm ground when you say to a community member, ‘We have no political agenda here. Yes, the council established us. Yes, they created the process by which this committee was created, but we have independence, we have autonomy to lead this process in a deliberate fashion that we think is going to work well'?"

Brenda Child:

"Maybe I'm at a stage of things after just the first year where I still feel very optimistic, but I really do believe in maybe this term we use so much now in organizations, in the university and wherever and that's transparency and that's just to be very up front about what we're trying to do, how we're there as ordinary citizens just like all of you and we're here to listen and engage in thoughtful conversation. But I think behind that thoughtful conversation is just the preparedness, to show people that you know what you're talking about, to establish that you're very serious about this business, but also to kind of establish that you're ready, you're going to be ready with the community at some point to write a new constitution for the tribe."

Ian Record:

"You mentioned earlier that you intend to engage in several rounds of community engagement."

Brenda Child:

"Right."

Ian Record:

"And you mentioned I believe in your first response that getting the financial support you did to conduct this effort has given you the flexibility you feel you need as a committee to be very deliberate, to take however much time is needed. Is there a sort of drop dead date for this or is it sort of you're just going to let the organic process unfold and then when that crystallizing moment is there when there's sufficient agreement or consensus in place then you'll know you're ready?"

Brenda Child:

"We have a date for when the grant runs out, but we don't have a date for when we have to put this to tribal referendum. We know that we could do it in a couple of years from now, that would be probably the earliest opportunity, but none of us feel rushed. The committee feels like we needed...we had so much to learn and then we have to engage the community and that there are just many steps and I know when you're involved in a process like that where you're working with your own tribal community, the process is just as important as what we eventually come up with as a written document."

Ian Record:

"Correct me if I'm wrong, but has not a lot of the...some of the initial conversations of the committee and others at Red Lake focused on one particular aspect of your constitution and that's the clause there that says that whatever changes that you make to the constitution must be approved by the federal government, must be approved by the Department of Interior in the person of the Secretary [of the Interior]. Where is that conversation right now and do you expect action on that particular aspect of your constitution before perhaps the rest of the constitutional change that you foresee taking place?"

Brenda Child:

"Yeah. It's possible we could take action on that Secretary of the Interior clause before the final writing of the constitution and some of that we just need to kind of seek out legal expertise. Some people have advised us to ‘just take it out,' and we assuredly will not write that into our next constitution, that we need to have the approval of the Secretary of Interior, but whether we do it now and by special referendum because we'd heard that, some of us didn't even recall this, that during the ‘90s we voted on this at Red Lake and it was not a successful referendum and some of that has to do with I think people didn't understand what it meant. Did that mean, ‘Well, we're going to go without these federal resources if we do this,' and so we're also approaching that in...we're being...we're still taking under consideration the best way to get that message out to the community."

Ian Record:

"You mentioned a little earlier that...you mentioned a little earlier around this issue of the timetable and the timetable you have for reform and that it could be two years, it could be perhaps longer before you see the end of the path on this process and you mentioned one of the reasons for that is because you as a committee have so much to learn and is that...I would imagine that's not just from your own community, that you have a lot to learn from what other nations are doing in this area. For instance, on citizenship for example, that's a hotbed area of activity when it comes to constitutional reform among other nations. So is the committee actively sort of seeking out other tribes or is it..."

Brenda Child:

"Yeah, the committee has...in terms of thinking about learning about tribal constitutions, we've been able to watch what some of our neighbors are doing. The White Earth tribe, not very far from us, are undergoing constitutional reform and so we've been watching what's going on there. We have talked to other tribes who have been successful or not at writing a new constitution and having a tribal referendum. We've also just sought out legal experts and folks that we think would be interesting to speak with on these issues.

One of the people that we had in was my colleague John Borrows who teaches at the law school at the University of Minnesota and I think it was really great to bring him up to have a long conversation with the tribal council or not the tribal council, the committee. So John Borrows came up to really specifically engage with the Constitutional Reform Committee and he was very generous with his time and spent hours speaking with us. And I think it was interesting to our committee because when you say, ‘This is a law professor who teaches federal Indian law at the University of Minnesota,' they're not really expecting John Borrows who's deeply philosophical, who studies and is a student himself of the Ojibwe language and thinks about stories and Ojibwe concepts of law. And so we've wanted to think about those ideas too because at Red Lake, even on the Constitutional Reform Committee, we have people who speak the Ojibwe language and we're very aware of our kind of unique history at Red Lake, having held onto our land as we have over the generations and that this is kind of a stronghold of the Ojibwe language on the U.S. side of the Great Lakes. So all of those things are things that we talk about and...

So I wouldn't just say that we look at just what's going on with other tribes as they write their constitutions but we try to think about practical issues, community engagement, but we also have to think of who we are as Ojibwe people as we proceed through this path of meeting with our community and writing a new constitution because we really want what we ultimately do throughout this whole process to be a very positive work in our community and a positive reflection of who we are as Red Lake Ojibwe people."

Ian Record:

"From your vantage point, isn't that part of what you ideally would hope to see in the final document is something that evokes that unique identity, that unique language, that unique history and if it's not explicitly taking steps to preserve that it's at least acknowledging it and saying, ‘This is how we've gotten as far as we have'?"

Brenda Child:

"Right. It's great to see all the energy out there in Indian Country right now about tribal constitutions, but we kind of live in time where it's sort of a global Indigenous world at the same time. So when I read the constitution of Bolivia, I was just like really greatly appreciative of that amazing document and so we've been looking at that a little bit in Red Lake. So we're interested in what our colleagues are doing around Indian Country, but also what other Indigenous people are doing around the world as they think about constitutions."

Ian Record:

"Well, Brenda we really appreciate you taking some time to share your thoughts and experience and wisdom with us and good luck with the effort."

Brenda Child:

"Yeah. Miigwetch."

John 'Rocky' Barrett: Blood Quantum's Impact on the Citizen Potawatomi Nation

Producer
Native Nations Institute
Year

In this short excerpt from his 2009 interview with NNI, Citizen Potawatomi Nation Chairman John "Rocky" Barrett discusses the devastating impacts that blood quantum exacted on the Citizen Potawatomi people before the nation did away with blood quantum as its main criteria for citizenship through constitutional amendments in the mid-1980s.

Native Nations
Resource Type
Citation

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

"It was a period of time where the...my realization that there was...the Bureau [of Indian Affairs] 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 cutoff. 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 a -- 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 placed these arbitrary stops in our system over a $450 check. In retrospect, it seems insane, and it was. Truthfully, it was."

John "Rocky" Barrett: Citizen Potawatomi's Inclusive Approach to Citizenship

Producer
Native Nations Institute
Year

A 3-minute clip of an interview with Chairman Barrett describing how Citizen Potawatomi Nation created a government structure and constitution that worked for the nation's large and very dispersed population.

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.

"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 of 27,000 members. Nine thousand of them, basically 9,500, of them are in Oklahoma. The remaining are in eight, sort of, enclaves around the United States in California and 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 governments 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 the, this distribution of people of where our membership is located...The 2007 Constitution created a legislative body of sixteen, eight from inside of Oklahoma where we have approximately 9500 members -- a third of our population, but all of the tribes' territory, all of the tribes' assets, all of the tribes' revenues, and all of the areas, 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 is a mandatory compromise between the interest of the larger portion of the population, and where the larger portion of the assets and the revenue is."

 

Jennifer Porter: Cultural Match Through Constitutional Reform at Kootenai

Producer
Native Nations Institute
Year

In this informative interview with NNI's Ian Record, Vice-Chairwoman Jennifer Porter of the Kootenai Tribe of Idaho explains what prompted her nation to enact several amendments to its constitution in the mid-1990s, and how its ability to govern effectively has been greatly enhanced by its decision to its cultural roots when it comes to how it elects its leaders.

Native Nations
Resource Type
Topics
Citation

Porter, Jennifer. "Cultural Match Through Constitutional Reform at Kootenai." Leading Native Nations interview series. Native Nations Insitute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 2, 2014. 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 Jennifer Porter. Jennifer Porter is the former Chairwoman and now Vice Chairwoman of the Kootenai Tribe of Idaho. And we’re here today to talk about the Kootenai Tribe of Idaho’s constitution and some of the recent efforts they were engaged in to amend their constitution and how it’s working, etc. I guess we’ll just first I guess have you start off by just telling us a little bit more about yourself.”

Jennifer Porter:

“Okay. Good morning. My name is Jennifer Porter, Vice Chairwoman of the Kootenai Tribe. I’ve been on council for the past 17 years, I believe, so this would be my fourth term as a council member. I don’t know what else you want besides that. I could go in depth [on] family...”

Ian Record:

“Yeah, sure. Why not.”

Jennifer Porter:

“...I’m a mother to three children ages, 20, 14 and 12, recently a grandma. That was a big part of me stepping down from chair so I could have more time to just enjoy my life now.”

Ian Record:

“That’s good. You’ve got to have balance, right?”

Jennifer Porter:

“Oh, yes, and I’m loving it.”

Ian Record:

“And it’s hard to achieve that as an elected leader I know.”

Jennifer Porter:

“It is, yes.”

Ian Record:

“So we’re here to talk about your tribe’s constitution and you’re here in Tucson this week to serve as one of our presenters for our Tribal Constitution seminar. And one of the reasons that we focused on your tribe and on you in particular is because back in the mid-1990s, your tribe engaged in a referendum vote that ended up approving a set of amendments. And from what you were telling me yesterday there’s quite a back story to how all this came to be. And I guess we can start...if you could start just talking about where the tribe was in the mid-1990s, what sort of constitution it was working with, and sort of what prompted the tribe to go down the reform road.”

Jennifer Porter:

“Sure. It was pre-my term as a council, but I was of the age to understand, out of college. I worked in the accounting department and closely related to the council so I got to see what was going on and hear, read the minutes and such. And at that time and for a number of years prior to that, our constitution, it stated that it was a five-member council and one of those members was the hereditary chief and he had a seat on council. So every three years an election came, they elected four different council members, but the chief always had the residing seat on council. And that stemmed problems.

In our community, we are made up of three main families and three -- odd number -- there’s always one ousted. So every election they would elect two of those families to the council whoever the chief at that time was getting along with. And basically it came to where it was the chief and the chair that they would either be with each other or against each other and every time there was a discrepancy they would oust whoever the chair was or oust whoever the councilman that was going against whatever it was.

So at the time, my mother was the current chair and she said there was so much uproar all the time about decisions being made that whenever something was...a resolution was passed, an ordinance was made, she was just waiting for a petition from the tribal members. There were times where she went off to meetings and she would come back and she would be petitioned off the council and they would have to go through the whole system of putting her back on and it was just like that. It was just always...you just never knew what was going on at the time and it kind of...it stemmed from that where she just got tired of it. If they wanted her on council, if they wanted these four people on council for the three years then they needed to come up with some kind of agreement.

So what she had said, and I liked in yesterday’s...some of the, I forgot who that was talking, but he said that we need to go back into our old ways, our cultural ways, our customary ways of how we got together, how we determined where and how we’re going to move forward. Well, she went back to that and she went back to the elders and what she was told is that we would come together as families, the family heads would come together, the households, they would have council. And that’s what led her to her decision and she called all of the major...the three major families, the households, the people that she in the past had sat on council with. She called those people to the table. She also called some of the elders to the table that she knew that people listened to that made the difference, had certain wisdom amongst the community. She was able to gather them all at the same table. They talked and they came to an agreement. Some of them were for it, some of them were against it, but when they really thought about it, having districts...families having three different districts, then it was a win-win for everybody because no matter who was getting along, who wasn’t getting along, as a family you would always have two representatives on the seat of the council.”

Ian Record:

“So basically the solution was, ‘We’re going to do away with this system where...’ How did it work under the prior system where you had these five council members, one of which was a standing position with the hereditary chief, right? And that person sort of had a different status than the other four? Were the other four voted on at large by the entire community?”

Jennifer Porter:

“By the community, yes.”

Ian Record:

“So you could have a family who would not have any representation at all...”

Jennifer Porter:

“Yes, yes.”

Ian Record:

“...on the council. And so you moved to this system which makes more cultural sense and also ensures that virtually everybody in the community because they’re going to be from one of these three main families in some respect would have a voice in the decision making process. Was that basically the premise?”

Jennifer Porter:

“Yes, it was.”

Ian Record:

“So then in August of 1995, the tribe goes forward with these four amendments and this is to amend the 1947 constitution. I’m curious, what is your knowledge of that 1947 constitution? I believe that’s the first written constitution of the tribe.”

Jennifer Porter:

“That was the first written [constitution] of the tribe, correct.”

Ian Record:

“Do you have...do you know much about how that original constitution came to be and who sort of authored it and anything like that?”

Jennifer Porter:

“No. I was looking at the signatures of that and those were the people of the community, the past leaders, just some... the historians, yeah. And it’s interesting how it was written and as the chief had always a standing place on the council.”

Ian Record:

“So in August of 1995, as I mentioned, these four amendments are put up to vote and I’ll just roll through them very quickly. The first one deals with the issue of blood quantum and I would assume making a change to at least one-quarter...”

Jennifer Porter:

“Yes.”

Ian Record:

“...degree blood quantum in descendancy from someone on a base roll. Amendment D basically just is a name change. You’re changing the name from Kootenai Tribe of Indians to Kootenai Tribe of Idaho. Those turned out to be not so controversial, which you would...it’s interesting that the blood quantum one doesn’t turn out to be controversial because...”

Jennifer Porter:

“Right.”

Ian Record:

“...folks will understand why here in a second, that the second amendment deals with exactly what you said, this change to this family-based system of representation on the council, per the three main families. And then the third amendment deals...is a related one that deals with changing the quorum requirements in accordance with how this new council was going to be constituted.”

Jennifer Porter:

“Yes.”

Ian Record:

“So you guys hold a vote, you pass all four amendments, you send them to the BIA [Bureau of Indian Affairs] per your constitution, which says that the Secretary of Interior must approve of amendments to your constitution, which is typical language of tribal constitutions from that era. Then tell me what happens next.”

Jennifer Porter:

“So the first amendment was approved, the last amendment was approved, and just like you said they didn’t approve the districts and the idea of breaking the council up into the district families. So what does our council do? They...what we were told, the reason for that, I did find that out was basically because our tribe was very small at the time, it was maybe between 100 and 120 members, that BIA felt that it wasn’t...they were adhering to the U.S. vote of one vote, one person and since we were a small tribe they thought that not everybody in the tribe would have that vote if we broke it up. But we had the argument where each person would be represented though. They have the vote to their member, their family member being on the council. So I see that our council was very bold at that time, they were going in the direction of self-determination, exercising their self-governance. So they brought the 70 percent of the general membership, which I know there was way more than 70 percent at that time, came together because they wanted this to pass. They liked this whole concept and the whole idea. They came together and they voted to do away with the BIA approval. It happened, we sent that in and I believe that happened in ‘95 or ‘96 that BIA approved that. So less than a year later we instilled our own...the new amendment, too.”

Ian Record:

“So it’s been in place for close to 20 years now and I’m curious, you’ve been in a position of leadership within your tribe for virtually all of that time and you have a window into how divisive the previous system was. Can you compare how those two approaches to how the Kootenai citizens are represented in the decision-making process of the government and how those two have differed, how they compare and contrast?”

