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NNI Forum: Asset Building for Indian Country

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Native Nations Institute
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The Native Nations Institute for Leadership, Management, and Policy (NNI) at the University of Arizona in Tucson, Arizona convened a panel of leading experts to discuss the fundamental obstacles standing in the way of asset building in Native communities, and the innovative strategies that Native nations, community development financial institutions (CDFIs), and other organizations are deploying to overcome those challenges and build stronger futures for Native people.

The "Winds of Change" video is featured as part of this video resource with the permission of the U.S. Conference of Catholic Bishops and the Four Bands Community Fund.

Resource Type
Citation

Native Nations Institute. "Asset Building for Indian Country" (roundtable forum). Native Nations Institute For Leadership, Management, and Policy, The University of Arizona. Tucson, Arizona. May 15, 2008. Interview.

Miriam Jorgensen (moderator): "Asset building refers to the process by which individuals and families build permanent economic independence. This is an area in which Indian Country is engaged in a more and more active conversation. So we’re here today. My name is Miriam Jorgensen. I’m the Director of Research for the Harvard Project in American Indian Economic Development and the Associate Director for Research of its sister institution the Native Nations Institute at the University of Arizona. I’m here with a team of great people to talk about exactly this topic, asset building in Indian country. I want to introduce to you the team. First I’ll turn to Elsie Meeks, who’s the President and CEO of the First Nations Oweesta Corporation and one of the pioneers of asset building in Indian Country. Next we have Elena Chavez Quezada, who’s a Policy Associate with the Aspen Institute which has long time engagement on asset building domestically in the United States and also internationally to bring us a more broad perspective from beyond Indian Country. Also Karen Edwards, who’s a Policy Consultant and also an Associate with the Center for Social Development at Washington University in St. Louis. Again, a pioneering organization. Karen’s also a member of the Choctaw Nation of Oklahoma and has been engaged in asset building in Indian Country for a long time. And finally I want to introduce to you Peter Morris, who’s the Director of Strategy and Partnerships for the National Congress of American Indians Policy Research Center, which is another organization -- like the Native Nations Institute and First Nations Oweesta Corporation and the Center for Social Development and the Aspen Institute -- which is engaged in asset-building efforts in Indian Country both on the research and policy outreach front. And so we’ve got this fantastic panel of folks today to talk about asset building in Indian country and we want to just start off the conversation, I’ve given a very brief definition of asset building and I’m wondering if any of you want to just jump in and expand on that definition and also talk about why this conversation is so critical in Indian Country today."

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Elsie Meeks: "Well, I’m from the Pine Ridge Indian Reservation in South Dakota, Oglala Lakota Nation, and Pine Ridge has been the poorest county in the nation, Shannon County, on the Pine Ridge Reservation, for decades, and yet I think because of my 20-plus years of working at Pine Ridge and across the country now, if we don’t start thinking about the opportunities that lead to permanent wealth creation, permanent economic independence, then we’re not going to change the way we are and it has to change, it really has to change. We have to come to a place where we aren’t reliant on the federal government, that we aren’t reliant on government at all and so the work that we’ve done at Pine Ridge and now nationally, we really, that’s where we want to end up, that’s our goal."

Peter Morris: "To me, probably more so than any other community in the United States and maybe in the world, Native Nations understand how important assets are and have been working on control of assets and being able to benefit from their assets as communities, and I think what asset building as a field outside of Indian Country has been talking about is kind of assets and the individual component of it and I think what the conversation in Indian Country has taken us to in the last five to ten years is a conversation that blends those two approaches and talks about the need for individuals to take responsibility for the economic self-sufficiency of themselves and their families, but to also do that within a community context. I think that’s often not thought about as we look outside of Indian country both domestically and internationally."

Karen Edwards: "Well, I just think asset building historically has been the purview of people who already have accumulated some wealth or are wealthy people. For many, many years the only people who were asset builders were people who had inherited wealth or somehow had made a fortune on their own. But low income and poor people weren’t really asset builders. They were cut out policy wise and there were many, many, many historical policy inequities. Most people build assets through the tax system so if you don’t have a considerable tax liability you really don’t have an advantage to build assets. The hope is that people who are poor or have low incomes won’t be left out of this whole new system of asset building that we’re seeing now. We’re talking about individual accounts for social security, we’re talking about individual accounts for college savings, individual accounts for retirement and what happens if people can’t benefit from the policies that are there to establish these individual accounts."

Miriam Jorgensen: "Karen, you’ve started us down a path that I wanted to spend quite a bit of time today talking about which is if a Native community or a Native Nation is interested in asset building, how does it go about doing it? How does it go about creating policy and creating opportunities for individuals and families in the community to really begin to undertake asset building? What are the components? What are the pieces?"

Elsie Meeks: "Well, if I might jump in here, it’s really…we have tribes that have considerable income, considerable resources, and some of them are actually dispersing per capitas to their tribal members, which doesn’t always create assets. We have poor tribes like mine that we have to figure out how we’re going to start down this road of developing assets. Or there are some tribes that have been really good at providing jobs. But even jobs don’t necessarily end up as assets. So it’s really about how do we get people to this point of creating wealth and that’s been kind of a word that hasn’t been used a lot in...Indian Country. So we have to start that conversation."

Elena Chavez Quezada: "I think what’s really, to build on that, we need to shift the conversation from a conversation about income to a conversation about wealth and I think income is about today, wealth is about tomorrow, and we can’t talk about wealth and assets without really talking about saving, and that’s why I think the financial education component is so critical, just to kind of establish that mindset that I am saving and sacrificing today for some goal tomorrow."

Elsie Meeks: "I don’t think the federal government ever meant for Native Americans to be economically independent and all the policies that they imposed on Indian Country were completely opposite of that, of us being independent. So it was really built on the more dependent we are the more the federal government controlled us. At this point, they don’t want us to be dependent anymore, and so we have to figure out how we’re going to reach that. In the past we always had resources that we managed and that we were self-sufficient, whether it was putting up food for the winter or just planning for the future. We always did that. I think that’s where we have to get back to is that we really control our own destinies and taking a place at the table means that we have, we build our own assets and our own economic self-sufficiency. And the way that a lot of tribes have done this is through home ownership. In the greater society or the outside society, outside Indian Country, the main way people built assets were through, they built it through home ownership, they built it through business, through various ways, and through investments and we have to figure out how we’re going to do that ourselves, how we translate that into Indian Country. There are many tribes that have done this and tribal members that have done this and been good at it. And so for the tribes that haven’t quite got there, the tools are there and so it’s through entrepreneurship, through savings programs, through home ownership, through education, all of these ways and the tools are there. And so I just think that we have to…it’s more in the messaging that we have to start talking about as tribal members, part of tribal communities, that we become economically independent and healthy societies. And I guess that’s really what the goal is."

Miriam Jorgensen: "So really a very important critical first step in moving there though is really changing the conversation so it’s a conversation that’s not about dependence, it’s a conversation about economic self-sufficiency for individuals, families and ultimately for communities and nations as well."

Elsie Meeks: "And that’s exactly right, and with the tribes that have considerable resources whether it’s through being really good at business or gaming or natural resources, they have sort of a jump start in some ways although the message has to be the same is that this income that they’re providing their tribal members has to create wealth. It can’t be just spent. But for poor tribes like ours, it’s the same conversation in some ways. It’s like, where do you start and it’s really…Elena commented on how financial education is really the key, and for us at Pine Ridge it’s really…there’s no resources available, hardly any jobs, but we still have to get people thinking about what’s the first step you can take towards figuring out how you’re going to become economically self-sufficiency and it’s maybe saving $20. There’s a program at Pine Ridge that has an IDA, individual development account, which will match their savings two to one. These are important programs cause not only are people saving money, but they’re also learning the skills for money management and that’s the first step."

Karen Edwards: "And I just think that’s an important thing to create are incentives that are meaningful to people at different income levels. There are many, many incentives for people at high income levels when you consider that 20 percent of the population has 80% of the wealth. There’s a lot of incentives up there for wealth building. There aren’t many incentives on the bottom which is why IDAs are an important incentive. It does actually give you an institutional framework in which to save and it gives you an incentive of a match to your savings and we have to be more creative about these incentives. The financial education is so key but also to be able to use that financial education is key. So people have to have a meaningful framework to build wealth in."

Miriam Jorgensen: "So can you give us some examples of some tribes that are doing some of this work that are either putting in place some very effective financial education programming or who are doing the match savings account programming with the incentives for savings? Are there some examples out there of good programs on these fronts so we get some of this real flavor of it happening?"

Elsie Meeks: "There are actually quite a number of tribes, there are Native communities that are doing this and Four Bands Community Fund is one of them. Their first building block really is financial education, the individual asset building and entrepreneur capacity building, youth entrepreneurship. It’s melding all of these things and actually that’s where that video should come in."

Miriam Jorgensen: "So I think at this point we’re going to pause and show a video of this very specific community application of financial education, matched savings account, and then also a wide variety of programs that are focused on asset building and really see how it works in the community and hear some statements from community members just to get more of this on-the-ground flavor of what we’re talking about."

“Winds of Change” video (produced by the U.S. Conference of Catholic Bishops)

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Narrator: “South Dakota hill country, a majestic tapestry of earth and sky. The people who live here, the people who understand the natural wealth of their surroundings, have wonderful traditions of celebrating what they have. But this regal setting on the Great Plains conceals a sad reality. These people are among the poorest in America. Four bands of the Lakota people, as they are also called, today live on a reservation near the Cheyenne River. Seventy-five percent of them live in poverty. One-fifth live in deep poverty, unable to afford even the barest of necessities. It’s a place where the Catholic Campaign for Human Development has been hard at work.”