Jennifer Porter:

“Well, I was very blessed to be in the newer version of the constitution. I’d like to say I’ve never been petitioned off the council. I’ve never seen a petition since I started. Unfortunately, it was a loss of one of my family members is how I walked into our council. It was actually the first term of this new...the new constitution and he had passed away. So my family voted me into his...so I fulfilled the rest of his term, which was the three years. Since then it’s...I can only say good things about it. There have been no more petitions. Each member, if you go back home and you ask them, they all know who’s sitting on their family on the council. If they have an issue, the way the council works now is we ask them, ‘Have you talked to your family representative first?’ If they want something brought to the table, they have to go to their family representative. So it’s kind of like a two-point process. They can’t just come into a council meeting anymore. They have to have their family’s approval, they discuss it, and then it comes to the council. So as long as we know where they’re coming from, what kind of direction or what questions they’re asking.”

Ian Record:

“So from what you’re saying, I gather your governance system has become a lot more stable.”

Jennifer Porter:

“Yes.”

Ian Record:

“Because the leadership is...there’s continuity there and there’s not as much in-fighting or perhaps any in-fighting of note. And then there’s also an ability for people to get their needs addressed where it doesn’t consume the entire council’s attention. So I would imagine that frees you up to really focus...sort of be more forward looking and strategic in figuring out, ‘Okay, what direction do we want to head and what do I need to understand and learn as a council member or as a chair or vice chair in order to get us there,’ versus being distracted by constituent concerns that are better addressed at the family level. Is that accurate?”

Jennifer Porter:

“That is accurate. It seems like every family has their interest, like one family has a cultural interest, another is education, another is economic development so it kind of made it to where each family can invest more time with that, but also bringing it to the table and able to work together. We don’t have to deal with the, ‘Someone doesn’t like someone' or 'They did this to me years ago.’ Yeah, it’s just not dealt with anymore as on...they have to deal with that within their own district.”

Ian Record:

“So have you seen a shift in how the average citizen regards the government as a whole since this change was made? I would imagine with that back under the previous system if there’s a lot of infighting, if there’s a lot of petitioning to say, ‘Oh, let’s throw that bum out. He doesn’t agree with me,’ or whatever, that tends to feed among the people a very low regard for government and a very low regard for leadership in whoever’s holding that position. Have you seen a change in terms of how the people tend to view their government? Is there more pride in the system and saying, ‘Hey, we can do things. We can make decisions. We can implement those decisions. We can really move forward.’”

Jennifer Porter:

“There’s a tremendous change. There is that pride there. There is that respect that wasn’t seen there before. It took them a few years to actually get the concept of, ‘Hey, I can bring something to the council. All I have to do is go talk to my family rep,’ instead of feeling like nothing can be done until we get a family member in there. So now they do have that voice, they can make a difference. And right now it’s broken down to council each has their different interest in the area and it’s kind of like if they don’t feel comfortable going to this council talking to education they’ll talk to their family member and then that family member will go talk to that council. So it’s kind of...it works so much better. It’s more...even though it’s more family based, it works better for the community overall.”

Ian Record:

“So are there other areas of the constitution that the tribe perhaps is having a conversation about changing or strengthening or anything like that? Is there more attention being paid now to figuring out, ‘Okay, yeah, things are working well. Are there ways we can make it work better,’ or are things just sort of chugging along.”

Jennifer Porter:

“Things are working well as it is and I think it’s more if it’s working just let it be.”

Ian Record:

“Well, that’s great. I wish I could say this is a typical story coming out of Indian Country but it’s...I think what Kootenai has done with you would think on its face one simple change, but it sounds like the trickle down effect throughout the government has been very constructive across the board. I think it offers a promising success story and a promising blueprint for other nations to look at to say, ‘If we just look to our own traditions, we just look to our own values and how we did things before and try to bring that forward into the 21st century we can achieve our own goals, we can govern well, we can make decisions in a unified fashion.’”

Jennifer Porter:

“And it was a blend. I like the way it was presented yesterday about going back to your traditions and your culture and the way I seen it when he was talking is it’s a blend of the culture and today’s world, bringing those together and being able to make it work.”

Ian Record:

“Well, Jennifer, really appreciate you taking some time to sit down with us. I know it was a little bit short notice, but I thank you for agreeing to share your story with us. We’re always eager to learn about new stories of constitutional success and constitutional enhancement and self-determination in action.”

Jennifer Porter:

“Well, thank you. It was a determination of...I think you guys have been asking me for like four or five years to come and I finally had the time.”

Ian Record:

“Well, persistence pays off, right?”

Jennifer Porter:

“It does.”

Ian Record:

“Well, again, thank you and hopefully others will learn from Kootenai’s story.”

Jennifer Porter:

“Thank you."

John Borrows: Revitalizing Indigenous Constitutionalism in the 21st Century

Producer
Native Nations Institute
Year

In this thoughtful conversation with NNI's Ian Record, scholar John Borrows (Anishinaabe) discusses Indigenous constitutionalism in its most fundamental sense, and provides some critical food for thought to Native nations who are wrestling with constitutional development and change in the 21st century.

People
Resource Type
Citation

Borrows, John. "Revitalizing Indigenous Constitutionalism in the 21st Century." Leading Native Nations interview series. Native Nations Institute for Leadership, Management and Policy, University of Arizona. Tucson, Arizona. April 4, 2014. 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 John Borrows. John is Anishinaabe and a citizen of Ontario’s Chippewa Nawash First Nation and he currently serves as the Robina Chair in Law, Public Policy and Society at the University of Minnesota School of Law. John, welcome and good to have you with us today.”

John Borrows:

“It’s good to be here.”

Ian Record:

“Before we dive into our conversation, I was hoping you’d just start out by telling us a little bit more about yourself.”

John Borrows:

“Yeah. So I’ve been a law teacher about 20 some odd years now and really have enjoyed that being in different schools. I’ve spent some time in U.S. schools -- ASU [Arizona State University], Minnesota obviously, Princeton; also taught across Canada, University of Toronto, Osgoode Hall Law School, UBC [University of British Columbia], and University of Victoria. So I’ve got around in my career.”

Ian Record:

“So I wanted to start out by getting a little bit more of a perspective on your scholarly work. In preparing for this interview, I talked with a lot of your legal colleagues -- including some of them here at the University of Arizona in Tucson -- and they said you’re really one of the innovative thinkers and scholars when it comes to Indigenous law and I think differentiating that from federal Indian law but Indigenous law, and can you just provide a quick nutshell about why the focus on Indigenous law, why have you dedicated your career to this particular issue?”

John Borrows:

“Yeah. I think it started growing up. A lot of the standards for judgments in our family were often taken from what we were seeing around us outside our door and we had lots of conversations about what our obligations were in relationship to one another and the world around us. We had a treaty that my great-great grandfather signed back in the 1850s and that was also a part of the conversation. So when I began my legal career and my graduate work I actually wrote an LLM thesis called The Genealogy of Law, where I took the seven past generations of my family and looked at what the criteria was that they used to be able to respond to the challenges they were encountering as they encountered the Canadian State. And I noticed in each one of those encounters they drew upon a deep wellspring of our own sense of what the appropriate standards were as to how to deal with the War of 1812 or the Royal Proclamation or the signing of the treaty, whatever it might be. And so what was exciting to me as I then started my legal career was a recognition that we have a lot of sources of authority that we can turn to to answer our questions. And so I think it grew from that place to just continue to drive my research and my interests in my work today.”

Ian Record:

“So you’ve spent the last two days participating in the Nation Nations Institute’s Tribal Constitution seminar both as a presenter and also as an observer. And I’m curious, what from the proceedings of the last two days as they’re still fresh in your mind really struck a chord with you?”

John Borrows:

“I think I like the examples that I saw that were practical and on the ground, that had a lot of deep thought behind them. I think when people come to seminars like this they might expect they’d encounter a process, but in fact what they see is a lot of work that’s done over a period of years that’s been cultivating of the different traditions and understandings that people bring to what constitutionalism is. And so I was impressed by the hard work that underlies and is behind many of those presentations. And while there are lessons that we can generalize, you did a great job I think of pulling out those generalized lessons, more fundamentally was context matters and paying attention to the specific context that a nation comes from seems to be the message that I took from the seminar.”

Ian Record:

“One of the first things we tackled on day one of the seminar was starting at the beginning and really defining what in the most fundamental sense a constitution really is and that can take many forms. It can be a written constitution, an unwritten constitution, and I’m curious, given that you spend so much time thinking about these things and writing about these things and doing research about things around this idea of constitutionalism I’m curious to get your perspective on what that is and maybe your definition of what that is.”

John Borrows:

“Yeah. So I think of constitutionalism as a conversation and a set of practices around living tradition. Sometimes when people think of constitutions they just think of pieces of paper, but really what a constitution is is a verb, it’s a way of constituting a people through time. There’s a past and a present and a future tense as a part of how they might relate to one another. And so for me constitutionalism is this living, ongoing, breathing set of understandings, customs, procedures around trying to create a better life, a more orderly set of relationships between the people. The Anishinaabe have lots of different words for constitutionalism. [Anishinaabe language] is one of those words. It means 'the great guided way of decision making.' This idea of [Anishinaabe language] is almost the process of the creation of a tradition as you move from generation to generation. But there’s another word in Anishinaabemowin that communicates constitutionalism, which is [Anishinaabe language]. The root of that is [Anishinaabe language], which means 'old time, a long time.' So there’s this other strand of constitutionalism, which is you draw upon a long time way of doing things and you continually place it in a present context so that it can speak to the future.

And I think the tension there between those two different ways of looking at constitutionalism is important. One of those ways of proceeding is seeing this constitution as ongoing, living, breathing, continued in its development. The other one is a process of creation anew. That is, there’s an idea in constitutionalism that you would always have new starting points, that it’s never done, it’s never over. Like I said, it’s an ongoing conversation. That sense of constitutionalism isn’t something you just find within an Anishinaabeg or Indigenous peoples as well. In the United States, we have a constitutional tradition, which is called 'originalism.' And so you try to figure out what the meaning of the constitution is by going back to some magic moment, 1787, and you draw on the intent or the public meaning of what the founders said at that time.

We have another tradition within U.S. constitutionalism, which is called 'living constitutionalism,' which is yes, history is important, but we’ve developed as a people through time and while we take guidance from the history, the history is not determinative and I think within Indigenous constitutionalism we have that same kind of tension that’s present. Some of us want to go to that original moment, a creation story, a treaty, some kind of drafting of a document and you would find that people argue vigorously that the constitution can only mean what was said when that creation happened or when those people signed that document. In the U.S. constitutional context, you have [U.S. Supreme Court justices] [William] Rehnquist and [Antonin] Scalia that kind of take that way of proceeding though you have this other strand, living constitutionalism where you would look to what the people now understand the constitution means 200 or some odd years later and you would allow for that to occur.

In the Canadian context, we call this 'living treaty jurisprudence.' In the 1930s, the court was asked to consider whether or not women could be seated in the Senate because at the time that the constitution was drafted women were not political citizens and in the court...in looking at that they could have taken an originalist approach and said, ‘Well, at the time women didn’t mean persons, therefore they couldn’t be seated to sit in the senate,’ but the court took another approach. They said that the British-North America Act had placed in Canada a living treaty, which was capable of growth through the ages and that its roots continue to extend out branches that have new obligations that the people would encounter and so therefore the dominate mode of constitutionalism in Canada is living constitutionalism as opposed to originalism. Again, within a Native context you see those tensions very much present. Some want to look to that initial moment and find all the meaning in that moment. Others see it as a tree, they see it as more organic, living, growing, breathing through the ages.”

Ian Record:

“In some sense, doesn’t the constitutionalism of any nation and particularly Indigenous nations given all that they’ve experienced in North America in particular over the last 200, 300, 400 years that it must be able to adapt to the times, adapt to the changing circumstances, the new challenges, growing populations, all sorts of things?”

John Borrows:

“That is definitely my understanding of how constitutionalism proceeds in most Indigenous nations. I certainly see that within my own nation as well, though there are people that would differ. They say when the old people put us in the four corners of these sacred mountains they set up a way of being that we cannot mess with and that we have to ensure that we live in accordance with those original instructions. And to the extent that you start to take in influences from United States or Canada or just whatever the context you are in today, they would critique that and they would say, ‘That is polluting, that is compromising, that is not being true to what the founders said that we should abide by.’ And so while I do agree with you that a constitution needs this definite grafting on, growing, organic way of being in the world, there are people that would take a different approach and I think at heart some of the debates that happen throughout Indian Country around constitutionalism are that very debate, the worry that we’re departing from something that’s original that was given to us and that by trying to adapt to the present situation we’re just assimilating or swallowing some other kind of complicit line.”

Ian Record:

“Let’s talk a little bit more about the Anishinaabe and prior to colonization -- I’m curious, you’ve learned -- I think first and foremost through your own upbringing and then in the research you’ve been doing since getting into the academic realm -- a great deal about what the Anishinaabe constitution looked like traditionally and where it was found, where it lived and where it breathed. Can you shed some light on that?”

John Borrows:

“Yeah. So I think one of the main influences on Anishinaabe constitutionalism is the environment that we lived in and live in today. And so we would take from the Great Lakes area and that watershed that surrounds it and the plants and the animals and the birds and the clouds and the rivers and we would see that behavior that was taking place in the natural world and we would learn from it. And when we saw things that were positive and uplifting and sustaining and nurturing and nourishing, we would try to analogize those behaviors to our own sets of ways that we should be. Or if we saw something that was troubling in nature, we would then take a lesson that we shouldn’t behave in that fashion. And so our constitutionalism is very much in the ecological type of principle.

In U.S. and Canadian constitutionalism, when you draw analogies, you often do so from the cases that are there, the stories that have been told by judges through the ages. Our analogies were first of all the stories that were told to us by the plants and the animals and the rivers and the trees and then it was the stories that our elders, our wise ones told us about the animals, the plants, the rivers and the trees and so our case law became stories about how the skunk got its stripe and how the robin came to sing like it does and why the trickster is intervening in the creation of the beaver dam in that place. And so for Anishinaabe people that constitutionalism can be labeled [Anishinaabe language], which is you look at everything, [Anishinaabe language] and you take the lessons from what you’re seeing. Another way of thinking about that is [Anishinaabe language]. [Anishinaabe language] is the Anishinaabe word for 'earth,' [Anishinaabe language] is 'to point towards.' [Anishinaabe language] then is this concept of you point towards the earth and you learn from the earth and you apply those teachings from the natural world around us in creating our sense of obligations to one another. It’s the similar word to our word for 'teaching,' which is [Anishinaabe language]. So to practice this way of constituting ourselves is to understand what the earth is trying to teach us.

I remember going to a seminar with an elder, Basil Johnston, back in 1996 when I was a newer law professor and we had convened at Cape Croker, [Anishinaabe language], to talk about our constitution and I was surprised. I shouldn’t have been but I was surprised that we began with the creation of the earth and the first formation of the rocks. And then after the rocks, we had stories about how the water came into place and after the rocks and the water we would start to talk about the first little crawlers in the ocean and on the lands and what they did in relationship to one another. And then the plants and there were stories about how we got corn and how we got cabbage and all these other things and then this went on to animals. We had all of these stories about the natural world for maybe four or five hours. Humans came along in the afternoon after lunch. And I realized in listening to that that Basil was trying to teach us that Anishinaabe constitutionalism is how are we constituted as human beings in relationship to this wider order that we see around us. And I’ll never forget that and it’s become one of the guiding lights for me in thinking about the practice of Anishinaabe constitutional law in a present day.”

Ian Record:

“It’s interesting you bring that up because one of the things as a student of tribal constitutions who often...in my role with the Native Nations Institute, we’re asked to come in and help tribes wrestle with their current constitutionalism and wrestle with a deep...often a deep conflict between their sense of who they are and their sense of right and wrong with this whatever written document they have, whether it’s an Indian Reorganization Act constitution here in the U.S. or an Oklahoma Indian Welfare Act constitution or up in Canada it’s wrestling with the Indian Act system. And what you often see in reviewing these written documents is a lack of explanation of the people’s relationship with place and I use the word 'place' very purposely because you often will see references to, ‘Okay, this is our territory and we have jurisdiction over this territory,’ but it doesn’t evoke anything about the relationship between people and place, the reciprocity between people and place, exactly what you’re talking about with Basil Johnston. Do you see that as one of the big challenges that tribes face is, how do we evoke that and perhaps revitalize that relationship with place and then be nourished by that process of reciprocity that has sustained the people up until this day?”

John Borrows:

“Yeah, I definitely see that. One of the things I worry about in some of the contemporary constitutionalism that’s happening amongst Indigenous peoples across North America is that they de-contextualize who they are and their relationships to one another. By 'de-contextualizing,' meaning there’s something of a universal nature that appears in these constitutions as if all time and place can be subsumed in the wording that’s contained in the document. And yes, there are generalizations we can make, of course, but those generalizations have to be rooted in a particular set of relationships that a people have to a place. If not, the constitution’s actually not going to work. What you see in looking at constitutionalism in a non-Indigenous context is there’s many pretty documents that are in place in Central and South America or in some Asian countries, but that’s all they are is pretty documents. They don’t get connected or rooted to the place and the people that have to live in relationship to them. So you get nice words and maybe even good decisions from the court, but the decisions of the court, the words on the paper mean nothing unless people are also internalizing their constitution as well. And that’s why I started out by saying that a constitution is an ongoing set of conversations and practices about your tradition in a particular place and if the constitution is not doing that, you’re not really internalizing the ways of being and of course if you’re not internalizing a constitution, it’s someone else’s document. It’s the people’s or the place, the land, the animals, the plants, constitution there. So I think maybe, and I’m not sure it’s our biggest challenge, but one of our biggest challenges is to make sure that the constitutions that we’re dealing with actually reflect the place that they’re coming from.”

Ian Record:

“So what are some of the other challenges? Obviously you sat through a lot of different discussions over the last couple days and heard a lot about some of the challenges and I’m sure came into the conference well aware of some of the other challenges that Native nations in the U.S. and Canada and elsewhere, Indigenous peoples face when it comes to their constitutionalism and reconciling the past with the present and outside forces with internal ones and so forth. What are some of the other challenges you see?”

John Borrows:

“Yeah. Well, I think one of the biggest challenges in relationship to the creation of constitutions is having hope, having faith, having trust, to having love for one another. If we’re going to really internalize our constitutionalism, we have to think about those values at that level. When the U.S. was drafting its constitution, it put big words out there, 'life' and 'liberty' and the 'pursuit of happiness,' and there was the sense of freedom and association and forming a more perfect union. These big ideas were a part of what the aspirations of the people are and were and I think that sometimes we sell ourselves short by borrowing those words and not actually thinking about what our own aspirations and words are. For me, it would be what can we do in living together that would facilitate greater love, greater respect, greater honesty? There’s something called the Seven Grandfather/Grandmother Teachings of the Anishinaabe and those, I think, could be legal terms of art as well as spiritual and cultural and other types of ways of relating. We have a hard time when we put big words out there, then define them in a constitution. We’ve had no end of disputes through the years about what does freedom mean in the First Amendment? What does equality require in the 14th Amendment? But just because we have difficulty with the big words and we can’t quite pin them down doesn’t mean that we leave them behind. In fact, it increases our expectations of what those words might do for us. And so I would love to see Anishinaabe and other Indigenous nations start to...what do we want to create, what’s our equivalent of freedom and equality? If it is things like in Anishinaabemowin, [Anishinaabe language], thinking about love or [Anishinaabe language]. There’s different meanings of love that I’ve just given you. One’s kind of a stinginess, the other one’s kind of a compassionate way of being in the world or likewise around trust and honesty, [Anishinaabe language]. There’s a lot I think that we need on that ground. So I think that’s the biggest challenge actually.”

Ian Record:

“And you’ve discussed those things, those Anishinaabe values, those Grandfather teachings within the context of citizenship and identity and that’s a huge issue right now. I think in the nations I’ve worked with, there’s typically two considerations that tend to dominate. One is that if we continue with the criteria that we have...and I think most people understand where those come from and although I do think that some people still need to understand where those come from, but there’s two tracks. One is that if we continue this criteria we’re going to not be around because there’s not anyone that will be...that will qualify to continue to be citizens. And another is around basically what you were talking about, that we need to address what the criteria is doing to us in terms of our unity, in terms of our relations, in terms of how healthy our relationships are and how revisiting this might strengthen that in some way. How do you see that challenge today and what do you think nations who are wrestling with that issue need to really be thinking about as they in particular engage their community about this critical topic?”

John Borrows:

“So again, context is everything and each nation would have to pay attention to its own way of framing these larger ideas in relationship with the particular challenges they face around membership or citizenship. But what I would say is that we need eyes wide open to both of these concerns. One is that we have been overrun as a people and so there is a need to be able to create a set of criteria that would say who is Anishinaabe and who is not and those kinds of line-drawing exercises are very, very hard to do. Unfortunately, what I think we’ve done is we’ve drawn those lines in a very cramped and stingy and closed way and I’m not sure that that is consistent with that other stream that we need to be taking account of which has to do with all our relations, with our responsibilities, with the hospitality ethics that have been passed on through the generations within many Indigenous peoples. So I do think that lines have to be drawn somewhere, but I think we should be much more generous and open and liberal and large and gracious and hospitable in that regard. And when we do so, I think what we’ll start to do is not see the government as the source of authority and the source of resources that would help fund the future of a nation because when you start opening up the opportunities for people to participate who are connected to the nation, what you get is a huge infusion of what in some places is called human capital, but in just of speaking plainly of creativity and possibility.”

So when you see a broader-based conception of citizenship, what you do is you tap the potential of many sources of innovation and I think eventually that will create a broader base of resources for nations through time. And I think that’s going to contribute to our freedom as peoples, that we won’t be tied to a colonial government in the United States or Canada, that our freedom will come from our relationships with the earth, our relationship with one another writ large. The Anishinaabe word for 'freedom' is [Anishinaabe language]. [Anishinaabe language] means 'to own something.' [Anishinaabe language] is this idea of owning our relationships, freedom being this sense of stewardship and responsibility to others. This isn’t necessarily the ownership concept that you would get in kind of western property law that we would alienate others or land and therefore have a sense of possession. This is the idea of ownership that comes through responsible stewardship and relationships. The word for 'citizenship' in Anishinaabemowin is [Anishinaabe language], literally freedom is owning...citizenship is owning our responsibilities with one another and our relationships. So yes, lines have to be drawn, but we I think can do much better in thinking beyond what the colonial criteria for that is and looking to our own legal traditions and then doing the analysis around what economically and socially and politically could be possible if we saw ourselves in that broader light.”

Ian Record:

“It’s interesting you bring that up, the need to be more inclusive and that being an Indigenous value. We’ve seen a number of Native nations that, two that jump to mind, are Citizen Potawatomi and also Osage Nation in Oklahoma who’ve taken a more inclusive approach and they’re starting to see the benefits of that because they have gained this...regained this huge reservoir of human capital, of people who have things to contribute. They have skills, they have assets, they have ideas, they have creativity as you mentioned to contribute to the life of the nation and it’s starting...you’re starting to see a real shift in the ability of the nation to actually live as a nation. On the flip side of that though, isn’t it incumbent upon, as nations engage this issue of redefining citizenship criteria, of looking at their current criteria and saying is this...does this really work for us, isn’t it critical that they understand that this criteria of blood quantum is not cultural because we see that...we’ve seen because it’s been in place in a lot of communities for so long, we see some people embrace it as some sort of cultural value, that this is how we equate our identity and also that in that criteria there is a lack of civic obligation, of civic responsibility because the mentality is that, ‘As long as I have the blood I qualify and my work is done.’ Is that important to this conversation do you feel?”

John Borrows:

“It is. What I think it does is it identifies where our traditions may be harmful. That is, this is not something that was a historic tradition prior to the arrival of Europeans to set blood as a criteria for membership. Anishinaabe people could take in Potawatomi or Odawa people, sometimes Haudenosaunee people who were enemies became Anishinaabe so there’s that fluidity there prior to the arrival of Europeans. But you’re right, some people now, as a result of introductions from the Canadian and the U.S. government think that blood is the thing that marks out our identity and it’s a very, very...it’s a proxy for belonging, but it’s a very poor proxy for belonging because it doesn’t engage our traditions. Largely we’re talking about the plants and the animals and the...there’s just something that is then short circuited by that criteria. Again, I understand the need to be able to draw lines and some where you’re going to draw a line, I don’t think blood should be the way that we draw that line. There are other kinds of criteria that we could take that would form a gate-keeping function if that’s what we’re concerned about, but hopefully that gate keeping then would be around conceptions of civic responsibility that flow from an Indigenous legal perspective and the gate keeping is not the U.S. government’s worried about their obligations of having to fund 10 extra hospital beds if we increase the numbers of people in the tribe.”

Ian Record:

“So let’s turn to...back to this issue of constitutional challenges. As I mentioned at the beginning, you’re from the Nawash First Nation up in Ontario and the nation works...operates using an Indian Act government and I’m curious, what do you feel are your own nation’s largest constitutional challenges here in the year 2014?”

John Borrows:

“Yeah. So just a little thing about constitutionalism more generally in Canada, we don’t have one document that sets out our constitution. In fact, the preamble of our 1867 British North America Act is that we’ll have a constitution that’s similar in principle to that of Great Britain. Great Britain does not have a written constitution. It means that Canadian constitutionalism is not distilled into one written place. There’s an ongoing tradition in Canadian and British constitutionalism that extends back 1,000 years and then there’s little markers along the way like this 1867 document or 1982 document, but they never purport to spell out what the entire relationship of the people will be through their constitution. If I could draw an analogy here then, Anishinaabe people have a constitutional tradition that goes well beyond 1,000 years back into the mists of time and that tradition is what we’ve been talking about today. And then we’ve got the Indian Act, which is one moment of constitutionalism, which is an imposition from the Canadian government and what I would like to see is similar to what we have in the British context that that’s not the be-all and end-all of constitutions and that you can overturn that, that you can go back to some of the things that were there in the past, graft on other things today, but I don’t think the people see the Indian Act in that way. I think they see the Indian Act in somewhat a similar way to how some might regard something like the U.S. Constitution. It’s written in stone, can’t be changed, it can never be put aside and this is a matter of the heart and the mind so our challenge is to see the Indian Act for what it is -- anomalous, a drop in time. Yes, a very powerful set of Trojan horse-like laws that have run into our community and tried to take us over, but nevertheless have not. So when band decisions are made today at Cape Croker under the Indian Act, it is true that when you make a by-law, in order to have that approved you have to submit it to the Minister of Indian Affairs, if you don’t hear back in 40 days then it becomes the law of the community. But that exists in the midst of a wider tradition of people still trying to consult with family, still watching the land, still looking through the language, taking account of the deliberative structures that flow from the clans and the chiefs, etc. In other words, our constitutional tradition is not limited to that Indian Act imposition. It’s there and what we need to do obviously is peel out and pear off and get rid of that Indian Act oversight just as people try to get rid of secretarial approval in the IRA style of constitutions in the United States. And when we do that, it’s not as if there’s a legal vacuum that’s present because even under the Indian Act there is a set of traditions that have been flowing through our community that come from the past, but are the present and have something to speak to the future. And so when we peel that Indian Act out we’re not starting from scratch and then what we need to do is identify, have conversations, fight, discuss what are those things that we’re doing now that we can distill for this moment, not for all time and place again, but for this moment that would help us further remove ourselves from the Indian Act.”

Ian Record:

“So you’re probably well aware that in Canada there are a growing number of First Nations that are working to get out from under the Indian Act. They’re developing their own constitutions and sometimes it’s through the treaty processes that are going on in British Columbia and elsewhere, sometimes it’s through the development of custom election, what’s called custom election code approaches, and down here obviously in the U.S. there is a tremendous amount of activity going on, some successful, some not. And I’m curious -- we’ve been talking a lot about context and historical context and you just sort of related the historical and cultural context within what your nation tries to reconcile, wrestle with the Indian Act in your reserve and sustain your Indigenous Anishinaabe legal traditions and ways of doing, ways of constituting with that system. How important is it for nations who are engaging in this reform effort to really fully understand their traditional Indigenous legal tradition, their traditional Indigenous constitutionalism and also the origin story of how they came to have what they have now with often an imposed system? And when I say that, I’m speaking specifically for them, for their community, for their nation in particular because yes, for instance, all First Nations in Canada, most of them have the Indian Act, they work under the Indian Act. In the U.S. yes, most or a great number of tribes work with an IRA system or something akin to it, but their specific histories are very distinct. How important is it for nations as they engage this constitutional change prospect to have that cultural context, to have that historical context?”

John Borrows:

“Yeah, it’s huge and what you need is a lot of storytelling that can occur from the elders and from the teachers that might be there in the community, but you also need storytelling that’s good social science, research that has economic analysis and looks at the political system structures, you need education that’s also of a more public nature through Twitter and Facebook and media, YouTube, etc., putting those altogether, having people understand what are the different streams that are flowing into the present way that we’re constituted. Some of those streams are colonial, they come from the Indian Act and how does that...what is...how is blood quantum one of those streams, it’s actually polluting us right now, and identify that history and those streams and then also say, and yet there’s this other stream that we continue to pull upon. Why is it we begin with prayer at the beginning of our council meeting? Why is it that we do a lot of our business going in home to home to home? That’s not written in the Indian Act anywhere, but there’s a sense of people and clan and place still being involved in that. Why is it that my head councilor goes out and owl calls as a part of what he does with people in the community? And putting that all together and saying, ‘These streams are not so healthy, but these streams are continuing to be vibrant.’ Without that context, without that history, without both traditional and social science research you’re not in a place to do a good analysis about where you are and where you could possibly go from here. And I know that’s hard to do because there are just so many other pressing needs that a community has to encounter. You’ve probably heard that analogy before, often there’s people that are falling off a cliff, what ends up happening is the councilmen come over, ‘We need to get these people that are at the bottom of the cliff and make sure that they get help and healing.’ And so where all the time people are falling over the cliff in our communities and they’re bruised and bloody at the base of the cliff and we’re just dealing with the crisis of the moment instead of taking the time to put the fence at the top of the cliff and show where the boundaries might be so that we can cut off that flow of trauma that’s happening in our place. And so yes, there are those every day-to-day needs, but those day-to-day needs will eventually be attenuated if we could take that longer term approach and put systems, structures, fences in place that prevent us from falling down and really seeing the damage that’s a part of us.”