Veronica Valandra: “The greatest concern I see in the diocese is poverty because we have many Native people that don’t have homes, they don’t have any jobs, they need food for their families.”

Narrator: “The unemployment rate for men hovers around 64%. Only one of every three has a full-time job.”

Tanya Fiddler: “We have largely overcrowded households where 2-3 families [live] because of the lack of housing. The major employer on the reservation is the Cheyenne River Sioux Tribe itself, but of those employed, 90% of them are still living below the poverty line.”

Narrator: “Tanya Fiddler oversees the Four Bands Community Fund, set up to spur business ownership and entrepreneurship among the Lakota people.”

Receptionist: “Four Bands Community Fund, this is Louise speaking. How may I help you?”

Tanya Fiddler: “We’ve made over 80 loans in the last four years. Our first year, the average loan size for a micro-loan was $1,000, and as the customer’s capacity has grown, the capacity to borrow more has grown. Our average loan size now is $10,000.”

Wynona Traversie: “‘This is our loan application.’ I love helping people, and seeing the look on their face when they come in and I tell them, ‘We’ve reviewed your loan application and you are eligible.’”

Narrator: “The Catholic Campaign for Human Development was on the ground floor with crucial start-up money, helping to establish a financial base for the community fund…”

Woman: “Savings needs to be a family effort.”

Narrator: “…and providing resources for business education classes called C.R.E.A.T.E.”

Wynona Traversie: “I’m just so happy for our entrepreneurs because they’ve struggled so hard.”

Narrator: “The Four Bands Community Fund is less about dollars and cents than about names and faces. It helped Gerald Davidson build his plumbing and heating business. It helped Eva Gilbert set up a hair and nail salon. It helped Mike Ducheneaux turn a fascination of cars into a full-fledged auto repair business.”

Blake Farley: “What kind of snow cone would you like?”

Narrator: “And even helped 11-year-old Blake Farley start his snow cone company. And it helped Cheryl Red Bear find economic vitality after suffering a series of strokes. Cheryl makes Native regalia and beautiful hand-sewn quilts. She took the Four Bands C.R.E.A.T.E. class, then turned her hobby into a livelihood.”

Cheryl Red Bear: I learned how to run a small business, learned how to budget, finance. ‘Hi Carly, I got your cape all finished.’ And it helped me out throughout the course. And it was great.”

Tanya Fiddler: “Cheryl Red Bear is one of our best homegrown customers. She was able to complete C.R.E.A.T.E. and, at that point, was able to ask for a micro-loan and an equity award from Four Bands.”

Narrator: “Sometimes, entrepreneurship requires thinking outside the box, or the house. In this case, the people of a remote reservation community called Bridger got together and came up with the idea of having tourists stay at a teepee bed and breakfast.”

Tanya Fiddler: “So they have this wonderful bed and breakfast. They have overnight teepee stays. One of the resulting businesses from the teepee bed and breakfast were trail rides. So we have a loan to the trail ride company. And we assist them to do their marketing and promotions so that they can build a package as a community, attracting customers to come in.”

Byron Buffalo: “It’s helped make me realize that, not to let anybody else define your reality, and to follow your dreams and make your dreams come true.”

Narrator: “But in today’s harsh reality, supporting even one’s immediate family, putting food on the table and a roof overhead, is nearly impossible for many of the Lakota people. Without work, there’s no paycheck; and without businesses, there are no jobs. The Catholic Campaign for Human Development strongly supports efforts like the Four Bands Community Fund precisely because it addresses the need at its source. It sows the seeds of economic stability and self-sufficiency. It promotes financial education and encourages the kind of responsible risk taking that may one day reverse the cycle of poverty on the Cheyenne River Reservation in these majestic hills of South Dakota.”

 

 

 

Elsie Meeks: "But there is really a number of tribes, and I think the conversation that tribes are starting to have around even if the tribal members get per capita payments from gaming or other natural resources how that really translates into permanent wealth and that’s really what it’s all about. Native people should have every right to have permanent wealth just like non-Native people should. But it’s really up to us to start providing the path to doing that."

Miriam Jorgensen: "And you’ve just said providing the path and I know that a really critical piece that’s of interest of a lot of this asset building work is focused on kids because people are saying, 'Look, if you don’t know that much about asset building and wealth building, financial education and savings by the time you’re older, a lot of it’s because you didn’t get that grounding and training when you were kids.' And Elena, you’ve done a lot of work through Aspen Institute in the U.S. broadly among largely non-Native populations and then some international work focused on kids' savings accounts, and I’m wondering if you and Peter together can talk a little bit about the children’s savings programming and some of the results and ideas that seem…really how to get people on this path so that we don’t get to a point, especially in some of the Native nations where we’ve got a lot of assets and a lot of potential opportunity for wealth building so that that isn’t reaching a situation of that being wasted, that we’re really getting people along that path toward it."

Elena Chavez Quezada: "This idea of children’s accounts is actually one that started here in the U.S. with Michael Sherraden at the Center for Social Development, and the U.K. has implemented it, and so it’s been up and running for about three years now and our proposal at the Aspen Institute is very much modeled off what’s happening in the U.K. But in that proposal, every single child born in the country receives a certificate or a voucher for an investment account at birth. And so the parents go and redeem that voucher at a participating financial institution and it’s endowed by the government. So the government has put in $500 for every single child born in that country and lower-income kids get an additional $500. These accounts are run through the private sector and the idea is they grow over 18 years and encourage families to contribute over time and at that point the child can or the young adult at that point can use those funds for whatever they feel is appropriate, whether that’s education or to buy a home or to buy a car or continue saving, and you’ve 18 years to kind of instill the financial education in that savings mentality. And because it’s universal, everybody’s doing it, so this is a really big cultural shift and those principles of this is in the private sector and we match it for low-income kids -- which is part of our proposal -- and that there’s unrestricted use at age 18 are really important."

Peter Morris: "The attractive element to me, and I was going to share this story as we were talking about what kind of concrete programs are going on and I think the Four Bands example is a good one, one story that I’ve shared with Elena and other colleagues at Aspen is the story of a young Navajo girl that I met and she had just completed an individual development account, matched savings account program, and I was sitting with the practitioner who ran that program and her over lunch and she was describing for me her life experience and how the process of saving just $500 over the process of two years to go to college, to go to Diné College, the community college there on the Navajo Nation. And the way she described it was that she was this quiet girl who wasn’t super engaged in things in the community and now she was on the student council at Diné College and she was super engaged and wanted to go to Arizona State [University] -- I guess there’s no accounting for taste -- to go to business school and she just had these grand visions for how she was going to start businesses on the reservation and she had this…she’d been given this vision and she said to me, and I’ll never forget what she said, 'If it wasn’t for this opportunity, then I’d be sitting on the couch watching TV with my cousins.' And the first thing that I see in child accounts is that opportunity and giving children -- no matter where they’re from, black, white, Hispanic, Native, Asian, from whatever background they are -- giving them that opportunity. And I think in Indian Country specifically, there’s two very key opportunities that we found compelling from the Aspen proposal and the first one is that it’s unrestricted use. So one of the great things about America is we hate regulation except when it applies to poor people and then we want lots of it. And a lot of the other proposals around children’s savings accounts talk about restrictions to uses that there are significant barriers to like home ownership in Indian country and going to college where you might need transportation that you don’t otherwise have. So it’s very important to me that we think about mechanisms that will really close the wealth gap between Native people and other people in the broader community and people of color broadly. So I think that’s an important thing for us to think about. Unrestricted uses is important. The other thing, and I’m sure Elsie will talk about this more as the conversation goes on, is it provides an incentive for financial institutions to come to Indian Country. So the fact that every Native kid at birth -- whether they’re in Gallup or on Pine Ridge or wherever it is --have a voucher that gets taken to a bank to open an account. When we have nine of ten of our Native communities lack a single financial institution within their borders, we need an incentive to get financial institutions to think about investing in Indian Country, and this isn’t the only way to do that, but it’s one way to do that, and I think this big idea at the national level to me really has a lot of legs as we think about how we can connect asset building in Indian Country with asset building beyond Indian Country."

Miriam Jorgensen: "Well, you’ve just hit to me what’s a really important barrier to asset building is just this lack of financial institutions because when I think about my contacts growing up in a small town in South Dakota, there were four different banks that I could go to even in a town of just 7,000 people and yet if you’re telling me that some huge percentage of folks in Indian Country don’t even have that opportunity, how is it that asset building can occur and some of these programs can really get off the ground?"

Elsie Meeks: "My organization has been really involved with helping Native communities start community development financial institutions. And these institutions generally start up in areas where banks really have not been able to lend. And so for instance 20 years ago we started the Lakota Fund at Pine Ridge, which was one of the first community development financial institutions. And after a couple years of lending there, we did a sort of survey of our borrowers and 75 percent of them had never had a checking or savings account which was really because…and 85 percent had never had a loan. It was because there were no institutions there. So one of the tribes we’re working with is the Turtle Mountain Band of Chippewa in North Dakota and the woman that’s running the community development financial institution there, and they’re doing financial education kind of across the reservation with the housing authority and also in the schools to reach the youth. And one of the programs they have is, they call it the day treatment program and it’s youth that are really at risk of dropping out of high school and they want to at least give them some financial management skills. So they were working with these kids and she was telling the story about Nodem was his name and he…she got him to set some short-term goals, which was pretty difficult 'cause he was a kid and it was like easy come, easy go, but his short-term goal was to buy some new shoes 'cause he had pretty holey shoes. And then the second goal was to set up a bank account and start a savings program. And she thought she didn’t have any effect on this at all and she said about three months after their program had ended she was in the bank and there was Nodem and he had new shoes and he had a job and he’d put some money in his savings account. So he’d actually opened a savings account at the bank. So it’s really getting people pointed down those paths which those opportunities really haven’t been available in Indian Country. So we were really rewarded by that one outcome."