Ian Record:

“So a lot of what we’ve been discussing focuses on one of the key research findings of the Native nation building research that both the Native Nations Institute and the Harvard Project on American Indian Economic Development have been engaged in for the past 30 years and that is cultural match. Basically the match between...what is the match between the people and the governance system they use to thrive, survive, move forward as a people? Perhaps you can share your perspective on that, because it sounds like that’s really at the forefront of your mind when you think about the issues around constitutionalism and other issues as well.”

John Borrows:

“Yeah. So I’m really celebratory of many of the findings that come from the Native Nations Institute and the Harvard Project because I think they’re right -- we do have to pay attention to cultural match, that we need to find greater fit between the context of a particular people and their own then constitutional expressions and that is not occurring and that message needs to be loud and clear and just repeated over and over and over again. But there is a caution in taking that approach, which is constitutions also have to challenge the culture of the people. It’s not just about matching the culture of the people. So let’s take an example just looking at the U.S. context. There was a tradition of slavery in the United States that of course was harmful to the people that were caught up into it that led to a civil war and the constitution, when it was first drafted, tried to paper over the differences that were there between the peoples and how they were living culturally in the North and the South, etc. Fortunately we found in the U.S. constitutional context that there was the ability of the 13th, the 14th and the 15th Amendment as they eventually were drafted or through the Brown vs. Board of Education case that the constitution itself became a challenge to the tradition and a challenge to the culture and without that challenge we would have continued to reproduce prejudice and racism and policies that are harmful to people that we should be in better relationships with. And the same thing could be put into any context. You think about the British constitutionalism, it of course is by and large a product of matching cultures of the people and their place, but that constitution also has conventions that says to the king, ‘You can’t just do what you want.’ It says, ‘If you want to act, you have to do so through a legislature,’ and there’s a lot of conventions that are found in British constitutionalism that go against the flow basically. And when a tribe designs a constitution, again the message that must be the overriding message is cultural match. We don’t have near enough of that. But as we do so, just be careful that we don’t get carried away because we need to think about those who might be a minority amongst us. That could be families, it could be clans, it could be non-Native people that are associating with us in our place and unless we have ways to also challenge our own traditions and have things that would go against the flow of the way we’re living, we will reproduce our own abuses and we will create conditions that diminish the dignity of people that live amongst us. And so it’s going to be a hard thing to do because you want the popular sovereignty of the people to largely guide your constitutions, you want people’s voices to be by and large what guides the day, but it’s worthwhile considering the trickster, which is an Indigenous tradition, by what is contrary there, what’s going on in another moment that we need to take account of and if we heeded our traditions of the trickster, that is contemplating at the same time things that can be harmful and helpful, kind and cunning, charming and playing mean tricks, our constitutions need to do that too and if we’re just all about a celebration of match and neglect those elements of push back that are within the community, we are not going to be living well together.”

Ian Record:

“Well, John, I think our listeners and viewers have learned quite a bit from you and giving them a lot of food for thought and we really appreciate you taking some time to sit down and share your thoughts and experience with us.”

John Borrows:

“Thank you. It’s been fun.”

Ian Record:

“Thank you.”

John Borrows:

“Great.”

Terry Janis: The White Earth Nation Constitutional Reform Process

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Native Nations Institute
Year

In this lively and far-reaching discussion with NNI's Ian Record, Terry Janis (Oglala Lakota), former project manager of the White Earth Nation Constitution Reform Project, provides an overview of the citizen education and engagement campaign that preceded White Earth's historic vote to ratify a new constitution in November 2013, and specifically the role he played in that process.  

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

People
Resource Type
Citation

Janis, Terry. "The White Earth Nation Constitutional Reform Process." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. St. Paul, Minnesota, February 6, 2014. 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 Terry Janis. Terry is a citizen of the Oglala Sioux Tribe in South Dakota and for the past year he has served as project manager for the constitutional reform process of the White Earth Nation in Minnesota. Terry, welcome and good to have you with us today.”

Terry Janis:

“Thanks, man. It’s nice to be here.”

Ian Record:

“Yeah, it’s good to see you again.”

Terry Janis:

“Yeah, yeah.”

Ian Record:

“So I’ve shared a few highlights of your personal biography, but I’m sure I left some pertinent things out. So why don’t you just tell us a little bit more about yourself.”

Terry Janis:

“From Pine Ridge, came over here to Minnesota, went to McAllister. From there went to Harvard for a master’s in education, University of Arizona for my law degree and several jobs since then -- kind of a balance between international Indigenous rights, land rights issues and broader national policy issues as well. So that kind of education -- law, law reform, policy development -- was a good fit for this particular job.”

Ian Record:

“So we’re here today to discuss constitutional reform”

Terry Janis:

“Right.”

Ian Record:

“a big topic across Indian Country and specifically, the work you’ve done on behalf of the White Earth Nation over the past year or so. As the White Earth Nation has worked to develop and then ratify, recently ratified, a new constitution, but the process has been underway there at White Earth for quite awhile.”

Terry Janis:

“Yeah.”

Ian Record:

“And can you sort of talk aboutcan you begin by talking about where White Earth was in the process when you came on board because as I mentioned, this thing had been underway for quite awhile before you joined the nation and its effort.”

Terry Janis:

“Yeah, they really started this effort of drafting a constitution in 2007 and it took them a couple of years. By 2009, they had had four constitutional conventions and came up with this draft. The number of delegates that participated in that process, voted on itthe idea was to approve a draft of this constitution that would then be moved to a referendum. That drafting process was completed in 2009 and it kind of sat there for a bit; I think part of the dynamics are complex. It’s difficult to move a constitutional reform process forward. The drafting process is critical and very difficult, but every stage subsequent to that is equally difficult and part of the issue was funding. And so a grant from the Bush Foundation helped them to move it to the next phase of really engaging in active community education process, move it then to a referendum, and then start to think, after that referendum depending upon the outcome -- and this one was positive -- to then look at the implementation process.”

Ian Record:

“Based on your understanding, of someone who is charged with helping to lead and implement that community education effort, what prompted the nation to go down the reform road to begin with?”

Terry Janis:

“I’m not from there, and because of that I don’t have the kind of personal insights or the personal biases that a person that’s from there would have. What I observed and the stories that I’ve been told is, like a lot of tribes, they went through a governmental crisis, a profound foundational crisis in the ‘90s with the 'Chip' Wadena administration; his conviction of embezzlement and how broad that was throughout their whole governance system. In reacting to that, not only did the people stand up in order to reassert an effective governance, but they really looked at the genesis of that: how did it get to that stage? And they immediately turned to the constitution.

And the conversations that you heard from that period of time, that were told to me when I got there, was how the constitution is so centralized in its power structure -- that the people, in power, can be dominated by a single person. And that kind of absolute power, in their experience, did corrupt absolutely. And so without any kind of way of balancing that they, as a reaction to that, they immediately moved to this kind of conversation of, ‘What can the constitution do to create checks and balances, to really have an independent judiciary and do those kinds of things?’ But I think that was the genesis of it.

So they actually started a constitutional reform process in ‘94, ‘95, ‘96. They drafted a constitution at that time as well and attempted to take that out into the communities. The stories that I’ve heard, both from the people that were doing it and the community members themselves, is there was just way too much tension still. They had gone through this amazing crisis. The communities were divided -- not just in two factions, but multiple factions -- so every time they brought this idea of a new constitution out into the communities, those factions and emotions really dominated the story line and it was just too premature. So they waited the 10 years. In 2007, brought it again and that’s where we stand.”

Ian Record:

“So you mentioned there was this profound governance crisis, if you will, that culminated in this high profile scandal. So they go down this reform road and in developing and ratifying, now ratifying, this new constitution system of government. What are some of the main things the nation is hoping to address? You’ve made quick allusions to them but”

Terry Janis:

“And I think that comes out of those crisis points. And what you see in this new constitution is a very clear separation of powers: a legislative body, an executive body and a judiciary. They clearly put a lot of time into that. Also the value of me not being in that drafting process, I wasn’t there, but you can see from the text itself that those parts of the constitution are clear, clean, deliberate and well drafted; that’s what they put their heart and mind and time and energy into. So there’s a very clear separation of powers, there’s clear establishment of an independent judiciary, they also put a lot of time into thinking about what it means to have a traditional government, something that’sin looking at separation of powers, you really harken back to the U.S. Constitution, which hearkens back to the Haudenosaunee constitutional form of government, but what you really get caught up in is it’s an American style of constitutional government -- the separation of powers, how they frame it, how they reference it -- but the way they do it is quite unique in the way of establishing mechanisms with language that tie it back to Anishinaabe traditions -- using Ojibwe language as a part of the constitution preamble and frame of governance, making sure that their judicial system isn’t just about punishment, but really emphasizes restorative justice -- engages the kind of most foundational aspect of the constitution in a way that depends on the people themselves to organize governance. So a range of different things that are quite unique that is really, I think, less controversial and more easily understood.

They also took on this huge issue of defining membership, citizenship. We all know or we should know about the way the federal government used blood quantum as a part of a military and colonial strategy to subjugate us. The ultimate result of that was our disappearance and that’s still on the books. And so they tackled that though with a very broad and dynamic rejection of blood quantum and move to lineal descendency. And that was a thing that came out of those conversations in 2007, 2008 and 2009. It’s part and parcel, very simple, very straightforward in the way the constitution defines it and it ended up being one of the most controversial aspects of their conversation.”

Ian Record:

“I think you’ve touched on some of these already, but from your vantage point, what do you see as some of the fundamental differences between the old constitution system of government, basically an IRA [Indian Reorganization Act] model, and this new creation?”

Terry Janis:

“I’ve talked about this new one. You got -- in order to make a comparison -- you’ve got to read their oldall of the IRA constitutions, but the MCT [Minnesota Chippewa Tribe] Constitution is even worse. And I’m not knocking MCT; they’re some good people, they’re trying to do good work with a bad system. But you’ve got to understand the history of the Indian Reorganization Act, its shift away from allotment; it ended the allotment process, which on its face is a very positive thing, but what this country was at that period of time, after the Great Depression, just before World War II, was all about assimilation. It wasn’t about recognizing the strength and sovereignty of Indian nations, it was about making Indian people white.

And the constitutions that came out of the Indian Reorganization Act, this model constitution that they had, the primary purpose of that was to make things easier for the Bureau of Indian Affairs -- their colonial objectives, their oversight, their kind of attitudes of superiority in having a trust responsibility towards Indian people actually owning Indian land, and Indian people having to ask for permission for using everything. These constitutions have at least a dozen, the MCT constitution has almost 30 specific places where before the tribe can do anything, they have to ask for permission from the Bureau of Indian Affairs and it’s in their constitution. And so that’s their starting point.

And it establishes a mechanism where, for example, even though White Earth has the majority of the population, they’ve set up a governance structure in the Minnesota Chippewa Tribe where each of the separate bands is represented by two individuals on their governance structure. And so White Earth has over 50 percent of the population almost; they only have two votes out of 12. It is completely unrepresentative. There is no government in the world that would allow that kind of unrepresentative form of government and they accept it. It’s what they were forced to take up. The Bureau of Indian Affairs wrote their constitution for them. There’s no story or history or genesis of the language of this constitution coming out of Indian minds. It was the Bureau of Indian Affairs that wrote it, put all of these tribes together under one body so they didn’t have to build relationships with six separate tribes. They only had to deal with one entity.

So this is as colonial a system as you can imagine and me coming from the outside, I’m shocked honestly that they find a way to make it work, every day. But that’s where it’s coming from and having that conversation, and engaging that conversation as a part of this conversation, was a part of everything that we put together as well.”

Ian Record:

“Let me follow up on that. This is not part of our original questions, but this is something that I see come up in so many tribes I work with on the issue of constitutions and constitutional reform is...you’ve just shared with us a pretty deep knowledge of the genesis of, until recently, what was the law of the land for the White Earth people. And so often when these tribes struggle with this issue of, ‘Our constitution is inadequate. We pretty much understand we need to change it.’ It’s a whole other question of, ‘How do we do it?’ But a lot of folks contemplate reform without a full working knowledge of, ‘Where did our specific constitution come from? Did our own people have any meaningful say in its creation? Did they have any meaningful sense of ownership in this apparatus that they now use to make decisions and try to live as a nation?’ And how important is it for other tribes -- if people are going to look at White Earth as an example -- how important is it for other tribes to understand that historical context when they tackle the question of, ‘Do we need to change our current constitution and how?’”

Terry Janis:

“Honestly, I don’t think it’s all that important. At the end of the day, it’s relatively irrelevant because when you get to this scale of change, what you really have to have a deep understanding of is politics, power and change.

Politics is important. Who has what political source, where does it come from, how did they engage and develop it? In order to engage at this scale, you have to have a deep respect for politics, you have to understand the politics that’s happening in that community at the local level and a broader level that affects it. When you look at process of change, you’re going to recognize that some people are gaining, are benefiting from the current system and other people will gain or benefit from the change. And so you have to recognize where those tensions are going to come from, where’s the push-back going to come from, and you have to respect that and honor that and deal with it in a very real and dynamic sort of way.

And then that’s the process of change, the engagement of it. Whenever there is a compelling reason for change, like in White Earth -- the constitutional crisis in the ‘90s, history of where the constitution that they’re working under comes from, and how it contributed to the disaster that they just went through -- is an important part of what pushes and sustains. And that’s important, that has to be there, but in order to actually for change to actually occur, you’ve got to deal with the reality of politics and power and that is all a part of the conversation. Some of it is one-to-one information sharing education process, others are very practical sitting down and trading realities. ‘You’re going to lose this. Your people are going to gain that. How important is it that your people gain even though you may personally lose in certain ways?’ And you just deal with that in a very real sort of way.

The leadership at White Earth, at Bois Forte, at all of the MCT bands, are the same as the leadership in any other Indian nations; they’re practical, they’re very realistic and they’re in it as a life issue. And I didn’t say life and death. They’re in it as a life issue. Our leaders are politicians from that life perspective, but whenever you start to challenge them to give up, or this is going to be taken away -- this thing that has benefited you and your family -- that has to be an open conversation. It has to be a real conversation and you have to honor their integrity, their respect, and their ability to come to a decision that not only helps them to deal with the practical realities, but also fits with their integrity.”

Ian Record:

“In the point you just made, doesn’t that argue for tribes ensuring that they develop a reform process that is distinctly theirs and that distinctly attends to their own local dynamics, as you laid out?”

Terry Janis:

“Absolutely. You cannot do it any other way. And there’sin this situation -- having me as an outsider come in -- there’s value in me being able to say, ‘I don’t care what you do. I didn’t draft this thing. I have noof my own self into it at all. What matters to me is you, as the people, make your own choice. Do you realize the power that you have? That’s what matters to me.’ So me coming in with that kind of outsider perspective, and also coming in with the history of really fighting for and having some losses and successes in supporting tribal sovereignty, that was the base. And we can have those conversations, and they could insult Erma Vizenor or the elected leadership and everybody else, and I’ll sit there and I’ll nod my head and I’ll let them give voice to that, and then we’ll try to turn to a deeper understanding of what this constitution says and the changes that it incurs. And without that conversation, without having the ability to sit through the emotions, and the local history that’s there, and understand it and take it in, and then incorporate that into a conversation about, ‘Look at the text of this language.’ And so all of those things are local, they’re about that local community, they’re about the people that are there and their personal histories and stories.”

Ian Record:

“I want to follow up a bit on this issue of power and politics that you mentioned. My sense in working with a number of tribes on reform is that yes, that is a huge dynamic that you have to wrestle with and that the approach that you develop in response to that has to be local, it has to be unique to that tribe, and it has to attend to those unique circumstances, but isn’t part of it also dealing with the reality and developing a process that deals with the reality? That, in many times when you’re dealing with fundamental sort of foundational change like constitutional reform, often entailsif you’re going beyond pro forma type amendments and really dealing with substantive constitutional change, you’re often asking the people of the nation to put up a mirror in front, and [to] look in the mirror not just as an individual citizen, but as a collective group and say, ‘Who are we, how do we want to govern, and what do we want our future to look like?’ And often that involves confronting a lot of colonial trauma, a lot of historical trauma, and that tends to contribute to a very organic and sort of messy process that you have to be ready for, does it not?”

Terry Janis:

“Right, absolutely, absolutely. And the fact that I can tell you with some of the folks that I’ve had conversations, how far spittle travels between you and that other person because that’s how pissed off they are and emotional, and that kind of anger and anguish and frustration and fear is very real. Me coming into this as an outsider with absolute respect for the sovereignty of an Indian nation -- and when you’re dealing with the fact that this constitution is going to move to a referendum vote -- that sovereignty lies within each individual. And so my job is to absolutely respect where that person is and where that person can move to. I can have a conversation with somebody about the colonial dynamics of the MCT constitution. If they say, ‘I cannot accept the idea of defining me as a 'citizen' or defining the White Earth Tribe as a 'nation,' we are a 'band,' I am a 'member,'‘ they insist on that over and over and over, my job is not, as an academic, to know better than them and say, ‘You’re wrong.’ My job is to say, ‘Okay. This is your choice. You are the sovereign here. Your vote is all that matters. Your decision and your opinion is all that matters. I respect that a hundred percent.’”

Ian Record:

“So then didn’t your challenge then become, in respecting their ability to choose, and that’s ultimately what self determination’s all about, that your job then became, ‘how do I make sure that they, when they do choose, that they’re making as an informed choice as possible in that they understand fully what this constitution says and more importantly what this constitution will do in terms of structuring how the government actually works and how it makes decisions, how it carries out decisions, etc.’?”

Terry Janis:

“Yeah, yeah. If you think about how Indian people come together and we talk, we learn things as much from laughter as from serious conversation. We learn things as much from getting into a fight and getting a bloody nose as we do by reading a text together side by side. And so that is a multi-faceted dynamic of the process, Indian people coming together and learning this kind of document, this kind of resource materials, this kind of system, systemic construct, it’s really complex.

The White Earth constitution is amazingly complex, how they all fit together and flow together; you are not going to achieve full understanding, period. What I realized is that each person is going to need a certain level of understanding in order to come to their own decision point and that’s my job, is they know how much they need to understand and I’m going to keep pushing everything at them with every vehicle and mechanism that I can. Whenever we came in and designed the educational strategy, there wasn’t going to be just one event in every community and the national symposium. We were going to have dozens. We ended up having over 50 across every single community, a national symposium, multi-media resources, videos, radio turned out to be incredibly important with Niijii Radio and other radio interviews and individual conversations, follow up with thousands of individuals, taking the time to have all of those conversations in as many ways as possible, talking with folks over dinner, over breakfast, in their houses, on the street, wherever. And so that’s just how we are. We as Indian people, we learn in a certain way and if you’re comfortable with that, if you can engage that, if you can get with that, then there’s the potential that you’re going to make the offerings and people are going to come at them in the way that they can come at them.

I never expected to find perfect understanding. The more I got into it, the more I realized I don’t have perfect understanding. There are so many nuances to this stuff that a relationship between this person and that person as a drafter, as an editor, as a voter was a much more complex and real sort of dynamic as well, but having respect for the sovereignty of the individual to make this decision because that’s where it really lies in a referendum, as well as the learning process of us as Indian people. It’s personal and being able to do that and willing to do that and enjoying doing that.”

Ian Record:

“Was part of your challenge trying to sit down in a community session or via multi-media and the many different tools and strategies and approaches you took, but was part of the challenge getting people to care about the role of the constitution in their lives? To say, ‘Okay, basically this current constitution we have, this is how it impacts you as a citizen. This new constitution we’ve drafted, this is how it will change the nation, this is how it will change the, potentially change the community, this is how it will change the role that you can play in the governance of the nation.’ And you talked about making it personal -- is that not part of the challenge?”

Terry Janis:

It’s definitely part of it. It’s not so much how do you get them to care. Again, it’swe’re Indian people, and in my experience, we care deeply; we just do. The question is, ‘What do we care about?’ And so that was the issue, trying to figure out what this person cares about or if it’s a group of five or 20 or 100 or 200, what is the sense of what they care about and then how do you take that and share the information about the text of this constitution, how it changes things and what it will mean? How do you then tie that into what they care about because it is tribal politics, and so much of that is personal? It’s going to be, ‘This person is an elected leader and I hate him or her. She did this or he did that,’ and that is a very real sense of care and is very personal and it’s got nothing to do with me, but it has everything to do with this educational process on this constitution. And so people that are working within their own tribal communities and try to engage an educational process about constitutional reform, you have to respect that, that somebody cares about this thing and that does tie into their ability to learn about the constitution. And as an educator, that’s what makes a quality teacher is finding a way to tie that in so that you’re using that person’s energy, what they care about, to help learn about this thing. Every teacher, every quality teacher that is perceived of as being a good teacher, that’s what makes them good. It’s just normal education. This is not new stuff. This is not unique stuff. In order to do this well, you need good educators and you need people that are grounded in tribal sovereignty.”

Ian Record:

“And ideally grounded or at least understanding of the community, right? As you mentioned and sort of the dynamics and the”

Terry Janis:

“Absolutely, absolutely.”

Ian Record:

“So you made reference to this a little bit earlier in discussing the new constitution and how different it is from its predecessor and how different it is from anything that the United States government would ever conceive of. From your perspective as an outsider, can you share with us some of the things that are contained in this new constitution that are distinctly Anishinaabe, that advance Anishinaabe values, that reflect Anishinaabe culture, governance principles? For instance, you made reference to restorative justice and the use of language and things like that.”

Terry Janis:

“I’m not Anishinaabe and I can’tI cannot communicate that from that perspective. What I can do is say that the preamble uses Anishinaabe language and that is referenced throughout the constitution. The judicial system places a very real emphasis on restorative justice rather than the punishment model of a judiciary. That language ‘restorative justice’ is not in Indian language, but the heart of it, the substance of it, that is all Indian, whether it’s Anishinaabe or Lakota or whatever, that is about that community and the way they’re going to implement it is going to be all Anishinaabe, it’s going to be all Ojibwe.

Whenever you look at...the constitution allows or provides for, requires, three advisory bodies, formal advisory bodies that have direct advisory responsibility to the legislative council and the office of the president, an elder’s council, a youth council and a community council. The constitution establishes them specifically and it states specifically certain aspects of Anishinaabe culture and tradition that that elder council is responsible to give advice to the legislative body and the president on. You don’t see that in other constitutions, period. So it structurally establishes a mechanism for that to be in there, but it also, at the same time, is an advisory body. So it’s not a full shift over to a traditional model of governance where the chiefs are making decisions in that process. It’s a unique sort of mechanism in that regard.

The last one that I think is most unique is if you think about a governance, you’re really talking about the ability of a representative to truly represent their community. That’s where so much of the gap is. In this country, what is the percentage of American population, voting age population that actually votes? It’s a huge gap because the representatives that we can vote on to represent us don’t represent us. Here, in this constitution, the people themselves organize their own voting districts. They are responsible for organizing those voting districts and if they’re the ones that have to carry that burden, there’s a greater potential that they’re going to organize the voting districts that actually mean something to them and if it does, then they’re going to select a person to represent them and then there’s that connect. That is f*cking awesome. It really is. And it is so problematic. How do you actually implement that? Nobody’s ever done that before.”

Ian Record:

“But I would argue that that is righting one of the greatest wrongs of, in particular, the IRA system, which”

Terry Janis:

“Absolutely, absolutely.”

Ian Record:

“It either corrupted, or displaced entirely, these traditional governance systems that, as you mentioned earlier, centralized power. And really what are you talking about when you talk about power? You’re talking about decision-making responsibility and basically where in most, if not all, traditional Indigenous societies everyone had a valued role to play, everyone was expected to contribute to the governance of the nation in some respect, and it wasn’t called the governance of the nation back then, it was called something else, but basically that’s what it was: young people, old people, elders, everyone had a role. And now from what you’re saying is that White Earth has made a conscious decision to return some of that decision-making authority directly to the people so that they can once again have a valued role.”

Terry Janis:

“I think that if you really apply this accurately, this is the whole ball of wax. If this constitution is going to be effectively implemented, the people themselves are going to organize their own voting districts. That’s the only way it’s going to move forward. And in order for that to succeed, they have to be engaged much more broadly, much more actively, much more dynamically than they have now. The strategy for full ground up, bottom up community development to implement this, requires that kind of engagement for them to really understand that and to organize their own voting districts so that it means something to them. And the constitution provides that they can organize it based upon population centers, historic associations, clan systems and their understanding of that, ‘What does that mean?’ is what defines it. The constitution uses these broad, open words. They have to be defined and the only one that can define them under this constitutional form of government is the people of White Earth and that’s just exciting.”

Ian Record:

“That’s cool. So I want to turn now to the process and that’syou were involved with the process because, as you mentioned, you came on board after the constitution had been drafted, and your job in part was to work with citizens that had been designated by the tribe, employees, etc. to figure out what’s the best approach to actually teaching the people about what this constitution says, what it does. Can you give us a brief overview of the campaign, the comprehensive citizen engagement, citizen education campaign that you guys launched and continue to implement?”

Terry Janis:

“Yeah. We went over it just in the fundamental way. On a most basic level it has to be personal. In order for it to be personal, you have to engage in multiple venues, multiple formats, multiple times. And so small gatherings, unique gatherings, having as active and dynamic a calendar that if they miss this one, there’s going to be another opportunity and another and another. And so really playing that out so that it’s personal in that regard.

Secondly, if you’re going to do this, it really has to engage multiple medias. The majority of the population does not live on the reservation and so we had events not only on reservation, but in the Twin Cities, in Cass Lakes, on the Iron Range and other places where major populations are, but we didn’t go outside of the State of Minnesota, and there’s a huge White Earth population outside of Minnesota as well. And so having the website, having different resources and materials on the website, videos. We did the whole training, a whole two-hour session over each article of the constitution and posted that on the website as well, and then having a symposium that was live streamed on the website; accepting the offer of another entity, Truth to Tell, to host an event on the reservation. The chairperson, the primary drafters of the constitution, all came together and participated on that and had a raucuous good time. It was like really intense.”

Ian Record:

“I watched it -- very intense. I’ll ask you a follow-up question about that.”

Terry Janis:

“And it was real. And so just multiple mechanisms for doing that and making sure that number one, it was personal. Number two, that there were multiple mechanisms for doing that. And then number three, there was absolute certainty that we were neutral, that we presented the materials with, as best as I could, with no offer of an opinion one way or another, good or bad, up or down, a complete respect for the sovereignty of that nation, which in this process meant the sovereignty of the individual to come to their own decision, to make up their own mind with their own process. And my job was to provide as much resources for them to do that as possible.”

Ian Record:

“That Truth to Tell forum, which was live streamed, that was quite athat was on our ‘Must See TV’ list for quite a while. I remember watching it and then saying, ‘You guys got to watch this, you got to watch this.’ And they hadI know they posted the first part first and then there was a little lag and then the second part and we were all waiting with baited breath. And it was interesting the conversation that we had internally because some folks among us said, ‘Oh, man, look how crazy this was. Look howlook how ugly it got at times with people beingraising their voice and calling people out.’ And I made the point, I said, ‘Having watched enough tribes struggle through constitutional reform, seeing some succeed and some fail, that this to methe beauty of this forum that you guys had and the way you did it and the fact that it was so open and it was so transparent,’ I said, ‘to me, that is the most important thing is because --aside from what’s being shared in that forum -- the nation and the project in particular are sending a message to the White Earth people that ‘we want to be transparent in this process, we are doing our part to make sure that everyone’s voice is heard.’' And isn’t that the most important thing, is that you’re giving everyone in the community every possible opportunity to make sure that their voices are heard so at the end of the day nobody can say, ‘I didn’t have a chance.’”

Terry Janis:

“And the reality is, whenever you get to learn of a community, after you’re there for a while, you realize people gather at this one place on a regular basis. If I had known that, I would have incorporated it into our strategy and done that. So being very open to the possibility that somebody else is going to come. This was not organized by me, or the tribe, or anybody else. This was organized by Niijii Radio with Truth to Tell and TPT; they did all the structuring of it, they paid for it, they put it all together, they decided on the format. I contributed a lot in conversations with them about the participants and everything else, but to accomplish their goal, having a balance between people that were supportive of it and people that were opposed with strong voices on both sides, even though we didn’t necessarily have strong voices in every situation. Some people didn’t feel comfortable in that environment, but it was their agenda and their show and their program and that kind of transparency is what the tribal council and Chairperson [Erma] Vizenor and Secretary Treasurer Robert Durant committed themselves to. They never interfered with our process at all and were very supportive of that.”

Ian Record:

“I’m glad you bring that up because with another nation we worked with over the past decade or so, they went through constitutional reform about seven or eight years ago now, and they attribute the success of their reform effort to, first and foremost, the fact that they went to great lengths to ensure that the process maintained what was termed an ‘aura of independence.’ Meaning that yes, the politicians, the elected leadership have a role to play and whether it’s funding the process, setting up the body that will lead the process to see it through, but once that’s done, it’s imperative that the politicians take a back seat, that they don’t come to dominate the process, or at least appear to be dominating the process, because it’s imperative that the process itself espouses the kind of principles that you’ve been talking about, which is, ‘It’s not my job to take sides, it’s not my job to champion this, it’s my job to make sure you understand what’s in it.’”

Terry Janis:

“There were people thinking about that in the hiring process. And as many times as I was attacked for not being Ojibwe, this outside guy -- especially a Lakota guy, we’re enemies -- coming in and taking one of their jobs, as many times as I was attacked there was somebody in the audience always who said, ‘This is the best way to do this. There’s no other way we’re going to have an objective look at this and give at least that a chance.’ And so even for the people in the hiring process and the selection committee -- you have to ask them what they were thinking exactly -- but I heard it over and over and over in the community as well.”

Ian Record:

“You talked about some of the strategies that you guys implemented in making sure that you were generating broad community awareness of not just what was in the constitution, but the choice that was before the people about this process, you talked about some of the strategies that you guys implemented in making sure that you were generating broad community awareness of not just what was in the constitution, but the choice that was before the people, individually and collectively. I’m sure not everything went according to plan. You’ve talked about some of the things that you didn’t anticipate when you first set out. Can you share what, from your view, were and are some of the biggest challenges to both, I guess, the process leading up to the vote and then now? And then, what did you do or what are you doing to overcome those?”