Miriam Jorgensen: "That’s a great story. And it makes me think that most people here have similar stories to tell and I’ve also heard, and I want to give credit where credit is due with this, in an earlier conversation with Mike Roberts, who’s the President of the First Nations Development Institute and having a conversation with him about asset building in Indian Country and they’d been up to this again for 20 years at this point. And he said, 'One of our goals in all the work that we do is to look for these points of entry and to try to look for programs or opportunities where the individuals or the communities are ready to start some sort of asset building.' In the case that you have just told at Turtle Mountain, that opportunity sounds like it was to get financial education into this alternative school. In other cases, it’s to get children’s savings accounts going if the opportunity is there. Are there other critical intervention points or opportunities that are out there staring Native communities in the face, that tribal leaders, non-profits, communities can jump on to have these -- in a sense -- where the opportunities are and the folks are ready to move forward with them?"

Elsie Meeks: "Let me give one really good example -- and I hate to monopolize the conversation -- but at Pine Ridge, there is also...we started the Oglala Sioux Tribe Partnership for Housing and that was in 1998 and just prior to that there had been a study that showed that something like 70 percent of the people could have qualified for a mortgage of at least $65,000. But up to that point only four mortgages had ever been done on Pine Ridge. And then the partnership got started up and they had to deal with some of the security…securing the loans, perfecting mortgages because the land issues are very complex as you know and helping them with some down-payment assistance and this and that. But at this point in time, there’s been 40 some mortgages now created, so that was a real point of time where we said this can happen."

Peter Morris: "And for me, what Elsie’s just saying refers to two key principles in terms of thinking about, 'What are the entry points?' I think one is institutions and Elsie and the work that First Nations Oweesta Corporation does is a key part of that, is to build credible institutions that can facilitate asset building, facilitate access to opportunities. And I think it’s really important for us to think about asset building as almost a rebuilding process so asset building prior to contact with Europeans coming over here and the federal government thinking that the IRA [Indian reorganization Act] was a good system of government and all these other kind of great policy innovations of the U.S. federal government but put tribes in a situation where they were behind and needing to revitalize and rebuild some of these institutions is one thing. And I think the other thing is removing barriers and so there are immense, and I referred to them, immense barriers in policy to acquiring assets. Where is the hardest place in the United States to own a home? It’s in Indian Country, when the title status process can take as long as five, six years and so really what asset building in Indian Country is, it’s an integrated strategy to open the way to opportunity through investing in institutions and I think removing barriers to those opportunities. And there are so many of them, so it’s not obviously an easy strategy, but I think what I heard there was opportunity is there for housing and institutions need to support it and also there needs to be a removal of barriers that are still fairly significant."

Karen Edwards: "I think expectation has to be there also. I don’t think poor people or low income people are expected to save money. For years they were actually penalized for saving money and still are in many cases. People who are disabled save money they lose. If they save for retirement or for college even, they lose their disability benefits. It’s still the case. Those types of disincentives to saving have to be removed. Michael, in his book Assets and the Poor, said that income feeds people’s stomachs but assets change their heads. And it’s true, it’s what I think is happening in low income communities. The minute the opportunity presents itself, the minute there’s an institutional structure, the minute expectations and access and there’s a secure way for them to save money, there was suspicion at first, especially with IDAs. It was considered a scam. They’re just trying to get my money. Once they figured out, hey, there actually is a structure that I can do this and get a home and start a business and get an education, then people began to actually utilize it and I think that’s going to continue to happen on a broader and broader scale but we do have to have policy structures in place and larger amounts of incentives to make that happen."

Miriam Jorgensen: "Well, it sounds like there are a number of things going on here. One is the attitude and just the belief that this can be different and we talked about this at the outset of just to have this notion of this is about wealth building and about economic independence not about economic dependence. There’s the set of institutional things in terms of building institutions like community development financial institutions. How many of those are there now in Indian Country?"

Elsie Meeks: "There’s 48 certified community development financial institutions."

Miriam Jorgensen: "And probably another 70 or 80 in the pipeline?"

Elsie Meeks: "Right, exactly."

Miriam Jorgensen: "Those sorts of institutions but also other points of institutional intervention and it really sounds like one of the ones that you have focused on is for instance housing authorities and housing programs as a point of intervention, maybe also small business development sorts of institutions in Indian Country, schools as an institution for intervention as well and other kinds of training sorts of programs. And then the third piece being the policy piece. You can add whatever you were going to add Peter, that’s fine."

Peter Morris: "I was going to add -- and I think it’s important -- often there’s a disconnect, and I think we need to be really clear about the relationship between the tribal government as the facilitator of these kinds of policies being implemented and the kind of community infrastructure, whether it’s a housing authority that’s the tribally designated housing entity or it’s a CDFI that’s related to the tribal government and needs a good relationship with it but is separate. Or whether it’s in situations like in Cherokee Nation. The oldest Native individual account program is run within a department of the tribal government, and so tribal governments are called up and sometimes it’s an unrealistic expectation 'cause there are so many different challenges that they’re facing as governments, but sometimes it’s the tribe who can invest and at least in the case of CDFIs incubate it. The other point that I wanted to make -- and I think maybe Elsie you want to talk about this some more -- my sense is watching the CDFI field grow has been a remarkable thing and each time I hear you talk about CDFIs, I hear a different number because we’re seeing more and more certified CDFIs. What’s your sense of where the growth is going?"

Elsie Meeks: "I think tribes are really beginning to understand that by building the capacity of their individual tribal members because in the past it’s really been the focus on economic development has been really building tribal enterprises, tribal businesses. And I think that they really understand now that the more we focus on building tribal community members, tribal citizens, then that’s going to get us to this place of, that the tribal membership is really contributing to the economy instead of taking away from the economy, and that’s really important. So I think they’re really realizing that community development financial institutions are the vehicle to do that, that it’s through home ownership that helps to build wealth, build assets, or through entrepreneurship, which not only supports the individual entrepreneur and their family but also provides employment, starts creating a tax base for that tribe and through savings programs. So it really gets people to this place of, that we have an interactive, vibrant economy. Let me just give you a really quick example of this is so we start a business community development institution, community development financial institution, so we’re allowing people to get into business. So most people on a reservation haven’t been in business before, maybe haven’t even worked in one before. So they come in the door and they’re never turned away, but they’re sort of given an assessment about where are you at financially. They do a credit report, they find out their credit’s really ba,d so they get them in this credit counseling so that they start to rebuild their credit. They get them into an individual savings account so that they’re starting to save, to put away a little bit of money and in the process learning some things about money management. They’re correcting their credit, they’re starting to build their credit, then they start in an entrepreneurship program so that they learn that they maybe aren’t quite at this point where they can be in business but what’s the path to get them there. And then over time they say, 'Well, we really want to be in this business,' or maybe they say, 'I think I should go get a job for awhile.' But whatever it is, it leads them down this path towards some economic independence. This just hasn’t been done in Indian Country, really. I grew up at Pine Ridge, and I know that this sort of thinking and now that I’ve had this wonderful opportunity to work nationally, this is a whole new realm and it’s great. It’s really where we have to head."

Peter Morris: "And to me, it’s about pathways to choices, and so my sense is we talk about dependence negatively when people make negative choices because of dependence. But dependence in a broad sense is not bad, and in fact in society none of us is self-sufficient in the broad sense and each of us depend on policies that facilitate good choices that we make. So we think about college savings plans for our kids, we think about the home mortgage deduction that 70 some percent of Americans depend on to build assets, to build wealth, and we need to think about some of these policies and structures within Native communities that can encourage those positive decisions. So dependence in a kind of interdependent mutual responsibility kind of way is a very positive thing, and we don’t really want people to be self-sufficient in the strictest definition of that word, we want them to have encouragement and structures that promote good choices and help them get there so that they have the skills and the information that they need to make good decisions."

Miriam Jorgensen: "One of the things that I’m really curious about is we’ve talked about all these opportunities is the role of various parties and Peter you began to touch on this a little bit ago that it doesn’t all have to be tribal government, sometimes it can be. What are the various roles of various parties in the community? Whose job is it to help incentivize some of these programs and who can actually take up the challenge to do some of this work?"

Karen Edwards: "Iwas just going to say that I think what I’ve seen in tribal communities and some of the asset-building programs that have been created, it really does mirror what happened in the broader mainstream communities as assets began to…asset programs began to take hold in the '90s, in the early to mid-90s, and I think in Native communities it maybe started in the mid-90s and began to take hold. I think it really does mirror what happened in the mainstream community and that is that asset building ended up being kind of a grassroots effort. Because nothing was happening at the bigger policy level, I think that community-based organizations on the ground kind of took this idea and ran with it, and I think that’s also happened in tribal communities. Many --either a tribal housing authority or a tribal non-profit -- kind of took this idea and said, 'We can do this in our community,' and I think one actual big entre point was the earned income tax credit. There’s been a lot of movement in the private foundation world to help Indian Country get vita sites in the earned income tax credit campaign started in Native communities and they began to see that some wealth can actually be generated here. We could have some money to put in savings programs. We could have some money that people could build up to do home ownership. And that’s very similar to what happened I think across the country. There has to be that…there has to be something, though. You can’t really make something out of nothing. There has to be something there to start with."

Elsie Meeks: "Let me say though that the 48 community development financial institutions, CDFIs, that have started to date, I would say at least 90 percent of them were actually initiated by the tribal government, which is really important 'cause the tribal government actually started it, maybe provided some resources and in almost all cases have then spun them off to be separate from the tribal government, which is good because government shouldn’t be making decisions about loans. But then once these CDFIs got started, then they really understood the need to implement these asset-building strategies. It wasn’t just about making loans. It’s really about building the capacity of the potential home owner or the potential business owner. So they had to start implementing these strategies so savings programs, financial education programs, even earned income tax credit outreach and doing vita sites, some way to reach out into the community and get people thinking about their future a little bit."

Miriam Jorgensen: "So in a sense, there’s that convergence of the grassroots desire and pressuring for the program, plus the institutional creation and spinning off by the government to really make this thing go forward."

Elena Chavez Quezada: "Hey, can I just take that even outside Indian Country. The Aspen Institute -- as a think tank that kind of works at the federal level, I think there’s a role for organizations like us as well to really highlight some of the great work being done in Indian Country. We are still struggling today to convince people that low-income people can save and that they want to save and that they will save given the right structures and incentives and opportunities. So I think there’s a lot to be learned from some of the examples going on and I think there’s really a role for us and for people working at the federal level to take a close look at what’s being done and some of the successes that are already happening."

Miriam Jorgensen: "That leads me to one of the last things I wanted to ask each of you which is if you could just point to one or, if you can’t choose one, two, some of the most exciting things about asset building that you’ve seen going on in Indian Country that you just want to highlight and make sure that people know about. We could just kind of...people could offer those around the table or whoever wants to volunteer to go first."

Peter Morris: "I’ll offer two 'cause you didn’t make me offer one. I think there are two things. I think the first one is this integration that we’ve just been talking about, the fact that because of the challenges in Indian Country, because of the fact that some of these institutions are non-existent, because some of these policies that facilitate asset building outside of Indian Country are predicated on assumptions that there’ll be a non-profit on every corner and a bank on every corner, the fact that these institutions are called upon to do so many different things and to meet so many different needs means that there’s a real integration and strategic approach to the communities that they’re dealing with, citizens as whole individuals rather than kind of participants in single programs. And I think that’s something that’s been offered to Indian Country partially by the fact that some of the federal funding for asset building back in the '90s was structured in excluding tribal governments from applying for the money and so a lot of innovation took place there. I think the other one which other folks are willing to, are welcome to build on, is the fact that -- and I don’t think we can talk about this enough -- there’s a lot of negative press around per capita distributions to tribal members, particularly young people with this amazing revelation which is not really amazing at all or a revelation, that 18-year-olds with a lot of money and very little skills to manage that money aren’t going to make the best choices. And I think what we have on the flip side of that is communities that are really investing in their citizens in a way that is very unique and jurisdictions that are the only jurisdictions in the nation and one of the few jurisdictions in the world that offer universal accounts to their kids with money that they can manage, money that’s going to be there for their future, and these are the kind of policy innovations that are dreamed of at the national level, and yet I think because there’s so much reticence to think about Indian Country and what Indian Country has to offer outside of Indian Country, we’re not thinking enough about that at the national policy level. So I think those are the two most exciting things for me about asset building in Indian Country."

Miriam Jorgensen: "Karen, put you on the spot."

Karen Edwards: "Well, I think of as an example CSD partnered with the Buder Center for American Indian Studies to do a study on EITC [earned income tax credit] outreach and EITC efforts in Native communities and the first study was…it took place in ten different communities all across the country. And we had a meeting, we brought the leaders of these EITC programs together and we asked them what they would want to use this research for in their own community and the one that really struck me was a woman from a reservation in Montana who said, 'The main thing I want to do is begin to show our neighboring communities that, you know what, we actually do earn money, we actually do have some economic power and some of this money is going into their community and we’re not just deadbeats. We actually do have an economy and potential for an economy.' And I think that’s the way that Indian communities are embracing this kind of concept. It all belongs under that same kind of umbrella of, 'We can do this, we did it for centuries, we can do this again and we can even play by the economic rules that are out there today.'"

Miriam Jorgensen: Elena."

Elena Chavez Quezada: "Well, Peter kind of…but I will say it again anyway. I think the fact that there’s already this existing platform for child trust funds is really unbelievable. So you have a bunch of converging things happening. You have this infrastructure that’s kind of already there and a lesson for federal policy as well, but you also have some revenues that can be targeted and you have financial people interested and excited about financial education and I think being able to connect all of these dots and figure out a way to really empower kids and give them an opportunity fund, there’s just enormous potential there."

Elsie Meeks: "Ihave to think about the way that federal policies have been and sort of the low-income housing that’s been created through HUD on the reservations and how a lot of times you see these really dilapidated houses, and yet through the Oglala Sioux Tribe Partnership for Housing, which is really promoting home ownership and allowing people to get mortgages for their own homes and really the sort of stark difference. The homes that are home ownership, that people own and have built themselves in some cases, were well kept, the yards are well kept and it’s really a very…it’s a big difference and it shows the pride that people have in owning something themselves and working towards that themselves. And so I think back…I think to that. And then I also think to one of the first loans that we made at the Lakota Fund, and actually I have it on a picture of a presentation in our sort of logo at the bottom or phrase, it’s 'Building Native Assets' and it really…I think it really depicts us as well as anything and it’s this guy, it was the first loan. He had a $10,000 loan to buy a belly dump gravel truck 'cause he had gotten the semi somehow or other, the tractor, and now he’s got a backhoe and a grater and all these things and you see him, these pictures of him in action and he has…he’s 8A certified, he’s bonded and he’s providing lots of employment. And so that’s really what...I see that and I think, yeah, that’s really what building Native assets is about."

Miriam Jorgensen: "Those are fabulous overall summaries of the kinds of things that asset building can do for a community and wonderful success stories as well, and I really appreciate this notion and I think that we really need to remind Indian Country of it, that there are great experiments and models and examples going on there that the rest of the world can learn from as well. Just in summary, to look back at the conversation we’ve been having, this has been about building permanent economic independence for individuals and families, that’s really what asset building means, and I think that as somebody who’s been interested in and engaged in and following economic develop in Indian Country for over 20 years, the thing to me that’s most exciting about this is that it’s not just turning to tribal government and saying, 'Whose responsibility is it for economic development in Indian Country?' It’s a way of saying, 'The responsibility is shared.' And by undertaking asset-building efforts, this is a way for citizens and families to really participate in the economic renaissance of Indian Country and there are just great examples of that happening and challenges ahead. And hopefully this roundtable discussion has provided leaders and students and community members with some more ideas about how to undertake asset building and inspire them to some of the kinds of changes that can take place in Indian Country as a result."

NNI Forum: Tribal Sovereign Immunity

Producer
Native Nations Institute
Year

Tribal sovereign immunity has far-reaching implications, impacting a wide range of critical governance issues from the protection and exertion of legal jurisdiction to the creation of a business environment that can stimulate and sustain economic development. Native Nations Institute (NNI) Radio convened a group of tribal leaders and Indian law experts to discuss tribal sovereign immunity and the need for Native nations to approach the issue strategically. Moderated by Harvard Project on American Indian Economic Development Co-Director Joseph P. Kalt, the forum provides tribal leaders and their constituents some important food for thought as they seek to protect their nations' interests and advance their nation-building priorities.

Resource Type
Citation

Native Nations Institute. "Forum on Tribal Sovereign Immunity" (roundtable forum). Native Nations Institute For Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 14, 2007. Interview.

Joseph P. Kalt (moderator): "Like other sovereign nations around the world, Indian nations have powers of sovereign immunity to be free from lawsuits, other challenges to their authority. At the same time, the realities of a globalized economy, a very competitive world, often puts tribes under pressure to waive that immunity and tonight we’re going to talk about the issue of sovereign immunity, when to waive it, when to use it, when to not waive it and we’ve assembled a very distinguished group really representing all walks of life here. On my right, Lance Morgan is the Chief Executive Officer of the Ho-Chunk Inc. tribal enterprise of the Winnebago of Nebraska, well known for its success over the last decade in building a conglomerate of businesses to really rebuilt and strengthen the Winnebago Nation. On my left, Professor Rob Williams from the University of Arizona Rogers School of Law and Director of the Indigenous Peoples Law and Policy Program is one of the nation’s leading educators in American Indian law, has written on all aspects of law and teaches tribal audiences law students at the University of Arizona all the aspects of American Indian law and focuses a great deal on the issues of sovereign immunity. On my right, Chairman John 'Rocky' Barrett is the long-serving Chairman of the Citizen Potawatomi Nation of Oklahoma. Starting a couple decades ago with very little, it’s now the engine of Shawnee, Oklahoma, and the surrounding region and noted for its success not only in its economic development, but in rebuilding a community that had been scattered across the United States. On my left, practicing attorney Gabe Galanda from Williams Kastner. Gabe is an expert working with tribes particularly in the Pacific Northwest really doing innovative things with handling sovereign immunity, its uses and misuses, providing advice to tribes, to clients, on these challenges the tribes face as they struggle with the question of when to waive their immunity, when to not waive it. And so we’ve assembled these folks to talk to us about their experiences, their views on this challenge that so many tribal leaders face across the United States. I’d like to begin with all of you, and maybe start with you Lance and work down here, we hear a lot about the issue of sovereign immunity, often out on the ground. Waiving sovereign immunity is equated with waiving sovereignty and you’ve faced this I know in your business enterprises. What are your views on that, what’s the boundary there? Is waiving sovereign immunity waiving tribal sovereignty?"