Terry Janis:

“On the one hand, you deal with the situation that you have and you create the best strategy you can realizing that you’re going to change it as you get into it. So all that being said, they finished the drafting in 2009 and had quite a few years of not a lot happening. If they could have done a level of this kind of process starting in 2009 leading to a referendum vote on November 19, 2013, that would have been awesome, but they didn’t. And so havingnot having that gap in time -- because you have to make up a lot -- the kind of impetus of coming together and drafting a constitution and then nothing happens and people forget, you lose momentum, you lose context, you lose memory, you lose priority. And so that had to be dealt with and energy created and generated in order to get interest and get everybody back on the same page as far as, ‘This is a priority,’ and ideas and tactics for doing that. That’s what we had to deal with. If something could have been done differently, it would have been changed in the past and have some process engaging from 2009 to the referendum vote.

It also is a really complex document and we put a lot of energy into reading it, working with educators, curriculum developers, the education department at White Earth, Joan Timeche who is the director [of the Native Nations Institute] -- she was really helpful in all of this -- my experience with curriculum development, etc. and thinking through, as adults, what sort of resources and tools can we bring to the table to help somebody work through a hugely complex document. And so reorganizing it, simplifying the language, creating summaries, creating a workbook, getting the text out, really emphasizing the text itself that even though this summary is a summary it’s in a useful way of introducing yourself to it, really being willing to sit down there and go through it word by word as well.

If there was something that we could have taken from that and learned from that, I think it might have been a broader range of stuff. Where if there was more time, really do a pre-K through full adult, develop an educational resource mechanism and tools and strategies to cover that whole broad range because developing a coloring book for a pre-K kid is going to help an adult with that education process as well. And because you’re doing it for a pre-K kid, it’s not insulting to that adult that is actually going to benefit from that. You see what I’m saying? But because we didn’t have that much time, we didn’t develop that full scope and full range of educational resources and tools and have the time to implement it at that scale.

But dealing with a very complex document that is the genesis or basis of a very complex system really would have benefited from more time, a broader-scale approach that engaged non-voting age members and voting age members in an equal sort of basis because everybody votes frombenefits from all of those resources being available to them. That’s just the reality of it. We didn’t have that time. We didn’t scoperamp it up to that scale and that scope of it right away just because of the timing issues. But if we were going to do it over again with more time, especially not losing momentum from the initial 2009 completion of the draft drafting process, I think that’s how it would have gone.”

Ian Record:

“Isn’t that couldn’t you argue that that’s the challenge now before the White Earth Nation is, ‘How do we now actually live this new constitution?’ And isn’t part of that challenge, of figuring how to live it, is this tribal civics challenge?”

Terry Janis:

“Oh, absolutely.”

Ian Record:

“of engraining in our people young, old”

Terry Janis:

“Absolutely.”

Ian Record:

“of all ages not only what the constitution says, but this is who we are, this is how we govern, this is how we make decisions, this is the future we seek for ourselves?”

Terry Janis:

“Yeah, and whenever people think about this kind of constitutional change, one of the easiest things to think about is, if you understand what an IRA council is, an IRA constitution and the tribal council and business committee that comes out of it, their kind of authority to make decisions into the most minute things. ‘Oh, you can’t fire that secretary’ or ‘cut their pay,’ or whatever. The council is integrating themselves in every single decision because that is the scope of power that they have; there is no limits on authority or separation of powers. And so for the new legislative council, once it gets organized, to really learn what it means to legislate, to legislate; for the office of the president to really know what an executive authority and role is, the limits and scope of that; for the judiciary to really believe that they’re fully independent. In order for that to happen, the training and education process have to happen from today. As we get resources and tools out there or White Earth gets resources and tools out there to help the people organize their communities, their voting districts, that education process has to happen at that scale.”

Ian Record:

“And doesn’t it also have to be. you mentioned. White Earth has to be sure that the chief executive, whoever that may be, whether Erma or someone else, that they fully understand”

Terry Janis:

“Exactly.”

Ian Record:

“what their role is under this new constitution. The constitution and the limits of that role, where it begins to get into thatoverlaps into someone else’s role and where they need to think twice and vice versa the legislative side.”

Terry Janis:

“And whenever the kids in the community and the people that aren’t going to run for those elected offices, if they understand it.”

Ian Record:

“Well, I was just going to say, that’s critical because they’re the ones that apply pressure, healthy or unhealthy, on those people”

Terry Janis:

“And who are organizing those voting districts and the representative that comes out of those voting districts is going to be one of them. And so they’re going to be selecting somebody based upon an understanding that they have. It’s a true ground-up, building-a-nation process that depends upon education at that broad scale.”

Ian Record:

“I want to switch to one of the strategies that you guys employed and, I think, were more aggressive, I would say, than we’ve seen with other nations that have gone down the reform road and that’s the use of multimedia. And you mentioned that you guys -- and I’ve seen the videos you’ve done. The website is very robust. It has a series of videos featuring you and some other folks talking, sort of, as you mentioned, breaking down the constitution, making it accessible, talking about constitutional, often very legalese-style language and breaking it down and talking about it in very accessible, laymen’s terms for somebody with a 10th-grade education, for instance, trying to make it make sense to them. How did the community respond to that, to that particular strategy of, ‘Here, we’re going to tell you a story about this particular aspect of the constitution and we’re going to use this visual media to do it’?”

Terry Janis:

“The only way that I can really respond to that is the few positive responses that we got. ‘I watched it. It was great.’ All of that was good. I think more importantly though is we put a lot of energy and thought into not just having a strategy and design for doing it, but doing it, constantly, persistently and not only in creating these multimedia things and getting them out there, but doing the community events, but also being absolutely responsive to everybody that called, everybody that walked up, everybody that wanted to talk, that responsiveness -- so returning 20 phone calls a day and having 40 -- and so that kind of response. I think it was the whole thing. And so from day one, building that on an increasing basis, feeling the tension ramp up because there was a growing interest and a growing desire for more information, a growing process of people actually making up their mind and caring about it and getting aggressive about it, and trying to convince their friends and their relatives and other people about their position, that’s all we wanted, that’s all we pushed for. And the only way that I definitively noticed success is when I felt people get more impassioned, more opinionated, and more aggressive about it. The more fights we had, the more I was excited.”

Ian Record:

It’s interesting you bring that up because on one hand you would think, ‘Oh, going into this, I want to avoid anxiety, I want to avoid tension,’ but”

Terry Janis:

It’s just the opposite actually.”

Ian Record:

“You want the opposite.”

Terry Janis:

“It has to build.”

Ian Record:

“Because you want passion and interest and you don’t want apathy.”

Terry Janis:

“Exactly. Exactly. And that’s how we knew we were being successful is because it did grow. And by the time it came to the referendum vote itself, it was a crescendo. It was so intense. It was like, ‘Ah!’”

Ian Record:

“So where does constitutional reform at White Earth stand today, if you can just give a quick snapshot?”

Terry Janis:

“A quick snapshot is passed in the referendum vote; the current process of deciding what the relationship is between White Earth and the Minnesota Chippewa Tribe. So what the elected leadership at White Earth decided from day one of my participation there, my contract there, was that they want to remain a part of MCT, if at all possible, to organize under this new constitution, if it gets approved, and negotiate with MCT to remain part of MCT. So that’s what they’re doing right now, a good-faith effort on their part to have conversations with MCT. And because the changes in this new constitution compared to the MCT constitution are quite profound, and how that’s really going to happen, one of the initial thoughts is to request from MCT to sponsor a secretarial election that would change the MCT constitution that would allow each Band to establish their own constitutional form of government, and there’s other options for negotiating that as well. So those things are happening right now. They’re pretty tough; MCT doesn’t want to change. I described to you a completely unrepresentative form of government. The smaller bands that are benefiting from that, why would they want to change? They’ve got their own issues internally within their own governance. The system that they have benefits their current leadership. There’s going to be changes, etc. So it’s a broad dynamic. Whether that succeeds or not and how long White Earth commits to those negotiations is a decision of the elected leadership at White Earth right now, and they haven’t given up yet.

If it moves away from that, then you’re really talking about withdrawing from MCT and issues of secession. One of the issue points with the Bureau of Indian Affairs is this is their baby –- MCT -- and they set up this broad infrastructure to maintain and sustain this thing that they created. BIA initially doesn’t want to see this thing changed as well. They can see the arguments for it and against it, etc. There’s a very clear sort of distinction. One of the concerns that the Bureau of Indian Affairs is naturally going to have, as a broad bureaucracy, federal bureaucracy is, what is the ripple effect? So if White Earth withdraws from MCT, the federal government is supportive and recognizes their right to do so and establish their own form of government. Does that open the door for another entity to do the same thing?

San Xavier as a district on the Tohono O’odham Nation, Sandy Lake at Mille Lacs, situations where there isn’t the history of treaty recognition and treaty establishment, for example, White Earth and the federal government. San Xavier necessarily doesn’t have that kind of relationship, or maybe they do, I don’t know their story that well, but there are some things about this that distinguish it in a very real sort of way, not only the treaty relationship between White Earth and the federal government, but at every level, legislative, judicial, executive that recognizes White Earth as a distinct, federally recognized tribe independent of MCT and treats them that way and operates that way. So that kind of historical and practical federal recognition that exists in MCT and doesn’t exist in other places can argue or should argue that there’s not going to be the slippery slope sort of situation that is going to cause a problem to the Bureau of Indian Affairs, but the reality is, it will and those are very practical realities for the Bureau of Indian Affairs. So that’s the other thing.

A bottom line for the elected leadership at White Earth right now is they are not going to do anything that jeopardizes the relationship, the federal recognition relationship between White Earth and the federal government. They are not going to do anything that would jeopardize their funding, their relationship, or their status. So that’s got to be resolved before they actually withdraw from MCT. That’s a pretty sticky situation.”

Ian Record:

“Yeah, it’s uncharted waters. It’s hard to find another parallel in the United States.”

Terry Janis:

“There’s none. MCT has no parallel in the country, period. And you can make an argument for that and I can call youI can describe 10 times as many reasons why it’s distinct because it is.”

Ian Record:

“So let’s turn to your own tribe for a second. As I mentioned at the outset, you’re a citizen of the Oglala Sioux Tribe, often cited as one of the poster children, if you will, of IRA, the Indian Reorganization Act in that”

Terry Janis:

“I thought you were going to say something else, but I actually”

Ian Record:

“Well, no, in that there’s been a lot ofthere’s been books written about IRA formation at Pine Ridge and the process and you’re quite passionate about IRA, a lot of people are, and I’m wondering, you’ve beenyou’re working with a nation that just basically jettisoned -- or you could argue based on what you just said is still in the process of trying to jettison -- their IRA system, and your own nation still operates with one.”

Terry Janis:

“Yeah.”

Ian Record:

“And being that you’re sort of in this unique position, in that you’re sort of a student of your own nation and its governance system and then you’ve come to learn so much about another nation and their governance system and how they’ve changed it, I guess, if you can sort of try to meld those together and, I guess, what does the White Earth experience say to you about Oglala Sioux and its own governance system and potentially what the future of that could hold?”

Terry Janis:

“The political history of Pine Ridge has had a fairly consistent policy of holding the Bureau of Indian Affairs accountable for its trust obligations. That’s a stronger way of framing this idea and that has been the position of Pine Ridge virtually my whole life. I have argued with them about this a lot, that Pine Ridge should be contracting every function that we can...taking over all obligations, responsibilities, and if it costs us more money, we’re going to do it 10 times better than the federal government will. But the policy position of Pine Ridge is to not let them get away with doing a bad job, to hold them responsible to their trust obligation. That’s how their positioning it. I’m hoping that if they continue with that position that will actually change the Bureau of Indian Affairs and the federal government because that’s what it’s going to require. In order for Pine Ridge to succeed with that, they’re going to have to change the Bureau of Indian Affairs and move it away from a colonial, paternalistic structure to a service entity. That change is not coming any time soon that I’m aware of.”

Ian Record:

“I would agree and looking more internally though, because basically what you’re getting at is that they’ve taken a very staunch position, and I agree with you based on my work with them that that’s my impression as well, but looking internally, this sort of deep self examination that White Earth has gone through in terms of looking at their own governance system, do you feel inspired or encouraged by the White Earth experience to think that Oglala Sioux will engage in that full examination of their own governance system and perhaps identify a better way?”

Terry Janis:

“No, only because Pine Ridge is Pine Ridge and White Earth is White Earth. We as Oglalas are going to chart our own course. For me it goes back to, ‘Do I respect tribal sovereignty or not?’ And I do. And Pine Ridge, Standing Rock, any other reservation has an obligation to assert their sovereignty and make that decision for themselves. I think that Pine Ridge is wrong in that position in regards to the trust obligation and their ability to really change the federal government. I think it’s a lack of recognition of what the federal government is vis-á-vis Indian nations and that relationship, but given that that has been their position and the strength of it -- that’s why I don’t speak in weak terms in that regard and I speak in strong terms -- that it is the policy of the Oglala Sioux Tribe to require the federal government to live up to its trust obligations, period. That is a strong statement, an assertion of tribal sovereignty and it puts the obligation for improvement and reform on the federal government and the Bureau of Indian Affairs in particular. And that’s the best I can do with that.”

Ian Record:

“Final question. You’ve been immersed in the White Earth constitutional reform process for about a year. What, and I understand your point that every tribe is distinct in the way it chooses to express its sovereignty is unique, but aren’t there lessons from the path that White Earth has traveled and is traveling right now that other nations who are feeling like their constitutions and their system of government aren’t up to par, that aren’t reflective of who they are, aren’t there lessons that they can learn from the White Earth experience?”

Terry Janis:

“Absolutely. The bottom line is, White Earth is doing it. You saw the Truth to Tell; you saw the level of opposition to this thing. White Earth is doing it and the vote that the referendumI was sitting there when the count came in. I was completely shocked. We had a registration process that had a larger percentage of registering voters than has ever turned up to an election before, over double the normal turnout and of that, 80 percent of them voted for it. I was stunned. I didn’t expect it to be that large. Given thatand one of the things that you, if you have a conversation with the folks at Osage, for example, the kind of opposition that you saw in Truth to Tell that I saw every day out there, that they saw at Osage as well, whenever you’re thinking of a fundamental and profound change like this, there is going to be opposition. There has to be. You have to accept the reality of this colonial history and that people actually benefited from it and they’re not going to give that up without a fight, period. And that fight is going to be intense and you’ve got to stick with it and you’ve got to make it happen and see it through and let the people decide in as full and honest as a vote as you can get. And if they reject it, that’s great because that then leads you to another conversation and to draft a constitution that they really do want. That’s all that means.”

Ian Record:

“I’m glad you brought that up because I’ve heard a number of folks who’ve been directly engaged in constitutional reform say, ‘There’s no such thing,’ or something along these lines, ‘there’s no such thing as a failed reform effort.’”

Terry Janis:

“Exactly.”

Ian Record:

“For instance, Lac du Flambeau just went through a referendum vote on some pretty important amendments and they were voted down. And I think that if you talk to the people that led that effort, they might be discouraged a little bit, but they’re not giving up and I bet you they would say that, ‘We came out of this process with a greater understanding of what’s at stake and what the role of the constitution is in the life of the nation than we did before and that’s a good thing.’”

Terry Janis:

“And that’s the bottom line that I take from this experience. White Earth is doing it, an Indian nation, a tribe that wants to define their own governmental system. You don’t accomplish that without doing it. Whether it succeeds the first time or the 20th time, it doesn’t matter because each time you do it, you’re informing your population, you’re engaging the conversation and you’re building that base and that is nation building.”