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Lance Morgan: "I really don’t…I think they’re two different things. I think they’re easily confused because they both use the word 'sovereign' in it. I always say that on our reservation, if somebody were to try to take away a tribal sovereign right, maybe a state or a county or somebody else, then we’ll fight to the death, it’s on, we’ll empty the tribal treasury to fight that one. But if it’s a business transaction where we want to play a game, we want to take someone’s money or we want to make sure that we do something together, I really want to make sure that we’re playing the game by the same rules, and waiving sovereign immunity really is not that big a deal for us in those situations. If we want to access that capital or to enter that relationship, then it’s only fair to be able to level the playing field between the two parties. So in those instances we’ll waive it all the time. It really isn’t that big a deal for us."

Joseph P. Kalt: "Rocky, from your point of view, tribal chairman having dealt with these issues so much, with your bank, with other aspects, what’s your view on this question is waiving sovereign immunity waiving your sovereignty?"

John "Rocky" Barrett: "It’s actually an exercise of sovereignty. I know from our perspective, we sort of look at it as how would we feel as lenders if someone came to us and wanted to borrow money and said, 'We’re not interested in waiving sovereign immunity in dollar amounts for this particular note or this contractual obligation that we have with your bank'? Our first reaction would be, 'Well, you don’t intend to pay us.' We take the same perspective at the tribe, that if we’re going to behave as responsible lenders, we have done our due diligence, we know that the cash flow is there, we have reasonable expectations for the success of the project for which we’re borrowing the money, and if we do not then we still feel duty bound to pay the loan off. So the waiver of tribal sovereign immunity from suit, particularly for financial transactions, we think is a part of doing business responsibly as a tribe. But it’s not a waiver of your sovereignty. You as a sovereign have the ability to say, 'I’m going to, as a sovereign, I’m going to put us on equal footing in this obligation and I’m doing that as a choice.' So you’re really not giving up…you’re exercising your rights."

Joseph P. Kalt: "Gabe, what are you seeing with your clients and what are you telling them about this issue?"

Gabe Galanda: "Well, we look at sovereign immunity primarily through two lenses. One is the proactive use of sovereign immunity as Chairman Barrett said as an exercise of sovereignty, essentially defining the time, scope and manner by which a sovereign may consent to suit or invite lawsuit against the sovereign and ultimately the tribal treasury, so that’s looking at it proactively perhaps in a means of drawing commercial investment to the reservation or other private investment to the reservation. It really becomes an exercise of sovereignty. But defensively is perhaps where the line between sovereignty and sovereign immunity blur, because defensively most common you will find tribes leveraging their immunity to withstand attack by local government or state government as Lance eluded to, and in that instance you are using sovereign immunity as a defensive mechanism to protect your sovereignty and without sovereign immunity state courts will be presented with questions of regulatory jurisdiction, in particular whether cities, counties and states have jurisdiction over affairs arising out of the reservation and as a threshold defense to that type of question which would be brought in state court by such entities, tribes can assert their sovereign immunity. So in asserting their sovereign immunity defensively, they are protecting their sovereignty, and in some instances that’s where the lines between sovereignty and sovereign immunity blur."

Joseph P. Kalt: "Rob, I know you’ve got strong views on the origins of this concept of sovereign immunity. Where does it come from?"

Robert Williams: "Yeah, I’m always amused when I hear tribal people defend sovereign immunity as one of their inherent rights as if it was something that existed prior to contact, and actually sovereign immunity originates in the 14th, 15th century, it comes from this notion that the English king could do no wrong and that would be exactly what the old common law courts would pronounce. The king can do no wrong and since the king maintains his courts and pays the judges, the judges aren’t going to dare challenge that notion. So it’s really an idea that you find replicated in no tribal culture in North America. In fact, the traditions of most tribes are that leaders are totally accountable to their people, and oftentimes leaders take on additional responsibilities for their people. So it’s a countercultural notion. I think the important thing to recognize is that sovereignty is really the big-picture issue, and that sovereign immunity is a tool of sovereignty and that’s how governments have always looked at sovereign immunity. The United States has sovereign immunity, the federal, the state governments have sovereign immunity, tribes have sovereign immunity. The big difference has been that for the past 100 years, the federal governments and state governments have used their sovereign immunity as a tool, making strategic decisions about when to use it, when to assert it, when to waive it, when to limit it, when to cover it by insurance, and so I think what you’re seeing many tribes now understand is that this is an important tool of sovereignty, of control over the reservation, of control over economic development, and it has to be used with a lot of thought and has to be used strategically."

Joseph P. Kalt: "Pick up on that, all right. I’ve heard a lot of tribal council members view a request by let’s say an outside investor for a waiver of sovereign immunity as an insult because it says to the outside investor I don’t trust your court system. I don’t trust you to adjudicate any disputes between me and you. I don’t trust that. And I sense sometimes there’s some truth in that, that is that all you’re hearing is just mistrust of tribal court system. Should tribal councils take it that way as an insult?"

Robert Williams: "I think that tribal councils should really look at what’s being said when outside investors say, 'We don’t trust or we don’t know your court system.' That’s a challenge for the tribe. Many tribes have established very effective court systems. They have courts of appeals, they have codes and business codes that they operate under, but sometimes they don’t do the job they need to do to make sure that the outside investment company understands that. So if what the tribe is hearing is we don’t trust your courts, we don’t know about your courts, rather than look at that as an insult, I think it’s better to look at that as an opportunity to educate and if the tribe really can’t say to these outside investors or to entrepreneurs on the reservation -- because Indian people have to use those courts as well -- if they can’t say that we have a fair court system, that we have transparency, that you can do business here, that your debts will be obligated. Rather than take that as an insult, I think what the tribe needs to do is look inside itself and make a decision about how important that is. We’ve talked about sovereign immunity as a tool of sovereignty, an effective judicial system, an effective dispute-resolution system is also another important tool."

Joseph P. Kalt: "Gabe, what do you see out there? You deal with tribal clients and they hear it as an insult. It’s an insult to their sovereignty."

Gabe Galanda: "A lot of it, though, really depends on the way in which the request is made. As a threshold matter, if you are a non-Indian entrepreneur approaching a tribe to do business, you must appreciate that there are blurred lines between sovereign immunity and sovereignty and choice of law and choice of forum, first and foremost. And then beyond that these are not just legal terms of art that can be plugged into a boilerplate contract. These are legal terms, certainly, but they have social overtones, political overtones, cultural overtones. Along the lines of what Rob was suggesting, some people believe that they have a treaty right to tribal immunity when in fact they probably do not. But you have to understand the consciousness of Indian Country and tribal council who are elected by their people, and ultimately what their people are thinking about issues of sovereignty, jurisdiction, sovereign immunity and the like before you even approach a tribe. So it’s much like going to the Far East and before you would ever go to the Far East to do business, any business person knows you would become savvy in the ways of people doing business in the Far East, the custom and traditions of those folks sitting around a board room or even a restaurant. You may take a translator. When approaching a tribe, you may take a corporate Indian lawyer who understands the philosophy of tribal government, who understands those political, social and cultural overtones and ultimately understands the pragmatic approach that tribes are taking to resolve issues of common concern. And they are valid concerns: the integrity of tribal court systems, the transparency of tribal government, the sophistication to do business in seven, eight or even nine figures. Those are very valid concerns, but it’s really in the art of the delivery and in making sure that when you approach tribal government, you are doing so very sensitively and you appreciate that it may be your only approach, only opportunity to really convey to them that you are there to do business in a meaningful way and you are there to meet halfway on these very important issues."

John "Rocky" Barrett: "The exercise of sovereign immunity has become in some ways the way that Indian Country seems to be using it is presenting a threat and judges, particularly Supreme Court judges, seem to find the concept repugnant, and unless we tailor the use of sovereign immunity in the same way that state legislatures have and the federal government has, where you provide recourse in situations where tribes want to take sovereign immunity now. If they don’t provide some other form of recourse, to someone with a complaint within their judicial system, they’re going to find themselves on the receiving end of some very adverse rulings."

Joseph P. Kalt: "In your case, too, Rocky, I take it you all have taken this prospect of an insult and basically turned it into a challenge to build your own court systems and to be able to sit there and say our court system…I take it…Hearing you talk before, I know you think you’ve got a court that’s just as good as any other. What have you done in that arena to build that court system?"

John "Rocky" Barrett: "We do think we have a very good court system but if a lender, if we have a project that we need a lot of money for that project from a lender and the lender…we exhaust all the lenders who say everyone says we’re going to have to have a tribal sovereign immunity waiver, well, then I guess we’ll have to have a sovereign immunity waiver. I’m not saying there’s situational ethics there but…"

Joseph P. Kalt: "But you’ve built your Supreme Court."

John "Rocky" Barrett: "We have built our Supreme Court and they are a very knowledgeable, responsible group of experienced jurists."

Joseph P. Kalt: "And how do you relate to the State of Oklahoma courts?"

John "Rocky" Barrett: "We have a full faith and credit agreement with the Oklahoma courts, which has only been tried a couple times. Once, the first time not successfully, but after we appealed the process through I believe that the state is more comfortable with that process now. But the idea that we would defend ourselves from jurisdictional threats from the state governments, we would not hesitate to use sovereign immunity from suit as a defense in that matter, the same as the state would not hesitate to use it against us if we were to make a similar jurisdictional threat."

Joseph P. Kalt: "So you’re looking for parity there."

John "Rocky" Barrett: "Yes."

Lance Morgan: "I think it’s important to understand that you’re talking about sovereign immunity and sovereignty in a couple different contexts. In the United States, the government makes up maybe 25 percent of the economy. On a reservation, typically the tribe might make up 95 percent of the economy and because of lots of reasons, the tribes are forced to be the economic engine on their own reservations also. And so you have a governmental context in this really emerging, fastly emerging commercial context in business, and they’re really two separate issues and I think that what happens, the confusion is that political leaders think of it a certain way. But in a business context you have to think of it, it’s a much more flexible dynamic, and that’s what causes confusion I think at the local level. And tribal government leaders are right to protect sovereign interests for the government, but it becomes an impediment to the growth on the economic side that really in all cases isn’t really a rational kind of reason to not go forward, and it can end up hurting you by limiting your opportunities on your own reservation."

John "Rocky" Barrett: "There’s definitely a misunderstanding of what it is on the reservation, too. It’s amazing what people will come up with of what their perception of sovereignty is. We recently in the performance venue of our casino, we had Three Dog Night there to perform and of course that drew all the old hippies in half the State of Oklahoma."

Joseph P. Kalt: "Did you go, by the way?"

John "Rocky" Barrett: "Oh, yeah. My hair’s shorter now. One particularly grizzled, tattooed old guy showed up and immediately sat down and fired up a joint. Of course our police descend on him and put him in cuffs. He said, 'I thought you guys were sovereign.' And I said…"

Lance Morgan: "It’s a crime not to care on the reservation."

John "Rocky" Barrett: "His idea of sovereignty was a total absence of law. That was his perception of it."

Robert Williams: "Let me pick up on a point there. Those full faith and credit agreements, which essentially allow tribal judgments to be enforced in state courts and state judgments to be enforced in tribal courts, there’s an example of exercising your sovereignty. When you can have another court take a look at your own tribal court’s judgments and say we’re going to enforce those, that extends the reach of your power, and so there’s an example whereby using sovereign immunity creatively, combining it with some of these other tools like the full faith and credit agreements, gives a tribe a chance to really project its sovereignty beyond the reservation borders, and that’s what sovereignty is all about."

John "Rocky" Barrett: There were some practical applications that really what generated this thing was child support payments. We were having difficulty getting child support judgments enforced in state court. People would go off reservation and we could… non-Potawatomi spouse, we couldn’t get child support judgments enforced and when the thing was reversed for the state where they wanted to enforce a garnishment I think or I think there may have been a child support issue, we finally sat down with the local district judge and said, it looks like we have the basis for a quid pro quo here and we worked the agreement out and filed it with the Oklahoma Supreme Court. This was back in ’84. It’s been a long time ago. ’85 I guess.

Joseph P. Kalt: "We all work with or know tribes where they’re a long way from being able to walk in and negotiate or secure for example full faith and credit agreement. Where do you start? Think about some of the tribes out there that are struggling without the economic development, without the economic resources, still saddled without a court or with an older constitution not of their own making. Where do you start in this game to build these kinds of capacities to walk in and be able to stand there toe to toe with the state of Oklahoma and say look, 'Our child support system is just as good as yours, we can do this reciprocally?' Where do you start in that?"

John "Rocky" Barrett: "We are the court for another tribe in Oklahoma. We are the court for two of the local municipalities around us who can’t afford their own court and police systems. This other tribe that has come to us, we enforce their statutes. They’ve maintained their sovereignty from the standpoint of having adopted their own set of statutes, but our clerk, our judge, our prosecutor, our public defender, they all function on a…we do it on a contractual basis. They function to act as that tribe’s court, and if it were not for that they couldn’t afford the cost of the infrastructure."

Robert Williams: "And talking about sovereign immunity may be a bit of the tail wagging the dog, because to even get to the point where you can talk seriously about thinking about sovereign immunity, thinking about taking out insurance policies to cover liabilities, negotiating these types agreements with the state, you better have your self-governance act in order, you better have an effective tribal council, you better have an effective constitution, you better have a really good tribal court system with independent judges who are not afraid to make decisions that might be politically unpopular. And so in many ways, to even get to this point that we’re talking about where you’re going to be thinking creatively and strategically about using sovereign immunity as an economic development tool, as a sovereignty tool, there’s a lot of steps that need to go beforehand that tribes need to think about seriously."

Lance Morgan: "It’s a tiny piece of the puzzle. I think that sometimes people talk about sovereign immunity in a negative fashion or something you have to waive or something that will hold you back or keep people from dealing with tribes, but I think that once you get your act together and you start evolving as an entity, as a tribe and as a tribal corporation or something, sovereignty starts becoming a positive. You can use it to ward off kind of nuisance-oriented suits. You can also use it to really start asserting your rights as a tribal government. One of the examples I like to give is that we were in the tobacco business and the state controlled every element of the manufacture, the distribution and we were just at the retail end and they would just cut us off. They’d tell the non-Indian distributor don’t sell to us without state taxes on it or we’ll pull your license. They would never go to bat for us. But we were part of this thing in the late ‘90s where there was a tribal manufacturer, a tribal distributor and a tribal retailer all with sovereign immunity and the state would tell them…they’d call us up and they’d say, 'You better not do it.' Well, we only sold to tribes. We sold to each other. We created an entire distribution system that was protected by sovereign immunity that allowed the tribes to assert what it wanted to do, its own taxation rights on the reservation that it couldn’t do before under the old system. That’s just one example, but there’s a hundred ways that you could use it as a way to step across the line and assert your rights."

Gabe Galanda: "And I would say at a very basic level, you have to walk before you can run as Rob is suggesting, but you can begin to empower a tribal council to begin assessing their sovereignty, just assessing what it means to have sovereignty, and maybe you’re a P.L. 280 tribe which means you have by federal law ceded criminal jurisdiction to certain states. Well, that doesn’t mean that you’ve ceded civil regulatory jurisdiction and the Cabazon case tells us that. So you may have somebody on your reservation who is a nuisance, who is causing problems, who you cannot criminally prosecute by way of P.L. 280 or Oliphant but you can civilly exclude them from your reservation and that is an exercise of sovereignty. Now best-case scenario, you’re civilly excluding them through a tribal court process, but even without a tribal court the tribal council could have the inherent authority to exclude someone civilly from the reservation and they begin to establish their sovereignty in that way. You may have a reservation that’s been completely allotted by the Dawes Act essentially creating a checkerboard environment, where you have fee parcels next to trust parcels next to fee parcels and so on and so forth and you’re confused about who has jurisdiction over what. Well, there’s a law suggesting that you have civil regulatory jurisdiction within the exterior boundaries of your reservation, irrespective of whether there are non-Indians who own fee parcels that were essentially taken from tribes and tribal people in the 1800s. So there’s another exercise in sovereignty. How are you going to harness that sovereignty -- and irrespective of fee title over your reservation in the fact that it’s checkerboarded -- assert civil regulatory jurisdiction over these activities that are taking place within your reservation? Maybe you begin to tax your non-Indian neighbors under your local taxing power, or maybe you begin to assert zoning authority. So there’s a number of ways tribes can begin to walk again before they run to begin understanding what their sovereignty is, notwithstanding all these erosions of sovereignty that Congress and the courts have forced upon tribes, and then once they are more accustomed and more fluent in the language of sovereignty, then comes the more sophisticated discussions about building tribal justice systems, about exercising your sovereign immunity in certain ways, which ultimately is an exercise of sovereignty. And then you can begin to take those steps, and I think it becomes circular and somewhat starts to perpetual itself."

John "Rocky" Barrett: "Yeah, if you don’t exercise it, it doesn’t exist."

Gabe Galanda: "And if you don’t exercise it Congress or the courts will."

Lance Morgan: "You don’t get elected one day and all of a sudden you’re a sovereign, tribal sovereignty, sovereign immunity expert. Those things evolve over time. With Chairman Barrett, you’re talking about somebody who’s been there and functioning and has dealt with all these situations and has learned how to approach these things. This is an evolutionary process and you’ve got to figure…you talked about walk before you can run. You’ve really got to figure out a way to internally in your tribe nurture that kind of environment where a sophisticated approach to this begins to evolve internally."

John "Rocky" Barrett: "I remember the night where we sat down and said, 'Let’s sit down and list everywhere that tribal law applies or could apply if we had the statute.' And we sat down and worked with Browning Pipestem. I don’t know whether you remember Browning. And Bill Rice, who's a law professor at Tulsa University Law School. And we sat down with them one night and basically walked through our set of statutes and what their experiences were with other tribes and talked about what our, what is the gambit of tribal law that could apply that we could use. Interestingly enough, from that night we probably doubled that list since then because of the evolving picture of how we interrelate because we got in the rural water district business and we started operating a state-licensed rural water district basically where the water district leases the operational facilities, the pipe and the water treatment plant and everything from the sovereign of the Citizen Potawatomi Nation and that interaction between essentially what’s the state body -- which we control the board of directors of it -- back to the tribe. That’s a hybrid that we never dreamed that we would have, or this hybrid of us providing the court and police for a municipality, a charter municipality. That’s an interesting cross-deputization issue."

Joseph P. Kalt: "One of the dimensions here that sometimes comes up and you’re starting to touch on it, so often this issue of sovereign immunity is accounted around the big business deal, the bank is depending, whatever. But so much of sovereign immunity often has to do with littler things. A tribal chairman friend of mine one time said, 'You know, if you get a reputation, someone slips and falls in your casino and hurts themselves 'cause you had improper equipment there or you had not repaired the floor or something, that reputation spreads around the community pretty fast and you start to lose business and so forth.' Maybe starting with you, Rocky, there is an element of accountability here not only with outsiders, non-Indians, but Citizen Potawatomi citizens."