Ian Record:

“Great way to end. Well, Terry, we really appreciate you taking some time to share your thoughts, experience and wisdom with us.”

Terry Janis:

“It was a pleasure. It was good seeing you again, too.”

Ian Record:

“Yeah, good seeing you. That’s all the time we have today for Leading Native Nations, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Leading Native Nations, please visit the Native Nations Institute’s website at nni.arizona.edu. Thank you for joining us."

 

Eva Petoskey: Empowering Good Leadership Through Capable Governance: What My Leadership Experience Taught Me

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Native Nations Institute
Year

Eva Petoskey, citizen and former council member of the Grand Traverse Band of Ottawa and Chippewa Indians (GTB), discusses her experiences as an elected leader during a pivotal time in GTB's history. She also stress the importance of Native nations developing capable institutions of self-governance in order to empower their leaders to think strategically, engage in informed decision-making, and focus their time and energy on achieving their nations' long-term priorities. Finally, she provides a detailed history of GTB's development of its revenue allocation ordinance.

People
Resource Type
Citation

Petoskey, Eva. "Empowering Good Leadership Through Capable Governance: What My Leadership Experience Taught Me." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. October 3, 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 Eva Petoskey. Eva is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and served as an elected member of the Grand Traverse Band Council from 1990 to 1996. She also is the better half of John Petoskey, longtime general counsel of the Grand Traverse Band, who is serving as Indigenous Leadership Fellow with the University of Arizona's Native Nations Institute for Leadership, Management and Policy. Eva, welcome and good to have you with us today."

Eva Petoskey:

"Thank you for inviting me."

Ian Record:

"As I mentioned in your introduction, you served a total of six years as an elected council member of your nation during a critical time in the nation's growth and development. Can you briefly paint a picture of what that time was like and the kinds of decisions you were confronted with as an elected leader?"

Eva Petoskey:

"Sure, but first I think I'll introduce myself in our language because it is our custom when we're asked to speak, especially for our tribe or our experience with our tribe to do that. So [Anishinaabe language]; that's my Anishinaabe name and my clan. So now I'm in a better position to speak."

Ian Record:

"Okay. So I appreciate that and I was remiss -- I usually ask folks to introduce themselves when we start, but I'm curious, you and I have sat down a couple of times this week to talk about your leadership experience and you came into elected office at a really critical time and you mentioned a story that when you started in office the council actually met in a pole barn?"

Eva Petoskey:

"Well, actually our casino was operated in a pole barn and our council chambers were a very small room that we met in and so yeah, we were a much smaller operation and 1990 was two years after we finally adopted our constitution. We did receive federal recognition in 1980, but it took about eight years to get approval of our constitution because it had a lot of complicated issues. But once we had a constitution, we had elections and I was in the second cohort of elected tribal council members after our federal acknowledgement. So at that time, in 1990, our tribe employed about maybe 50 people, maybe that's on the high end of the estimate and currently we employ about 2,500 people. So you can see over the course of 25 years -- well, it isn't quite 25 years, I guess it's 13...I don't know, I can't do the math, whatever 1990 is from our current time here. I guess it is almost 25, 23 years, yeah -- so we've had a lot of growth and those six years that I served was a time when there was tremendous development.

We...I think...during that time, we signed the first gaming compact with the State of Michigan. Of course the Indian Gaming Regulatory Act had just been passed I think in '88 so we were among the new gaming tribes. We had a small gaming operation that was operated out of a small pole barn and it was making money, but after we entered into the compact and even before that time we did some gaming development locally and expanded our casino development. From the time I served from '90 to '96, we went from a small pole barn to two upgrades in a facility within our Leelanau County reservation, Grand Traverse Band Anishinaabe town reservation. And then later in 1996 -- at the end of my time of service -- we opened the Turtle Creek Casino, which is a large operation. So a lot of expansion in gaming, a lot of infrastructure development. I'm not a gambler; I really knew nothing about gaming, so a huge learning curve for me and other council members. Some of our council members had worked within the gaming operation so they knew more about the operation of the casino. I was totally new to that. I had come to it with about 15 years of work experience in human services, social services, education so I was not...that was a big learning curve for me and I think for all of us and a lot of the policy infrastructure that we had to develop.

In terms of other developments...do you want me to continue on? We had huge growth again in terms of health care. At the time that I was elected, we were operating our health clinic out of a modular building, a very small clinic that served primarily the Anishinaabe town community and we had a six county service area. So it was difficult for our members from other areas to come into the Anishinaabe town community because sometimes it was as much as a 60-, 70-mile drive to come to the clinic and that was the only tribally supported, Indian Health Service-supported clinic that we operated at the time. And so now over the course and during the time period that I was in office, we built a very large health facility using primarily gaming revenue, a few other grants, and some support from the Indian Health Service. But the Indian Health Service dollars were never enough and probably will never be enough to provide the support for health care and both health and behavioral health services that we provide through our clinic now. During that time, those six years we built this fabulous facility and have been operating it ever since, so that's another area of really substantial development.

Treaty fishing, inland hunting, we had a lot of continuing issues related to exercising our treaty rights to fish in the Great Lakes and Lake Michigan within our treaty territory. We were in a transition from using gill nets to trap nets. It was an enormous transition for fishing people, men and women, because the gill net is more of a traditional way of catching fish and to try to change your whole equipment and upgrade, all these...it's very complicated. It's very complicated and a wide array of issues that we dealt with: land acquisition, putting land into trust, those are some of the...we developed a lot of housing during that time. We also had I think only one tribal house that we had built in 1990, maybe there were a few more, but now we have tribal housing in all surrounding service area, out of all six counties I think five of the six counties now have tribal housing."

Ian Record:

"You mentioned health care and the fact that some of the gaming revenue that you had generated -- which rapidly grew during your time in office and certainly after -- went to healthcare and went to housing and so forth. And that involved the establishment of the revenue allocation ordinance, basically the tribe creating an ordinance in conjunction with the Indian Gaming Regulatory Act to determine how the money that they were generating through gaming was going to be used by the tribe. And as you've shared with me, that was quite a long, drawn-out, contentious deliberations process. Can you sort of paint a picture of what that process was like in terms of coming to a decision about how the money was going to be spent and actually putting that into law and just what the revenue allocation is?"

Eva Petoskey:

"Sure. Before I do that, though, I'll say that we...even prior to the development of a revenue allocation ordinance, we did have a budget procedure and it was in policy. And so we had a transparent budget process where every...we developed an annual budget and we hold public hearings for the members to have input into the budget process and to review the priorities for the budget. So we already had that in place actually. And it was fairly new. We'd developed it during that time. I felt...for me that was one of my top priorities that we have a transparent budget process and that we have...that members have the ability or citizens have the ability to be involved in developing some of the priorities. So I'll say that first. We also were a tribe that...we kind of took development slow. We were trying to pay as we go, we didn't want to get into a big loan agreement with someone and so we were saving money. This was prior to the development of our per cap discussion...internal discussion on per capita distribution, so we had quite a bit of money saved, several million dollars. We were hoping that we would be able to use those funds to do gaming expansion without going deeply into debt. But somewhere around maybe 1993, a group of tribal members -- called themselves the Tribal Members Advocacy Group -- which actually normally I would be all for, because I think it's really important for citizens to have input into their governmental decisions, and in a way I was all for it except I was on the wrong end of the issue on the per capita distribution at that time, myself and...we had a seven-member council, four of us were not for the per capita, at least initially, and three members were. So we did have a majority to keep the per capita discussion distribution at bay. However, after a lot of internal debate and dialogue there was a petition drive to put the per capita distribution on the...as a referendum. And when I saw the petition, it was shocking to me as an elected -- I don't call myself a leader -- elected official of the tribe because everyone that I knew, all of my friends, all of my relatives, with the exception of my mother, had signed the petition for the per capita distribution. And I think my mother would have signed it possibly had she not been my mother. So there was a...it was a huge move, it was a huge movement, there really was no stopping it. So to me, it came down to the question of did I want to remain in office because I think had we dug our feet in? We probably wouldn't have been and that would have delayed the process, but I don't think it ultimately would have made a difference; the momentum was just too great. So I just say that for other tribes and other people in similar situations, not to say that you should necessarily make that choice, but it is an option and it was an option that I chose to eventually vote for the per capita distribution partially, probably in large part, so I could be part of the process of putting together the ordinance that would control how we would use the money and how it would be distributed. So if I'd have been removed from office I wouldn't have had that opportunity to participate in those policy decisions so it was a conscious decision on my part, a huge compromise. But those are the things that I think are the difficult challenges in leadership, especially if something... it didn't sit right with me. I made the statement in one of the public meetings that one of the challenges with the per capita distribution was that we would be in some...in a lot of cases, the people who could benefit most from the resources in terms of their income, people living in poverty or well below poverty, who were currently eligible say for food stamps or other benefits, health benefits, Medicaid, would lose those benefits. So in a way it was a wash. We were basically paying the money out to the federal or state government and while that was true and the facts supported it, it was really an unpopular statement because no one really was wanting to listen to reason at the time. So it was quite a learning experience. It was not a rational...particularly rational process, but that's politics and that's leadership, learning to set up the most rational system you can and then when the decision making isn't rational, learn to sort out with some degree of wisdom or insight as to which way to go, so we did put together a revenue allocation ordinance. I think we were probably one of the first tribes to do so, and right or wrong to avoid being held hostage by the momentum in the community we allowed, at that time it was up to 50 percent of your net revenue from gaming could be allocated to per capita distribution and that's what we did."

Ian Record:

"So the...and I know there's been some minor tinkering with it over the years and we'll get into one of the recent developments around it here in a second, but how does the per capita distribution policy currently work for adults and then how does it work for minors? And I know you've shared with me that the minors' trust accounts was a very contentious issue at the outset."

Eva Petoskey:

"Yeah, it was contentious, but let me say generally that the per capita distribution is half of the net revenue goes to individuals and the remaining half is split...well, I guess the remaining portions are split: 25 percent goes to tribal government operations, which would include all services and the operation of government itself. And then 15 percent to -- I always get these two wrong -- 15 percent to long-term investment and I think...or I think it's 10 percent to long-term investment, 15 percent to economic development, so that there were three other funds set up: tribal government operations, long term investment and economic development. So that was the whole pie of the...our revenue...I don't like to use acronyms -- so the revenue allocation ordinance. When it came to how the per capita distribution was to be, the 50 percent of per cap, that was very contentious and I sat as the chairperson of the committee that put the revenue allocation ordinance together. There were about maybe 10 or a dozen of us on the committee from all factions including people that were in the leadership of the TMAG, the Tribal Members Advocacy Group. So we all sat together and I think I told you this earlier when we were discussing this, I'm kind of a storyteller so forgive me if I start...I could be here for probably hours, but I'll tell the short story. I decided that we needed to use...try to come together. So we did this in a talking-circle format using some of our ceremonies, just simple...the smudging and then using an eagle feather that I had brought to kind of help us come together as a community to figure out how we would, now that we'd made a decision, how we would carry that decision out. So we had a lot of discussions and some of them were heated and well, I don't know if they were heated, they were... ctually they were quite civil I should say, they were quite civil, but a lot of difference of opinion expressed and...one of the things I brought up, I asked the group, "˜Many tribes, ours in particular, has a long history of kind of disruption, enormous disruption due to loss of land, a rapid kind of economic change, the whole culture over the last, we call it the '150[-year] Anishinaabe abyss period' and we certainly were emerging from that.' I think we're emerging from that now, but certainly was a very dark period in our history I would say from the 1850s forward until probably in the 1970s when we started to reclaim our place and through the law, which has been a good tool for us. But as a result of that abyss period, we have many of our people who were put in boarding schools, my mother went to Mt. Pleasant Indian School, my husband's parents went to Mt. Pleasant Indian School, all of that generation, people in our parent's generation and many in our generation either went to boarding school...my grandmother went to Carlisle, so it goes back several generations. So people were... had their lives disrupted in many ways. So we always bring this to the table in our deliberations because this is who we are. Many of us are people who have suffered enormous loss in terms of our family relationships, our cultural identity, our language, our ability to speak the language in our community. The generation that spoke the language is...many have passed on, but my mother's first language was Anishinaabe or Odawa. All of my family members could converse and I grew up hearing this, but now in this generation that's not the case. So I go into...I just say that because this is sort of who we are as we sit at the table together. We are all of these people that have...all of these humans that have brought all of this collective history to the table when we have a discussion and this particular discussion on how to distribute this money that we had, which most of us had never had, was a difficult one. So I did ask the group how many of us...because one of the issues that was very contentious was whether or not children should have an equal portion in the distribution and some of us had the position, including myself, that felt -- and a number of the group felt -- that everyone should have an equal share. There was another contingency that children should not have a share and that the money should go to their parents and then there would be more money just go for people 18 and older. That was probably one of the most contentious complaints and other smaller things about how frequently the distributions should be made, etc., but the one over who receives a share and what type of share was really a contentious discussion and in the end we made a...we agreed on a plan where everyone would have an equal share, but it was a painful discussion and at one point in the discussion I did as the group around the table just to tell you about not only our tribe, but the circumstances of many tribes and maybe...probably as many...maybe more so in our region of the country, I don't know how the impact of boarding schools and some of those effects were out here in the southwest. I'm not as educated about that, but in our part of the country many people were raised outside of their family, not by their parents, either through foster care, adoption, or through boarding schools and in our group of people around this table discussing our per capita distribution, only two of us had been raised by our parents, myself and one other member, one other citizen. So that was a sad commentary on where we were, where we are still. I think the impact of that..."

Ian Record:

"But you used that as a counter to the contention that parents should get their kid's share because they're the ones taking care of the children."

Eva Petoskey:

"Yes and I...it didn't make me popular, but I said a difficult statement of, "˜How well were we cared for by our parents? And no offense to anyone or to any of your parents. I am in the same category.' I just had a really strong mother who didn't allow things to happen and a really strong grandmother and some other people did too, obviously. But anyway, yeah, that was why I brought the discussion up. It was a hard discussion, but it did in part bring us around to a reasonable decision, which I think there have been problems with. So since we've had the per capita distribution...like I said to you the other day, I could probably talk for several days on this because it was a long, contentious process and other tribes have dealt with it in other ways, but now that...once we had a decision about how we would distribute, there have been challenges with it. Some young people don't use their money wisely. The money is held in trust for the young people until it is paid out when they're age 19 and...over 19, 20, 21 over three payments. So some young people use their money wisely. I guess they probably...whoever, however they're using it, I think they may think it's wisely, but maybe not. And others have not used it as wisely. We do have a new law I understand, I wasn't part of developing this because I'm not currently on the council, but we do have an amendment to the revenue allocation ordinance that requires that a child have at least a GED or a high school diploma in order to receive their payment. If they don't have it, I think it's deferred until they're 21. So I think that's a very good development. I would have liked to have seen that even sooner and I know other tribes have similar and maybe even more restrictive criteria to encourage people to continue to complete their education."

Ian Record:

"I'm glad you mentioned that. And you are right, there are a number of other tribes that have gone that route that may have not had it in place initially, but saw the effects of just sort of a basic issuance of the money once they turn a certain age without any sort of conditions set on the issuance of that money. I'd like to turn now to the topic of leadership and I know I'm asking you to look back a bit because you...it has been close to 20 years since you were in office, but if you think back to 1990, when you first came to office, what do you know now that you wish you had known before you first took office in the first place?"