John "Rocky" Barrett: "Well, for us in particular, because we operate the largest chain of tribally owned national banks in the country -- and banks are purely creatures of public confidence -- if people don’t feel confident about your behavior as a sovereign in the ownership of this national bank, they’ll take their money out. Obviously, we have more money loaned than we have on deposit, that’s part of the nature of the banking business, and if you can’t keep a reputation with the public intact that you’re going to behave responsibly in all matters, it’s going to end up costing you the capital of the bank. People will run from your bank."

Joseph P. Kalt: "We’ve started to do some research. It looks like the states in the United States with the strongest prohibitions in their constitutions against any waiver of sovereign immunity are the places with the greatest poverty and the greatest reputations for corruption and other malfeasance among the public officials."

John "Rocky" Barrett: "A lack of accountability, yeah."

Joseph P. Kalt: "Lack of accountability."

Lance Morgan: "Sovereign immunity is a wonderful thing to have in a fight. It’s excellent. But it’s also a responsibility. If you misuse it, you won’t have it for long is my guess. If you use it in small context or small ways to hurt someone else’s interest when it’s really not fair, that’s what you have insurance for because you need to hang on to it for the big things, when someone’s attacking the tribe’s assets or going after really a jurisdictional kind of right or a regulatory thing, then it becomes important. But if you use it as a run-of-the-mill thing, it’s really going to be looked on as a negative, and I don’t know many tribes that do that to be honest."

Robert Williams: "There’s a lot of hidden costs here for tribes, and I like the point you make about when we think about sovereign immunity, we think about the big multi-million dollar deals, but if you sit around and think about what Indian people expect of their tribal governments, well, they expect them to provide an economic environment for jobs, they expect them to provide help out on healthcare, they expect them to help out on education. But suppose you can’t get the teacher to come out and teach at that school because they don’t think they’re going to get a fair shake in an employment context because they’ve heard there’s no protection out there for job tenure. Suppose you can’t get a construction company to build that tribal health clinic because they feel that they’re not going to get their contracts enforced. And so it may well be that one of the biggest barriers to exercising sovereignty in all these different areas is this one issue of sovereign immunity, because it creates a perception out there not only amongst non-Indian businesses but amongst the Indian entrepreneurs that this isn’t a good place to invest, this isn’t a good place…"

Joseph P. Kalt: "To be a school teacher."

Rob Williams: "This isn’t a good place to work, this isn’t a good place to teach, and it just might be that one little issue. I like what you said, Rocky, how you guys sat down that one night. I call that the sovereignty audit. I actually encourage tribes to do a sovereignty audit and see where you’re exercising your sovereignty at, and what you’ll usually find out is that you’re not exercising it nearly as vigorously as you think, and it may well be because of this barrier that sovereign immunity may be creating for you."

John "Rocky" Barrett: "Well, it’s claiming where your government has jurisdiction. If you claim the jurisdiction and authority, governmental authority that you’re entitled to, that’s basically the exercise of sovereignty. But the use of sovereign immunity defense in a court action, like Lance said, you don’t just do that casually. That’s using a hand grenade in a fist fight. It’s too much. You just don’t do that until you are attacked by a larger sovereign my guess would be."

Gabe Galanda: "I think sovereign immunity presents the most imminent threat both to business and ultimately sovereignty in the tort regime, and if you think about Mexico for example, people hesitate to drive south of the border because there’s a perception that there is no law and order in Mexico. So on some level that effects their economic bottom line. People would rather just simply go to San Diego or somewhere else rather than Rocky Point or Tijuana, given that perception or even misperception. The same thing holds true to some extent for Indian Country, which is not to suggest it’s not a safe place, but when you have headlines that read 'XYZ Tribe Dismissed Wrongful Death Suit Out of Court Leaving Grieving Widow Without Redress,' people are going to think twice before they head to the casino to ultimately do business and leave their money there for the tribe to then reinvest it in governmental service programs. Same thing can be said of amphitheaters, which are now opening up on the reservation. Casinos and amphitheaters, by the way, are a pretty interesting mix of alcohol and music and dancing and a whole host of things so things will naturally happen."

Joseph P. Kalt: "A lot of slip and falls."

Gabe Galanda: "There’s a lot of slip and falls, there may be in fact fist fights, and that’s not again to suggest that the reservation’s not safe. There is law and order there, there is law enforcement and security. These industries are regulated and over-regulated as a matter of health, safety and welfare, but when headlines begin to appear in the Sunday paper people getting dismissed out of court when something happened and perhaps it was to no fault of their own, someone falling and being hurt or being assaulted by a non-Indian patron and ultimately questioning security of a tribe, those are the kind of headlines that tribes must avoid or those people will not do repeat business and in turn the economy on the reservation will suffer."

John "Rocky" Barrett: "Well, and slip and falls, our grocery store is just a lawsuit magnet. We have one tape after another of people walking in, taking out a bottle of detergent, pouring it out on the floor and laying down in it and start yelling. It is…phony slip and falls. We probably have 20, 25 a year in our grocery business."

Joseph P. Kalt: "Now those kind of situations, I think I’m seeing a trend out there of tribes more and more waiving sovereign immunity around say an enterprise or a particular…and waiving it in to their own courts. Is that what you’re trying to do with your torts for example?"

John "Rocky" Barrett: 'Well, of course the first thing we do is call the insurance company. We try to insure in order to keep it out of the issue of what court has jurisdiction. We’ll let the insurance company handle it as much as we can. Of course, if we can show the person that has the phony slip and fall the piece of tape and say, 'Do you want to go to court on this one?' We’ll try to get it into our courts. We can’t force the non-Indian to appear in our court, but we can if we can prove that person wrongfully came after us, we’ll come after them civilly in our courts and test that issue. The most difficult part of dealing with non-Indians is not having criminal jurisdiction, and most tribes should invoke some form of civil code of behavior that if someone over whom they do not have criminal jurisdiction commits a crime of some kind they should pursue them civilly. In most cases, that’s probably a fine is all they’re going to get any way out of the issue if they’re fortunate to get that."

Joseph P. Kalt: "Lance, you mentioned a moment ago that if you abuse it you’ll lose it, basically. If this is used to really do what is sometimes the fear of essentially escaping responsibility, escaping accountability. I know Rob, as a tribal judge you’ve had some experience with this as a tribal judge. You actually have ruled in such a way as to send the signal."

Robert Williams: "And this is the point I try to make to tribal councils, is that if you look at the experience of the United States government and the state governments, they all asserted sovereign immunity and they asserted it very aggressively and what happened was in the 19th, early 20th century, judges don’t like it. Judges don’t …"

Joseph P. Kalt: "No judges."

Robert Williams: "Yeah. Someone who sits as a judge, you have the sense that your job is to do justice, and here’s this doctrine of sovereign immunity asserted by the State of Arizona, where there’s obviously a debt owed to a contractor and this poor guy may well be going broke because the State of Arizona is asserting sovereign immunity unfairly. You’re going to work very hard to find a way around that, and that’s exactly what happened in other state and federal courts is the judges were starting to chip away. We’re seeing that right now. We’re seeing lower courts, the Supreme Court chipping away at tribal sovereign immunity because quite frankly tribes are the outlier here, that most other governments have taken a very flexible approach and many tribes haven’t taken that approach. So as a tribal judge when I get a case and I feel that there’s an honest debt here or that the tribe was clearly grossly negligent, I’m going to listen to the arguments for that lawyer who’s trying to make a case that the tribe may have impliedly waived it here, but that’s really not good public policy. You really don’t want judges on the tribal court sitting there making these types of ad hoc decisions. What tribes really need to do is do what these other governments did and that is pass tort claims acts, pass administrative procedure acts where the tribe makes the sovereign decision on what forum these claims are going to be litigated at, what’s the amount of liability, when, where and how to keep control over that process so that judges like me can’t go off the reservation as we say and try and make law and make policy on our own."

John "Rocky" Barrett: "Best way to maintain the limits."

Joseph P. Kalt: "Now, Gabe, I’ve heard you express a view though that, 'Let’s not get too easy about waiving sovereign immunity.' I think you’ve had some concern that you waive it too easily you may give up your sovereignty."

Gabe Galanda: "Yeah, and I guess what I’m talking about is the alternative to the sovereign controlling and defining the time, place and manner by which it would waive its sovereign immunity as an exercise of sovereignty. My concern is when tribes are not doing through tort claims ordinances or well-tailored alternative dispute-resolution clauses to commercial loan agreements or other such things, that Congress or courts -- be they tribal, state or federal -- are standing by waiting to define sovereign immunity and waiveall sovereign immunity for the tribal sovereign. So unless you take affirmative steps to do that, you better believe that people on Capitol Hill or in courts throughout the country -- and that includes Indian Country -- will do it for you. And so there’s a number of protective pragmatic steps that tribes can take to insure that they are the ones ultimately legislating waiver."

Joseph P. Kalt: "Give us some examples of those practical steps."

Gabe Galanda: "Well, for example, just looking at the tort environment again, which I believe presents the most imminent threat to sovereign immunity, and the reaction that judges like Rob or judges on the tribal or state bench have is, 'Where is due process?' This person unknowingly perhaps came to the reservation, something happened, they were hurt and now you’re suggesting by way of your 12B motion there is no redress for this person. Well, there are alternatives to even filing the motion to dismiss on sovereign immunity grounds, which in this day and age, with an increasingly skeptical bench, is not wise for tribes to do without at least carefully considering alternatives. So you have an iron-clad general commercial liability insurance policy that makes very clear in certain instances when there are acts or omissions on the reservation by tribal employees or the tribal government itself that there is liability insurance money available. What liability insurance policies give you is two things primarily: defense and indemnification. So the first thing, there is a carrier or carriers on the line who must pay your legal defense bill, and then secondly, in the event a judgment is issued against the sovereign or even an officer or an employee they will indemnify those defendants for that judgment. It all starts with iron-clad liability insurance policies and making sure that ultimately the carrier is standing by to defend and indemnify, but the tribal sovereign still retains all policy-making decisions, decision-making, including whether to assert sovereign immunity and whether to do a host of other things. So first, make sure you have a very good liability insurance policy, and then once that lawsuit is filed and between that point in time and the time when you file, even file an answer, let alone file the motion to dismiss on sovereign immunity grounds, consider alternatives to putting your sovereign immunity in play in court and ultimately your sovereignty on trial. And two, that I recommend increasingly are if the claim has merits and there are available insurance proceeds and as a result of your liability insurance you have some sovereign decision making and authority, perhaps settle the merit, the claim with merit and then again that is good business and that keeps people coming back to the reservation to do business and that avoids the Sunday morning headlines about something happening on the reservation and someone being left without any redress. Secondly, if the claim is just outright without merit like the detergent claim in the grocery store, one alternative is to simply allow that person his or her day in court and to defeat them on the merits. You have a pretty good idea at the outset of a claim whether you can win a case on the merits, and so you might move right past the jurisdictional motion practice and simply beat them on the merits of a matter of summary judgment. They can’t prove that they were hurt, they can’t prove that you caused their harm or they can’t otherwise can’t prove their case against you. So there are alternatives to filing that motion to dismiss that I think tribes need to be very, very concerned with and thoughtful about such as what I just mentioned."

John "Rocky" Barrett: "Yeah, the issue of venue almost always arises in these deals. They want to sue you in state court because they know that you’re going to resist the venue. The lawyers that specialize in defending these phony slip and falls know you’re going to object to the venue, and so they put you in the position of analyzing what the cost of litigation is going to be and tailor their settlement at some number under what they think your cost of litigation is going to be."

Lance Morgan: "I want to change the subject a little bit to something I want to talk about: sovereign immunity, surprisingly. I think sovereign immunity is dangerous in the hands of the politically motivated or the uninformed. I’ve been in so many business deals with tribes where it’s about to happen, something critical that needs to happen and somebody gets up, either on the government side or in the audience in the room and they start making a speech and the speech is wonderful. I start believing it. And really it’s a great speech from a sovereign context, but in a business context or development side, it doesn’t make sense. But since these issues are so easily confused, lots of good things that should have happened don’t happen. And I always make the comment about the proud guy who makes the speech, stops the deal, then goes back to live in his car that’s got an extension cord into someone else’s house, and he’s talking about how sovereign he is. I’m thinking about the implications of doing these kind of things, and it really can hurt you if you don’t understand it or you allow it to be used in a political kind of way."

Joseph P. Kalt: "Particularly the two of you, it sounds to me like there’s got to be an educational role then, in other words to educate your own people so that you minimize the kind of speeches you’re talking about that sidetrack a deal or whatever. Early on in your efforts did you have to talk this issue through or did it just evolve that you got a consensus?"

Lance Morgan: "I think what really happened, I think you’re always going to have the speech problem where someone gets up and does that because you confuse the issues and what we did in our situation was is that we had this problem before, the first time the tribe started a corporation. The second time we started a corporation, 'cause we had failed -- the first one was a total disaster -- and on the second time we did it, we granted the power to waive the sovereign immunity to that corporation through a resolution of the board, so we developed our internal expertise on how to deal with this particular subject and took it out of the political context altogether, because frankly I don’t know how you ever divide it other than by just separating it, because a politician thinks in a certain way and there’s always a way to stop it by giving this kind of speech."

Joseph P. Kalt: "Is this an issue for you?"

John "Rocky" Barrett: "We asked for…we went back to our people for a specific constitutional amendment to put language in our constitution that authorized the tribal legislative body to waive tribal sovereign immunity in dollar amounts for contractual purposes because we thought that if people were going to do business on reservation we wanted to be able to make viable, enforceable contracts with those people and we wanted them to know that we had the authority to make that waiver. In the process of going to the people and asking them to understand this concept, I think our people came out of that with a clear understanding that waivers of tribal sovereign immunity in these kinds of situations was responsible behavior that was expected from its tribal government and it wasn’t something that we were giving up, but it was a business practice."

Robert Williams: "And that’s where education comes in, and I know those speeches, because I’ve given talks before tribal councils before about this issue and someone gets up and makes a speech and what I find is that oftentimes if you say, 'Well, let’s talk about waiving tribal sovereign immunity,' someone gets up and says, 'You’re asking us to give up our sovereignty,' and then what needs to be done is for the leadership to say, 'Well, not really. What we’re talking about is waiving tribal sovereign immunity up to $100,000, up to the limits of liability insurance policies, of only waiving it in tribal courts, backing that up with some education and training for our own tribal judiciary and our own tribal lawyers.' In other words, part of the education process is to make the tribal membership understand that when you talk about waiving sovereign immunity, it’s really limited waivers. I don’t know of any tribe that’s embarked upon this challenge of addressing the issue of sovereign immunity as a sovereignty tool which gives unlimited waivers of sovereign immunity. In fact, some of the research that Joe and I have done has shown that…I was actually surprised, there are many, many tribes that have selectively chosen where they’re going to waive their sovereign immunity, where they’re going to assert their sovereign immunity. So it’s as much a…sovereign immunity -- I think, Lance, you and I have talked before -- it can be a weapon as well as a tool and it has a defensive aspect to it and an offensive aspect."

Lance Morgan: 'Well, there’s really no surprise that there’s confusion about this issue, because it has so many different uses and to use it smart takes awhile to get all the context of it down, so it really is an issue where education matters in these kind of things and discussing it are very important."

Robert Williams: "Yeah, and I’ve looked at some of the laws you guys have passed, and Rocky, and if you sit down -- and maybe I’m going to sort of pull the curtain here and sort of be the Wizard of Oz -- but if you look at tribes that have really thought about this issue and if you look at where they’ve waived their sovereign immunity, it’s a pretty small exposure of liability there, which is exactly what states do. But let me tell you something, when you go to the state court or when you go to the federal court and you can show them all these statutes you’ve passed and all this legislation, what you’ve shown them is you take this stuff seriously and you’ve debated it and these are your public policy decisions and you’re going to get that respected a lot more than just going into that state court and say, 'Well, what have you done on sovereign immunity?' 'Nothing, we don’t have to worry about it.' And that’s what happens."

John "Rocky" Barrett: "I think…I don’t know how many tribal leaders have sat down and played out what happens if the United States Supreme Court essentially rules that sovereign immunity defenses are no longer allowed Indian tribes. How do you…"

Lance Morgan: "Don’t even say that."

John Rocky Barrett: "Well, but it’s something to look at, it’s something to worry about and it’s something to look at. How do you defend the treasury of the tribe, how do you shield its assets? There are still alternatives left to us in creating trusts for the cash assets of the tribe, in protecting…through the tribal courts in protecting the non-cash assets of the tribe, and of course those assets that are held in trust by the United States which can’t be encumbered are in some ways protected. But if you walk through whether or not someone could -- in the absence of sovereign immunity defenses -- make an assessment against future income, there are certainly governmental functions that would shield those in how you assert your tax authority, you could protect income by asserting tax authority over your enterprises. In the event that it happens, I believe that well-thought-out strategies could…you could defend the tribe against a raid on the treasury."

Robert Williams: "And isn’t it true that when you’re thinking about these things, what you’re really thinking about is what’s the least amount we have to give up to get business on this reservation. You don’t want to give away the whole store. You’re really making a calculated decision about sort of the minimal amount of sovereign immunity you have to waive, right?"

Lance Morgan: "Right. It’s always a calculated decision. I mentioned earlier that yeah, we do it all the time, but we’re very specific about how we approach it. We don’t show up with that on our forehead: we’re ready to waive."

John "Rocky" Barrett: "Aren’t you guys doing pretty much what we’re doing? We want people to want to do business on the reservation. We want them there."

Lance Morgan: "It’s a flexible dynamic. We fight hard when someone’s pushing our rights. If it’s a commercial transaction, we’re very flexible. I bet you we have 1,000 commercial contracts and we probably have waived sovereign immunity 30 times. Most of them don’t matter, they’re just small potato kind of things."

Gabe Galanda: "And I guess I would just follow up what the Chairman said, and ultimately there is the threat to tribal sovereignty, most notably by and through local and state government in the event you didn’t have your sovereign immunity, and there’s a great case that the tribes can still use as a shield, which is the Oklahoma Tax Commission vs. Citizen Band, a Potawatomi case -- thanks to Chairman Barrett -- but the other target, if you will, is the tribal treasury as the Chairman suggested, and if or when that day comes when sovereign immunity is no longer a viable defense for tribes, they will be sued frequently like corporate America is being sued. And unfortunately the potential through litigation, class-action litigation or other personal injury litigation could ultimately bankrupt the tribe and leave them without a viable operation. So that’s really what’s at stake is at the end of the day tribal proceeds that are used to provide governmental services to Indian people is what’s really at issue when sovereign immunity is not used responsibly."

Joseph P. Kalt: "I’m going to have to wrap this up, but I want to say first thank you to all of you. I’m struck by this conversation. What we’re actually watching is this increasing sophistication of tribal governments playing on the stage with other governments, because all around the world the strategic use of things like your sovereign immunity is an asset you don’t want to waste. It’s what governments all around the world tussle [with] and think through all the time, and it’s very encouraging, I think, to see the kinds of lessons you all are bringing to us. Thank you very much for this discussion."