Eva Petoskey:

"Well, I'm 25 years older so I've lived a bit. I guess in answering that question, I'd say probably two different avenues that I could answer that. One is I think I certainly have more knowledge about how government conducts itself. I didn't have that much coming into it and I think that's the case for a lot of newly elected tribal leaders that they come in inexperienced in tribal government. Even if they've worked for the tribe, it might not have been in a position where they were required to work with policy or maybe even to understand the larger historical and political and legal context in which tribes operate. That is very common for people to walk into it. So I think, in retrospect, I had some of that because I had 15 years of work experience in Indian Country and so I had some of that. I did work for tribal organizations and so I had some experience. I knew some core ideas of self determination, sovereignty. I even knew what sovereign immunity was because I'd worked with contracts with tribes. But I think a lot of people come in without that, so I think it's very important for people to have some education coming in either before...I know there are some tribes that have instituted some training programs for people interested in running for council. I think those are excellent ideas. Certainly if your tribe doesn't have that then having some kind of orientation and education program and process once a person is elected. I think to the extent that you can use people with prior tribal council experience that is a great benefit because not only will they get the information about the complex legal structure and all of the public policy issues, they also get some firsthand experience on people reflecting on their own leadership and some of the mistakes and successes that they had or mistakes they made and successes they had. So that's one track, I guess: education, education, education, education. I wish I had more of it when I came into this, but at another end I wish I had more wisdom. I wish I'd have been a wiser person. When you're young, a few...sometimes young people are wise, but more than often we're not when we're young. We tend to be impulsive. I know I would frequently get angry. Now as I've grown older, I've trained myself. I still get angry, but I usually don't speak when I'm angry. I've learned how to tell myself to hold that until I'm not angry. So I would even say it would be good if tribes -- whatever their culture is, whatever their Indigenous world view -- is that some of those teachings could be also shared or discussed as you go into your elected duties, that the person newly elected has an opportunity to sit down with someone, an elder or some other appropriate leaders within the community to, if they haven't had that proper or appropriate education and maybe some people do, they already have that. So we have -- in our Anishinaabe way -- we have the Seven Grandfather teachings, which tell us how to conduct ourselves in our relationships with other people. I see that sometimes we put them up on a poster someplace, but they're very difficult to follow in our relationships and looking back at my experience on the tribal council, aside from all of the challenging issues that we dealt with, the complex...context in which we found ourselves in, and in our case and the people that served with me, the enormous amount of development that we accomplished and worked tirelessly to accomplish was often painful in terms of our interpersonal relationships. And as you can imagine, when you're related to many of the people you serve with, that's just normal in a tribe that even on the council your relatives are sometimes on the council and certainly in terms of your constituents, your parents, your nieces and nephews, your cousins, just every...there's a very thick set of relationships. So how you treat one another in those heated political contexts, in the heated political context will last...will follow you for a long time."

Ian Record:

"One of the things you mentioned to me yesterday when we were chatting was this issue of consistency and in your relations with the people that you serve that the answers you give to the requests that they often make are consistent and the explanations for the answers you're giving them are consistent. Can you touch a little bit more on that in terms of being clear with the people who come to you with their hand out to say either 'yes, I can do this for you and here's why' or 'no, I can't and here's why,' and making sure that those answers are consistent no matter who's coming to you?"

Eva Petoskey:

"Yeah, this is a huge issue in tribal government. I think it...the responsibility there needs to be borne by the elected leader in term...and by the citizens. So I think...I'll talk about both of those, because I think it's a shared responsibility because if it is the norm that the council is kind of a patron system, which isn't outside of our cultural norm. See, that's one of the issues, that it's not really an unfamiliar cultural idea that you would give things away to your relatives. It's just that in the context of government, they're really not yours to give as a person, as an individual. They belong to the community. Whatever resources you have been elected and given the responsibility to be a good steward of are the resources of the community, so it really is different than giving out your own personal property, things that you've acquired in a giveaway at your home or in some kind of celebration where you're feeding everyone. That's your personal property and that is, within our cultural teachings, that's a different thing than taking the property of the collective and giving it out to your relatives. To me, that seems unethical. But I wasn't always...oftentimes your relatives would come in and expect you to solve a problem immediately, to give them some special consideration and I always gave them -- everyone really -- I tried to give special consideration in terms of listening and not shutting people off and then trying to help them problem solve where they could find a solution to their problem within our system. That implies that you have a system that helps people find a solution to their problem and that is part of developing your tribal infrastructure so that there is a known process for solving a problem, whether it's an employment problem or you felt like you've been treated unfairly, whether it's in employment or some other issue or involving your lot assignment or all kinds of controversies that come up. And we as a tribe, I'm sure others too, have...took us a long time to develop all that infrastructure so that there was a place for a person to go to get their problem solved or at least to try and they may not like the results, but at least there was a process in place. So it's both a shared responsibility on the part of the leadership to act in an ethical manner, again keeping in mind that the resources that you have been given the responsibility to be a good steward of are not yours, they're the community's, and so if you want to have a giveaway, go do it at your house with your own stuff unless it's the community giveaway and you're participating and it's open for everyone on an equal basis. And likewise, the members, the citizens need to understand that the more citizens that serve in government and in a good way, and the more citizens that come to understand how it's really a collective process and these are our collective resources and together we can build a nation and we can learn to put our...it's hard to learn to put your individual needs aside because many of our people live in poverty. It's still the case today. It's still the case. We have...if you go into the communities around our tribe, many of the homeless people are our tribal citizens. There's still a lot of people living...struggling to have their basic needs met and it's understandable why people feel frustrated sometimes. I totally understand that and yet it's an ongoing challenge for the elective."

Ian Record:

"And isn't it first and foremost a challenge of education? You mentioned that a lot of hard work has been done to build up the governmental infrastructure so that there are processes in place to help people that come with their hand out. And we've heard other leaders talk about really the education needs to begin with the elected official in that interpersonal exchange with the constituent to say, "˜Look, I cannot do this for you because we have a process in place that can address your problem. That's not my role.' We often hear leaders talk about role confusion, that they think they're a social service administrator and not a policy maker."

Eva Petoskey:

"Exactly. Exactly. Well, that speaks to understanding what your role is and in most tribes the...I know in our tribe, the role of the tribal council members and the chairperson are specified in some detail in the constitution and that serving as a social service liaison is not one of them, although it is to look out for the assets and best interests of the tribe and to provide for the wellbeing and education, health of the tribal citizens. But a lot of people don't ever read the information on what their roles and responsibilities are and I found many times across Indian Country -- I won't point just to our own tribal council, but some of the work I've done elsewhere -- that many people don't read their constitution or even if they think it was a good idea to have a constitution because sometimes you get into that discussion. "˜Why are we adopting these types of governments?' And I think it's all a developmental process. I think that in our case, I look back at those times as we began to work...I wasn't part of working on the constitution, but as I've heard the stories I'm glad that we went in that direction and I think we put some good ideas into our constitution. We do have a separation of the judicial in our constitution so we have a separate court. That's an unusual situation in Indian Country. And we have both executive and legislative functions within our tribal council and then we have specific roles and responsibilities and a lot of other things that are spelled out that took great... that were given great consideration. We did not just adopt a constitution. We had a lot of discussion about how that should be and what type of government we wanted to have."

Ian Record:

"How empowering was it for you as an elected official to have that constitution to fall back on when somebody was not clear about your role and was coming to you and asking you to do something that was outside of your role for you to say, "˜Hey, look, I'm not allowed to do this and this is where it says I'm not allowed to do this'? Because unfortunately in a lot of tribal communities, leaders don't have that luxury to say, "˜Look, I'm prohibited.' It's sort of...there's so much gray area involved that they can sort of finagle it however they like. Was it...did you feel it empowered you or there was a sense of comfort there to be able to fall back on that rock-hard foundation?"

Eva Petoskey:

"I didn't use it so much in the context of dealing directly with individual citizens, but I did occasionally use it in dealing with some of the things that other council members would want to do and sometimes behind closed doors, which is where some of the really challenging discussions occur, even though we have, of course have to have open meetings, but there were certain things involving legal matters and really complicated legal matters that we did in closed session and sometimes we would have rather contentious discussions there, and I do recall on several occasions getting out the constitution and saying, "˜Read this, folks.' And sometimes people would want to fire people just arbitrarily. I hope I'm not...it's not an unusual thing. I'm not putting down my own tribe. I see it everywhere and I'd just remind everyone, 'That isn't our job. That is not our job,' in spite of the fact that maybe that person had said very insulting things to me and to the entire tribal council, but it was our job to maybe try to create a better climate so people didn't have to come in there and be that angry or have some other rules about how we conduct our business or just take it. If we weren't going to create those kind of rules. I know some tribes have now created rules about how... I'm not talking about Robert's Rules, but how...and of course tribes use those...but how...what the tone of the conduct of the meetings should be and that there must be a tone or respect. I like that idea. We don't have a rule like that currently, but I sure...if I were back...in retrospect, I would love to have a rule like that. I'd love to have those Seven Grandfather teachings not only on the wall, but somehow incorporated into our conduct so that we can hold ourselves accountable."

Ian Record:

"This last answer of yours has given rise to a few questions in my mind and the first deals with transparency. You touched on this issue a couple of times now, and in talking with your husband John and having him share with us all of the hard work that the government has done to not only build its infrastructure, its governmental infrastructure, but also build the background history of why it was developed the way it was. So you guys have gone to great lengths to document everything from council meeting minutes and making them not only...not only archiving them, but making them instantly accessible and obviously that helps for the purposes of transparency, but doesn't it also help for ensuring that folks that are in the position that you were once in can make informed decisions, can say, "˜What was the reason why we first started this particular project and what does it mean for the decision that is before us on this project today?'"

Eva Petoskey:

"Well, certainly as technology gets quicker and quicker -- at one time that wasn't possible because we'd be digging through all these old papers down in the basement of the tribal government center -- but now that it's readily available apparently our current council who actually uses that does a search, what did we decide on this and what's the history of this? And so I think that could be a very useful tool going into the future with technology as it is today. I think that wouldn't obviously be present if we hadn't have archived all that and I wasn't part...well, I guess I was part of that decision. One of the things I was going to mention that we did write a couple of tribal histories, especially some of the recent history and the early history of our federal acknowledgement and what led up to that. And so those documents are available also, but so that in the sense that you're archiving your process as you go along is a wonderful benefit to future generations because there is a record there to the extent that people are able to study it and with technology it's easier to study it. So it's awesome to do that and I think a real benefit both to the current councils and the future generations to see what people were thinking."

Ian Record:

"So another follow-up question deals with this issue of instilling culture into governance, into the practice of governance. And you mentioned that it's one thing to have the Seven Grandfather teachings written on a wall and it's quite another to figure out how do you practice it in the actual activities of governance at the elected leadership level and throughout the governmental organization. You're a big proponent of that. In our discussions you've brought that up numerous times. Can you speak to the importance of a Native nation consciously working to incorporate in a systematic way its culture into how it governs, into the crafting of a strategic vision for the future of the nation?"

Eva Petoskey:

"Yeah."

Ian Record:

"Easier said than done, I know."

Eva Petoskey:

"Well, it's difficult because it goes to the issue of who can speak. And I think when I was younger I didn't feel as though I could speak, but I'm 61 years old and I'm not 80, but I always felt like it would be great if I could have had a group of advisors that were elders and my selection, my ideal selection of elders in our community would have been people over 80 because it seemed like the people I knew, including my own mother or other people I knew within my extended family and other people I knew in the community who were over 80 seemed to have developed a different view, even if they had some culture...if they had the culture intact, they had their language, but as you age something happens and you have a different view. You're facing that kind of eventually your own death and I think...one of our elders told me that, "˜If you have the good fortune to come close to death as a young person, you're very blessed.' And I thought, "˜Well, that's an interesting thing to say,' because usually we think of that differently. But he was saying that it gives you a different view, a longer view of life, what is really important. I think sometimes we have, I think, lost view of that. So I always wished I could have had a group of elders over 80 advising me. I did. I had my own mother so I was lucky. So I think having elders in the community, however that community defines that whether through age or through some other ceremonial leaders, I think that is wise. I think...I really believe that dialogue and consensus is culture because sometimes without that... you're growing a seed, you're growing a seed of translating your own traditional teachings and culture and language into your contemporary setting. So I always feel like people were going way too fast. I think one way to incorporate your culture into your governance is to slow it down, and maybe not in all contexts because some meetings have to be conducted maybe in a more rapid manner because you're dealing with so many issues, but there should be a time where people can talk together and maybe...then again, sometimes the constitution doesn't allow the tribal council to speak together on tribal issues outside of a meeting that's been called so that's kind of problematic, too. But maybe it's not the council speaking or talking in a formal way, maybe it's an informal meeting with the constituents, with your citizens where you can talk things through. That's what our Anishinaabe people always did, always. I observed it in my own life, people solving problems through talking it through until everyone had been heard and then what comes out of that is remarkable, it's powerful. Once everyone's been heard, all of those ideas can be used to take something forward. And if you're applying the Seven Grandfathers teachings, which are principles upon which you're to live and to treat other people that what comes out of that would be part of what we call [Anishinaabe language], which is to live a good life and that idea is central to everything that is in the Anishinaabe world view. I know that other people and other tribes have other words and concepts like that, but essentially, what it means is that it's the interdependence of all things so that you as a human being are connected to your own inner self. That's why I spoke my name and my clan. Your own spiritual and inner self, your own ancestral history, but it's not like you're standing there alone. You're in this web of relationships that are both inside you and outside of you and it includes not only all the human relationships, but it also, and this is very important I think going into the future, it includes all of the other living things on the planet and in the universe so it includes all the plants, all the animals, all of the water, the sky, the rocks, the moon, the sun, the stars, all of the ancestors, all of the spirits out in the cosmos, the whole thing is interconnected and that it is your responsibility as a human being to walk in a good way and in positive relationships with all those things. So I think in that way in the incorporation of the culture and I think as we are going forward...I know within our tribe some of us women have really been starting to talk very...amongst ourselves about the environment and how can our tribe take a position. This is very culturally relevant let's say for every tribe, and in our case it's the water, in our case in Anishinaabe worldview, women are the keepers of the water and so we...I think...so that's one way of how do you incorporate this into tribal governance in terms of setting the priorities for what the tribe does in the future and the vision of the tribe in the future, you have to have elders and people with that collective [Anishinaabe language] vision to speak up so that we're not just taking care of ourselves, which is important -- not at all to diminish that -- we're taking care of those inner circles of [Anishinaabe language], but we're also taking care of the larger circle of the planet that we live on, very important today. Every day we wake up with an acute awareness of how responsible we are and I think tribes have a lot of power in that way because I know we do. We still have...we still retain our inland hunting and fishing and gathering within the Great Lakes, within regions of the Great Lakes and within inland. So we have a lot to say about our environment and if I live long enough I'm going to continue...that's going to be one of my priorities is on the water and things like that."

Ian Record:

"Well, Eva, we really appreciate you taking some time to share your thoughts and experience and wisdom with us, really appreciate it."

Eva Petoskey:

"You're welcome."

Ian Record:

"That's all the time we have on today's program of Leading Native Nations. To learn more about Leading Native Nations, please visit the Native Nations Institute's website at nni.arizona.edu. Copyright 2013 Arizona Board of Regents."